No One Can Force A Presidential Candidate-- Let Alone A President-- To Read (Or Understand) The U.S. Constitution... Trump's Executive Orders

The big news Sunday was Trump's executive orders after he sabotaged the negotiations with Congress for a pandemic relief bill. No doubt, his zombie followers will eat it up. No one else will. Jim Tankersley did an analysis for NY Times readers-- Trump’s Go-It-Alone Stimulus Won’t Do Much to Lift the Recovery. He wrote that Señor Trumpanzee's executive actions "were pitched as a unilateral jolt for an ailing economy. But there is only one group of workers that seems guaranteed to benefit from them, at least right away: lawyers." The orders include an eviction moratorium, a new benefit to supplement unemployment assistance for workers and a temporary delay in payroll taxes-- although if re-elected he's planning to make it permanent, a way to fulfill nearly 9 decades of GOP dreams to end Social Security. "They could," wrote Tankersley, "give renters a break and ease payments for some student loan borrowers. But they are likely to do little to deliver cash any time soon to Americans hit hard by the recession. Even conservative groups have warned that suspending payroll tax collections is unlikely to translate into more money for workers. An executive action seeking to essentially create a new unemployment benefit out of thin air will almost certainly be challenged in court. And as Mr. Trump’s own aides concede, the orders will not provide any aid to small businesses, state and local governments or low- and middle-income workers. If the actions signal the death of a congressional deal to provide that aid, economists warn, the economy will limp toward November without the fiscal support that hastened its recovery after its quick dive into a pandemic-induced recession."

The federal government’s aid to small businesses through the Payroll Protection Program was set to expire on Saturday. Executives, trade groups and business lobbyists had pushed hard for a second round of lending-- along with new programs to get money to the businesses and industries hit hardest in the crisis-- to be included in any congressional stimulus deal. Mr. Trump’s actions do nothing to help those companies.

Low- and middle-income families’ spending power was bolstered in the spring by direct payments of $1,200 per adult that were included in a relief bill Mr. Trump signed into law in March. Lawmakers were pushing for a second round of those checks in a legislative deal. Mr. Trump’s measures will not provide them.

The orders will not provide aid to states and local governments, whose tax revenues have plunged as a direct result of the contraction in economic activity brought on by the virus. Without more money from the federal government, states and local governments will almost certainly have to cut their budgets and lay off workers, increasing the ranks of the unemployed.

Supplemental unemployment benefits of $600 per week, which expired at the end of July, had been supporting consumer spending at a time when about 30 million Americans are unemployed. Mr. Trump’s memo seeking to repurpose other money, including federal disaster aid, to essentially create a $400-a-week bonus payment is likely to be challenged in court and is unlikely to deliver additional cash to laid-off workers any time soon. It, too, raises questions even if it is deemed legal-- for instance, whether states that are already struggling with their budgets will be able to afford the 25 percent contribution that Mr. Trump’s memo says they will need to make toward the new benefit.

...But if negotiations falter now and aid remains scarce for people and businesses, Mr. Trump will be making a political bet: that it is better to tell voters he tried to help the economy than to have actually helped it. Mr. Trump is the president, and he has happily claimed credit for the economy’s performance.

If job growth slows further, and millions of unemployed Americans struggle to make ends meet, he will need to make the case for why the symbolism of acting alone won out over the farther-reaching effects of cutting a deal.

On State of the Union yesterday, Pelosi told Dana Bash that "whether they're legal or not takes time to figure out. I associate my remarks with what the Senator Sasse who says, they're 'unconstitutional slop.' Right now we want to address the needs of the American people. As my constitutional advisers tell me, they're absurdly unconstitutional." In case anyone doesn't understand what Pelosi was saying there, Alan Grayson, a bona fide genius, explained that "The Trump executive orders are not only illegal, but they’re unconstitutional. Anyone who tries to implement them will be facing criminal charges under the Antideficiency Act, 31 USC 1341. And, obviously, this is an impeachable offense, a “high crime” that abuses the power of the office. Trump is a Constitutional pyromaniac. As to the policies in the executive orders, the emperor has no clothes, so he’s trying to steal the Democrats’ clothes. It’s pathetic to watch the orangutan scratch his belly, screetch, and pretend that he gives a damn about anyone else."

Tom Suozzi (D-NY) represents the North Shore of Long Island, from the border of AOC's district in Queens (Whitestone and Beechhurst) straight thru Nassau and into Suffolk as far as Kings Park and the Nissequogue River. The former Nassau County Executive, Suozzi is now a member of the House Ways and Means Committee. Understanding how tax dollars are raised and spent is his field of expertise. And this morning, discussing Trump's clownish executive orders, he told us that "It’s not about the merits of $400 unemployment (of which $100 is paid by the states), or a payroll tax cut (which will decimate Social Security) or any of his executive orders. It is about the fact that it’s ILLEGAL. It is why we have a Congress. The President can’t, other than in limited instances, just do what he wants, especially when it comes to spending money. It’s just more in a long list of gimmicks by a failing president trying to hold on to power."

The Washington Post assigned a team to work on figuring it out-- Jeff Stein, Erica Werner and Renae Merle. They saw it-- as did much of Congress-- through the parameters of Trump's challenge to the constitutional order. "The measures," they wrote, "would attempt to wrest away some of Congress’s most fundamental, constitutionally mandated powers-- tax and spending policy. Trump acknowledged that some of the actions could be challenged in court but indicated he would persevere. Trump bemoaned how Democrats had refused to accept his demands during the recent negotiations but attempted to brush it aside, saying four measures he signed Saturday 'will take care of pretty much this entire situation.' But there were instant questions about whether Trump’s actions were as ironclad as he made them out to be. A leading national expert on unemployment benefits said one of the actions would not increase federal unemployment benefits at all. Instead, the expert said it would instead create a new program that could take “months” to set up. And Trump’s directive to halt evictions primarily calls for federal agencies to 'consider' if they should be stopped. Trump also mischaracterized the legal stature of the measures, referring to them as 'bills.' Congress writes and votes on bills, not the White House. The documents Trump signed on Saturday were a combination of memorandums and an executive order."

