On the Foxconn Unraveling and Related Reflections

This supplements earlier references in these pages to Wisconsin’s relationship with Foxconn: a transaction that is now becoming almost undisputedly recognized as a fiasco. Despite Foxconn’s recent declaration – after jawboning by President Trump – that the facility will include manufacturing capability, upon hearing of the Foxconn statement, I had the same thought as set forth by Charlie Sykes in The Bulwark article linked below:

“[The Foxconn statement about maintaining manufacturing at the Wisconsin facility] seemed driven more by a desire to kiss the president’s ring than by business realities. So what will Foxconn do? Short term, they are likely to maintain a sort of Trumpian Potemkin village in Wisconsin to keep up the appearance that the company is doing Trump’s bidding. [My emphasis].”

https://thebulwark.com/the-foxconn-boondoggle-was-even-worse-than-we-thought/

Mr. Sykes clearly implies that he believes that Foxconn simply intends to wait out Mr. Trump. If the President’s political fortunes continue to slide, it would seem likely that Foxconn will ultimately quietly scuttle its Racine manufacturing plans with no real fear of U. S. reprisal … but with possibly significant consequences for Mr. Trump’s potentially-pivotal 2020 Wisconsin electoral prospects.

Mr. Sykes’ comment reminded me of a reference in a recent Wall Street Journal piece about current U.S. – E.U. trade negotiations, which suggested that in the face of aggressive U.S. demands, one of the E.U.’s strategies may be simply … to wait out the Trump Administration.  As recently as last Friday, the Journal similarly reported that in current U.S.-China trade negotiations, “…Chinese officials seem confident of a deal because they believe Mr. Trump needs the political boost … The Chinese team came [to the negotiating table the week of January 28] with very few new proposals … Instead, the officials largely reiterated [past Chinese] pledges ….”

If the President’s political standing doesn’t improve, Mr. Trump and his team may find that over the next two years, delay and retrenchment become favored tactics across a wide spectrum of those from whom the Administration is seeking concessions.

On William Barr’s Nomination for Attorney General: Part II

If one intends to review this post, but has not yet read Part I (which is immediately below), I would start there ;).

I understand that William Barr’s nomination for Attorney General will be reported out of the Senate Judiciary Committee today. While I appreciate the unease that Democrats feel regarding the prospect of Mr. Barr’s directing the Special Counsel inquiry, I would suggest that their concerns are insufficient to reject his nomination. I would vote to confirm Mr. Barr as Attorney General.

As noted in Part I of this post, no one questions Mr. Barr’s objective qualifications to serve as U.S. Attorney General. The majority of Democrats’ concerns center on the memo he provided to the Justice Department (and President Trump’s legal team) in June of this year. While it strains credulity to discount the notion that Mr. Barr intended this memo as an application for the A.G. position, surprisingly little of the commentary I have heard has remarked upon what I consider a pertinent fact: that Mr. Barr’s apparent defense of the President was limited to what he considered, on public policy grounds, as an inappropriate expansion of the applicability of the federal obstruction of justice statute to acts of Executive discretion. Interestingly, he was making the case against such expansion at a time when conventional wisdom held (and apparently the President and his advisors believed) that Mr. Trump’s legal transgression, if any, had more or less arisen from an inadvertent obstruction of justice borne of his New York real estate instincts.

Beginning with Donald Trump, Jr.’s 2017 admission that the 2016 Trump Tower meeting involved a discussion of how Russian representatives could provide the Trump Campaign information damaging to Secretary Hillary Clinton’s campaign, a string of ever-more-damning revelations seems to be casting aside the previously prevailing impression that in their dealings with the Russians, members of the Trump campaign were shady dupes rather than active conspirators. Now, we have seen serious indications that (1) agents of the Russian government hacked the Democratic National Committee’s email server; (2) the Russian agents delivered the hacked emails to Wikileaks; and (3) Wikileaks was in communication with Mr. Trump’s longtime confidant, Roger Stone. Subject to correction by the learned eyes that read these pages, I understand that if Mr. Mueller is able to establish that Wikileaks affirmatively coordinated with the Trump Campaign, through Mr. Stone or otherwise, to “drop” electronically stolen DNC emails damaging to Ms. Clinton at times opportune to the Trump Campaign … that’s a criminal conspiracy.

