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.

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 ;)].

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.

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

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.

In the last post, I referred to a concept, Naïve Realism, that I should have defined and seems likely to prevail among our people after President Trump’s Oval Office Address this evening.  In return for ending the government shutdown, the President is widely expected to call for the funding of additional wall construction along our southern border to stem what he and his cohort are claiming to be a “crisis” of illegal entry into our country by migrants and terrorists.  Mr. Trump may threaten to declare – although the Washington Post is currently reporting that it is unlikely that he will declare — a national emergency; such a declaration would reportedly provide him with what some pundits have described as largely unfettered authority to divert funds from other defense initiatives to the construction of the additional border barrier.

Meanwhile, mainstream media outlets aggressively point to government data as evidence of the lack of any emergency, and a number of commentators – including Chris Wallace of Fox News – have pretty effectively shown that literally only a handful of the 4,000 suspected terrorists that the Homeland Security Agency states that it detains at our borders every year are apprehended at our southern border.  [There appears to be an ongoing skirmish as to the relative threat posed by the 3,000 “Special Interest Aliens (SIAs)” that U. S. Border and Customs Protection reports it has encountered in 2018 at the southern border.  On one hand, DHS indicates that a SIA may pose a national security risk due to travel patterns and like factors indicating a potential nexus to terrorism; on the other hand, DHS states that a SIA designation does not indicate any derogatory information about the individual.  You be the judge.]

In short, this dispute has evolved into the kind of political rugby scrum that existed before the Trump presidency but has been exacerbated by it:  the President shouting an emotional, disingenuous, divisive message that stokes his base; Democrats and the mainstream media countering with facts that, while overall having the better part of truth, are presented with a highly partisan relish.

Mr. Trump’s supporters hope that his speech tonight will sway a larger segment of our citizens to his position; his opponents fear that such might occur.  This may prove to be another prediction that is only so much Noise, but I don’t think we’ll see much movement.

A while back, one of our sons gave me the book, The Three Languages of Politics, by Arnold Kling.  At one point, Mr. Kling refers to the concept of Naïve Realism, which he describes as “… each of us naively believ[ing] that our perspective is real, even though different perspectives contradict one another.”  He in turn cites a piece by Psychology Professor Matthew Lieberman, who describes Naïve Realism as “an unfortunate side effect of an otherwise adaptive aspect of brain function” which serves us well when perceiving the physical world but can readily betray us in the social domain of understanding, where “… our ‘seeing’ is driven less by external input and more by expectation and motivation.”  A link to Professor Lieberman’s (short) piece is below.

https://www.edge.org/response-detail/27006

“Naïve Realism” may simply be a highfalutin way of describing what we all know:  that we each more readily accept what we want to believe.  In any event, I would suggest that the President’s supporters – alarmed by the threat they believe exists at the southern border — will be moved by his address, and enthusiastically support any action he takes; his opponents – believing the President’s claims a political sham — will sharply dispute his assertions, and aggressively attempt to counter any measures he initiates.  Those anywhere in the middle will probably dismiss the whole fracas as political posturing – and simply want the government reopened.  Virtually no citizen’s opinion will be altered.  (Indeed, I wonder how many of our people are even still listening; Mr. Trump’s constant maelstrom seems to have exhausted not only his opponents but many of his supporters).

I am concerned about the ramifications of what appears to be Mr. Trump’s current course for two reasons, however:  first, his showing tonight will dilute one of the few tools of the office that he hasn’t already sullied to create a national consensus if our nation is ever confronting a true emergency during his presidency; and second, although his declaration of an emergency, either tonight or in the future, would presumably create a path to reopen the government by getting him – at least in the short run — the funding he demands while enabling the Democrats to have stood their ground, I fear that his invocation of an emergency will give Democrats a rallying cry to attempt to curb a President’s emergency powers.  It may likewise cause a judge to rationalize limits on a President’s powers that will adversely hamstring future Presidents.  The fact that we currently have an unprincipled and ill-suited person filling the office is, in my view, insufficient ground to limit the latitude to act in our behalf that we want at the disposal of an able and well-intended Chief Executive in the time of true national emergency.  (There is, of course, also the countervailing concern that could arise from any challenge to the President’s actions:  a judge’s rejection of limits on the President’s power could cause Mr. Trump, if over time he feels increasingly besieged, to feel dangerously emboldened).  I would submit that Congress – even in a more bipartisan, nationally-focused iteration than exists today – is by necessity too unwieldy to move with the resolve and alacrity required in a true time of need; further, I would venture that the chances are extremely high that we will more quickly return an able, well-intended individual (of either party) to the presidency than we will be able to install a majority of Senators and Representatives able to look beyond their own respective political self-interests to the good of the nation as a whole.