Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Trump’s Brutal Response To Protest Violence Undermines ‘Law And Order’

Donald Trump, whose 2016 presidential campaign was consciously modeled after Richard Nixon's 1968 run, seems to think he can win reelection by emulating his predecessor's appeal to a "silent majority" disgusted by raucous anti-war protests. Trump is offering voters a choice between his firm hand and the pusillanimity of "liberal Democrats" who let "violent anarchists" run wild in the streets.

Notwithstanding Trump's pose as "your president of law and order," his heavy-handed reaction to the protests triggered by George Floyd's death represents neither. In response to largely peaceful demonstrations against police brutality that have been punctuated by criminal behavior, he has deployed his own brand of lawlessness, including arbitrary arrests and the disproportionate, indiscriminate use of force.

Read Now Show less

Police Immunity Laws Test Conservative Principle — And Rule Of Law

Former Minneapolis police officer Derek Chauvin faces murder and manslaughter charges for kneeling on George Floyd's neck until he stopped breathing. But even if Chauvin is convicted, Floyd's family may not be able to pursue claims under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights.

The uncertain prospects for the lawsuit Floyd's relatives plan to file underlines the unjust and irrational consequences of qualified immunity, a doctrine that shields police from liability for outrageous conduct when the rights they violated were not "clearly established" at the time. Congress should seize the opportunity created by Floyd's May 25 death and the nationwide protests it provoked to abolish that doctrine, which the Supreme Court unlawfully grafted onto the Civil Rights Act of 1871.

Read Now Show less

Bill Barr Is Wrong: Police Abuses Breed Disrespect

The day before Attorney General William Barr complained about disrespect for the police, Harris County, Texas, District Attorney Kim Ogg announced that her office had identified 69 more convicted drug offenders who may have been framed by a veteran Houston narcotics officer. The skepticism that Barr decries cannot be understood without taking into account the sort of corruption that Ogg is investigating.

Speaking to police officers in Miami last Friday, Barr condemned "a deeply troubling attitude" toward police. "Far from respecting the men and women who put their lives on the line to protect us," he said, overzealous critics "scapegoat and disrespect police officers and disparage the vital role you play in society."

While Barr may prefer to believe that attitude has no basis in fact, every day brings news of police officers who foster such disrespect by lying, using excessive force and abusing their power for personal gain. Although it is unfair to portray those cases as an indictment of the entire profession, the way police officials respond to such revelations often invites that conclusion.

The former officer at the center of Ogg's inquiry, Gerald Goines, was employed by the Houston Police Department for 34 years. He faces state murder charges and federal civil rights charges because he invented a heroin purchase by a nonexistent confidential informant to obtain a no-knock warrant for a 2019 raid that killed a middle-aged couple, Dennis Tuttle and Rhogena Nicholas, in their home on Harding Street.

As a result of that disastrous operation, which discovered no evidence of drug dealing, Ogg's office is reviewing thousands of cases handled by Goines and his colleagues in the HPD's Narcotics Division. So far prosecutors have dismissed dozens of pending cases and backed the claims of two men arrested by Goines in 2008 who were recently declared innocent.

"We need to clear people convicted solely on the word of a police officer whom we can no longer trust," Ogg said last week. But the HPD's problems clearly go beyond the crimes of one rogue cop.

Another narcotics officer, Steven Bryant, faces state and federal charges in connection with the deadly Harding Street raid because he backed up Goines' fictional story. If Goines falsely implicated people in drug crimes for a dozen years or more, it seems likely that other officers actively helped him or looked the other way, which would make their testimony suspect as well.

Goines' supervisors also deserve a share of the blame for failing to properly monitor his use of warrants, informants and department money. Houston Police Chief Art Acevedo, who initially hailed Goines as a hero while posthumously tarring Tuttle and Nicholas as dangerous heroin dealers, has announced several belated reforms, including limits on no-knock warrants, using body cameras during drug raids and a new commitment to the oversight that HPD supervisors were supposed to provide.

Acevedo nevertheless insists that Goines' crimes did not reveal a "systemic" problem, and he wants credit for not sweeping them under the rug. "What would have been more tragic for this community, and for this department, than the incident itself is for the department to have failed to investigate it to the extent that we did," he said in a recent Texas Monthly interview.

