We Are Broken, Possibly Beyond Repair
If there was ever a perfect metaphor for Donald Trump’s destruction of American democracy and values, it is the President ripping up documents in knowing violation of the Presidential Records Act, then having career bureaucrats put them back together with Scotch tape, and then having those career bureaucrats fired for no apparent reason. With a supine and sycophantic Republican-controlled Congress unwilling to perform its constitutional duties of oversight and a Supreme Court bought and paid for by the Federalist Society, Americans are left with the equivalent of Scotch tape to keep our democracy together.
While Trump was busy destroying our alliances with Canada and the G7, as well as signaling his abandonment of South Korea and Japan, cozying up to one of the world’s most brutal dictator, and advancing the cause of Vladimir Putin, the destruction of American democracy continued apace here at home.
The Supreme Court ruled that Ohio’s purge of its voter registration lists met the statutory requirements of the National Voter Registration Act (NVRA). Ohio would send a notice out to any registered voter who did not vote in the last two years and, if that notice is not returned, the voter is automatically removed from the rolls. The fact that this method disproportionately effects Democrats who are less likely to vote in midterm elections did not matter to the Court’s conservative bloc, with the illegitimate Justice Gorsuch once again providing the decisive vote. This ruling will of course spur other GOP-controlled states to engage in similar practices. Plaintiffs in the case included veterans who were unable to vote and then purged because they were serving in Iraq and Afghanistan.
This ruling was purely a decision interpreting the statutory language of the NVRA, not a constitutional issue. But the indifference that the conservative majority showed for the proven disenfranchisement of predominantly Democratic voters does not bode well for the upcoming cases involving partisan gerrymandering.
Speaking of Neil Gorsuch, the illegitimate Supreme Court justice paid for by the Federalist Society, he managed to cast a lone but disturbing vote in a bog-standard case involving a Minnesota law that revokes the beneficiary status of a spouse on a life insurance policy when the marital status of the couple changes. Gorsuch cast the lone dissenting vote arguing that the Constitution forbids states from enacting any “law impairing the obligation of contracts”. Gorsuch’s view would take us back to the Lochner era of the early 20th century where government attempts to institute labor reforms were continually struck down as violating the “freedom of contract”. Basically, Gorsuch’s view would gut existing labor and environmental law. Incredibly, this view was so extreme Gorsuch could not even get Clarence Thomas to tag along with him on this attempt to return to the Gilded Age.
Meanwhile, in North Carolina, a state which has engaged in illegal gerrymandering for most of this decade and has had its voter ID law and attempt to limit voter access also struck down as unconstitutional, has decided its time to give it all another go. The Republican-controlled legislature has introduced a bill that would change the North Carolina constitution to require a photo identification in order to vote. The vote needs to garner 3/5ths of both the state’s House and Senate, votes which united Republican support could provide. Should that pass as expected, the constitutional change would be on the ballot this November.
In addition, we also learned that the decision to add the citizenship question to the census was not only designed to suppress responses but also to be used to redraw districts by specifically not counting any non-citizens. Kris Kobach, on instructions from Steve Bannon, floated this idea to Commerce Secretary Wilbur Ross and eventually the decision was made to include the question over the objections of the career staff and a scientific advisory committee that showed it would add additional cost, suppress response rates, and thereby reduce the quality of the census data. More importantly, however, ignoring non-citizens in redistricting will give Republicans yet another opportunity to reduce the number of Democratic districts and further consolidate Republican hegemony.
Apparently it has also been a very good year for the kleptocracy. Presidential advisers Jared and Ivanka Trump managed to pocket $82 million over the course of 2017, all while holding foreign and domestic interests that are more than potential, but actual, conflicts of interest. Ivanka has managed to get remarkably timed trademark approvals from China and Jared has evidently been shopping the investment opportunity of his real estate business, including the albatross of 666 5th Avenue, to everyone in the Middle East as he supposedly negotiates peace there. The Kushners tried to dump this bit of good news in the middle of the Singapore summit, where Trump was single-handedly eliminating the North Korean nuclear threat without having requiring destroy any bombs or missiles, and hoped no one would notice.
John Bolton parlayed his special brand of crazy into over $2 million in earnings, mostly from speaking engagements and Fox News, but actually made that money while not in government. He did, however, prove his bona fides to the Trump administration by taking over $100,000 from a Russian oligarch to sit in for a couple of minutes on a couple of panel discussions.
Don Jr. has apparently realized that there is not much upside in slightly upscale motels sprinkled among Trump’s geographical base and decided to ignore his post-election promise not to seek any new foreign deals. Like Ivanka, the Trump organization has received remarkably timed investments from foreign entities and Don Jr. spends much of his time roaming the world selling access in return for real estate investments.
