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More Wacky Locker Room Hi-Jinx In Trump Administration-Elect

[ 43 ] December 8, 2016 |

carls-jr-hardees-philly-cheesesteak-burgers

This seems overdetermined:

Andrew Puzder, the St. Louis attorney who rose to become CEO of Carl’s Jr. and now stands as Donald Trump’s pick to be Secretary of Labor, was accused of abuse by his first wife in the 1980s — with police twice summoned to the couple’s home.

The allegations were first aired in the couple’s 1989 divorce. The abuse allegations in the divorce filings then became the subject of a July 26, 1989, Riverfront Times cover story.

Puzder denied the abuse both in a deposition for his divorce and in the RFT’s story, calling his ex-wife Lisa Henning’s allegations “baseless.”

“There was no physical abuse at any point in time,” he told the RFT.

In her divorce filing, Henning alleged that Puzder hit her, threw her to the floor and unplugged the phone after she tried to call the police for her help. Puzder would later acknowledge in a deposition that he “grabbed her by the shoulders and pushed her back,” but said he did it to stop her from hurting herself.

The divorce filing also detailed two other incidents: One in the late ’70s in which the neighbors called the police after a shouting match turned into a plate-throwing fight, and one in which Lisa Henning alleged that Puzder punched her in 1985 while they were driving in a car. Questioned about the incident in a deposition for the divorce case, Puzder said that he had not punched his wife, but acknowledged driving onto the curb: “I think it had to do with the liquid refreshment we had with our dinner more than anything else.

This question is whether the Trump administration is doing no vetting at all, or they knew and just didn’t give a damn. I wouldn’t say either answer is very reassuring.

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Not That This Resulted In A Cross Between George Wallace, Calvin Coolidge and Jean-Claude Duvalier Becoming President Or Anything

[ 104 ] December 8, 2016 |

lb-8

A couple people flagged this in comments, but here’s another important finding from the Shorenstein Center’s study of the media’s performance covering the 2016 election (Tl; dr: it was the Hindenburg crashing into the Titanic while an atomic bomb was detonated in each):

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K-Drum:

The Shorenstein Center has published its analysis of 2016 election coverage, and the main takeaway is that it was very, very negative—but not uniformly negative. For most of the campaign, Donald Trump’s coverage was more negative than Hillary Clinton’s, but that suddenly turned around after James Comey’s letter about Clinton’s email was released. In the final two weeks of the campaign, more than a third of Clinton’s coverage was devoted to scandals. At the same time, coverage of Trump turned suddenly less negative.

The result is that during the crucial closing stretch of the campaign, Clinton’s coverage was more negative than Trump’s. It’s hard to look at this and not conclude that Comey’s letter was the key turning point that made Donald Trump president.

Well, duh. It’s worth noting as well that even before Comey’s coup de grace once you account for Clinton’s lead in the horserace the media was pretty much treating Trump’s unprecedented, norm-shattering parade of instances of what would disqualifying conduct for any other candidate as the equivalent of two trivial Clinton pseudo-scandals. (Note as well that the two big Clinton “scandals” for the media during the campaign were EMAILS! and DONORS ASK CLINTON FOUNDATION FOR FAVORS AND DON’T GET THEM BUT TROUBLING QUESTIONS!, not the big money speeches. Apologists for the media and Comey like to focus on the speeches because they really did constitute dumb and objectionable behavior even they wouldn’t rank in the top 1,000 Donald Trump scandals. But the speeches were not a big deal to elite journalists, most of whom after all are on the “America’s underachieving elites shower each other with money to deliver platitudes” gravy train or aspire to be.) It was a case of terrible coverage getting even worse rather than fair coverage suddenly turning unfair.

Anyway, to summarize, the evidence that the Comey letter and the Kardashian-sisters-land-on-Mars quantity and Hillary Clinton-embezzled-money-from-the-local-food-bank-and-funneled-it-to-ISIS quality coverage that ensured swung the election is as strong as any such evidence could possibly be:

