The Trump Administration

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Pardons and Guilt

Last night my husband and I were watching “All In” with Chris Hayes and there was a lot of speculation about Trump pardoning Manafort, et al.  I got curious about Watergate pardons and did a search.  Turns out that except for Ford pardoning Nixon, there was only one other – Reagan pardoned one of the burglars.  But in my search I turned up this very interesting commentary by Jill Wine-Banks  (Three ugly Watergate lessons for President Trump, Chicago Tribune) who was an Assistant Watergate prosecutor.  Written in July 2017, it contains information I had never heard before.  Wine-Banks outlines three things one should think about before accepting a Presidential pardon.

First, it is an admission of guilt.  I had no idea, but the controlling case law is a 1915 Supreme Court decision, Burdick v. United States:: 236 U.S. 79 (1915).

The first thing President Trump and voters should know is that anyone who accepts a pardon admits guilt by doing so. That means, even if Trump could pardon himself — a long-debated legal gray area — as well as any family members and aides, he and they would be admitting guilt by accepting the pardon. And under the Constitution, the president’s pardon power does not apply to impeachment proceedings that could — and might well — be triggered by his pardoning himself or even the others.

That is the result of the U.S. Supreme Court’s 1915 Burdick decision. It was the basis of President Ford’s written explanation to the House Judiciary Committee regarding his pardon of Nixon. For the rest of his life, Ford carried a portion of the Burdick decision in his wallet.

In 2014, I appeared on a panel at the Gerald R. Ford Presidential Library and Museum in Grand Rapids, Mich., with Benton Becker, the lawyer Ford sent to Nixon’s San Clemente home to offer the pardon. Becker described his meeting with the recently resigned president as painful. It was his duty to explain to Nixon, as instructed by Ford, that if he accepted the pardon, it was an admission of guilt. Becker reviewed with Nixon a copy of the Burdick decision that he had brought with him to California.

Nixon accepted his guilt in the Watergate controversy by accepting the pardon. Anyone Trump pardons would be doing the same.

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Second, the pardoned person loses access to the Fifth Amendment.

Second, Trump should know that anyone who accepts a pardon loses his or her Fifth Amendment right against self-incrimination and can be forced to testify under oath. The resulting testimony can be used against President Trump. Of course, should anyone pardoned refuse to testify or testify falsely, the person can be jailed for that offense.

Wine-Banks’ third reason is that pardons would not save Trump politically.

Third, the president should understand that his potential use of the pardon and the possible firing or limitation of special counsel Robert Mueller’s investigation are likely to cause as much backlash as such conduct did during Watergate.

I hope that some lawyers are thinking about Burdick and trying to explain it to clients and to the President.  Would he really want to have Don Jr. or Ivanka admit guilt?  He probably doesn’t care about the others.

We are trapped in a drama few of us want to watch, but we can’t turn away from watching.  Look for more surprises.

Photograph: Corbis

 

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Civil Servants are the best

I estimate that 98% of my work life was spent either in government or with a nonprofit so I think I know a thing or two about both kinds of organizations.  I have been thinking since the election in November that government workers, bureaucrats, civil servants and nonprofit organizations will be the ones to save our democracy.  The two actions that have gotten the most attention thus far are the State Department’s dissent memo with over 1000 signatures and the Alt National Parks websites.  And employees in other agencies like the Environmental Protection Agency and NASA are also acting by just doing their jobs and setting up alternate media sites through which they can release information.  So I was interested to come across this story expressing a similar point of view.

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One of our National Park Rangers.

I had just come home from Boston where I had picked up a print copy of the Globe and I started reading the Magazine and began laughing.  In his Perspective essay, Dear civil servants:  Keep it up.  No, really., Scott Helman begs the nation’s civil servants to keep doing their jobs.

Good day, Mr./Mrs./Ms. Servant.

I ask humbly: May I approach your coffee-splattered desk? I promise this won’t take long. It’s only the survival of the republic that we need to talk about. I’ll speak quietly. I can even sing my plea lite-rock style, so it blends in with the tunes from your clock radio. Better not to arouse your supervisor’s curiosity.

Let’s clear the air first. Listen, it’s true. For years you’ve been a punch line. Admit that sometimes you made it easy, with your interminable cigarette breaks, your surly manner, and your dawdling pace — unless there was only one glazed cruller left in the box.

Wait, wait, wait — come back! You’re right. Sorry. Really sorry. Old habits, you know?