In addition, Trump’s Emoluments Clause violations continue to line his own pocket. Trump hotels received nearly nearly $1.5 million dollars from Trump campaign events held there and the RNC itself has spent over $400,000 at Trump properties. Republican-affiliated groups as a whole have spent over $3 million at those same properties.
Meanwhile, Scott Pruitt continued his incredibly petty grift, sending his staff on personal business, including hunts for a particular kind of skin lotion and some sort of job for his wife. As I’ve written before, Pruitt keeps his job because he is a low-rent version of Trump himself, pretending he has resources far beyond his actual means and grifting to keep up appearances.
Over at the Justice Department, little Jeffy Sessions has decided to unilaterally make policy rather than just enforcing existing law, doing his part, along with the aforementioned Gorsuch, to return us to the Gilded Age. Sessions’ decision to refuse to defend the ACA against a suit brought by certain red states is a departure from the long-standing DOJ policy of defending law previously ruled constitutional, regardless of whether the presiding administration agrees with that law or not. There is a reason that the words “to take care that the laws be faithfully executed” appear in Article II of the Constitution and there are DOJ guidelines to defend established law with “any reasonable argument”.
Instead, Sessions has thrown precedent out the window and is joining a frivolous suit that declares that the ACA is now unconstitutional because Congress decided last year to reduce the tax for refusing to abide by the individual mandate to zero, thereby invalidating the ACA as a whole. The ludicrousness of this argument is hard to overstate, since Congress specifically was unable to repeal the entirety of the ACA last year and was only able to ram through the tax change under reconciliation via the tax cuts. But Sessions was only too willing to throw away precedent and his actual legal obligations and join this suit. Beyond this absurdity is the fact that it positions the Trump administration as allowing insurance companies to deny coverage to those with pre-existing conditions, not only for those covered by the ACA but also potentially to those covered by employer-provided insurance.
This action was so egregious that the three DOJ staff lawyers assigned to the case withdrew and refused to sign the brief and prompted the resignation of a senior DOJ lawyer. The lawyer who did end up putting his name on the brief was a Trump political appointee who was immediately rewarded with a nomination for a federal judgeship.
This is not the first time Sessions has pulled this kind of stunt. Last year, he ended DACA without any legal basis, despite the fact that the program had passed muster with the Supreme Court, prompting courts to overturn that decision, saying the DOJ action “was arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law…Significantly, the government makes no effort in its briefs to challenge any of the foregoing reasons why DACA was and remains within the authority of the agency…Nor does the government challenge any of the statutes and regulations under which deferred action recipients obtain the foregoing benefits.”
Sessions has also now unilaterally implemented a policy of intolerance along our southern border, (“zero-tolerance” always being a euphemism for intolerance), again claiming the law requires actions it clearly does not. Because of this decision, we are apparently in violation of our international treaty obligations and potentially federal law by prosecuting asylum seekers before providing them with a hearing for their asylum case. In addition, Session is separating children, some as young as just 12 or 18 months old, from their parents immediately upon detention and putting them in what are essentially child prisons of their own. Numerous studies have shown that separating children three years old and younger from their parents stunts brain growth, inhibits language and social development, and leads to health problems later in life. In addition, the officials in charge of these children are not allowed to touch or comfort these children when they are in distress. So Sessions has essentially ordered brutal child abuse under the guise of enforcing a law that doesn’t really exist. And now the DOJ is looking at setting up child prisons all over the country.
Sessions has also overseen the rarely used power to secretly subpoena a reporter’s phone and email records without notifying the reporter of such a subpoena. The decision was made to ignore long-standing DOJ norms to inform the reporter and instead relied on a DOJ rule that allowed the secret subpoena if revealing it would “pose a clear and substantial threat to the integrity of the investigation.” The investigation revolved around leaks from the Senate Intelligence Committee and an affair between the reporter and the committee’s long-time chief of security. Whether this abuse of long-standing norms was actually justified remains to be seen. The DOJ has only charged the chief of security with lying to the FBI about his affair with the reporter, not with leaking classified material, and the reporter in question has denied that she used the chief as a source for her stories.
More disturbingly, and another indication that ICE and CBP are rogue agencies within the DOJ and the federal government, is the fact that the reporter was questioned by a CBP agent about how she developed sources. The agent was apparently familiar with the investigation and trips that the reporter and the chief had taken together. According to law enforcement sources, the CBP agent was not involved in the investigation, which of course begs the question of how and why he was so well-informed and inquisitive.