  • Especially in battleground states, late-breaking voters broke big for Trump. Note that during this time Hillary Clinton did not become more NEOLIBERAL, the economic situation in Wisconsin and Iowa did not get worse, and Donald Trump did not become more famous.
  • The margin that put Trump in the White House is 80,000 votes. So not all, or even most, of this late 5-point shift towards Trump has to have been directly caused by the coverage of the Comey letter for it to have been decisive.
  • Late coverage of the campaign was demonstrably dominated by negative coverage of Hillary Clinton’s EMAILS!, and this coverage strongly amplified the CROOKED HILLARY narrative Trump pushed throughout the campaign.
  • This shift in coverage also had the effect of drawing focus away from Trump’s countless examples of egregious misconduct, further relatively normalizing him as a candidate and making the election more like the fundamentals-and-partisanship election he needed to make the election close enough for the Slave Power to win one more time.
  • We’re not dealing with a single event either. Every previous time Comey opened his yap and caused a chicken-screwing orgy on the part of the media, Clinton’s support discernibly declined.
  • But what about the argument that none of this evidence means anything because 2016 showed that polls were worthless? The problem is that this is false. The national polls were basically accurate — Clinton winning by two points with polls showing Clinton +3/4 is a normal deviation. The state polls were less accurate, but 1)state polls are always by their nature less accurate in general, and 2)part of the reason they were less accurate is that many states were under-polled late and hence failed to catch the late break towards Trump.
  • Obligatory note that complex events have multiple causes and responsibility is joint. To the argument that we should basically give the media and Comey a pass because going forward we need to focus on the fact that Hillary Clinton sucks, it seems worth observing that Hillary Clinton will not be the Democratic candidate for president again and the 2016 campaign will not ever be run again, but the media and the national surveillance state aren’t going anywhere.

Yes, yes, as many armchair social scientists will observe, correlation does not prove causation and counterfactuals cannot be proven to an absolute certainty. But the evidence for the “coverage of the Comey letter threw the election” is much stronger than the evidence for the counterfactual that “the Comey letter was irrelevant,” and the theoretical argument for the former is much stronger too. Late-breaking voters decided the election, the late stages of the campaign were dominated by negative coverage of Hillary Clinton, but we’re supposed to believe that this negative coverage had no meaningful effect? Sure. And of course in roughly 99% of cases the apologists and hand-wavers are not saying “we should not make any attempt to understand election outcomes because social science rarely produces completely unassailable conclusions” but rather are saying “we should ignore Comey to focus on Hillary Clinton’s messaging and the fact that Al Gore didn’t use Bill Clinton enough.”

Nope, Comey’s grossly inappropriate letter and the media’s grossly irresponsible coverage of the letter almost certainly swung the election. This would be defensible even so if it involved critical new information about serious misconduct by Hillary Clinton. But in fact the letter contained no meaningful information about a trivial pseudo-scandal that had already been over-covered by a factor of about six trillion. Really, heckuva job.

 

Another Marginal Shift to the Right From the Second of America’s Two Similarly Neoliberal Parties

[ 199 ] December 8, 2016 |

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But Hillary Clinton’s propose minimum wage hike fell below an arbitrary number, so really Both Sides Do It:

President-elect Donald Trump is expected to name fast-food executive Andy Puzder as labor secretary, according to people familiar with the decision.

Mr. Puzder, chief executive of CKE Restaurants Holdings Inc., the parent company of the Carl’s Jr. and Hardee’s burger chains, has been a vocal advocate for cutting back regulations he says have stifled growth in the restaurant industry, which represents 10% of the American workforce.

Mr. Puzder, an adviser and contributor to Mr. Trump’s campaign, has criticized the Affordable Care Act and has argued against raising the federal minimum wage higher than $9 an hour. Democrats have called for raising the federal minimum wage for as high as $15.

Mr. Puzder is on the board of the International Franchise Association, a trade group that has criticized the Obama administration, saying it attacked the franchising model by implementing regulations that stunt job growth. Instead of focusing on stepping up workplace regulation to create jobs and higher wages, Mr. Puzder would likely call for tools such as an overhaul of the tax system, said Matt Haller, a spokesman for the franchise trade group.

The marginal white working class voters who supported Trump will be getting it good and hard:

Perhaps the worst-case scenario for low-wage workers would be Andy Puzder, the millionaire CEO of CKE Restaurants, the parent company of the fast-food burger chains Carl’s Jr. and Hardee’s, and a harsh conservative critic of Obama. In his frequent op-ed and cable news commentaries, Puzder has championed every aspect of right-wing trickle-down economics. Rolling back taxation and regulation for the rich and corporations will lift the economy, he’s argued, as will getting rid of all those minimum-wage hikes.

Last year, the fast-food CEO made more in one day ($17,192) than one of his full-time minimum wage workers would make in a year ($15,130), according to TalkPoverty. Yet Puzder opposes any increase to the minimum wage, believes that workers are kept in poverty because of government assistance programs, and thinks expanding access to overtime pay would diminish the prestige of entry-level management jobs.

I dunno, I’m thinking the chin-stroking discussions about what to do if Trump/McConnell/Ryan are serious about passing a minimum wage hike can be permanently tabled so we can discuss more plausible scenarios, like what to do if Trump nominates a 33-year-old radical feminist to the Supreme Court.