McConnell cheered him on, although he didn't explain why Trump's executive actions didn't include a second $1,200/person stimulus check that Congress had already agreed to. As Forbes reported, Trump targeted a payroll tax, reduced unemployment benefits, a bogus eviction moratorium study that won't keep a single family from being evicted and some student loan relief that will do little to help anyone "as his four areas of focus for an executive order. He never mentioned including stimulus checks as part of his executive order plan."

Jack Balkin summed up the unemployment aide program part of Trump's made-for-TV ploy on his must-read blog as Inadequate, Unworkable, and Unlawful. He wrote that Trumpanzee's "effort to relieve the pressure he and Senate Republicans have been feeling over the expiration of enhanced unemployment benefits is a failure on every level. It provides too little in aid. It will miss many families in need. It will expire very soon. It likely cannot be implemented in some states. And it is transparently unlawful."





How many lies can you count? As Alan Grayson put it the day after Trump's nationally televised half hour of gaslighting, "I would advise anyone who is still under the illusion that Trump is fit for office to listen to his speech yesterday. He is a babbling fool and a Constitutional pyromaniac, with a human applause track wired in the room to feed his infinite, insatiable ego."

Jim Himes (D-CT), like every congressional Democrat I've spoken to, is not satisfied with how the GOP is handling this, not even a little. "The so-called executive orders are way too little, way too late," he told me. "Americans are suffering badly and the Republican response has been to 'hit pause,' then to ask for F-35s and full expensing of business lunches, and now to offer weak presidential action. It is time for my Republican colleagues to summon even a fraction of the passion and enthusiasm with which they cut the corporate tax rate from 35% to 21% to actually help the American people in a historic crisis."

Ever Wonder Where Trump's-- And His Followers'-- Contempt For The Constitution Is Leading Us?

Jamie Raskin (D-MD), is the guy people turn to when they want the sharpest insight into how the Constitution was meant to work and how it really does work. He's pretty much acknowledged the smartest constitutional scholar in any room. "The president just impeached by the House of Representatives for contorting U.S. foreign policy to advance his reelection," he told us yesterday, "now usurps the war powers of Congress to make assassination of strategic (not operational) military personnel an instrument of U.S. foreign policy. This is a perilous new provocation and political distraction by the impetuous, lawless and ungovernable Donald Trump. No one will miss the blood-soaked General Soleimani, but that is not the question. The constitutional question is whether the President can order killings of ‘bad guys’ anywhere in the world without a declaration of war and without even  consultation of Congress. The policy question is what America will do now as the Iraqi Parliament seeks to kick all U.S. forces out of their country and an inflamed Iranian regime, bolstered by popular backlash against Trump, threatens 'severe revenge' against the  American people, American businesses and American allies. The master of official law-breaking and monarchical arrogance, President Trump has now unleashed a new descent into chaos in the Middle East. After the decades-long nightmares of the trillion-dollar Afghan and Iraqi Wars, which cost thousands of American and allied forces’ lives, in addition to thousands of civilians in those countries, the president has brought us to the brink of another brutal and endless war. We are all much less safe today because of the President’s recent outbreak of lawless impetuosity."

Yesterday, the New York Times reported that some Bolton cronies have indicated that his testimony would likely be damning to Señor Trumpanzee and "put additional pressure on moderate Republicans to consider convicting him." The Times speculated that "That could fundamentally change the dynamics around the impeachment trial in the Senate, where a two-thirds vote-- 67 senators-- is needed to remove Mr. Trump. Democrats, the minority party, control 45 seats." There aren't 22 "moderate" Republicans in the Senate

A little later on today, foreign policy expert Reese Erlich will give us his back-of-the-envelope version of what happened in regard to the Trump assassinations against Iran in Baghdad. By the weekend, I expect a much fuller analysis from him. I was especially struck by his comparison of the meaning of Soleimani to the Iranian people to how Americans would have viewed the assassination of Eisenhower during World War II. Damned, I hope someone is telling the Iranians to retaliate against Trump’s own property and not against the American people. Most of us hate him as much as they do.

He wants to be a war president

Over this past weekend, The Atlantic published an essay by Yale law professor Oona Hathaway, The Soleimani Strike Defied The U.S. Constitution, warning that “if Congress fails to respond effectively, the constitutional order will be broken beyond repair, and the president will be left with the unmitigated power to take the country to war on his own-- anywhere, anytime, for any reason.” Did no one tell Hathaway that that seems to be exactly what the transpartisan DC establishment has been aiming at for decades? A complete abrogation of responsibility that the Constitution invested in the Congress.

Hathaway wrote that “Any significant military action requires legal authority under both domestic and international law. Normally, domestic law would require the president to seek the approval of Congress, usually through a law authorizing the use of military force (after all, the Constitution gives Congress, not the president, the power to ‘declare war’). International law would also require him to seek the approval of the United Nations Security Council before resorting to force, unless the host state consents (which it did not) or the action qualifies for the express, but narrow, self-defense exception. Trump did not seek approval in either forum.” Does anyone assume that Trump has any feelings other than complete contempt for the Constitution and constitutional norms? AM I missing something?

National Security Adviser Robert O’Brien told reporters that the killing was justified under the 2002 law Authorization for Use of Military Force Against Iraq, which was passed to permit the president to act to address threats posed by Iraq. Relying on the law would require a conclusion that the threat from Soleimani, an Iranian government official, was posed by Iraq. In other words, relying on the law is as good as admitting there is no legal basis. Vice President Mike Pence also asserted a false connection between Soleimani and the 9/11 attacks, perhaps in an effort to suggest that the strike could fall under the 2001 Authorization for Use of Military Force. Those claims have been widely discredited, and several members of the Senate earlier expressed skepticism that the 2001 law authorized action against Iran.

Without any more solid legal authority to cite, the Trump administration seems to have turned to the claim that it was acting in self-defense. Though the administration has yet to provide any clear explanation for the legality of the strikes, it has offered various clues that the central justification is the president’s right to engage in self-defense on behalf of the United States. The Department of Defense issued a short statement suggesting that the attack was justified as an act of defense “aimed at deterring future Iranian attack plans.” Secretary of State Mike Pompeo later more forcefully claimed that the strike was aimed at disrupting an “imminent attack.”