At the same time, Acevedo wants the public to accept the inevitability of outrages such as the senseless deaths of Tuttle and Nicholas. "I don't think there's a policy or a process that can guarantee 100 percent that something like this would not happen," he said. That's the message Acevedo is sending Houstonians looking for reassurance that they can trust police to respect their constitutional rights.

After three interview questions about the biggest scandal to hit his department in decades, Acevedo lost his patience. "This is the last I want to talk about it," he said. "We need to move on to something else." That attitude is at least as troubling as the one that bothers Barr.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Abuse Of Power Isn’t A Crime — But It Can Be An Impeachable Offense

“Was that wrong?” George Costanza asks in a 1991 episode of “Seinfeld” after his boss confronts him with a report that “you and the cleaning woman have engaged in sexual intercourse on the desk in your office.” George says he has to “plead ignorance,” because no one “said anything to me at all when I first started here” suggesting “that sort of thing was frowned upon.”

Donald Trump’s legal team is trying out a version of the Costanza defense, arguing that the articles of impeachment against him are constitutionally deficient because they do not allege any violations of the law. That claim is so dubious that even Trump’s lawyers don’t believe it.

The president is accused of abusing his power for personal gain by pressuring the Ukrainian government to announce an investigation of a political rival. The scheme allegedly included temporarily blocking $391 million in congressionally approved military aid.

The Government Accountability Office recently concluded that Trump’s hold on that money violated the Impoundment Control Act. But the articles of impeachment do not mention that law or any other statute that Trump is accused of violating.

Is that a fatal flaw, as Trump lawyer Jay Sekulow and White House Counsel Pat Cipollone insist? Not according to George Washington University law professor Jonathan Turley, the sole Republican witness at the House Judiciary Committee’s Dec. 4 impeachment hearing.

Turley, who harshly criticized the impeachment process as rushed and incomplete, warned that abuse of power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless conceded that “the use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.”

Turley emphasized that “high crimes and misdemeanors” are not limited to statutory violations. The phrase “treason, bribery, or other high crimes and misdemeanors,” he observed, “reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts).”

Turley noted that James Madison, although he opposed including “maladministration” as grounds for impeachment, said the process was meant to address “the incapacity, negligence or perfidy of the chief Magistrate.” Alexander Hamilton likewise said impeachment was aimed at “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Harvard law professor Alan Dershowitz, a member of Trump’s legal team, now takes what he concedes is the minority position, arguing that an impeachable offense has to be a crime. But he was singing a different tune during Bill Clinton’s impeachment in 1998.

“It certainly doesn’t have to be a crime,” Dershowitz said on CNN. “If you have somebody who completely corrupts the office of president, and who abuses trust, and who poses great danger to our liberty, you don’t need a technical crime.”

Another Trump lawyer, Rudy Giuliani, claims the articles of impeachment are unconstitutional because “abuse of power and obstruction of Congress are not crimes of any kind.” But during a 2018 discussion of Independent Counsel Robert Mueller’s investigation, Giuliani declared that a preemptive presidential self-pardon, while legal, “would just be unthinkable” and “would lead to probably an immediate impeachment.”

In other words, a self-pardon would not be a crime, but it would still be an impeachable offense. Similarly, a president who used his authority over the Justice Department to quash investigations of his friends and launch investigations of his enemies would be violating the public trust in a way that could justify impeachment, even if everything he did was technically legal.

Without a statutory basis, Sekulow and Cipollone argue, abuse-of-power charges effectively allow legislators to impeach the president because of policy disputes or partisan animus. But there is also a danger in letting a president off the hook because no one ever explicitly said his particular brand of misconduct was frowned upon.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Trump’s Inartful Dodges: A Year Of Presidential Blame-Shifting

During a policy retreat in September, Donald Trump attributed his signature orange hue, which seems to be caused by the amateurish application of bronzer, to energy-efficient lightbulbs. “The light’s no good,” he told House Republicans. “I always look orange. And so do you. The light is the worst.”

It was hardly the most consequential instance of Trump’s blame shifting in 2019, but it was part of a pattern for a president who seems constitutionally incapable of accepting responsibility. Here are some of the more memorable examples from the last year.

Border Song. “The federal government remains shut down for one reason and one reason only: because Democrats will not fund border security,” Trump said in January. Yet it was Trump who caused the shutdown by insisting on money for his “big, beautiful wall” along the southern border — money that Congress still has not approved.