Another Marginal Shift to the Right From the Second of America’s Two Similarly Neoliberal Parties

[ 52 ] December 8, 2016 |

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Goody:

Donald Trump plans to nominate Oklahoma Attorney General Scott Pruitt to head the Environmental Protection Agency — a pro-industry, anti-regulation pick that suggests big, big changes could be in store for environmental policy.

The EPA is in charge of creating and enforcing federal regulations around air and water pollution, largely guided by laws like the Clean Air Act and Clean Water Act, which were first passed by Congress in the 1970s. Under President Barack Obama, the EPA has been particularly active in formulating new rules on coal-fired power plants, cars, trucks, and oil and gas operations — all with an eye toward reducing conventional air pollutants and curbing the greenhouse gases that cause climate change.

Pruitt has been an ardent opponent of these efforts for years. He calls himself the “leading advocate against the EPA’s activist agenda” and has long insisted that states can often regulate pollution better than the federal government can.

Ever since becoming Oklahoma’s top prosecutor in 2011, Pruitt has joined or led state lawsuits to block virtually every major federal regulation around climate and air pollution that Obama’s EPA has put forward. He sued to stop a major rule to limit mercury pollution from coal plants. He sued to stop a rule to reduce smog pollution that crossed state lines. (Both rules largely survived these challenges.)

At the moment, Pruitt is part of a lawsuit to block the EPA’s efforts to address global warming via the Clean Power Plan — which aims to reduce carbon dioxide emissions from power plants. Pruitt has also questioned and misrepresented the science of climate change. In a piece for National Review last May, he wrote: “Scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind.” (That is not really true.)

But Hillary Clinton refused to say that she would unilaterally pass a constitutional amendment banning fracking, so fundamentally I’d say Both Sides Do It.

Of the many horrible things a Trump administration will bring us, some are uniquely Trump and many more will be just Republican. This is the latter.

“Unless it involves Sage Northcutt hand-ripping apples and ginger roots and mashing them through a sieve, I call bullshit.”

[ 48 ] December 7, 2016 |

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It’s that one special December day we look forward to every year: the hater’s guide to the Williams-Sonoma catalogue:

As always, there is nothing rich people love more than eating fancy versions of white trash food. “It’s franks and beans, but the beans are imported from Tuscany and the franks are actually made from Japanese HegWu beef. Such whimsy! NINETY DOLLARS PER PIECE.” Every time a Brooklyn resident raves about “comfort food,” a coal miner from Appalachia is crushed in a landslide.

Can I confess something? I would totally love to own that Tartan dutch oven. If a reader bought one for me I would end my silence and tell you what I really think about James Comey.

How the Roberts Court Helped Out Wells Fargo

[ 52 ] December 7, 2016 |

Chief-Justice-John-Roberts“I applaud how these hard-working salesmen met their quotas!”

If you were wondering why I listed AT&T v. Concepcion as one of the very worst Roberts Court decisions, here you go:

The bank has sought to kill lawsuits that its customers have filed over the creation of as many as two million sham accounts by moving the cases into private arbitration — a secretive legal process that often favors corporations.

Lawyers for the bank’s customers say the legal motions are an attempt to limit the bank’s accountability for the widespread fraud and deny its customers their day in open court.

Under intense pressure to meet sales goals, Wells employees used customers’ personal information to create unauthorized banking and credit card accounts in a far-reaching scandal that has rattled the San Francisco bank to its core, forcing the retirement of its longtime leader, John G. Stumpf, and enraging regulators and politicians of all stripes.

The bank’s arbitration push in recent weeks is fanning those flames anew.

“It is ridiculous,” said Jennifer Zeleny, who is suing Wells Fargo in federal court in Utah, along with about 80 other customers, over unauthorized accounts. “This is an issue of identity theft — my identity was used so employees could meet sales goals. This is something that needs to be litigated in a public forum.”

In arbitration, consumers often find the odds are stacked against them. The arbitration clauses prevent consumers from banding together to file a lawsuit as a class, forcing them instead to hash out their disputes one by one and blunting one of most powerful tools that Americans have in challenging harmful and deceitful practices by big companies.

Strict judicial rules limiting conflicts of interest also do not apply in arbitration, enabling some companies to steer cases to friendly arbitrators, according to a 2015 investigation by The New York Times.

Arbitration is also conducted outside public view, and the decisions are nearly impossible to overturn.

Ms. Zeleny, a lawyer who lives outside Salt Lake City and opened a Wells Fargo account when she started a new law practice, said it would be impossible for her to agree to arbitrate her dispute over an account that she had never signed up for in the first place.