This claim-- were it true-- could solve the administration’s domestic and international legal problems at once. Both the U.S. Constitution and the UN charter include an exception for self-defense. Under Article II of the Constitution, the president may act to respond to imminent threats to the nation. The original idea was that there may be times when it is impractical or impossible to convene Congress-- something that was especially true when communication and travel could take weeks. In such cases, the president would not be prevented from taking necessary action to defend the nation until Congress could be convened. The UN charter, which prohibits a state from unilaterally resorting to the use of force against another state, also allows for an exception in cases where the state has been the subject of an armed attack or, most experts agree, will imminently be subject to such an attack. In both cases, the exception is narrow: The threat must be so extreme and imminent that it would be unreasonable to seek the necessary approvals before taking action to defend the country.

New reporting from the New York Times, however, concludes that “the evidence suggesting there was to be an imminent attack on American targets is ‘razor thin.’” A U.S. government official reportedly described the claim that Soleimani was planning an attack “that could kill hundreds” as “an illogical leap.” In short, it does not seem there was any imminent threat justifying unilateral action by the president.

…Though presidents have pushed the boundaries of their unilateral authority before, this action by President Trump is arguably unprecedented. When President Barack Obama participated in the NATO strikes in Libya, at least the operation was undertaken with allies and approved by the United Nations Security Council. (He later stated that the operation was the worst mistake of his presidency.) When President George W. Bush invaded Iraq in 2003, his international support was tenuous, but he had clear congressional authorization. In fact, the closest recent precedent for the current operation is President Trump’s own earlier decisions to strike Syrian-government targets in April 2017 and again in April 2018-- without either congressional or international support. But those strikes were relatively minor in comparison and did not risk setting off a new regional war.

In 1973, after discovering President Richard Nixon’s secret bombing campaign in Cambodia, Congress took steps to reclaim its power by passing the War Powers Resolution, which requires the president to report to Congress whenever armed forces are introduced “into hostilities or into situations where imminent involvement in hostilities is clearly indicated,” and to terminate any hostilities after 60 days unless authorized by Congress. The effectiveness of the resolution has since been undermined by, among other things, fights over the meaning of “hostilities.” Congress must now act again not only to reject the illegal use of force represented by the decision to kill Soleimani, but also to reassert its constitutional role in the decision-making process that takes the nation to war. If Congress fails to effectively press back against this unconstitutional assertion of unilateral authority, it will set a precedent that will put the greatest destructive power the world has ever known in the hands of a single man.

There have been just a tiny handful of members of Congress-- a few outlier Republicans and a few dozen (mostly) progressive Democrats-- who have stood up against this slide away from congressional authority and responsibility. At least Barbara Lee isn’t the only one any longer. The most prominent leaders against it, along with her, have certainly not been Pelosi or Hoyer or any of that claque. It’s been Ro Khanna (D-CA), Pramila Jayapal (D-WA), AOC (D-NY), Justin Amash (I-MI), Jamie Raskin (D-MD), Andy Levin (D-MI), Rashida Tlaib (D-MI), Raul Grijalva (D-AZ), Ilhan Omar (D-MN), Ted Lieu (D-CA), Joe Neguse (D-CO), Jim McGovern (D-MA), Ayanna Pressley… a pitifully few others.

And all the DCCC’s crappy “majority-maker” 2018 freshmen? Not a single one! Michigander Andy Levin is a freshman but because he won a blue district he isn't considered a "majority maker." Over the weekend he sent out an email to his supporters making his feelings clear about the way Trump has been screwing up the Middle East. He wrote that after "Trump's airstrike on an Iranian General without notifying Congress, I am very concerned that he is on the precipice of starting an unauthorized war with Iran. Last year, I introduced the Authorization for Use of Military Force (AUMF) Clarification Act to make crystal clear that the president does not have Congressional authorization to initiate a war with Iran. If President Trump believes he needs that authority, he must follow the Constitution, come to Congress, and make his argument. Iran is obviously a dangerous actor on the world stage, and Qasem Soleimani was an enemy of the United States. But this president is reckless-- all impulse and no strategy. We have yet to see a plan in which the U.S. avoids another disastrous war in the Middle East. In the wake of the strike on Thursday night, our top priority must be to protect Americans at home and abroad. That is my goal: To return to Washington and pass the AUMF Clarification Act to save America from another costly war.

Trump-- An Impeachable Offense Nearly Every Single Day!

Over the weekend, Adam Schiff, noted that "The real risk of the Trump administration’s blanket stonewalling of Congress is that it’s fundamentally altered the balance of power that our framers intended. If a president can thwart congressional oversight that means any future president can be as corrupt as they choose and there’s no recourse."

Before dawn yesterday, the Washington Post published a piece by Seung Min Kim and Rachel Bade: Trump’s defiance of oversight challenges Congress’s ability to rein in executive branch. Constitutional crisis anyone? "Lawmakers, including Schiff, have discussed the possibility of trying to fine, censure or withhold money from obstinate Trump officials-- but even those possibilities, they warn, may do nothing... For the first time since Democrats took control of the House last year," Kim and Bade reported, "Trump’s effort to stonewall congressional efforts at oversight have begun to show some cracks. On Thursday, a former State Department official set off a firestorm when he defied the White House’s no-cooperation strategy and provided Congress with text messages detailing the administration’s effort to leverage a meeting with Trump to pressure his Ukrainian counterpart to launch investigations into the U.S. president’s political rivals. And House Democrats are expected to interview other critical witnesses as they try to build a case for impeaching Trump over his alleged willingness to seek the help of a foreign leader for his own political gain. But these rare triumphs are seen as fleeting even by Democrats and serve as a stark reminder of how much the administration has run roughshod over Congress, prompting concerns among constitutional experts and lawmakers that Trump’s hostile stance toward congressional oversight is undermining the separation of powers in a way that could have long-term implications for democracy."

“He is shaking the foundations of the republic,” said Kerry Kircher, who was House counsel for the Republican majority between 2011 and 2016. “He is poking his fingers into all of the places where we have norms and traditions and things that both parties have respected for years, and he has blown all of those out the window.”

...For the 276 days that Trump has faced an adversarial House Democratic majority, his administration has worked systematically to resist congressional investigations and further diminish Capitol Hill’s power to keep the executive branch in check.

Administration officials have ignored subpoenas, blocked witnesses from testifying and even defied the legislative power of the purse stipulated in the Constitution.

