American History Is Full of Immigrant-Haters Like Stephen Miller

By Clive Irving, The Daily Beast

20 August 18

America’s record as a haven for refugees has often been tarnished by people all too ready to forget any obligation to their own family’s experience.

here are good reasons to believe that Stephen Miller won’t be shamed by his uncle’s attack on his role in the White House, provoked by his actions as a principal architect of a program that, as of now, has made virtual orphans of more than 500 children seized, along with their parents, at the Mexican border.

The uncle, David Glosser, a retired clinical neuroscientist, wrote that he was horrified by Miller’s behavior. He reminded his nephew that his family’s maternal roots can be traced to subsistence farmers in a shtetl in what is now Belarus.

Like thousands of other Jews they were terrorized by pogroms in the early twentieth century. The family patriarch, Wolf-Leib Glosser, arrived on Ellis Island in 1903 as a refugee.

Settling in Johnstown, Pennsylvania, the Glossers became prosperous and a model of how the enterprise of immigrants helped to power America’s growth and culture. Miller’s mother is David Glosser’s sister.

“I have watched with dismay and increasing horror as my nephew, who is an educated man and well aware of his heritage, has become the architect of immigration policies that repudiate the very foundation of our family’s life in this country,” David Glosser wrote in Politico.

The moral indictment here is clear, and familiar. How can a descendant of refugees become party to the pitiless treatment of a new wave of refugees?

But, as forcefully felt and argued as Glosser’s essay is, there is no reason to believe why an experience that was several generations behind him should imprint itself on Miller in the form of his political beliefs, as though by rote. Just because those beliefs are abhorrent to Glosser (and many others) doesn’t make them illicit in a democracy.

The really unsettling question is more universal than personal: what makes someone step so far in their political beliefs from where their biography would suggest they would naturally be? In this case the answer is that influences other than family biography were more powerful.

Miller grew up in Santa Monica, California that photogenic combination of dopey, light-headed beach culture and 1960s reformist liberalism. Something about this lazy way of life and thought brought out the contrarian in Miller, who was a lucid and sharp debater. He started taking on the contrarian role while he was still at high school, lashing out at liberals on Larry Elder’s right-wing radio show. In a hint of things to come, he told Latino fellow students that they should speak only English. He became the conspicuous and severe outlier, and enjoyed the part.

The role continued to play well when he went to Duke University. The white supremacist Richard Spencer was a graduate student there and later claimed to have tutored him in alt-right beliefs. (Miller has denied any association with Spencer or his views.)

Nonetheless, all Miller lacked were sympathetic mentors and he found them, first falling into the weirdly mesmerizing force field of Michele Bachmann and then working for Jeff Sessions, where his emerging dogmas meshed with Sessions’ unreconstructed Confederate atavism.

It was all perfect preparation for the Trump White House where, at a remarkably young age (he is still only 32), he suddenly found his views not only permissible but embraced in the precisely appropriate phrase of “zero tolerance”—first applied to Muslims and then to the desperate exodus from Central America, with its echoes of those Czarist pogroms of the early twentieth century.

Glosser told The Guardian that Miller’s mother was proud of his achievements but that he didn’t know how she really felt about him. They had avoided discussing politics for years.

But, given America’s history, there is a lot to discuss about attitudes to immigration.

America has always been the world’s biggest experiment in building a nation through immigration. But building “the nation of immigrants” was not a naturally benign process. It frequently produced its own contradictions and forms of violence, the most violent being the idea that a plantation economy could be supported by importing slaves.

As one wave of immigrants established itself and rose in wealth it required another to furnish the underclass to support it. The Irish, the Italians, the Scandinavians, the Jews all underwent this process and the tensions it created between them.

Eventually, between the two world wars, the American public’s attitude toward immigration hardened into a level of cruel prejudice that today seems inexcusable—that is, unless you support Trump’s zero tolerance policy. This was the time when “America First” nativists and foreign policy isolationists prevailed over any instincts to shelter the huddled masses.

I have already written about one of the most harrowing consequences when President Franklin Roosevelt turned away a ship with 900 Jewish refugees from Europe, 250 of whom later died in the Holocaust.