The bank’s counterargument: The arbitration clauses included in the legitimate contracts customers signed to open bank accounts also cover disputes related to the false ones set up in their names.

Some judges have agreed with this argument, but some lawmakers and others consider it outrageous.

“Wells Fargo’s customers never intended to sign away their right to fight back against fraud and deceit,” said Senator Sherrod Brown, an Ohio Democrat, who introduced a bill last week that would prevent Wells from forcing arbitration in the sham account cases.

Yet even as the bank reels in the court of public opinion, Wells Fargo has been winning its legal battles to kill off lawsuits. Judges have ruled that Wells Fargo customers must go to arbitration over the fraudulent accounts.

In dismissing one large case seeking class-action status in California, a federal judge ruled last year that it was not “wholly groundless” that customers could be forced to arbitrate over accounts they had never agreed to. That case is now being settled, according to legal filings.

Some of these victims, admittedly, probably would have been kept out of federal court and/or denied class action arbitration claims no matter what. But California used to have regulations that limited forced arbitration clauses. Alas, the Roberts Court ruled that these regulations were preempted by federal law, even though they were clearly not preempted by federal law. In conclusion, the Roberts Court is all about ethics in gaming journalism federalism. So Wells Fargo will probably find that defrauding their customers won’t work out that badly for them in the end.

There are so many things the next unified Democratic government (if any) needs to do, but federal restrictions on forced arbitration contracts is something that should be on the radar. The extreme deference given to forced arbitration agreements is essentially a corporate license to steal, leaving consumers with rights but an effectively worthless remedy in many cases.

The electology.org poll, part 2/3: Feeling the Bern? Or feeling the Johnson?

[ 104 ] December 7, 2016 |

This is part 2 of a series of 3 posts by Jameson Quinn, based on a pre-election poll run by electology.org and GfK research. Part 1 introduced the poll and analysis methodology, and discussed the lessons of the poll regarding the two-way Hillary/Trump race. This part talks about what the poll tells us about support for other candidates or potential candidates. Part 3 will talk about the implications for voting systems.

I want to clarify especially that I’m speaking for myself in these posts. Specifically, Electology (aka the Center for Election Science or CES) is a nonpartisan organization; our board members and supporters include active and committed members of all of the top 4 US parties (Republican, Democratic, Libertarian, and Green). I honestly believe that our proposals for voting reform would bring the kind of positive-sum changes that could be win/win for all of these groups and more. We value our nonpartisan position, and any statement I make here that’s partisan is NOT the position of the organization.

The focus of electology’s part of this poll was on alternative voting methods. To that end, voters were asked about how they would have voted under 3 such methods (approval voting, 0-5 score voting, and IRV), as well as under plurality (aka First Past the Post). They were also asked for their honest opinions of the candidates on a 0-5 scale. Interviewees were randomly given either a short list of 4 candidates — Clinton, Trump, Johnson, and Stein — or a longer list of 9 possible candidates — Clinton, Sanders, Trump, Cruz, Johnson, Stein, McMullin, Bloomberg, and Castle.

In this installment, I’m focusing on the question of how people felt about all of these candidates, not on the effects of voting system per se. To that end, I’ll look at the results from the long list of candidates, under approval and score voting. In the next installment, I’ll dive much further into the differences between the long and short lists, the various voting methods, and what that shows. (Teaser: plurality still sucks and needs reforming, but the other lessons are not entirely what I’d hoped for.)

So, here’s the flashy, yet controversial, picture. (I know that there are a lot of caveats and disclaimers with this picture, and I’ll try to cover them below. And I’ll still probably fail to give all the caveats I should, so you can yell at me in comments if you want.)

 

What are you looking at? I made demographic models, as detailed in the previous post, for the score results of all 9 candidates mentioned above. Each model used ordered logistic regression; I’ll explain what that is below. Then I applied the models to each state’s demographics, as given by the Current Population Survey, and voting propensity by ethnicity, gender, and state from 2012. I then corrected the Clinton and Trump results by the factor by which my plurality model from last post got the state wrong; and the other candidates’ results by those factors for Clinton and Trump, each raised to the power of the correlation between the major-party candidate’s simulated plurality total and the minor candidate’s simulated score voting total. (The sum-absolute-value of those correlations was between 0.5 and 1 for both Cruz and Sanders; and none of the other candidates came close to winning anywhere).

Or, in plain English, I used the survey results to model how each state’s population would have responded to the score voting question, and then rescaled the results to agree better with the actual voting outcome.

scoremapWarning: Poll results do not guarantee contrafactual performance.

If you’re wondering about the strange empty area in the Midwest: that’s because nobody actually lives there. That is, the states above are scaled proportionally to their electoral votes. (If I’d scaled them to their population, Wyoming would be microscopic.) This excellent map format is from Daily Kos Elections.