Hanoi Shuffle. After his February meeting in Hanoi with North Korean leader Kim Jong Un ended abruptly, Trump initially blamed Kim’s insistence on a complete lifting of economic sanctions in exchange for only partial progress on denuclearization, saying, “Sometimes you have to walk.” A few days later, he argued that Democrats had helped spoil the summit by inviting his former lawyer, Michael Cohen, to testify while Trump was in Hanoi, which he said “may have contributed to the ‘walk'” — i.e., Trump’s own decision to end the meeting.

It’s Not the Crime. While it turned out that Trump was telling the truth when he denied that his campaign had illegally conspired with Russia to influence the 2016 presidential election, his public and private efforts to impede, curtail or stop investigations of that question needlessly prolonged the “witch hunt” he blamed on Democrats and the “fake news media.” Those efforts filled an entire volume of Special Counsel Robert Mueller’s March report, which detailed obstructive behavior that made it look like Trump had something to hide.

18th-Century Airports. During an Independence Day speech, Trump claimed the Continental Army “manned the air” and “took over the airports” during the Revolutionary War. He attributed the flub to a teleprompter failure that had forced him to extemporize.

Love Him or Leave. After Trump supporters at a July 17 rally chanted “send her back” when he mentioned Rep. Ilhan Omar, D-Minn., who was born in Somalia, he claimed “I felt a little bit badly about it” and “started speaking very quickly,” which was not true. Trump’s attempt to distance himself from the spirit of the chant was especially implausible because just a few days before he had suggested that “‘Progressive’ Democrat Congresswomen” — a reference to Omar and three other representatives, all of whom were born in the United States — should “go back” to the countries they “originally came from.”

Do Us a Favor. To this day, Trump insists that his July 25 telephone conversation with Ukrainian President Volodymyr Zelenskiy — Exhibit A in the case for impeachment — was “perfect” and “totally appropriate,” even though his request for an investigation of former Vice President Joe Biden, a leading contender to oppose him in this year’s election, alarmed several administration officials. Instead of conceding that it was even a little bit unseemly to mix foreign policy with his own political interests, Trump has blamed all the fuss on hostile underlings, treasonous Democrats, “corrupt journalists” and even Energy Secretary Rick Perry.

First Resort. In October, Trump suddenly reversed plans to hold next June’s Group of 7 summit at his golf club in Doral, Florida, after his advisers and congressional allies warned him that the appearance of self-dealing and self-promotion would provoke an easily avoided controversy. Trump blamed Democrats who “went crazy” and reporters who cited “this phony Emoluments Clause.”

There was more, including Trump’s claims that the impeachment inquiry and the Fed were responsible for economic developments more plausibly linked to his trade war. But I have run out of space, which is what happens when you try to catalog this president’s inartful dodges.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Why Do Trump’s Defenders Deny What He So Clearly Did?

During Monday’s impeachment hearing, Republican lawyer Stephen Castor denied that Donald Trump had asked his Ukrainian counterpart to investigate former Vice President Joe Biden, a leading contender to oppose Trump in next year’s election. “I don’t think the record supports that,” Castor said.

That jaw-dropping moment starkly illustrated the lengths to which Republicans have gone in rebutting the charge that Trump abused his powers for personal gain. The president’s defenders have repeatedly contested well-established facts in a way that makes fair-minded nonpartisans despair of having an impeachment debate based on a shared understanding of reality.

According to the White House’s own transcript of Trump’s July 25 phone call with Ukrainian President Volodymyr Zelenskiy, Trump asked Zelenskiy to look into the claim that Biden pressed the Ukrainian government to replace Prosecutor General Viktor Shokin with the aim of thwarting an investigation of Burisma, an energy company that employed Biden’s son Hunter as a board member. “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution,” Trump said, adding that “it sounds horrible to me.”

Trump asked Zelenskiy to “look into it,” and Zelenskiy agreed, saying his new prosecutor general “will look into the situation, specifically to the company that you mentioned” (i.e., Burisma). Trump himself has said what he wanted from Zelenskiy was “very simple”: “a major investigation into the Bidens.”

You can argue, as Republicans have, that there was nothing improper about that request. But you cannot credibly deny that Trump made it.