...[E]xperts say Trump’s defiance stands apart because of his unwillingness to engage in any oversight. Ever since he vowed last spring to ignore “all the subpoenas,” his subordinates have refused to allow even a single Trump official to cooperate, creating what some experts call a constitutional crisis that Democrats have struggled to respond to and counter.

“It’s just gotten steadily worse with each president being more and more resistant to congressional oversight,” said former Republican congressman Tom Davis of Virginia, who chaired the House Oversight Committee from 2003 to 2007. “The tendency over the last 40 years has been, the president’s party tends to under-investigate and the opposition party tends to over-investigate.”

Davis added: “It didn’t start with Trump; he’s certainly taken it to the next level.”

This year alone, the Trump administration has worked to methodically delay and block about two dozen probes into his conduct as president, his personal finances and the policies of his administration. He has stonewalled on everything from security clearances given to his family to his tax returns. He has ignored compulsory measures on his controversial family separation policy at the border and refused to let his staff testify about what they told former special counsel Robert Mueller as part of his investigation into Russia’s interference in the 2016 election.

You and I may have some voyeuristic tendencies in our desire to see Trump's taxes. Congress has entirely different reasons. Yesterday, a federal judge in New York dismissed Trump's objections and ruled that his longtime accounting firm must turn over eight years of tax returns as part of a criminal probe of his business dealings led by Manhattan District Attorney Cyrus R. Vance. Judge Victor Marrero said he could not endorse such a "categorical and limitless assertion of presidential immunity from judicial process... [which] would constitute an overreach of executive power."

Marrero: "Shunning the concept of the inviolability of the person of the King of England and the bounds of the monarch's protective screen covering the Crown's actions from legal scrutiny, the Founders disclaimed any notion that the Constitution generally conferred similarly all-encompassing immunity upon the President." Nonetheless, just a few minutes later, a federal appeals court granted Trump a temporary stay, meaning he won't have to turnover his tax filings pending a review by a three-judge panel of the appeals court.

Krugman's first choice in his Monday morning tweet about why Trump betrayed the Kurds is why series Members of Congress-- albeit, of course, not Republicans (at least not publicly)-- have been hammering away in an attempt to get Trump's tax returns. It's not about anyone being a yenta; it's about someone else being a serial crime wave.

What If Trump Loses And Refuses To Leave? Would America Want A Satwant Singh and Beant Singh To Step Up To The Plate?

I've been a Biden watcher since the 1970s and, although my disdain for him has ebbed and flowed, my opinion of him has never gotten as high as "tolerable"-- and most of the time it was far lower. He has never been someone I would have ever considered voting for-- and still isn't. The lesser of two evils is still evil... and Joe Biden is not some minor evil, not by a long shot. I don't need any excuses to sit out a Trump-Biden contest (God forbid) but one would be my absolute certainty-- as a 4 decades Biden follower-- is that he would quickly pardon Trump and his family to, you know, unite the country. Did you hear Eric Holder getting people ready for it yesterday on CNN? He agreed with Ford's decision to pardon Nixon and told David Axelrod that the costs to the nation of putting Trump on trial might be too great. "I think there is a potential cost to the nation by putting on trial a former president, and that ought to at least be a part of the calculus that goes into the determination that has to be made by the next attorney general. I think we all should understand what a trial of a former president would do to the nation."

In a discussion with national security expert Josh Geltzer, Dahlia Lithwick tacked an even more disturbing question: What Happens if Trump Won’t Step Down? Trump is, in all likelihood, going to be defeated a year from now. He'll be squealing like a stuck pig and accusing everyone and everything on cheating him out of his second term. Geltzer, former senior director for counterterrorism at the National Security Council wrote that Trump "has repeatedly shown a willingness to overstep his constitutional authority" and wouldn't be surprised if he just flat out refuses to step down. Recall Michael Cohen testifying that "given my experience working for Mr. Trump, I fear that if he loses the election in 2020 there will never be a peaceful transition of power?"

Lithwick: When did you actually start thinking about the possibility that Trump might simply reject the 2020 election results?

Geltzer: July 24, 2018. Let me tell you why it’s that exact date. By then, I’d pretty much forgotten Trump’s comment from the October 2016 debate amidst everything else. But his answer snapped back in my mind on July 24, 2018. The midterm elections were approaching, and President Trump tweeted that he was “very concerned that Russia will be fighting very hard to have an impact on the upcoming Election,” adding that the Russians “will be pushing very hard for the Democrats.”

That tweet just didn’t make sense. It was, of course, the assessment of the U.S. intelligence community that Russia had intervened in the 2016 election specifically to help Trump against the Democratic candidate, among other goals. And there had been nothing-- no intelligence community public statements, no scholarly analysis, no media reporting-- suggesting that the Russians were poised to push for the Democrats in the 2018 elections. So what was Trump talking about?

That’s when I began to wonder if he was using the tweet as he seems to use many tweets: to test out new lines and see if he can get away with them. And this notion that there might be foreign election interference in favor of the Democrats seemed to test Trump’s ability to call into question election results he didn’t like. So, if the Dems won big in a way that embarrassed Trump, he might say the results were inflated-- and, at least conceivably, even contest them.

And that’s when I remembered his earlier refusal to commit to honoring the 2016 election results. It made me worry a bit about 2018, but after all, Trump himself wasn’t on the ballot then. The real thing to worry about seemed to be 2020, which would once again be, for Trump, personal. And let me be very clear what the worry is: It’s about Trump not honoring valid election results if he in fact loses. If he wins, he wins! But if he loses, he needs, well, to lose.

...[T]here’s been another development: change in intelligence community leadership. Think about the departure of Director of National Intelligence Dan Coats. Coats more or less stood up for the intelligence community-- publicly-- at some key moments, such as when Trump rejected its views in favor of Putin’s at Helsinki. I think it’s important to inspect whoever Trump nominates as DNI (there’s currently an acting) to make sure he or she will tell Congress and the American people whether there’s really been foreign election interference that casts doubt on the accuracy of election results in 2020, or whether Trump’s just claiming as much...

Lithwick: When you wrote about this last winter you suggested that there were four powerful checks on this possibility: the Electoral College, Congress, state governors, and the Defense Department. I wonder if you are more or less sanguine about each of them, seven months later?