It should seemingly be noted that Mr. Barr said little in his memo regarding the ramifications that would ensue if the Special Counsel presented solid evidence showing that the Trump Campaign had criminally conspired with the Russian Government against Sec. Clinton – and that what he did say, in light of current circumstances, may provide scant comfort to the President: “If [the President and his campaign engaged in illegal collusion], then the issue of ‘obstruction’ is a sideshow … Mueller should get on with the task at hand and reach a conclusion on collusion.

Partisans on both sides are currently all too-ready to impute ulterior motives to those with whom they disagree. If solid evidence that senior members of the Trump Campaign illegally colluded with Russia is presented to Mr. Barr by a universally-respected investigator, I suggest that one need assume either that he will bring the information to the Congress, or that he is a partisan – indeed, traitorous – blackguard. I am willing to believe, unless and until I have evidence to the contrary, that Mr. Barr will do what is necessary to protect the United States while conducting his duty. While he clearly auditioned for the position he will now hold, it should not be forgotten: that his opinions regarding the President’s constitutional prerogatives and the limitations of the federal obstruction of justice statute are legally defensible; that he is not a longtime confidant of President Trump, having risen in the G.H.W. Bush administration; that he has testified that he has respect for the Special Counsel, and does not believe that Mr. Mueller would engage in a “Witch Hunt”; and that he has indicated that he will release as much of the Mueller Report to the public as he can in accordance with DOJ guidelines. I judge his qualified responses regarding release of the Mueller report and any conflict of issues he might have to comport with what one would expect from an able, savvy public servant intent on keeping his options open. Even if he doesn’t release Mr. Mueller’s full report to the public (which could be for completely justifiable grounds such as protection of CIA and FBI sources and methods), it doesn’t mean that he won’t make the entire report available in closed session to appropriate members of Congress if there is evidence of behavior threatening to the Republic. I suspect that he will ultimately opt to release the full report, for two reasons: his failure to do so will raise doubts about his role in the process, and … it will inevitably get out anyway.

There is reportedly some Democratic concern that Mr. Barr might redact parts of the Mueller Report dealing with President Trump’s behavior because there can be no recourse against Mr. Trump arising out of the Special Counsel’s investigation; a sitting President cannot be indicted under DOJ guidelines. Even if such would be the case, I would offer that Democrats’ concerns are misplaced. I don’t believe that there is a DOJ policy against indicting a President’s relatives. If the Mueller team has uncovered solid evidence of collusion between senior Trump Campaign officials and Russian operatives, it will almost certainly implicate Donald Trump, Jr. and Jared Kushner; if indictments of those worthies are handed down, the media focus on their criminal proceedings will not only be tantamount to indicting the President, it will emasculate what remains of his presidency. We could ironically end up with a situation in which Republicans want the President removed from office, so they can begin a political recovery under then-President Pence, while Democrats are content to have Mr. Trump swing in the political winds.

On William Barr’s Nomination for Attorney General: Part I

It is being reported that the confirmation vote on President Trump’s nomination of William Barr to become Attorney General will be brought to the Senate floor in coming days. A delay in the process has been caused by Senate Judiciary Committee Democrats’ concerns regarding Mr. Barr’s broad view of presidential power and how those views might affect his reasoning as to what parts of Special Counsel Robert Mueller’s report will be made public. It has also been reported that Mr. Barr’s nomination is expected to be confirmed by the Senate when brought to a vote.

As I’ve indicated in several past notes addressing other Presidential nominations, I follow an admittedly simple two-factor analysis in deciding whether I think the nominee should be confirmed:   Is the nominee objectively qualified for the position? If so, is there any other objective factor that should nonetheless disqualify him/her from the position for which s/he has been nominated (e.g., prior criminal conviction, demonstrated drug abuse problem, etc.)? Since the Constitution provides our President the power to nominate whom s/he considers appropriate, I don’t believe that a nominee’s subjective leanings or policy positions (if within the bounds of law) should be part of the equation.

No one questions Mr. Barr’s objective qualifications to serve as U.S. Attorney General; indeed, he has already satisfactorily filled the post under President G.H.W. Bush. Democrats’ concerns focus on ancillary (albeit noteworthy) factors:

(1) That Mr. Barr seemingly auditioned for the job by sending Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel a memo (which Mr. Barr apparently also supplied to the President’s personal lawyers) disputing the legal premise, which Mr. Barr attributed to Mr. Mueller, that a President of the United States could be found guilty of obstruction of justice for performing what the nominee called “facially-lawful” acts due to an allegedly “improper motive.”