Yet Castor claims to be agnostic on that point. “I think it’s ambiguous,” he insisted. Republican legislators likewise misrepresented the public record in their recent report on the impeachment inquiry, falsely claiming that Trump brought up the Bidens only “in passing” and that Zelenskiy “did not reply.”

The Republican report concedes that Shokin, whom Trump described as a “very good prosecutor” whose dismissal was “really unfair,” was “seen by State Department officials as corrupt and ineffective.” Shokin’s shortcomings were widely recognized, and his dismissal was consistent with the Obama administration’s foreign policy, which makes Trump’s claim that Biden was only trying to protect his son implausible.

The other part of the “favor” that Trump wanted, a subject he raised immediately after Zelenskiy expressed gratitude for U.S. military support, was an investigation of “what happened with this whole situation with Ukraine” involving “Crowdstrike” and “the server.” Those are references to a bizarre conspiracy theory alleging that Ukrainians hacked the Democratic National Committee’s emails during the 2016 presidential election campaign and framed Russia for the crime as part of an effort to hurt Trump and help Hillary Clinton.

That theory has been decisively rejected by U.S. intelligence agencies, congressional committees and Special Counsel Robert Mueller. It is so disreputable that the Republican report pretends Trump was actually concerned about the broader issue of “Ukrainian influence in the 2016 election,” as evidenced by a few Ukrainian officials’ publicly stated preference for Clinton.

The report likewise argues that Trump was legitimately concerned about official corruption in Ukraine. But Trump did not broach that subject in the July 25 call or an earlier conversation with Zelenskiy, and his interest in discrediting Biden is consistent with the lobbying of his personal attorney, Rudy Giuliani, who, by his own account, was seeking “information (that) will be very, very helpful to my client” and who was intimately involved with the administration’s efforts to secure a public commitment regarding the investigations from Zelenskiy.

Current and former administration officials have testified that such an announcement was a prerequisite for a White House meeting and the release of congressionally approved military aid that Trump had delayed without explanation. While Zelenskiy denies that he was “pressured” or subjected to “blackmail,” that is exactly what you would expect an ally desperate for U.S. support to say, especially if he believes he is dealing with a mercurial president driven by personal interests.

Whether that’s an accurate description of Trump is the issue at the center of his impeachment.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

To Hide His Tax Returns, President Claims Monarchical Authority

Donald Trump’s desperate attempt to block a New York grand jury subpoena seeking his tax returns, which he once promised to publicly release, makes you wonder anew why he is so keen to prevent anyone from looking at those records, even in secret. But the case also raises the more momentous question of whether presidents have an unqualified right to quash such demands as long as they occupy the White House.

Trump’s view, as U.S. District Judge Victor Marrero summarized it last month, is that “the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind.” Marrero rejected that claim as “repugnant to the nation’s governmental structure and constitutional values.” And on Monday, the U.S. Court of Appeals for the 2nd Circuit agreed.

The subpoena seeking Trump’s returns from his accounting firm is part of a probe by Manhattan District Attorney Cyrus Vance Jr., who is investigating hush payments received by two women who say they had sexual relationships with the president before he was elected. Michael Cohen, Trump’s former attorney, is serving a prison sentence for federal crimes related to those payments, and Vance is reportedly curious about whether the scheme also violated a state law prohibiting falsification of business records.

If political foes like Vance are allowed to launch criminal investigations that might implicate Trump, he worries, the proliferation of such probes could have a crippling effect on his presidency. While that concern is hardly frivolous, Trump’s audacious solution puts both the president and his cronies above the law at least temporarily and perhaps permanently, depending on statutes of limitation and the impact that the passage of time has on the availability of evidence.

Which brings us, weirdly enough, to Trump’s 2016 boast that “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.” If Trump actually committed such a crime while in office, 2nd Circuit Judge Denny Chin wondered during oral argument last month, what recourse would police and prosecutors have?

“Local authorities couldn’t investigate?” Chin asked. “Nothing could be done? That is your position?”

Trump’s lawyer, William Consovoy, did not hesitate. “That is correct,” he said, while noting that Trump could be prosecuted after leaving office.

That position did not sit well with the appeals court, which noted that it seems inconsistent with the relevant precedents. Way back in 1807, Chief Justice John Marshall, while overseeing the treason trial of Vice President Aaron Burr, upheld a subpoena seeking documents from President Thomas Jefferson for use by the defense.