Seriously, though: You, my friend, are the most important person in America right now. A nation turns its jittery eyes to you.

Helman continues

As the political churn reaches your cubicle, I ask of you this: Smile, nod — hell, bake a Bundt cake if you need to. And then: Continue on your merry way. Keep doing your thing.

Please continue producing non-biased, fact-based reports and stats on global warming, federal deficits, health care coverage, and whatever else comes across your desk. Go where the science or the numbers lead you, not where someone above you wants them to go.

Please speak up if you’re asked to do something unethical, and blow the whistle if you see something wrong.

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Look, I know you can’t buck every political decision. Elections have consequences. I get that. Maybe you even welcome the change, unlike those cheeky chums from the national parks who started shadow Twitter accounts.

But this is bigger than politics or party. We need you to protect that bedrock as if our lives depend on it. Because they might. You are but a cog in a massive machine, yes. But the machine cannot run without you. Exercise your judgment and talent and authority wisely.

I know it can’t be easy.  When I was working in Virginia state government, the Governor appointed a new agency head who was not all that competent.  (I learned years later from him that much of what he did was at the direction of the Governor’s Office.)  At one point an employee moral survey was conducted, but the results were not released.  A couple of us got hold of the results and leaked them to the Washington Post.  To this day, I’m not sure any one except us leakers knew who the source was.  We knew we were taking a risk, but in the end, some changes were made, changes that impacted all State employees.  So I know that civil servants can act against the powers that be.  Helman ends with

One more thing. Don’t let anybody tell you that pushing back against a sinister agenda is somehow un-American. To the contrary. It’s the most American thing you can do.

 

Photograph:  Nick Adams / Reuters

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Resistance

Beverly Gage had an interesting essay in Sunday’s New York Times Magazine, “A ‘Resistance’ Stands Against Trump.  But What Will It Stand For?  In it Gage discusses the history of the word, resistance, and how it has transformed at various times from being against to finding what it is for.  Right now, when we talk about resisting Trump, or perhaps I should say that when I use the term, I mean taking a stand against his proposed (and some implemented) actions that can remove my civil rights and civil liberties.  I think each participant in the current Resistance stands for his or her own reasons.  So how can we coalesce into a positive movement?

Before Trump’s election, anyone who claimed to have been a member of “the resistance” was most likely over the age of 85, a veteran of anti-fascist struggles in France and other Nazi-occupied territories during World War II. That resistance involved armed conflict and personal risk of the bleakest sort, with guerrilla fighters hiding in the catacombs of Paris while Hitler’s forces did their worst above ground. Under fascist rule, there were no plausible options for political engagement. It was a fight to the death, and in early 1940s Europe, before the arrival of Allied troops, the outcome was far from certain. Talking about resistance still evokes this sense of honorable struggle against an occupying power. It implies patience as well as militancy, the ability to say no over and over and over again, to refuse to cooperate until the whole system crumbles.

After the war, anticolonial movements from South Africa to Northern Ireland found their own strategies of resistance, settling in for long, sometimes bloody fights.

Of course, the American south had “massive resistance” to school integration.  I remember well the year my hometown of Moorestown, New Jersey, hosted a group of young men and women from Prince Edward County, Virginia who were just trying to finish high school after “massive resistance” closed the schools.

The American left created a different language of resistance, much of it focused around the anti-conscription activities of groups like the War Resisters League. This anti-draft sensibility reached its peak in the late 1960s, during the Vietnam War, when student activists proclaimed a transition, per one slogan, “from Protest to Resistance.” As the movement veterans Staughton Lynd and Michael Ferber pointed out in their 1971 book, “The Resistance,” that shift grew out of a desire to embrace “a deeper and riskier commitment, a move that warranted a new term to replace ‘dissent’ and ‘protest.’ ” The goal was no longer simply to object to the war; it was to throw a wrench into the war machine and make it stop. Antiwar activists continued to engage in peaceful protest — but now some also burned draft cards and firebombed R.O.T.C. centers. A small number, like the Weathermen, took up bona fide guerrilla activity, planting bombs at the Capitol, the Pentagon and other prominent buildings.

The Michigan Republican who tweeted that we needed another Kent State to put down the current protests hasn’t read his history:  Kent State stiffed the resistance to the Vietnam War rather than ending it.  I remember the nonviolent movement being galvanized by Kent State.