Regardless of the whether the DOJ’s actions were justified or not, the very fact that reporters’ email and phone records can and now will be secretly subpoenaed by the government is already having a chilling effect on the freedom of the press. Moreover, since there are dozens of leak investigations going on and leaks have been a pet peeve of Trump, there are clearly other reporters who now wondering whether their emails and phones are being secretly monitored. As the director of the Freedom of the Press Foundation notes, “Given that there are dozens of leak investigations going on, I think it’s fair to assume that there are more reporters who are in this situation. How many other reporters have had their phone records and email records taken without their knowledge and without the public’s knowledge?”
Of course, the DOJ is not the only part of the federal government that is apparently willing to spy on American citizens. Aides to Donald Trump hired an Israeli firm to spy on two national security advisers to Obama who worked on the Iran nuclear and collect dirt on them. Sound familiar. This was part of a broader effect to create an anti-Iranian coalition being built by Saudi Arabia and the UAE with generous bribes to the RNC and Trump. Part of that effort was to discredit the Iran deal by discrediting the officials who negotiated the deal. As one source noted, “The idea was that people acting for Trump would discredit those who were pivotal in selling the deal, making it easier to pull out of it”.
Going after career civil servants and former administration advisers is now a feature of the Trump administration as it attempts to ensure loyalty to the President over fealty to the Constitution. A Trump political appointee and former wine blogger is scouring social media postings by US State Department and UN officials and compiling a list of those suspected of not being personally loyal to Trump. Those officials are then excluded from meetings and the decision-making process.
This targeting of career civil servants has been especially severe inside the State Department. Under Rex Tillerson, senior career officers who were suspected of disloyalty or being too close to Obama were transferred to processing FOIA requests. A similar purge happened in the Interior Department. And, of course, Trump has purged Comey and McCabe from the FBI for essentially similar reasons.
Virtually all these tears in our democracy have occurred in the last week or two. And every day, every week, Trump continually continues to shred more of the rules that govern our country. With a majority in Congress that is basically Trump filled with sycophants and cult-members who refuse to fulfill their constitutional duty to oversee the President, Trump can continue to rip this country further and further apart. And voter suppression and partisan gerrymandering will make the Democrats’ effort to regain any political power a difficult proposition. At best in this fall’s election, Democrats will squeak by with a small majority in the House despite winning far more votes across the country than Republicans. And with the courts being packed with partisan hacks like Gorsuch, the Scotch tape of our judicial system, which is about the only thing holding our democracy together, may not be enough.
While a new President and administration may be able to reverse many of these undemocratic and frankly un-American policies, the fact of the matter is that much of what the Trump administration has already done will create precedence for future abuses of our democracy and that can not ever be undone. As Eugene Robinson writes, “It’s easy to lose the habits and values of democracy, but incredibly hard to get them back”.
It will take decades to restore balance to a judiciary filled with right-wing partisan hacks and, in the interim, faith in the rule of law and the true independence of the judiciary will continue to badly erode. It will probably take a Democratic super-majority in Congress to restore the damage that the Supreme Court has done to the Voting Rights Act. That is probably also the case for the violations of the Emoluments Clause, preventing family members from personally profiting off their potential access to the President or their actual work in the administration, and requiring that candidates release their taxes.
It will take years to rebuild the competence and institutional knowledge that has been destroyed at the State Department and restore faith in America’s commitment to its supposed values, not only because of Trump but also because of the Bush administration’s use of torture. The same could be said of the EPA and the entire island of Puerto Rico.
A future administration will look at Sessions’ secret monitoring of the press and Trump’s loyalty purges and cite them when they do the same or worse. The same can also be said of the decision to rip newborn infants from their mothers’ breast. Sessions’ decision to use the DOJ to implement policy rather than enforcing the law will also be used at some point in the future as an excuse to bypass the legislative process.
If you don’t believe me, just remember that some Trump supporters who went on to serve in the administration cited the constitutionality of the Korematsu decision, one of the worst decisions in Supreme Court history, as a justification for the Muslim ban. Or look at the Kansas solicitor general and now Trump-appointed and confirmed US Attorney for Kansas who used the Dred Scott decision, which was the worst decision in Supreme Court history, as a justification to ban a second trimester abortion. Even precedents that are almost universally rejected are still out there as available justification for those who are willing to use them.
Unlike those poor staffers who were tasked with Scotch taping the President’s papers back together, it will take a lot more effort and a lot more time to repair our broken democracy and restore our country’s moral compass. And, like those same poor staffers, we may eventually find that we are unable to finish the job.