Geltzer: I’m an optimistic guy, but I have to be less sanguine-- because, seven months later, I haven’t seen any of these checks taking seriously this concern. In fairness, some need prompting to do so. For example, it’s the political parties that should require their electors for the Electoral College to pledge that they won’t withhold, delay, or alter their votes based on the claims or protestations of any candidate, including Trump himself. But I don’t see the parties requiring that, or even discussing whether to require it. And others-- such as Congress or state governors-- don’t need prompting at all to make the sort of commitments I urged back in February. Yet they don’t seem to be making those commitments. And remember: This is about ensuring that valid election results are respected, whichever way that cuts. That shouldn’t be controversial.

...The four checks I listed are all actors that, either without prompting or with it, could make commitments right now that, to my mind, would at least mitigate the risk we’re discussing. That’s not true of the courts: They wait until cases or controversies are brought to them and only then get involved, though of course their role at that point can sometimes be the most important of all. So I think there are probably other checks, like the courts, that would, I hope, play their own important roles if this nightmare scenario really played out. But my goal in writing the piece in February wasn’t just to flag a possible problem, but specifically to encourage those who might be able to get ahead of that problem to do so. And that’s why I focused on actors suited to that...

Lithwick: What’s your best advice on what we should be doing to at least prepare for the possibility that at minimum, Trump will dispute the election results and that should he do so, many of his followers will similarly reject them?

Geltzer: We need political leaders-- especially Republicans-- to make clear, both publicly and privately, that for Trump to contest the valid results of an election would be a redline, and that he’d have zero support from them-- indeed, impassioned opposition from them-- should he cross it. We need it sooner rather than later, too.

By the way, after Satwant Singh and Beant Singh assassinated Indira Gandhi in 1984, thousands of their co-religionists were slaughtered in retaliation. Satwant and Beant themselves were tried, found guilty and executed in 1989. This movie of their lives-- and deaths-- was never released:

Is Trump Leading Us Right Into A Constitutional Crisis? In This Case, Are Republican Presidents Above The Law?

Yesterday, CNN reported something that most of us already knew-- that Trump picked Brett Kavanaugh for the Supreme Court because Kavanaugh has asserted that presidents are basically above the law. Manu Raju: "[I]n 2013 [Kavanaugh] asserted that it's a 'traditional exercise' of presidential power to ignore laws the White House views as unconstitutional, as he defended the controversial practice of signing statements prevalent in George W. Bush's White House.

The comments could put a renewed focus on Kavanaugh's time serving as White House staff secretary, who had a role in coordinating Bush's statements accompanying legislation he signed into law. Critics contend that the Bush White House abused the use of signing statements to ignore laws passed by Congress, though Bush and his allies said such statements were no different than the practices of other administrations.

Democrats have demanded full access to documents from Kavanaugh's tenure as staff secretary from 2003-2006 as part of his Supreme Court vetting process, citing in part his role over the Bush signing statements. But Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, has rejected those demands, saying they are irrelevant to his nomination and a Democratic attempt to drag out the vetting process, which already includes hundreds of thousands of pages from other aspects of his career.

In 2013, Kavanaugh was speaking at Case Western Reserve Law School in Ohio when he was asked about signing statements, with the questioner noting that critics say that presidents can issue them to ignore provisions in laws they don't like.

In response, Kavanaugh said that injured parties can take their grievances to court if they believe the president is not following the law-- and that Congress can push back as well.

And Kavanaugh noted that if a president signs a bill "and says these certain provisions in here are unconstitutional, and we're not going to follow those provisions, that is a traditional exercise of power by Presidents."

In a legal opinion that same year, Kavanaugh took a similar position, saying that the president can't ignore the law "simply because of policy objections"-- and that the White House must abide by the law "unless the President has a constitutional objection" to the issue at hand.

"If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise," Kavanaugh wrote in the August 13, 2013, opinion. He made a similar argument in a 2011 dissenting opinion.

Meanwhile, Greg Sargent, writing for the Washington Post told his readers to  get ready for this nightmare scenario involving Trump, Mueller, and Brett Kavanaugh, based on a premise that two of the DC's biggest stories "are on track to collide with one another in spectacular fashion." One is the elusive Trump-Mueller session and the other is the confirmation of Kavanaugh. "Giuliani," he wrote, "who is supposedly Trump’s lawyer, is preparing a letter to Mueller that will largely reject the Special Counsel’s latest suggested terms for an interview. Giuliani claims Trump’s team has 'real reluctance' about Trump facing any questions about potential obstruction of justice. While it’s very possible something will be worked out, it’s also possible that, in the end, Trump may decide against sitting for an interview... If Trump declines an interview, Mueller will probably hit him with a subpoena to appear before the grand jury, as he has privately threatened to do. But on ABC’s This Week, another Trump lawyer, Jay Sekulow, flatly stated that if this happened, Trump’s team will fight it all the way to the top."

What this means is that, in advance of Kavanaugh’s hearing, we may already know that Kavanaugh could end up being the deciding vote on the question of whether a president (Trump) can be compelled to testify to a grand jury. Now, it is possible that the current court could rule on such a matter sooner (the eight justices might deadlock, defaulting to a lower court). But it’s also perfectly plausible, depending on how long Trump’s team takes to make a decision and what happens in the courts after, that this could be headed for a showdown in front of a high court with Kavanaugh on it.

Kavanaugh’s expansive views of executive power and privilege have been widely debated. Kavanaugh argued in 2009 that “we should not burden a sitting president” with “criminal investigations.” Kavanaugh’s suggested remedy was Congress passing a law to preclude this, so he doesn’t necessarily think presidents are constitutionally protected from such probes. He has also said that the decision forcing Richard Nixon to turn over the Watergate tapes might have been “wrongly decided,” but he has also hailed it as a great moment in judicial history, in which the courts “were not cowed and enforced the law.”

We don’t really know for sure what Kavanaugh believes on these matters. But Democrats and liberal groups such as the Center for American Progress have suggested Trump may have picked him precisely because of his possible tendency towards deferring to executive privilege, which they have argued is grounds for him to recuse himself from any decisions involving Trump and the Mueller probe.

But if we learn that Trump is being subpoenaed for an interview against his will, this would suddenly invest the question of what Kavanaugh really believes on these issues-- and whether Kavanaugh will recuse himself-- with practical urgency and immediacy. We will know before Kavanaugh’s hearing that he may soon be ruling on such a matter-- in particular, the question of whether Trump can be compelled to testify.