Marshall deemed it “not controverted” that “the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession.” In 1974, when the Supreme Court unanimously upheld a subpoena directing President Richard Nixon to produce audio recordings and documents for use in the Watergate-related prosecution of senior administration officials, it likewise held that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

The Court reiterated that point in 1997, when it allowed Paula Jones’ sexual harassment lawsuit against President Bill Clinton to proceed. “The President is subject to judicial process in appropriate circumstances,” it noted.

The Trump case, which the Supreme Court is expected to hear on appeal, is novel in the sense that it involves a local criminal investigation, as opposed to a federal prosecution or a civil lawsuit. But unlike the Nixon case, it does not implicate the president’s conversations with his advisers. And unlike both the Nixon and Clinton cases, it does not even involve demands on the president himself.

It is surely possible to address Trump’s legitimate concerns about presidential prerogatives without granting him the blanket of protection he seeks. The rule of law requires a more discriminating approach.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

IMAGE: Stormy Daniels, the porn star whose relationship with President Trump resulted in payoffs under investigation by Manhattan District Attorney Cy Vance.

Blame Wilbur Ross For Clumsy Lies That Made A Mess Of Census

If you want to understand why the Trump administration is scrambling at the last minute to include a citizenship question in the 2020 census, you have to look beyond the lawsuits filed by Democrats anxious about the question’s political impact. The only reason that litigation produced a June 27 Supreme Court decision blocking the question was the blatant, bumbling mendacity of Commerce Secretary Wilbur Ross, whose rationale for the change Chief Justice John Roberts and four of his colleagues deemed “contrived” and “pretextual.”

Whether that conclusion should make a legal difference is a matter of dispute; four justices thought it shouldn’t. But if Ross, whose department includes the Census Bureau, had told the truth — or even if he had been better at lying — census forms with the citizenship question would already be rolling off the presses.

The evidence that Ross’ official explanation — that the Justice Department needed better data to enforce the Voting Rights Act — was not the real reason for his decision persuaded three federal judges as well as a majority of the Supreme Court. It is not hard to see why.

“In the Secretary’s telling,” the court said, “Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency).”

That record shows Ross “began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project.” After making the decision for reasons he has yet to reveal, Ross spent months trying to gin up a respectable excuse.

Under Ross’ instructions, his policy director “initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA,” the court said. “After those attempts failed, he asked Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency.”

The VRA rationale originated not with the Justice Department, as Ross repeatedly claimed, but with Commerce Department staffers trying to satisfy their boss’s demands. The DOJ was unwilling to write this cover story until Ross persuaded the attorney general to intervene, and even then, “the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.”

The DOJ letter requesting a citizenship question was not written until nine months after Ross had made his decision, and it “drew heavily on contributions from Commerce staff and advisors.” Furthermore, “After sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data,” reinforcing the impression that the VRA justification was phony.

Why does it matter? “In order to permit meaningful judicial review, an agency must ‘disclose the basis’ of its action,” the court said. “The reasoned explanation requirement of administrative law … is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public.”

The court left open the possibility that the Commerce Department could try again, this time without lying. It noted that the commerce secretary has wide discretion to determine the contents of the census and that review of such decisions is “deferential.”

The Trump administration now faces two problems. First, while there are plenty of plausible nonpartisan reasons for asking about the legal status of U.S. residents in the census, coming up with one at this late date will smack of desperation.

Second, the administration has insisted all along that it needed to start printing forms by last week to keep the census on schedule, which is why its appeal in this case went straight to the Supreme Court. The administration has weaved a tangled web for itself that will be hard to escape.

IMAGE: Wilbur Ross testifies before a Senate Commerce, Science and Transportation Committee confirmation hearing on his nomination to be commerce secretary at Capitol Hill in Washington, U.S., January 18, 2017. REUTERS/Carlos Barria

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Is Julian Assange A Journalist? Does It Matter?

The day after the federal government indicted WikiLeaks founder Julian Assange on 18 charges related to his publication of secret Pentagon and State Department documents, San Francisco’s police chief apologized for raiding the home of freelance videographer Bryan Carmody because he had obtained a report he was not supposed to have. The two cases reveal widespread confusion about who counts as a journalist and whether it matters.