(2) That during his confirmation hearing, Mr. Barr refused to state that he will release the Special Counsel’s full report to the public.

(3) That Mr. Barr also testified that he will make his own judgement regarding whether to recuse himself from direction of Mr. Mueller’s investigation due to any perceived conflict of interest, even if such issues are raised by DOJ authorities.

It should be noted that Mr. Barr also testified that he would resign rather than discharge Mr. Mueller without good cause, that he has great respect for Mr. Mueller, and that he does not believe that Mr. Mueller would engage in a “Witch Hunt.”

The link to Mr. Barr’s memorandum is provided below. It is a dense document that only a lawyer would savor reviewing.  Although the nominee labored at length, his legal premise is narrowly focused on the applicability of the federal obstruction of justice statute to a President’s behavior; in his note, he asserted that particularly in what has become a hyper-partisan environment, we cannot risk hamstringing the Executive’s ability to perform a Constitutionally-authorized function by enabling opponents of the action to mount obstruction of justice hurdles to its execution based entirely on allegations that the Executive is acting due to an improper motive.

While I confess that I have not digested all of Mr. Barr’s memo, I did attempt to discern its gist, and note the following passages:

Page 1: “Obviously, the President … can commit obstruction [by] sabotaging a proceeding’s truth-finding function….[I]f a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or the availability of evidence, then he, like anyone else, commits the crime of obstruction [citing behavior by Presidents Nixon and Clinton].”

Page 3: “[I]f a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime – not a debatable one. [Emphasis in Original].”

Page 3: “Fourth, even if one were to indulge in Mueller’s obstruction theory … the President’s motive of removing Comey and commenting on Flynn could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion. [Underscore Mr. Barr’s emphasis; italics mine].”

Page 10: “The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct.”

Finally:

Pages 12 – 13: “Under the particular circumstances here, the issue of obstruction only becomes ripe after the alleged collusion by the President or his campaign is established first [sic] …. Until Mueller can show that there was unlawful collusion, he cannot show that the President had an improper ‘cover up’ motive….Either the President and his campaign engaged in illegal collusion or they did not. If they did, then the issue of ‘obstruction’ is a sideshow … Mueller should get on with the task at hand and reach a conclusion on collusion. [My Emphasis].”

https://assets.documentcloud.org/documents/5638848/June-2018-Barr-Memo-to-DOJ-Muellers-Obstruction.pdf

Are the Democrats’ concerns about Mr. Barr’s legal opinions and restricted responses regarding conflict of interest and publication of the Mueller Report sufficient that his confirmation should be denied? I submit that they are not … but also that Mr. Barr’s positions may ultimately provide less comfort to the President than Mr. Trump thinks. To finish in Part II.

Making Federal Election Day a National Holiday

I assume that most are now aware that Republican Senate Majority Leader Mitch McConnell has sharply criticized House Democrats’ Bill HR-1, which includes, among other electoral reform changes, a provision designating federal election days as paid holidays for federal workers. (There are many parts of the bill that seem, at least as reported, sensible to me, but I haven’t read the bill and a reaction to its overall effect is beyond the scope of this note and at least as of today, my ken.) No end of pundits have hooted at Sen. McConnell’s comments, noting that they constitute a tacit admission of what voting statistics have consistently shown for quite a while: at least in politically purple areas of the country, the more people that vote, the better the Democrats fare.

While I deplore Mr. McConnell’s obvious sentiment – as dewy-eyed as I know it sounds, every American should hope that every American that is legally eligible to vote does so – I concur with the premise that we do not need additional federal cost without productivity at a time of spiraling deficits. I would suggest that Democrats call Mr. McConnell’s bid, and raise: offer a separate bill that makes federal election days national holidays (a counter that would cover all of our nation’s workers, not just federal employees) while providing that Presidents’ Day (which is apparently technically still called, “Washington’s Birthday”) shall only be observed as a national holiday in years in which federal elections are not held. (I originally considered the notion that Election Day replace Columbus Day, which is closer on the calendar to federal election days, but I understand that not all states heed Columbus Day.) It does not seem Noise to suggest that the Father of our Nation might consider a change to federal law that made it easier for more Americans to vote a greater testament to his legacy than remembering his birthday; I know I would.