In a 1939 poll 66 percent of public said they would not support a bill then in Congress that would have allowed 10,000 refugee children from Germany to come to live in the U.S. with families ready to receive them. In a later poll 83 percent opposed any increase in immigration.

FDR was duplicitous. He was ready for his wife Eleanor to openly support the bill but said “it is best for me to say nothing.”

But by 1944 he was, belatedly, prepared to change his stance. Obviously it was too late to save the millions who had already died in the Holocaust.

By then there was ample evidence that the State Department harbored a core of anti-Semites. To work around them, Roosevelt created the War Refugee Board, staffed mostly by Treasury Department officials. The Board did save up to 200,000 Jews by negotiating ransoms with some Nazis who, knowing that they had lost the war, took the money to finance their own escape to Latin America.

Historian Rebecca Erbelding cites this as the only example of the U.S. government dedicating an agency to save the victims of an enemy.

Nonetheless, other historians have resisted the idea that FDR really had a change of heart. Rafael Medoff, director of the David S. Wyman Institute for Holocaust Studies, responding to Erbelding, has argued that the president only established the Board after strong pressure from American Jews on the eve of an election year.

Is there anything different about the cruelty now being inflicted on thousands of families crossing the Mexican border, often seeking asylum?

Absolutely. This time the White House is not dissembling about its feelings. The president has articulated his own raw prejudice in a way that Roosevelt never dared to do. Moreover, the zero tolerance policy is mandated as an article of political dogma that directly echoes the widespread public prejudice behind it.

That prejudice is based, as much prejudice often is, on fear. And on skin color. By 2040 it is predicted that white Americans will be in a minority, a demographic shift that will be driven by Latin American and Asian immigrants.

Rather than accept this shift as part of America’s natural cultural broadness of mind, Trump played to the idea that it was a dangerous threat with his commitment to build the wall. There could be no clearer totem of a fortress mentality, and the need for the white fortress to make its stand while it still could.

Miller and Sessions, while never as crude as Trump in public, were dancing to the same music, determined to stem the “brown tide.”  And so America came to its zero tolerance moment.

The trouble is that zero tolerance has turned out also to be zero competence. As many despots have found, it’s one thing to issue the orders and entirely another to execute them. This policy unraveled so fast and so visibly that its intrinsic inhumanity was exposed with devastating effect. Thousands of children will be scarred for life by their brutal separation from parents.

Miller and Sessions haven’t expressed any regrets. Their alliance has, in any case, become complicated by Trump’s anger at Sessions for recusing himself from the oversight of the Mueller investigation. The president has peppered Sessions with demeaning epithets like “Mr. Magoo” and “idiot.”

But there is no sign that this feud has damaged Miller’s standing in the White House, where his doctrinal zealotry helps to keep the spirit of Steve Bannon alive.

And here’s another point about the moral burden of ancestral memory—or lack thereof—concerning another large immigrant-created community, the Irish.

Bannon, Mike Pence, Kellyanne Conway, Sean Spicer and Mick Mulvaney were the original members of Trump’s Irish mafia. Their ancestors all came in on the boats from Ireland, some of them with searing memories of the Irish Potato Famine, in which the nineteenth century British government acted with the same combination of inhumanity and incompetence as the Trump administration.

Those that remain, Pence, Conway and Mulvaney, are no more inclined than is Miller to feel any conflict between their bloodline and their ultra-conservative mission. Part of that mission is siding with the rich and powerful against the weak.

Mulvaney, director of the Office of Management and Budget, is a particularly shameless example. He is a notorious believer in “pay to play” governance. In April The Daily Beast disclosed that he had met with at least eight registered lobbyists and six executives who donated to his congressional campaigns.

When Trump decided to emasculate the Consumer Financial Protection Bureau, one of the most effective safeguards against the abuse of consumers, Mulvaney replaced Richard Cordray as acting director, while keeping his job at the OMB. He has performed as required, the latest travesty being an attempt to roll back the oversight of lenders who have been trying to rip off military families and veterans.

As David Glosser said in his essay, “Almost every American family has an immigration story of its own based on flight from war, poverty, famine, persecution, fear or hopelessness.”

Alas that has, in many cases, been all too easily forgotten by people who represent the worst of America rather than the best.