Declaring that Assange is “no journalist,” a Justice Department official assured reporters that the DOJ appreciates “the role of journalists in our democracy,” saying “it is not and has never been the department’s policy to target them for reporting.” Yet almost all of the federal felonies described in the Assange indictment involve obtaining and disclosing “national defense information” — crimes that reporters who cover national security routinely commit.

San Francisco police likewise questioned Carmody’s professional status in defending their May 10 search of his house, during which officers attacked his security gate with a sledgehammer and kept him handcuffed for six hours while they seized his equipment and records. Last week, Chief William Scott described Carmody as a “co-conspirator” in the “theft” of a leaked police report on the death of San Francisco Public Defender Jeff Adachi.

Three days later, responding to widespread criticism, Scott was singing a different tune. “I’m sorry that this happened,” he told the San Francisco Chronicle.

According to Scott, it was all a misunderstanding. “I am specifically concerned by a lack of due diligence by department investigators in seeking search warrants and appropriately addressing Mr. Carmody’s status as a member of the news media,” he said in a press release.

Scott mentioned California’s shield law, which applies to anyone “connected with or employed upon” a news organization and protects the confidentiality of journalists’ sources and unpublished information. “Department investigators” apparently understood that the shield law protected Chronicle crime reporter Evan Sernoffsky, whom they left unmolested even though he wrote articles based on information from the same leaked police report.

There is no federal shield law. But there is the First Amendment, which guarantees freedom of the press. Contrary to what the Justice Department wants us to believe, that freedom is not a special privilege that belongs only to officially recognized journalists. It applies to all of us when we use technologies of mass communication.

Assange views himself as a journalist and describes WikiLeaks as a “multi-national media organization.” Even if federal prosecutors disagree with that characterization, it does not matter: WikiLeaks has the same rights under the First Amendment as Fox News or The New York Times.

Yet in Assange’s case, we see the same double standard that was apparent in San Francisco. Although news organizations across the country and around the world published essentially the same information as WikiLeaks did, based on documents leaked by former Army intelligence analyst Chelsea Manning, they are not in the dock — for now.

The Assange indictment emphasizes things he did that most investigative journalists do not do, such as publicly soliciting classified information, publishing unexpurgated documents that put informants at risk and (allegedly) offering to help a source break a government password. But except for one count, those details are not necessary elements of the charges against Assange, which is why journalists who make a living by reporting facts the government prefers to conceal are right to be worried about the precedent this case sets.

In its landmark 1971 Pentagon Papers decision, the Supreme Court ruled that the government could not constitutionally stop newspapers from publishing stories based on a secret history of the Vietnam War. But it did not resolve the question of whether they could be prosecuted after the fact.

That is the question posed by the Assange indictment, no matter how much the Justice Department wants to pretend otherwise. The answer will determine whether the government is the final arbiter of what we are allowed to know about what it does in our name.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

On ‘Impeachable Conduct,’ Justin Amash Is Right

Rep. Justin Amash (R-MI) thinks Donald Trump is guilty of “impeachable conduct,” and he is absolutely right. Impeachable conduct is whatever the House of Representatives decides it is, a point the president’s defenders and some of his critics seem determined to obscure.

The House impeached Bill Clinton for lying under oath about oral sex, and the conduct described in special counsel Robert Mueller’s report is more troubling and consequential, even if it does not amount to a crime that could be proven beyond a reasonable doubt. When Amash, a five-term Michigan congressman, became the first Republican legislator to make that point, the reaction revealed how determined his colleagues are to evade their responsibilities.

Mitt Romney, the Utah senator and former Republican presidential nominee who a month ago said he was “sickened at the extent and pervasiveness of dishonesty and misdirection” detailed by Mueller, this week praised Amash’s “courageous statement” but added that he disagreed with his conclusion. Romney argued that “you just don’t have the elements” to “make a case for obstruction of justice.”

The Mueller Report actually makes a strong case that at least some of Trump’s attempts to interfere with the investigation of Russian efforts to influence the 2016 presidential election involved the three elements of obstruction: an obstructive act, a nexus to an official proceeding and a corrupt intent. When Trump tried to stop the FBI investigation of his former national security adviser, repeatedly demanded Mueller’s removal, pressed White House counsel Donald McGahn to deny that Trump had tried to fire Mueller, urged his attorney general to take control of the Russia investigation and limit its scope and discouraged witnesses from cooperating with it, he arguably met all three criteria.