Such a modification to the Democrats’ current measure would facilitate voting by our citizens while not increasing federal costs. [Somehow, I still don’t think Sen. McConnell will go for it ;)].

On Delaying the State of the Union Address

Article II, Section 3 of the Constitution of the United States provides, in part, as follows:

“[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend for their consideration such Measures as he shall judge necessary and expedient ….”

Speaker of the House Nancy Pelosi has indicated that President Trump is not welcome to deliver the State of the Union address in the Chamber of the House of Representatives as long as the current government shutdown lasts. Although the Constitution does not provide that the President shall deliver his view of the State of the Union to the Congress every January (or even annually), nor indicate that the President needs an invitation from the Speaker of the House to do so, that’s the way it’s gone throughout my reasonably long lifetime. I’ve seen recent media accounts reporting that except in a relatively few nonpartisan instances, each of our Presidents since Woodrow Wilson in 1913 have come to Capitol Hill and delivered a State of the Union address.

Anyone that digs far back into these pages will find that I have repeatedly lambasted Senate Majority Leader Mitch McConnell for his refusal to allow either Senate hearings or a Senate vote on President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Sen. McConnell’s motives were blatantly partisan; he realized that hearings would demonstrate that Judge Garland was a well-qualified candidate for the Supreme Court, and that the Senate’s inevitable rejection of the nomination (because Judge Garland was considered too liberal for conservatives) would be castigated as flagrantly political. Mr. McConnell’s actions constituted an abject dereliction of duty.

I don’t believe that those of us that advocate for adherence to the rule of law – or even simply to our traditions – should feel free to abandon that stance when maintaining it is less comfortable. Although Ms. Pelosi originally cited security concerns as a subterfuge for delaying the President’s Address, it is glaringly obvious that she wishes to prevent the President from using the Address to assert his view of our need for the border wall – and to cast blame for the current government shutdown on Democrats – while leveraging Congressional trappings to enhance his credibility.

I find the President’s assertions regarding the need to extend a southern border wall to be based on fabrication and bigotry; given his messaging, I consider Mr. Trump’s “Wall” to be, symbolically, akin to the Nazi Swastika. He is an unscrupulous reality show charlatan that manipulates a segment of our people’s darkest fears and instincts for his own advantage. I have sympathy for Ms. Pelosi’s desire to deny the President an august forum to spread disinformation with overtones of racial bias. In the context of the current dispute, it was an adroit maneuver, and I acknowledge that it may have avoided a fraught scene that every American would find alarming. It nonetheless seems to me that her refusal to allow the President to speak until the shutdown ends constitutes an abandonment of her responsibilities not that unlike Mr. McConnell’s actions with regard to Judge Garland.

Mr. Trump is the President of the United States. The Constitution mandates that he provide Congress information regarding the state of nation from time to time (now, by longstanding custom, in January on Capitol Hill), “… and recommend for their consideration such Measures as he shall judge necessary and expedient ….” The fact that what Mr. Trump “judge[s] necessary and expedient” is abhorrent to many of us is not, in my view, sufficient ground to deny him the House pulpit. Although this is an extreme (and hopefully unique) example of such a virulent dispute, what happens the next time that the President and the Speaker are from different parties? Would it have been appropriate for former Republican House Speakers John Boehner and Paul Ryan to have refused to invite Democratic President Barack Obama to speak until he agreed to water down the Affordable Care Act?

I think it would have been wiser for Ms. Pelosi to let Mr. Trump deliver the State of the Union in the traditional manner, with Democrats providing a rebuttal in a suitably impressive setting (I can’t believe they couldn’t find one) immediately thereafter. Mr. Obama, significantly more popular than his successor, would seem the obvious choice to deliver such a response.

Perhaps as great a danger of Mr. Trump’s presidency as the lies and hate he spews is the way he has taken us to the tops of so many slippery slopes.