Democrats from Trump states, such as Joe Donnelly, are remaining noncommittal on Kavanaugh pending their customary sit-down meeting with him. But if the above scenario starts to develop, they will-- and should-- face added pressure to drill down on these matters in their face-to-face interviews.

"Sekulow’s comments make clear that the question of whether a sitting president must be responsive to a subpoena may not be a hypothetical for very much longer,” Brian Fallon, the executive director of Demand Justice, which is leading the fight against Kavanaugh, told me. “Kavanaugh owes his appointment to the man who may soon be a party in a case coming before the Supreme Court. Plus Kavanaugh has already expressed strong views on whether a sitting president should be able to be ensnared in criminal proceedings.”

“If this showdown materializes in the middle of the confirmation battle, it will catapult Kavanaugh’s expansive views on presidential power to the front burner,” Fallon continued. “At the very least, Kavanaugh ought to be forced to commit to recusing himself from any matter arising out of Mueller’s probe.”

It is unlikely that Kavanaugh will pledge to recuse himself during his hearing. It is also likely that he will try to avoid offering sufficient insight into his views of executive privilege to gauge how he might rule on a Mueller subpoena or any other Mueller-related matter, such as whether a president can pardon himself or his cronies or shut down a Department of Justice investigation into himself, which the president’s lawyers claim he has the power to do.

The nightmare scenario

So we may soon face a situation in which a president whose campaign is under investigation for collaboration with a hostile foreign power’s sabotaging of our democracy-- and who has gone to enormous lengths to both scuttle that investigation and to publicly vindicate that foreign power-- is seeking to avoid questioning on these matters, with the help of the justice he just appointed, possibly (given what we know about Trump) in part for this very reason.

...[I]f Kavanaugh does not pledge recusal or shed sufficient light on his views, Senators are not obliged to confirm him. Indeed, you’d think this would present them with what should be a very difficult situation. It should become harder for any self-respecting red state Democrat to support him. Heck, this scenario might even get a bit uncomfortable for vulnerable Republicans, since they are facing a midterm which will likely turn heavily on voters’ desire for a check on an out-of-control president.

Anthony Kennedy and Our Delayed Constitutional Crisis

Image credit: Mike Thompson / Detroit Free Press

by Gaius Publius

Today’s announcement that Kennedy is retiring only consummates his abdication of responsibility. Kennedy has chosen to let a deeply dangerous president and his allies steer a badly damaged ship out to sea. Is it fair to judge an eighty-one year old man so harshly? Yes, it is.

–Yascha Mounk, Slate

Like "swing vote" justice Sandra Day O'Connor before him, "swing vote" justice Anthony Kennedy has been one of the worst Supreme Court jurists of the modern era.

With swing-vote status comes great responsibility, and in the most consequential — and wrongly decided — cases of this generation, O'Connor and Kennedy were the Court's key enablers. They 

• Cast the deciding vote that made each decision possible
• Kept alive the illusion of the Court's non-partisan legitimacy

Each of these points is critical in evaluating the modern Supreme Court. For two generations, it has made decisions that changed the constitution for the worse. (Small "c" on constitution to indicate the original written document, plus its amendments, plus the sum of all unwritten agreements and court decisions that determine how those documents are to be interpreted).

These horrible decisions are easy to list. They expanded the earlier decision on corporate personhood by enshrining money as political speech in a group of decisions that led to the infamous Citizens United case (whose majority opinion, by the way, was written by the so-called "moderate" Anthony Kennedy); repeatedly undermined the rights of citizens and workers relative to the corporations that rule and employ them; set back voting rights equality for at least a generation; and many more. After this next appointment, many fear Roe v. Wade may be reversed.

Yet the Court has managed to keep (one is tempted to say curate) its reputation as a "divided body" and not a "captured body" thanks to its so-called swing vote justices and the press's consistent and complicit portrayal of the Court as merely "divided."

Delaying the Constitutional Crisis

The second point above, about the illusion of the Court's legitimacy, is just as important as the first. If the Court were ever widely seen as acting outside the bounds of its mandate, or worse, seen as a partisan, captured organ of a powerful and dangerous political minority (which it certainly is), all of its decisions would be rejected by the people at large, and more importantly, the nation would plunged into a constitutional crisis of monumental proportions.

We are in that constitutional crisis now, but just at the start of it. We should have been done with it long ago. Both O'Connor and Kennedy are responsible for that delay.

O'Connor's greatest sin, of course, was as the swing vote in Bush v. Gore, the judicial coup that handed the 2000 election to George W. Bush and Dick Cheney. It was also widely reported that on election night at a dinner party "Sandra Day O'Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona." (More on that here.)

Consider: If the Supreme Court were part of coup that makes a losing presidential candidate the winner, and makes that ruling along partisan and preferential lines that can't be judicially defended, how could any decision issued by that court be deemed legitimate afterward?

Yet here we are, still publicly asserting the Court's legitimacy, whatever people think privately, and still watching in horror as decision after decision dismantles old constitutional agreements and erects new ones.

The Legacy of Anthony Kennedy

Kennedy will be praised for his so-called "moderate" or "case-by-case" ideology, bolstered largely by decisions protecting gay rights. Perhaps that will be his legacy.

But in the main he has been horrible, with a record of ideological and indefensible votes capped by his landmark decision in the Citizens United case. Enough has been written about that to make repetition here unnecessary. As noted, Kennedy not only provided the crucial "swing vote," he also wrote the majority opinion, which in essence, reduced the broad and complex sweep of both public corruption and the appearance of corruption only to provable, documented, evidence-based quid pro quo exchanges. This is beyond naïve and touches itself the broader meaning of corrupt.

If justice exists in the world, his legacy will be this: First, in giving to Donald Trump the ability to hand a person of relative youth the fifth and deciding Republican vote on the Court, Kennedy has changed the Court for a generation. After his successor is confirmed, no good thing will come from the Court for the next 20 years, and much, perhaps fatal, damage will be done.