Mueller unambiguously rejected the view, advocated by Trump’s lawyers and Attorney General William Barr, that the president cannot obstruct justice by exercising his otherwise lawful constitutional powers, which include control of the Justice Department. But even if you accept that theory, it does not cover Trump’s public and private attempts to influence the testimony of witnesses such as McGahn, his former lawyer Michael Cohen and his former campaign chairman, Paul Manafort.

The fact that Trump’s frequently clumsy efforts to impede federal investigations were mostly unsuccessful (mainly because of resistance by his underlings) does not get him off the hook, as attempted obstruction is also a crime. Nor does it matter that Mueller ultimately found no evidence that anyone in the Trump campaign illegally conspired with Russian agents. Trump himself did not know the answer to that question in advance, and in any case, he may have been motivated by a desire to prevent revelations that could prove embarrassing and politically damaging.

More to the point, as Amash noted, the “high crimes and misdemeanors” that justify impeachment extend beyond provable statutory violations to abuses of power that betray the public trust. Trump’s own lawyer, Rudy Giuliani, last year conceded that it “would just be unthinkable” for Trump to pardon himself, which “would lead to probably an immediate impeachment,” even though the Constitution imposes no limits on that power.

Congress might reasonably conclude that a president who uses his powers to protect himself in a less dramatic way — say, by repeatedly interfering with an investigation of his own actions — is unfit for office. Perhaps the norm of avoiding even the appearance of such interference is worth preserving, whether or not it is legally required.

Romney argues that impeachment would be unwise in terms of “practicality and politics,” as “the American people just aren’t there” and the Republican-controlled Senate, which would conduct the trial that follows impeachment by the House, “is certainly not there either.” House Speaker Nancy Pelosi, who is discouraging her fellow Democrats from pursuing impeachment, seems to have reached a similar conclusion.

It is hard to argue with that political calculation. But members of both parties may come to regret the signal they are sending about the sort of presidential behavior Congress is willing to tolerate.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

Trump’s Malignant Trade War Reflects His Economic Ignorance

 

Larry Kudlow, Donald Trump’s chief economic adviser, understands that tariffs on Chinese imports are a tax paid by American companies and consumers — a point his boss refuses to acknowledge. The president’s weird insistence that “China” pays the tariffs reflects not just his reluctance to take responsibility for tax increases but his longstanding, sincere and fundamentally mistaken views on international trade — views that do not bode well for the outcome of his trade war.

“Tariffs are NOW being paid to the United States by China of 25% on 250 Billion Dollars worth of goods & products,” Trump tweeted last Friday. As Kudlow conceded in a Fox News interview on Sunday, that is not how tariffs work. U.S. importers pay the tariffs, and they respond by reducing their profit margins, raising prices or both.

A recent study of Trump’s tariffs by economists at Princeton, Columbia and the Federal Reserve Bank of New York noted that, in 2018, “The U.S. experienced substantial increases in the prices of intermediates and final goods, dramatic changes to its supply-chain network, reductions in availability of imported varieties, and complete passthrough of the tariffs into domestic prices of imported goods.” By the end of the year, they estimated, the tariffs were costing Americans $3 billion a month in added taxes and another $1.4 billion a month in lost efficiency.

That was before Trump raised the rate on $200 billion in Chinese products from 10 percent to 25 percent. The administration plans to extend the 25 percent tariff to another $300 billion in goods, which would cover nearly everything Americans import from China, including computers and cellphones.

Kudlow argues that the price is worth paying if the tariffs pressure China to address American complaints about subsidies, restrictions on access to the Chinese market, intellectual property theft and mandated transfers of technology and ownership stakes. Trump, by contrast, refuses to admit Americans are paying any price at all.

The president does acknowledge that China’s retaliatory tariffs have hurt American farmers, and he promises to help them, using revenue generated by his own tariffs, which amounts to a transfer from one set of victims to another. His stance is not just a form of blame-shifting but a logical corollary of his economically ignorant conviction that exports are good and imports are bad.

“You only have to look at our trade deficit to see that we are being taken to the cleaners by our trading partners,” Trump wrote two decades ago in The America We Deserve, arguing that peaceful economic exchange is “like war.” This mercantilist notion — that something shady must be happening unless the Unites States exports at least as much to a particular country as it imports from that country — continues to dominate his thinking about international trade.