Meacham: Ronald Reagan’s Hopeful Farewell

The attached link is to a New York Times opinion piece by historian Jon Meacham.  As most reading this are aware, I consider Ronald Reagan – despite the fact that in retrospect, I am troubled by the ultimate effects of some of the fiscal policies he initiated — to have been [at least up to this point — always have hope for the future  🙂 ] the best President of my lifetime.  I hope you can access Mr. Meacham’s essay.

https://www.nytimes.com/2019/01/10/opinion/reagan-trump-speech.html

The Wall and the Swastika

Speaker of the House Nancy Pelosi, on January 4, 2019:

“A wall is an immorality.  It is not who we are as a nation.…  This is not a wall between Mexico and the United States that [President Trump] is creating here; it’s a wall between reality and … [the President’s] supporters. … He does not want them to know how he is hurting them, so he keeps the subject on the wall….  We are not doing a wall … A wall is an immorality between countries.  It’s an old way of thinking.  It isn’t cost effective.”

Senate Majority Leader Mitch McConnell, on January 8, 2019:

“As recently as 2015, Sec. Clinton boasted, ‘I voted numerous times to spend money to build a barrier to try to prevent illegal immigrants from coming in.’ … Obviously, that was then.  … Today, the new Speaker of the House is trying to argue that a physical barrier is ‘immoral.’  …  Now look, walls and barriers are not immoral.  How silly.  … [B]ack in 2006 … then-Senator Clinton, then-Senator Obama and [Sen. Chuck Schumer] were proud – ‘proud’ – to vote for physical barriers.  The only things that have changed between now and then are the political winds and, of course, the occupant in the White House.  So this is no newfound, principled objection; it’s just political spite – a partisan tantrum being prioritized over the public interest [My emphasis].”

One of the legal areas to which I devoted my career was trademarks.  Among the major tenets of trademark law is the stronger an association members of the public attach to a mark over time, the greater its power.  Occasionally, when speaking to our marketing folks about general trademark law principles, I would refer to the Swastika — perhaps the best example in history of the connotations a mark can gather.  Its design is artistic, symmetrical, and powerful.  It would have been a great mark for a gym shoe.  Over centuries, it enjoyed extensive and positive connotations across Eastern cultures and in this country.  I recall us seeing depictions of it in ancient Native American art during a recent trip to the southwest.

Its pedigree prior to the 1930s doesn’t matter.  While one could argue that any graphic design is just “a design” … the Swastika cannot be viewed as a design.  It was made synonymous with monstrous evil.

I would suggest that at least in the remarks noted above, Rep. Pelosi weaved disappointingly between the moral, political, and practical in trying to explain why she called the Wall an “immorality.”  While there are apparently valid concerns about whether $5 billion to extend the border wall is an effective means to enhance our border security, if the disagreement is framed in practical terms, it’s hard to contend that the government should be shut down over a mere fraction of the federal budget.  Either Ms. Pelosi couldn’t articulate her fundamental rationale (very unlikely) or didn’t want to inject provocative rhetoric into an already fraught situation (most probably).  For his part, Sen. McConnell’s indication that it is “silly” to label a wall “immoral” was, in the current context, possibly oblivious but more probably a politically disingenuous side step.  (I suspect that if one reviewed Sen. McConnell’s early Senate speeches – he was first elected in 1984 – one might well find that at some point, he called the Berlin Wall “immoral.”)

There has to be a higher principle than depriving the President of a political lollipop or the wall’s cost efficiency to require so many of our people within and outside the federal government to deal with the economic hardship they are now facing.  There has to be a purpose worthy of their sacrifice.  I would submit – being acutely aware that this impasse is creating no financial hardship for me – that there is.  The Border Wall shouldn’t be funded because — in the current context – it is no longer a “wall”; it is an immorality.  When Sens. Obama, Clinton, and Schumer were voting during the Republican Bush Administration to fund border construction, they were supporting a structural means for reducing illegal immigration.  When at the beginning of his campaign Mr. Trump declared Mexicans – and by extension, all brown-skinned peoples — crossing the border “murderers and rapists,” and as during the last several years he has repeatedly indicated that he will stop the (nonexistent) “invasion” he claims is occurring at our southern border through a “great, big, beautiful wall,” he transformed a structural means of reducing illegal immigration into a symbol of racial bigotry.

Sen. McConnell was unwittingly right on a couple of points:  2006 was then – when a border wall was just … a wall.  I suspect that under future administrations of either party, a border wall will again be considered merely a means to reduce illegal immigration.  However, while we have – using Mr. McConnell’s words — “the current occupant in the White House,” the wall is a trademark of hate.  Its funding should be rejected.  Hopefully, Democrats are holding fast for the right reason as our people’s financial hardships multiply.