As the war and its life-or-death stakes came to an end, so, too, did the embrace of resistance as a literal armed underground conspiracy. But while it faded as a political strategy, it began to gain prominence as a category of academic social analysis, the sort of thing that anthropologists and historians looked for in their studies of human societies. This was part of a broader trend toward “social history,” with its insistence that ordinary people — not just generals and politicians — could be the agents of serious historical change. Sometimes this meant studying organized revolts, like slave rebellions or peasant uprisings. By the 1980s, though, “resistance” had come to encompass a much broader set of behaviors. Enslaved or oppressed people might resist by taking up arms, but they might also resist simply by refusing to do as they were told. The political theorist James Scott called these “everyday forms of resistance” — a category that could include giving a sullen look to an employer, deliberately misfiling forms or just living life, as much as possible, on terms of your own choosing.

As I wrote earlier, the current resistance movement allows each participant to participate for her or his own reasons.  But can we become something bigger?  Gage leaves us with some hope.

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As a movement-building enterprise, designed to achieve the greatest possible participation, this mode of resistance makes sense. But despite its good cheer, it still emphasizes what is not possible: It says that Trump is about to take a sledgehammer to the nation’s finest institutions and principles and that the only thing most citizens can do is shout “no” as loudly as possible.

Many organizers have vowed that this yawp of dissent represents a beginning rather than an end — and history suggests that they may well be right. Some of the most significant shifts in modern American law and political culture came out of efforts birthed in panic and despair. During World War I, for instance, the United States banned criticism of the government, interned thousands of German Americans and instituted widespread surveillance of immigrants and political radicals. Many Americans supported these policies; others feared that the country was abandoning cherished traditions of tolerance and free speech. In response, a small group of alarmed progressives founded an organization that came to be known as the American Civil Liberties Union. They lost many early courtroom battles, but their vision of a nation in which “civil liberties” were taken seriously eventually changed the face of American law and politics.

If I have any prediction about what the future holds, I think that the women’s movement, the environmental movement, and civil liberties movement will all gain strength as we each decide where to put our energy, time, and money into positive actions.   While we continue to resist it all.

Photograph:  Shannon Stapleton/Reuters

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There’s something happening here…

Actually there is too much happening.  Each time I start to pick a topic to write about, there is another headline, another outrageous action taken, another horrid confirmation.  I don’t care whether you support President Bannon – oops, I mean Trump – or not, things are moving so quickly one doesn’t have time to fully judge the consequences.  I’ve decided to follow two rules:  try to stop mocking him and laughing at him.  And pick an area or two and concentrate on them.

Rule number one is difficult:  There is just too much to make fun of coming directly from the Trump Administration.  In the past two days we’ve had the President ask us to pray for Arnold Schwarzenegger since higher ratings mean more money  – not for Arnold but for the President.  I thought he was supposed to divest himself, but obviously the regular rules don’t apply.  For a Black History Month speech, the President told us that Frederick Douglass was still alive at the ripe old age of 122 and still trying to teach us.  At least the last part of that sentence is true as we can learn from reading his writings.  And then we’ve had a fake terrorist attack to justify a travel ban based on religion. Yes, the infamous Bowling Green Massacre concocted by Kellyanne Conway who later explained she misspoke.  But I try not to laugh too hard and keep reminding myself this is really serious business.

Senator Cory Booker was on the Rachel Maddow Show the other night.  He and Rachel talked about protest and opposition fatigue.  This is what I’m trying to avoid with rule number 2.  But I think I’ve picked areas that are just too broad because I’m following civil rights and civil liberties.  They can encompass women’s rights and immigration huge (as our leader would say) topics in themselves.  But I am a woman and the daughter of immigrants.

This is how Charles P. Pierce opens his short February 2 essay We Know How This Ends:  The White House is once again tolerant of white supremacy.  

There are some remarkable stories that have vanished for now in this city. One of the most prominent of these is that out-and-out white supremacy is operating at the very top levels of the executive branch of the government in a way that it hasn’t since, I don’t know, the Wilson administration. The Collected Works of Steve Bannon are bad enough. From USA Today:

“They are motivated. They’re arrogant. They’re on the march. And they think the Judeo-Christian West is on the retreat.”

The last describes many Trump supporters.  The accompanying photograph which I am not including is of the Oklahoma City Federal Building after the April 1995 bombing.
I believe that Steve Bannon, white supremacist, who thinks that immigration is an invasion is the real power in the White House.  He is going to encourage the Timothy McVeigh’s of the world.  He has already given “permission” to the young white Canadian who attacked a mosque in Quebec.   And remember that white supremacy is largely male supremacy.
So we have to be vigilant, try to avoid Bannon/Trump fatigue, and keep pushing back.