Second, thanks to Kennedy's handing his seat to Trump, the next new justice will be unable to claim the propagandistic "swing vote" mantle held by O'Connor and Kennedy, which fact should destroy the Court's perceived, illusory legitimacy forever. The full consequences of loss of legitimacy will be considered elsewhere, but suffice it to say that when a nation's highest court is not just captured, but widely seen to be captured, a constitutional crisis is at hand. 

This is the legacy Justice Anthony Kennedy, and though he may bask for the next few months in the glory of his pronounced moderation, the awful truth, to his enduring shame, should follow him to the grave — and be printed on it.

The Crisis to Come

Let's close by quoting Anthony Kennedy in the Citizens United case, the most bizarre defense of a decision in the modern era. (There have been many bizarre decisions — the "money is speech" decision in Buckley v. Valeo is among the worst in the last 50 years — but none has been as bizarrely defended by the Court as Citizens United.)

Remember that in Citizens United the Court, building on the decision in Buckley, ruled that the First Amendment prohibits Congress from passing any law limiting so-called "independent expenditures" by corporations and unions to political campaigns. (Of course, those independent expenditures are almost never independent at all, but that's another problem.)

To the objection that unlimited campaign contributions would foster widespread public corruption, Kennedy countered with this absurdity (quote taken from Jonathan Cohn here). In his majority opinion, Kennedy wrote:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. …

The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt. …

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.

Each assertion above strains belief that the writer is sane. Consider those assertions in simpler language:

1. Gifts of money don't corrupt.
2. Gifts of money don't look corrupt.
3. Influence over politicians doesn't corrupt.
4. Voters will have no problem with nakedly bought elections.

The first three are either plain nonsense, in which case Kennedy is unqualified to sit on the bench at all, or nonsense in service of ideology, in which case Kennedy is a political actor on an already captured Court.

The obvious explanation is the latter.

But the worse of his assertions may be the fourth, which is also patently wrong. That assertion, which says in effect "and people will let us get away with all these changes," has set the final table for the constitutional crisis to come — the one that questions the legitimacy of the Court itself and with it, perhaps, our entire political process.

That crisis, if it does come, will tear the national fabric as fundamentally as any of the earlier three — the crisis of 1776, the crisis of 1860, and the Great Depression. We're now much closer to that point than anyone with a microphone or media column inches will say. But you did hear it here. Stay tuned.

GP
 

Anyone Think Trump Has Read The Constitution, Let Alone Understood It? Kellyanne's Hubby Does

Some of the really craziest Republicans in the House, the Devin Nuneses and Matt Gaetzes of the dysfunctional chamber, have been trying, along with Giuliani and Hannity, to claim the Mueller investigation of Russian i Kellyanne Conwaytook to the pages of Lawfare on Monday to set his fellow-Republicans straight. I feel like we're living through the first season of Billions.

Trump, of course, in a twitter explosion of adderall-fuelled, self-serving rage and idiocy a few days ago claimed the very appointment of the "Special Councel (sic) is totally UNCONSTITUTIONAL." The tweet-- and the one that correct his misspelling-- have been removed from his feed. Conway provided his readers with both:

Señor Trumpanzee "didn’t explain, he wrote, "what his argument was, or where he got it, but a good guess is that it came from some recent writings by a well-respected conservative legal scholar and co-founder of the Federalist Society, professor Steven Calabresi. Unfortunately for the president, these writings are no more correct than the spelling in his original tweet. And in light of the president’s apparent embrace of Calabresi’s conclusions, it is well worth taking a close look at Calabresi’s argument in support of those conclusions."

Um... Trump doesn't read, let alone dense legal arguments by legal scholars and he certainly never explains what his argument is, or where he got it." Usually his rantings come from a toxic combination of snorted Adderall, Finasteride and Fox and Friends. But Conway's rebuttal to Calabresi's contention that "all of Special Counsel Mueller’s work is unconstitutionally 'null and void' because... Mueller’s appointment violates the Appointments Clause of the Constitution, Article II, Section 2, Clause 2," is still worth reading.

The Appointments Clause distinguishes between two classes of executive-branch “officers”-- principal officers and inferior officers-- and specifies how each may be appointed. As a general rule, the clause says that “Officers of the United States”-- principal officers-- must be nominated by the president and appointed “with the Advice and Consent of the Senate.” At the same time, however, the Appointments Clause allows for a more convenient selection method for “inferior officers”: It goes on to add, “but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of law, or in the Heads of Departments.”

Calabresi argues that Special Counsel Mueller is acting as a principal officer and that, accordingly, Mueller’s appointment violates the Constitution because Mueller was appointed by the acting attorney general, and not by the president with the advice and consent of the Senate. In support of this broad point, Calabresi makes first a specific claim and then a more general one.

His specific claim, made at the outset of his “Legal Opinion,” is that “Robert Mueller has behaved like the 96 [sic] U.S. Attorneys who are principal officers of the United States and who must be nominated by the President and confirmed by the Senate.” His more general, and overarching, claim is that under Supreme Court case law applying the Appointments Clause, Special Counsel Mueller is a principal officer because “because Mueller does not have a boss who is supervising and directing what he is doing.”

Calabresi’s first point-- the illustrative comparison between Mueller and the U.S. attorneys-- begins with a badly mistaken premise. Without citing anything at all, he repeatedly assumes, in both his op-ed and his “Legal Opinion” paper, that “Congress has specified that the 96 [sic] U.S. Attorneys are all principal officers who must be nominated by the President and confirmed by the Senate.” (Emphasis mine.)

This assumption is just wrong-- uncomplicatedly, flatly wrong. It is true that, typically, the 93 (not 96) U.S. attorneys are presidentially nominated and Senate-confirmed. But Congress has established an alternative method of appointment. Title 28 U.S.C. § 546 provides that, until the Senate confirms a presidential nominee, U.S. attorney vacancies can be filled for up to 120 days by an appointment made by the attorney general and then indefinitely by local district courts. Such non-presidential, non-Senate-confirmed appointees are, as one court of appeals has put it, “fully-empowered United States Attorneys, … not subordinates assuming the role of ‘Acting’ United States Attorney.” And such fully-empowered, non-presidentially-appointed U.S. attorneys are not all that uncommon. Today, the sitting United States attorneys in two of the most important judicial districts in the country-- the Southern and Eastern Districts of New York-- were appointed by the judges of those districts under Section 546(d).