Of course, the obvious disclaimers apply. I’m aware that this involves unfair comparisons. Clinton and Trump went through bruising general election campaigns and both got large amounts of primarily-negative media coverage; Johnson and Stein were mostly not treated seriously; and during the general election campaign, the other hypothetical “candidates” like Sanders basically only got attention from their supporters. I’m happy to discuss why or how that happened in the comment section, but for now: yes, I am fully aware that if Sanders had been the nominee or one of many nominees, this would not have been the map.

Furthermore, if the real-world election were being run using score voting, voters would almost certainly vote more strategically than they do on a poll. (I’ll talk more about that in the next installment).

Specifically regarding McMullin: my model would probably underestimate the support of regional candidates like him, so it’s possible that a more perceptive model would give states like Utah or Nevada to him.

And finally: even if you ignore all the above disclaimers, this map above is a visualization of what “might” happen if we kept the electoral college but used score voting in each state. That’s a crazy hybrid of election methods that nobody actually advocates. We need to get rid of the electoral college. (I’ll talk more about this point too in the following installment.)

Still. Those disclaimers notwithstanding, I find this map very interesting. The electoral totals would be: Sanders 280, Trump 174, Clinton 73, Cruz 11. Sanders wins this crazy hybrid election outright.

Read more…

A Disastrous Failure of the Press

[ 342 ] December 7, 2016 |

clinton benghazi

Perlstein puts all of the pieces of the puzzle in place:

America’s media establishment endlessly repeated Republican claims that Hillary Clinton was a threat to the security and good order of the republic, because she stored official emails on her own server, and erased about 33,000 of them she said were private. The New York Times ran three front-page stories about FBI director James Comey’s surprise review of another set of emails found on the computer of Anthony Weiner’s wife, Clinton aide Huma Abedin. This second review, however, like the first, ended up showing no wrongdoing.

It’s worth pausing here to observe how astounding this is. The Times ran three front page stories about the FBI director having found some emails that very predictably revealed no relevant information about a trivial pseudoscandal that involved no significant misconduct by Hillary Clinton. Three. To choose at random from the countless things Donald Trump did that were far worse than legally using a private email server, Donald Trump called for innocent African-Americans to be lynched. A search of nytimes.com of “Donald Trump Central Park five” and “Donald Trump Central Park jogger” reveals no news stories and one op-ed about it. Perhaps the search is failing to pick up something, but we can safely conclude it received far less coverage.

The elite gatekeepers of our public discourse never bothered with context: that every Secretary of State since the invention of the internet had done the same thing, because the State Department’s computer systems have always been awful; that at the end of the administration of the nation’s 41st president a corrupt national archivist appointed by Ronald Reagan upon the recommendation of Dick Cheney signed a secret document giving George H.W. Bush personal, physical custody of the White House’s email backup tapes so they would never enter the public record. (A federal judge voided the document as “arbitrary, capricious, an abuse of discretion, and contrary to law.”) The White House of his son George W. Bush erased 22 million of its official emails, including those under subpoena from Congress. Newspapers archived by the Lexis-Nexis database mentioned Hillary R. Clinton’s 33,000 erased private emails 785 times in 2016. I found six references to George W. Bush’s 22 million erased public ones: four in letters to the editor, one in a London Independent op-ed, another in a guide to the U.S. election for Australians, and one a quotation from a citizen in the Springfield (Ohio) News-Sun.

And now we have Donald Trump, elected in part because of his alleged tender concern for the secure handling of intelligence, making calls to world leaders from Trump Tower’s unsecured telephones.

Trump boogied his way to Pennsylvania Avenue to the tune of the extraordinary finding by a Washington Post-ABC News poll that “corruption in government” was listed by 17 percent of voters as the most important issue in the presidential election, second only to the economy, and ahead of terrorism and health care—and that voters trusted Trump over Clinton to be better on the issue by a margin of 48 to 39 percent, her worst deficit on any issue. This is the part of my article where rhetorical conventions demand I provide a thumbnail sketch of all the reasons why it’s factually absurd that anyone would believe that Donald Trump is less corrupt than Hillary Clinton. I have better things to do with my time than belabor the obvious.

Yet somehow, the great mass of Americans believed Clinton was the crook. Might it have something to do with the myriad articles like, say, “Smoke Surrounds the Clinton Foundation,” by The Los Angeles Times’s top pundit Doyle McManus? This piece, all too typically, despite endeavoring to debunk Trump claims of Clinton corruption, repeated charges like “Doug Band, who helped create the Clinton Global Initiative, sought access to State Department officials for Clinton Foundation donors”—even though donors did not get that access). And that donors harbored the “assumption” that they would “move to the head of the line”—even though they never did.