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Woman power is the future

A lot of people predicted that women were going to change America’s political history in January of 2017. But pretty much no one anticipated that they’d be doing it as leaders of the resistance. On Saturday, millions of women and men — organized largely by young women of color — staged the largest one-day demonstration in political history, a show of international solidarity that let the world know that women will be heading up the opposition to Donald Trump and the white patriarchal order he represents. Women — and again, especially women of color, always progressivism’s most reliable and least recognized warriors, the women who did the most to stop the rise of Trump — were the ones taking progressive politics into the future.

So begins the best article I’ve seen yet on the Women’s March:  The Future of the Left is Female.   Written by Rebecca Traister for NYMag.com it is a shrewd analysis of the march, the organizers, and, of the future.  It is fairly long, but I encourage people to read the entire thing because my quotations and comments can’t come close to doing it justice.

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National co-chairs of the march Carmen Perez, Linda Sarsour, and Tamika D. Mallory at the Women’s March in Washington, D.C.

Plenty of factors made this effort so successful, but perhaps the biggest was the shock and horror that jolted portions of a long-complacent population awake after the election of Donald Trump. As it turns out, sometimes, It Takes a Villain. We’ve got one now; he lives in the White House, has the nuclear codes, and spent Saturday defending the size of his, er, inauguration crowds. In his first weeks in office, he might very well nominate an anti-choice Supreme Court nominee, begin deportations, repeal health-care reform, start the process of withdrawing from the Paris climate accord, and defund Planned Parenthood. He has already reinstated the Global Gag Rule.

I’ve been asked many times “But why didn’t you vote?”  Traister’s response

Clearly, the vast majority of Saturday’s crowd had been Hillary Clinton supporters, at the very least in the general election if not in the primary. But it is also true that some of the apathy, some of the complacency, that many critics took as a reflection of Clinton’s “flawed” candidacy stemmed instead from the sense that Americans didn’t really need to panic or take to the streets on her behalf because she was going to win. She was going to win, the assumption went, because of course we are evolved enough that this guy could never get elected president and thus we were free to focus on the imperfections of the woman who was going to be the president.

I admit that I was not an enthusiastic Clinton supporter and spent my energy on local races including Sue Minter who ran for, and lost, the race for Vermont governor.  But I voted and voted for Clinton and was among the many who were stunned at the outcome of the Presidential election.  The question now becomes where to go from here.

But there was a new metaphysical approach at work on Saturday, largely thanks to the organizing and leadership of nonwhite women: the revolutionary sense that the new women’s movement will be about pulling in issues of criminal justice, environmental activism, immigration reform, and systemic racism. Women, with women of color at front and center, can be the engines of new progressive activism in all arenas. It’s a rebuke to the theory floated by some on the left that there is a disjunction between “identity politics” and politics, a rebuke to those who suggested in the wake of Trump’s electoral win that the future lies in moving away from divisive “social issues” and identity-framed movements and back to economic policies.

What this event did, on the most massive scale we have seen in this country, is reaffirm what has always been true: The impact of identity bias has always been economic, and economic issues have always most powerfully disadvantaged those who experience identity bias. Or to put it another way: Women’s rights are human rights.

That sentence: “The impact of identity bias has always been economic, and economic issues have always most powerfully disadvantaged those who experience identity bias” was at the heart, I think, of Bernie Sanders campaign.  Bernie, however, was – let’s be honest – an old white man – and while he began to frame the issue, he could not organize people of color and women who wanted desperately to elect a woman President.

The oil pipelines, the Flint water crisis, pay inequity, low minimum wages, the lack of adequate child care, etc., etc. are in the end economic issues and, they impact women disproportionately.

We can take hope from who marched.

If there was an over-representation of “nice white ladies” marching, it’s important to note that those white women were showing up for a march led by nonwhite women, in support of a radical and intersectional set of policy principles laid out by nonwhite women, carrying signs and marching in solidarity with plenty of women’s issues that do not center on white women. No, we shouldn’t give them too much credit for showing up where they should have been for years. And yes, the next steps must include white women (and men) showing up for women of color in other ways, at other demonstrations and with other actions (including not voting with an eye to their own privilege).

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Perhaps most surprising of all, men showed up alongside the women to fight for those rights. Many reports had the New York march at about half men, though some of that could perhaps be explained by the number of New York women who went to Washington alone, leaving kids behind with male partners. But those men — including my husband, including my male friends — brought those kids, girls and boys, to the march for women’s rights in New York. Men were at all the demonstrations in great numbers.