The President's Lawyer and His Cooperation in the Russia Investigation

By Bob Bauer, Lawfare

20 August 18

 

he New York Times reports that White House Counsel Don McGahn has interviewed extensively with the special counsel, cooperating with the president’s consent but perhaps more extensively than President Trump may have anticipated. The result may be a further strain on what, according to the Times, was already a difficult working relationship. One source of the tension appears to be the president’s expectation of loyalty from a counsel who maintains a different view of his function—namely, that the White House counsel represents the office of the presidency and not the individual now occupying it. 

It seems that relationship between lawyer and president is also, in this instance, infected with mistrust.  McGahn and his attorney are reported to have concluded that he should go the extra mile and tell Special Counsel Robert Mueller all he knows out of a concern that the president might have been preparing to blame McGahn—and specifically, his “shoddy advice”—for any legal issues Trump faced over alleged obstruction of justice in the Russia matter.

While remarkable reporting in a number of respects, the Times account of the Trump-McGahn relationship leaves open or unclear a number of key points about the role and obligations of the White House counsel in these circumstances.

A White House counsel is not in a position to reject or ignore a special prosecutor's request for information relevant to an ongoing criminal investigation. The law on the fundamental point is clear. Precisely as the Times describes McGahn’s understanding of his role, the White House counsel is a government employee, not personal counsel to the president. Courts presented with the question have ruled that, in a criminal investigation, the attorney-client privilege does not shield a White House counsel from providing his or her evidence. Neither is executive privilege a safe harbor if the government can demonstrate need for the information and its unavailability from other sources.

The Clinton administration litigated and lost both privilege claims in defending against the independent counsel investigations. When the U.S. Court of Appeals for the D.C. Circuit ruled unanimously on the application of the attorney-client privilege, it did so in no uncertain terms:

To state the question is to suggest the answer, for the Office of the President is a part of the federal government, consisting of government employees doing government business, and neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense.

This is not to say that, when called to interview with prosecutors, a White House counsel would agree to answer any and all questions. It falls to his or her attorney to negotiate an acceptable scope and focus for the interviews. In preparing for those discussions, the counsel and his or her lawyers can certainly take into account the constitutional and other reasonable concerns of the president’s personal counsel. The Times story does not provide detail about the extent to which McGahn’s own counsel consulted with the president and the president’s private counsel, except to report that the president raised no objection to the interviews. In the end, however, the White House counsel is a government employee called upon to negotiate in good faith the terms of cooperation with criminal justice authorities.

It is conceivable that McGahn could resist the interviews by drawing on the constitutional theory that Trump’s lawyers have been testing publicly—that there is no “evidence” for him to give because the case for which it is sought, presidential obstruction of justice, is constitutionally impermissible. This maneuver would stand little chance of success. Assuming that McGahn were willing to be the vehicle for a test of Trump's constitutional theory, he would have reason to doubt that he would prevail. A court would likely hold that the constitutional question was premature and not one for him to raise, and that at this stage of the proceeding, he must give testimony.

The entire episode serves yet again of a reminder of the potential hazards that accompany the benefits to the president of the institutionalized office of the White house counsel. The president has ready at hand in the West Wing dedicated counsel on a range of issues who can also serve as a force for channeling the legal resources throughout the executive branch in support of administration policies. In this respect, the counsel is truly, as often described, the “president’s lawyer.”  But the counsel is not the “president’s lawyer” in the way that Trump apparently imagined that those lawyers he hired in the private sector were “his lawyers.”  This is the irony of the counsel’s position: the very proximity to the Oval Office that distinguishes the role and accounts for so much of its value, can also present grave risks for a president in legal trouble.

Finally, what does it mean for a White House counsel to continue to attempt to function effectively in that role when he is also a highly consequential witness in a criminal inquiry involving the president—and when, the Times suggests, the counsel may have been suspicious the president had intended to set him up to “take the fall”?  McGahn appears to have concluded that he can remain effective in support of the president, at least on the issues he has selected for focused attention: judicial nominations and regulations, and perhaps other issues outside the Russia matter. For his part, Trump may have decided that this is a situation he can—or, maybe for the time being, must—accept. It is also a situation without precedent in the history of the counsel’s office.