Investigating the Clinton Foundation for corruption was entirely appropriate. It was done, none was found, and...many lengthy stories were written suggesting that innocuous behavior RAISED QUESTIONS and presented TROUBLING OPTICS anyway. And, hence, an election that resulted in the election of a president whose financial interests are opaque and is openly planning to run the White House as a massive grift operation featured corruption as a major issue…and Trump’s opponent was portrayed as the corrupt candidate, and the public got the message. Heckuva job, really.

The Smearing of Keith Ellison

[ 207 ] December 7, 2016 |

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Michelle Goldberg:

The first time I visited Shuhada Street in Hebron, a city of 200,000 in Israel’s West Bank, I felt as if I’d stepped through a looking glass. For most of the past 12 years, the once-bustling market street has been under lockdown to protect 800 militant Jewish settlers who’ve seized part of the old city. Aside from soldiers and a few orthodox Jewish women pushing baby carriages, Shuhada Street is empty and silent; in the parlance of the Israel Defense Forces, it is “completely sterilized,” which means that Palestinians aren’t allowed to set foot on it. Most of the Arabs who once lived in the area have left, but the few who remain are virtual prisoners in their apartments, where cages protect windows and balconies from settlers’ stones. Palestinians who live on Shuhada Street aren’t allowed to walk out their front doors; if they must go out, they have to climb onto the roof and down a fire escape into a back alley. My tour guide, an orthodox Jewish IDF veteran who’d become a fierce critic of the occupation, described what happens if the Palestinians get sick. “The Jewish subset of the Red Cross doesn’t treat Palestinians here,” he told me. “What you see a lot of times is Palestinians carrying people by foot to an area with an ambulance.”

The disorientation of Shuhada Street comes not just from the moral horror, but from the near-impossibility of conveying that horror to most Americans without sounding like a crank. Before that first visit, I was someone who rolled my eyes when left-wingers described the occupation of Palestine as apartheid, a term that seemed shrill and reductive and heedless of a thousand complexities. Afterward, I realized how hard it is, within the cramped, taboo-ridden strictures that govern mainstream discussion of Israel, to talk about what’s happening in Hebron. If I’d never been there and someone had described it to me, I wouldn’t have fully believed her.

Keith Ellison, the Democratic congressman from Minnesota and candidate for Democratic National Committee chairman, was also stunned by what he saw in Hebron; I spoke to him about it after his first trip there. This summer, he tweeted a photo of one of the city’s caged apartment windows, where someone had put a sign saying, “Caution: This was taken by Israel. You are entering Apartheid.” Now that tweet is being used to smear Ellison as an anti-Semite and derail his candidacy for DNC chairman. The anti-Ellison campaign, coming at a time when Donald Trump’s election has emboldened genuine anti-Semites to a degree unprecedented in living memory, is evidence of warped priorities among a good part of the American Jewish community. The need to defend the indefensible in Israel is leading to the demonization of an ally of Jews in America.

The battle to ensure that Keith Ellison becomes head of the DNC has become an extremely important one. Schumer seems, for now, to be holding firm. And it’s essential that this continue. If one of Obama’s Republican Daddies actually throwing the presidential election to a Republican with the EMAILS! non-scandal teaches us nothing else beyond the obvious “no more Republican Daddies,” it should be this: no more Shirely Sherrods. No more internalizing Republican smears. Capitulating to this crap is wrong on the merits and also achieves nothing politically. Keith Ellison is an excellent choice to lead the DNC. He is not an anti-Semite. Ignore the ridiculous claims that he is. And let’s get to work.

Is Zell Miller Unavailable?

[ 158 ] December 6, 2016 |

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I warn you: you will need not merely fire resistant clothing but perhaps a hazmat suit before reading this take:

Not that he asked me, but here’s some advice for Rahm Emanuel: Run for the chairmanship of the Democratic National Committee.

It gets worse. I will not give you a full account, but instead will isolate this particular Scotch bonnet:

Ellison, who ten years ago became the first Muslim elected to Congress (Rep. Andre Carson, an Indiana Democrat, makes two) has denied having any anti-Semitic views, and he has the support of Senate minority leader Chuck Schumer, Bernie Sanders, Elizabeth Warren, and Harry Reid.

Having the support of Schumer, who is Jewish, should help, but then there’s Rahm, who can claim without hyperbole that “Israel” is his middle name.

If you don’t believe this is representative and want to click through to be sure, it’s your funeral.