“If we didn’t trade,” the president averred last year, “we’d save a hell of a lot of money.” But that does not mean we’d be better off, as we would not have all the things we buy with our money, which we clearly value more than the money itself; no one forces us to exchange one for the other. The analysis is the same whether or not the people who sell us things happen to be located in the United States.

As Rep. Justin Amash (R-MI), pointed out at the time and again when Trump claimed last week that money is “lost” when it’s spent on Chinese products, “A trade deficit is not a loss of money. If you buy from a supermarket or go to a movie, you have a trade deficit, but you have not lost money; you get stuff (groceries, entertainment, etc.) in exchange for your dollars.”

Whatever you think of Trump’s tariffs as a negotiating tactic, you should be troubled by the fact that the resolution of this trade war is in the hands of a man who thinks Americans would be better off if they spent nothing on imported goods they demonstrably want.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

IMAGE: People walk past a sign board of Huawei at CES (Consumer Electronics Show) Asia 2016 in Shanghai, China May 12, 2016. REUTERS/Aly Song

Marijuana Justice: Expunge Convictions For Victims Of Pot Prohibition

Cory Booker’s Marijuana Justice Act, which he reintroduced last week, would rehabilitate the much-maligned plant by removing it from the federal government’s list of proscribed substances. The New Jersey senator’s bill also aims to rehabilitate the victims of that arbitrary ban, and in that respect, it departs from most of the legalization measures that have been passed by states or proposed by members of Congress.

By and large, the lingering impact of laws that criminalized peaceful activities involving cannabis has been addressed as an afterthought, if at all. Booker’s bill, which he has made a conspicuous part of his campaign for the 2020 Democratic presidential nomination, therefore does a real service by raising the issue of what the government owes to people who were convicted of doing things that are no longer crimes.

The bill, which is co-sponsored by four other presidential contenders, would allow people currently serving time in federal prison for violating marijuana prohibition to seek resentencing “as if” the ban had not existed when they committed their offenses. That provision could conceivably free thousands of people, depending on how judges respond to such petitions.

The Marijuana Justice Act also requires expungement of records related to “marijuana use or possession offense(s).” Such offenses account for the vast majority of marijuana arrests, but almost all of those cases are handled by state courts, so it’s not clear how many people would benefit from this provision.

Continuing to serve time for crimes that no longer exist seems clearly unjust, a point that was widely recognized after the repeal of alcohol prohibition. In 1933, for instance, Gov. Paul McNutt of Indiana issued pardons or commutations to about 400 people who had been convicted of alcohol offenses under state law. “If these men were kept in prison after the liquor law is repealed,” he said, “they would be political prisoners.”

Even for people who have completed their sentences, punishment continues. Police have arrested people for violating marijuana prohibition about 20 million times in the last three decades alone, and the resulting records impose long-lasting burdens.

Depending on the jurisdiction and the classification of the offense, people who were caught violating marijuana laws may lose the right to vote, the right to own a gun, the right to drive a car (for up to a year), the right to live in the United States (for noncitizens) and the right to participate in a wide variety of professions that require state licenses. They may find it difficult to get a job, rent an apartment, obtain student loans or travel to other countries. They may even be barred from coaching kids’ sports teams or volunteering in public schools.

The employment consequences can be explicit, as with state laws that exclude people convicted of felonies from certain lines of work, or subtle, as with private businesses that avoid hiring people who have criminal records, possibly including arrests as well as convictions, because of liability concerns. “There is no limit to how much you can discriminate against a person with a criminal record,” observes Douglas Berman, a sentencing expert at Ohio State University’s Moritz College of Law.

Such ancillary penalties seem especially unfair and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use, which so far include 10 states, the District of Columbia and the Northern Mariana Islands. California has gone furthest to address the problem: The state’s 2016 legalization initiative authorized expungement of marijuana records, and a 2018 law makes that process easier.

Other states offer various forms of relief, ranging from generous to nearly nonexistent. All of them put the onus on prohibition’s victims to seek the sealing or expungement of their criminal records, a process that can be complicated, expensive and time-consuming.

Automatic expungement is the least the government can do for millions of Americans who continue to suffer for actions that violated no one’s rights. “The end we seek is not just legalization,” Booker says. “It’s justice.”

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.