And so “the Congress …  by … vest[ing] the Appointment” of U.S. attorneys “in the Courts of law” and “in the Heads of Departments,” obviously recognized that U.S. attorneys are “inferior officers.” But Congress is not the only branch of the government to have reached this conclusion. In 1978, the question was expressly put to the Justice Department’s Office of Legal Counsel. OLC’s conclusion: U.S. attorneys are inferior officers, because the law “authorizes the Attorney General to direct all U.S. Attorneys in the discharge of their duties.”

Not to be left out, members of the third branch-- which has made a lot of these appointments-- have also agreed. The Supreme Court has never squarely addressed the point under the Appointments Clause, but in discussing presidential removal power in Myers v. United States, the Supreme Court specifically referred to “a United States attorney” as an example of “an inferior officer.” More recently, in Morrison v. Olson, the high court approvingly noted how “Congress itself has vested the power to make [U.S. attorney] interim appointments in the district courts” under 28 U.S.C. § 546(d), and observed that “[l]ower courts have also upheld [those] interim judicial appointments of United States Attorneys” under the Appointments Clause. These lower courts include two federal courts of appeals, one of which rejected an Appointments Clause challenge to a U.S. attorney who had served under a judicial appointment for more than six years.

Accordingly, there is no serious dispute: U.S. attorneys are inferior officers. So if what Robert Mueller is really doing is, as Calabresi suggests, “behav[ing] like the [93] U.S. Attorneys,” then Calabresi’s argument immediately collapses on itself. Mueller is an inferior officer, just as U.S. attorneys are.

...[Rosenstein] confirms that Special Counsel Mueller does have an active principal-officer boss-- indeed, it suggests that Mueller is probably being supervised and directed more closely than any of the 93 U.S attorneys from Maryland to Guam... [N]not only does Mueller have a boss, and not only is the boss keeping tabs on Mueller, but, according to this judicial decision, Mueller is also faithfully following his boss’s orders.

That disposes of Calabresi’s Appointment Clause contentions, but Calabresi makes one additional constitutional point—and it’s a very, very, very odd one. It is based upon Morrison v. Olson, the 7-1 Supreme Court decision in 1988 that upheld the markedly different, long-expired independent-counsel provisions of the Ethics in Government Act of 1978.

To conservative lawyers of my generation, Morrison is, to say the least, a deeply unsettling decision, because it upheld the creation of a truly “independent” prosecutor-- an official who was exercising purely executive power, the power to prosecute, yet was doing so not only outside the Justice Department but, effectively, outside the entire executive branch. It provoked one of Justice Scalia’s greatest dissents-- to my mind, one of the greatest dissents of all time.

The majority in Morrison upheld the independent counsel mechanism against a variety of constitutional attacks-- including an Appointments Clause claim and a separation-of-powers claim. It rejected the Appointments Clause claim because four factual circumstances were present: the independent counsel was ultimately removable “for cause” by the attorney general, though unsupervised by him; the independent counsel had “limited duties,” involving merely investigation and prosecution; the counsel was “limited in jurisdiction”; and she was “limited in tenure.” As for the overall separation-of-powers claim, the court held, in the last major section of its opinion, that the independent counsel scheme did not “unduly interfer[e] with the role of the Executive Branch.”

For his part, Justice Scalia dissented vigorously and brilliantly from both holdings. As for the Appointments Clause, presaging his later opinion for the court in Edmond, he concluded that the independent counsel was a principal officer, and not an inferior officer, because she was subordinate to no one in the executive branch. As for the separation-of-powers holding in Morrison, Justice Scalia decried the “ad hoc, standardless” “balancing test” applied by the court. “[H]ow much removal of Presidential power is too much?” he plaintively asked. In the stirring conclusion to his dissent, Justice Scalia declared his preference to “rely upon the judgment” of the people who “constructed our system … and approved it,” when they declared “quite plainly,” in Article II, § 1 of the Constitution, “that ‘[t]he executive Power shall be vested in a President of the United States.”

I have already said enough about the Appointments Clause: The special counsel passes muster even under Justice Scalia’s test, which under Edmond is now the law. But on the basis of Morrison, Calabresi launches one further attack, albeit a half-hearted one, on the special counsel: He actually suggests that, in contrast to the independent counsel scheme upheld in Morrison, “[t]he Mueller appointment also violates the final part of [the] Morrison opinion”-- the separation-of-powers holding-- “because it interferes ‘too much’ with the President’s executive power.”

This is almost too much to bear, because what happened in Morrison was that Congress passed a statute that took prosecutorial power-- purely executive power-- away from, and out of, the executive branch. Cue Justice Scalia’s dissent: “the statute before us deprives the President of exclusive control over that quintessentially executive activity” and “[t]he Court does not, and could not possibly, assert that it does not.” “[T]he independent counsel exercises executive power free from the President’s control.” “[T]he independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President).” Despite all that, the majority in Morrison did not think the old independent counsel law stripped “too much” executive power away from the executive.

Contrast that with the situation here-- where not even Justice Scalia would think any power has been removed from the executive. Here there was no statute imposed by Congress, just a regulation-- a regulation promulgated by and within the executive branch. Specifically, a Justice Department regulation promulgated by the attorney general, an officer fireable at will by the president. And what does this regulation do? It simply divides work among lawyers within the Department of Justice-- within the executive branch. It surely doesn’t remove any executive power from the executive branch.

And not only that, the special counsel regulations can be unilaterally revoked by the very executive branch that unilaterally created them. Indeed, according to Attorney General Janet Reno when she issued the special counsel regulations in 1999, those regulations aren’t even subject to notice-and-comment rulemaking, because they relate to “matters of agency management or personnel,” and “agency organization, procedure, or practice”-- which suggests they could be dispensed with equally unceremoniously as well. In short, not only does the special counsel regulation not  take power away from the executive branch, but the internal rearrangement of authority it brings about within that branch could be relatively easily undone by a presidentially removable principal officer. No matter how you cut it, to borrow Justice Scalia’s words, there has been no “removal of Presidential power”-- none-- let alone too much.

In short, there is no serious argument that Special Counsel Mueller’s appointment violates the Appointments Clause specifically or the separation of powers generally.

*     *     *

A final observation: It isn’t very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn’t know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the “constitutional” arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers-- regardless of their politics-- owe a duty to abjure.