Who would win a hot take contest between “we need MOAR of James Comey’s fiercely nonpartisan independence” and “Rahm for DNC head”? It’s like choosing between my hypothetical children. I give both 10 Baylesses on a scale of 1-5.

Let Us Celebrate the Unimpeachable Nonpartisan Integrity of James Comey

[ 142 ] December 6, 2016 |

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Back in the innocent days when we thought that James Comey had merely taken the unnecessary risk of blowing up the world rather than knowing that he succeeded, Paul observed that the Beltway rule of treating Republican Daddies is that no matter how egregiously bad and hackish their behavior and no matter how disastrous the consequences for the country, they must always be celebrated as men of the most Sterling Impartiality and Integritude. Susan Hennessey and Ben Wittes have cooked up what surely must be one of the spiciest meatballs ever served in this genre:

Here’s one key personnel decision, however, that is absolutely clear: FBI Director James Comey must remain in place.

Comey is not a popular man these days, with either the Right or Left. Many on the Right, including Trump and members of Congress, sharply criticized Comey’s decision to recommend Hillary Clinton not be charged over the handling of classified information on a private email server. And their cheering of his 11th hour letter informing Congress that the FBI was reviewing new emails related to the investigation did not last for long either. When Comey announced two days prior to the election that those emails had yielded no new evidence, Trump’s own campaign accused the FBI of outright fraud, claiming that it was impossible to review 650,000 emails (an unconfirmed number) in 8 days (it is possible, thanks to computer programs).

Many on the Left, meanwhile, blame Comey, at least to some degree, for Trump’s victory. They point, fairly or not, to his decision to inform Congress of the discovery of new emails before they were reviewed as at least a—if not the—reason for Trump’s razor thin victory. Even among those who do not blame Comey for Trump’s win, there is still a palpable sense among many in both parties that his letter was inappropriate, and among some that his highly-unusual July press conference was as well.

Moreover, reasonable people across the political spectrum [cites omitted- ed.] were shocked and troubled by the torrent of politically-motivated, and likely false leaks from the FBI New York field office in the finals days before the election. What happened there was not just the malevolent freelancing of a group of individuals; it was also a failure of management, one that damaged the basic integrity of the FBI as an institution. Comey has much work to do to restore faith in federal law enforcement and hold accountable those elements within his own organization that appear to have violated the trust of their offices.

And all that said, now more than ever, we need Comey to lead the FBI.

Whatever you think of Comey’s judgment or conduct during the campaign, his actions have unequivocally demonstrated political independence from his political bosses, as he has in the past. And that is exactly what we will need from the FBI in the coming years.

Ah yes, the core of many such arguments: IF YOU’RE CATCHING FLAK FROM BOTH SIDES, YOU MUST BE OVER THE TARGET! The fatal problems with this defense are that 1)Comey engaged in multiple instances of utterly indefensible behavior that had disastrous consequences and 2)Republicans have absolutely nothing to complain about. Let’s summarize the reasons that Republicans criticized Comey:

  • He did not indict Hillary Clinton over EMAILS!
  • He issued a letter two days before Election Day indicating that the investigation he had restarted into Hillary Clinton’s EMAILS! very predictably did not yield any relevant new information about the trivial pseudoscandal being investigated.

This Republican criticisms of Comey, in other words, are utterly frivolous. Comey deserves as much credit for not recommending the indictment of Clinton for her EMAILS! as he does for not recommending indicting her for the murder of JonBenet Ramsey. Her use of a private server was plainly not illegal, and there is no evidence whatsoever that classified materials were intentionally destroyed. There is nothing there and never was.  Republican criticisms for releasing the late letter that further underscored how grossly inappropriate his earlier letter was and that may well have further hurt the Clinton campaign by allowing Trump to suggest that she got away with something are similarly absurd.  This is the self-reinforcing beauty of the Clinton rules: Republicans can manufacture the fog of scandal ex nihilo, the political damage can be done, and then a Republican who refuses to act on the feverish conspiracy theory gets called a great statesman. It’s a nice racket!