I’ve been in the women’s movement for a long time, so long that I was a delegate from Virginia to the First Women’s Conference in Houston in 1977.  I look at the poster hanging in my study every day.  I have watched the movement come together, fracture over what issues are important, fracture over race, and come together again.  The January 21 marches are the beginning of another start.  This time WILL be different, I can feel it.

But even if the necessary power realignment within feminism takes time, this historic event will have been a tremendous step toward the reimagining of a women’s movement as a web of varied but interconnected interests and missions.

And as it happens, when it happens, women will be leading the way into the progressive future.  Women will lead the revolution.

Photograph: Noam Galai/WireImage

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Senate in a hurry

The Senate, that body that couldn’t seem to muster enough energy to do very much since 2010 except hold endless hearings about Hillary Clinton, has suddenly gotten busy.  Last night – or rather early this morning – they took the first steps toward repealing the Affordable Care Act.  The New York Times reporters wrote

The approval of the budget blueprint, coming even before President-elect Donald J. Trump is inaugurated, shows the speed with which Republican leaders are moving to fulfill their promise to repeal President Obama’s signature domestic policy achievement — a goal they believe can now be accomplished after Mr. Trump’s election.

The action by the Senate is essentially procedural, setting the stage for a special kind of legislation called a reconciliation bill. Such a bill can be used to repeal significant parts of the health law and, critically, is immune from being filibustered. Congress appears to be at least weeks away from voting on legislation repealing the law.

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Senate Minority Leader Sen. Charles E. Schumer (D-N.Y.) is leading the charge to make Hill Republicans own the Obamacare repeal process.

The Democrats staged a protest on the floor, taking turns speaking even while being ruled out of order.  The vote was 51 to 48.  So, what can someone who is opposed to repeal do at this point?  I found a New York Times Op-Ed Seven Questions About Health Reform to be a useful guide to the questions we should be asking any Senator or Congressperson who supports repeal.  The piece by Harold Pollack and Timothy S. Jost should be read in full, but here are what I think are the most important of the seven questions. (The numbering is mine not theirs. And they are not in the order of importance.}

First, “How many millions of Americans will lose coverage?”  Among the issues pointed out is

Proposals by Tom Price, Mr. Trump’s choice to run Health and Human Services, and by the House speaker, Paul D. Ryan, would repeal the expansion of Medicaid and replace the A.C.A.’s income-based subsidies with less generous tax credits. Another plan from the House Republican Study Committee would offer deductions. We particularly need to know how this would affect low-income Americans, to whom tax deductions are nearly worthless, and who would generally not be able to afford coverage under these plans.

Second, “Will people over 55 pay higher health premiums for the same coverage?”  If the repeal is paired with cuts to Medicare, all of us over 55 will be in trouble.  And younger folks who may not have saved much for retirement yet will find it impossible to save enough.

Third, “… how much more will those with costly illnesses or injuries have to pay in out-of-pocket costs?”

Critics of the A.C.A. often argue that the law has made health care unaffordable. But many Americans would pay much more without it. The A.C.A. capped out-of-pocket spending at $7,150 for individuals and $14,300 for families for 2017. Republican proposals appear to offer no protection from high deductibles and other cost-sharing.

This could be devastating to millions, including older Americans who often develop chronic illnesses.

Fourth on my list. “Will the new plan let insurers charge women higher premiums than men while offering them less coverage?”

Before the A.C.A. banned gender-based premiums, insurers in many states charged women more than men of the same age — some as much as 50 percent more. The A.C.A. also required all insurers to cover preventive health services without co-payments; for women, this includes birth control, Pap smears, mammograms and a host of other crucial services. Maternity care is fully covered as well. Republican replacement plans offer no such protection. And many Republicans want to defund Planned Parenthood, too, which would deprive women not just of coverage but also of care.

And, as we have learned, many men, particularly Republican men, have no idea of how a woman’s anatomy works.  For those opposed to choice on abortion, this could have the effect of increasing the number of abortions – legal and illegal.

I think there is time while President Trump argues with Congress and Congress argues with itself about what should be in any new law.  If your Senator and/or Congressperson favors repeal, call or write or visit and ask some of the seven questions.  And express your support for those that oppose wholesale repeal.  Should you agree with what is happening, leave me a message explaining why you think this is OK.

Photograph:  Alex Wong/Getty Images