Meanwhile, let’s look at the Democratic complaints against Comey, some of which Hennessey and Wittes don’t mention:

  • When announcing his water-is-wet decision not to indict Hillary Clinton because she did nothing that was even remotely illegal, he engaged in highly prejudicial and grossly inappropriate editorializing that played a major role in the trivial EMAILS! pseudoscandal completely dominating coverage of Clinton.
  • He engaged in similarly highly prejudicial and grossly inappropriate editorializing about Clinton in testifying before Congress and in report the FBI issued before the debates, inflicting further completely unwarranted political damage and adding an official imprimatur to the chief Republican narrative about Clinton.
  • Against the wishes of his superiors and in violation of departmental rules and norms, he issued a highly prejudicial and grossly inappropriate letter indicating that the investigation into Hillary Clinton’s EMAILS! was being reopened, based on having found some emails on a computer that did not belong to Hillary Clinton, emails that the FBI did not even have a warrant to search yet. With the current collective margin in Pennsylvania, Michigan, and Wisconsin at less than 100,000 votes it is about as clear as such a counterfactual can be that without this letter the solid winner of the popular vote would also be the president-elect.
  • And is if to preemptively confirm that he had not reached a principled (if inappropriate and wrongheaded) determination that the governing rules and norms were wrong but was acting in a self-serving and partisan fashion when he sent the letter that blew up the world, he earlier refused to comment on an investigation that might be damaging to Donald Trump. In summary, where the Republican candidate was concerned, Comey followed the rules against unduly influencing elections. Where the Democratic candidate was involved, his view was “[w]ell, I know the rule is designed to make sure that our investigations don’t influence elections, but I think in this case, we should break that rule, because there’s an election, and we should influence it.”
  • As Hennessey and Wittes concede, he horribly mismanaged his rogue New York bureau, and in the kindest construction of his motives compounded the mistake by appeasing them.
  • The second letter, discussed earlier. It came too close to the election to give us a clear sense of what effect it had, but given that every previous Comey intervention was followed by a drop in Clinton’s numbers and that Trump overachieved on election day, the Clinton campaign’s theory that is also damaged the campaign is plausible. And even it didn’t, it underscored how inappropriate the first letter was — there was never any non-trivial possibility that the Weiner laptop would reveal material information about Clinton, and there was no reason to inform Congress.

What Democrats are complaining about, in other words, is a pattern of egregious and utterly indefensible misconduct that almost certainly had the effect of putting a unprecedentedly unfit candidate not chosen by the people in the White House. He showed himself to be an incompetent manager who made one catastrophic misjudgment after another, with the cumulative effect of quite literally undermining American democracy himself. The man should be a pariah who bears substantial responsibility for every bad thing Donald Trump does. And yet, astoundingly, Hennessey and Wittes conclude that we must not merely tolerate having this man in charge of the FBI but need him. The fact that he ignored his superiors in the service of personal and/or partisan agendas is being cited as a point in his favor. What can you even say at this point? We need him at the FBI because Bernie Kerik is unavailable?

I guess I can see a narrow argument that Obama shouldn’t fire Comey because Trump’s replacement would be even worse. But, actually, I don’t know that — his actions reveal him to be an ineffective manager with very poor judgment, and the consistent partisan tilt of his actions lends little confidence that his vaunted independence will be asserted against Trump. (I think the statute of limitations on milking that one time he stood up to Alberto Gonzalez has expired.) And there’s something about him just continuing in his office as if nothing happened that seems more than a little wrong. His nonpartisan reputation is a grotesque sham and his actions were unconscionable. And I find it hard to believe that the man who threw an election to an authoritarian will be an effective bulwark against authoritarianism.

In conclusion, I would like to offer some pitches to Lawfare:

  • We need Michael Brown at FEMA more than ever
  • We need Jeffrey Skilling as the head of a major corporation more than ever
  • The Los Angles Rams need Jeff Fisher more than ever
  • Huma Abedin needs Anthony Weiner more than ever
  • The New Republic needs Stephen Glass more than ever

 

Jury Nullification

[ 220 ] December 5, 2016 |

The only difference between this and Jim Crow is that in the latter era this would have been an acquittal:

A mistrial has been declared in the case against Michael Slager, the former police officer that shot and killed Walter Scott, an unarmed black man, in South Carolina in April 2015.

A circuit judge confirmed the mistrial after the jury was unable to come to a unanimous decision. “The court therefore must declare a mistrial in this case and I so declare that is case is mistried,” he stated.

Slager shot Walter Scott in the back repeatedly, killing him. At the time of the shooting, Scott was already 15 to 20 feet from Slager and running away.

Video taken by a bystander showed Slager placing a weapon by Scott’s body after the shooting, in an apparent attempt to plant a weapon on him. When the officer radioed a dispatcher, he explicitly lied, stating that Scott had taken his Taser.

Scott’s shooting is one of the most clearly unjustified police killings in recent memory.

After the shooting, the FBI, the Department of Justice’s Civil Rights Division, the U.S. Attorney in South Carolina, and local law enforcement each opened separate investigations into Scott’s death.

Yet last week a jury failed to convict Slager of murder and manslaughter. Reports say that one juror refused to convict. The jury included 11 white jurors and only one black person.

38% of the population of North Charleston is white, and yet 92% of the jury was. This is not incidental to the outcome.

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