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FOCUS: If Assange Leaves the Ecuadorian Embassy, What Next? Print
Tuesday, 07 August 2018 11:52

Hurd writes: "WikiLeaks founder and CEO Julian Assange might be nearing his final days in Ecuador's London embassy, where he's lived and worked since 2012 to avoid extradition to Sweden for rape charges or, potentially, to the United States."

WikiLeaks founder Julian Assange. (photo: Suzanne Plunkett/Reuters)
WikiLeaks founder Julian Assange. (photo: Suzanne Plunkett/Reuters)


If Assange Leaves the Ecuadorian Embassy, What Next?

By Hilary Hurd, Lawfare

07 August 18

 

ikiLeaks founder and CEO Julian Assange might be nearing his final days in Ecuador’s London embassy, where he’s lived and worked since 2012 to avoid extradition to Sweden for rape charges or, potentially, to the United States. On July 20, RT’s Editor-in-Chief Margarita Simonyan tweeted that the release might occur in the coming weeks, or even days. On July 21, the Intercept reported that Ecuadorian President Lenin Moreno recently met with British officials to finalize plans to expel Assange from the embassy, located in one of London’s most expensive districts near Harrods, and hand him over to British authorities. (Ecuador revoked Assange’s internet access nearly three months ago, claiming that Assange had violated a 2017 agreement not to interfere in the affairs of other states, by supporting Catalan independence.)

It’s been 13 days since President Moreno arrived in the UK, without any reports that Assange had been turned over. Whether that means he’s off the hook is unclear, but here’s what we know about the current state of play.

Criminal charges currently pending against Assange? One

In 2010, a Swedish prosecutor issued an arrest warrant for Assange in connection with a rape allegation while Interpol issued a red notice for his arrest. Assange, an Australian national living in the U.K. at the time, turned himself into British police on Dec. 7, 2010. He received bail 10 days later and went to stay with a supporter for another 550 days. In May 2012, the U.K. Supreme Court ruled 5-2 in favor of recognizing Sweden’s arrest warrant (reasoning that the Swedish prosecutor could be consider “Judicial authority” as required by the 2003 European Extradition Act). Shortly thereafter in June 2012, Assange moved into the Ecuadorian embassy in London, receiving full political asylum in August 2012 and Ecuadorian citizenship in December 2017.

Just shy of five years after Assange took refuge at the embassy, in May 2017, Swedish prosecutors announced they were closing their investigation into the rape charges against Assange. Sweden’s director of public protections, Marianne Ny, said at the time that “all possibilities to conduct the investigation are exhausted” because there was no way for Sweden to formally notify Assange of the criminal suspicions against him. She acknowledged the possibility that an investigation might resume at a later date, should Assange “make himself available.” Sweden dropped charges of sexual assault made by a second woman in 2015 when the statute of limitations expired. (See the Swedish prosecution’s official chronology of developments in the Assange case through January 2017.)

The only criminal charge Assange currently faces is a pending 2012 arrest warrant for “failure to surrender” (a minor bail violation that arose when he obtained asylum from Ecuador, thereby breaching his bail). “Failure to surrender” carries a prison term of three months and/or a level 5 fine (approximately £5000). It officially stands even though Sweden has stopped its rape investigation. While it’s possible that the time Assange has already spent in prison in the U.K., (10 days in Wandsworth Prison in 2010 and 550 days at the home of a supporter while on bail) might count against that sentence. It’s also possible that British prosecutors could argue Assange’s evading of legal process in the U.K. raises to the level of “contempt of court,” which carries a prison term of up to two years.

In 2013, the Obama administration concluded that it couldn’t prosecute Assange without also prosecuting newspapers such as the New York Times and the Guardian which have also published classified materials. Jack Goldsmith wrote a 2010 piece for Lawfare making a related point, while emphasizing the arbitrary distinctions often drawn between publications.

No charges have yet been brought by the Trump administration, but CNN reported in April 2017 that the Justice Department was “close” to bringing criminal charges against Julian Assange. (No charges have been brought since that report.) Around the same time, then-CIA director Mike Pompeo, attacked WikiLeaks: WikiLeaks is “a non-state hostile intelligence service often abetted by state actors like Russia,” Pompeo said. He thus declared, “We have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us.” Attorney General Jeff Sessions similarly vowed not only to continue and expand the Obama Justice Department’s crackdown on sources, but also to consider the prosecution of media outlets that publish classified information. Benjamin Witttes and Susan Hennessey wrote a piece for Foreign Policy in 2017 on Sessions’s comments observing that:

[W]hat is disturbing in Sessions’s announcement last week, in other words, is not that he is taking leaks seriously, conducting leak investigations, or even that he is reviewing policies with respect to compelling journalists’ cooperation in such inquiries. It is that he is clearly doing so at the political behest of President Trump with his job as attorney general on the line.

Should the Trump administration decide to bring charges against Assange, they have a few different statutory pathways—as University of Virginia Law Professor Ashley Deeks described in 2017. Most commentators tend to point to the Espionage Act, 18 U.S.C. §798 et. seq., which provides:

Whoever knowingly and willfully communicates … or otherwise makes available to an unauthorized person, or publishes … any classified information … obtained by the processes of communication intelligence from the communications of any foreign government … shall be fined under this title or imprisoned not more than ten years, or both.

The Obama administration prosecuted eight government employees under the Espionage Act for leaking classified information to the press, more than double all of the previous US presidents combined.

There are a few other possibilities too. For example, 18 U.S.C. §641 makes it unlawful for a person to receive any record or thing of value of the United States with intent to convert it to his use or gain, knowing that it was stolen. (The punishment is a fine or up to 10 years’ imprisonment.) However, as Ashley Deeks points out, the manual for U.S. attorneys includes certain provisions designed to protect the press from the full enforcement of Section 641. It says, for example, that charges under that law shall not be brought under certain circumstances, such as when the subject of the theft is intangible government property such as information; the defendant used the property primarily for disseminating it to the public; and the property wasn’t obtained by wiretapping, criminal entry, or trespass (which factors would seem to be met in the Wikileaks context). Prosecutors might also consider 18 U.S.C. §1030(a)(1), which punishes the willful communication or transmission of classified information retrieved by knowingly accessing a computer without or in excess of authorization, with reason to believe that such information could be “used to the injury of the United States, or to the advantage of any foreign nation.” While the statute does not specifically address a third party’s receipt of this information, it’s possible that DOJ could assert criminal liability against someone like Assange as a conspirator, aider or abetter, or accessory after the fact.

What was Assange’s role in the 2016 election?

Prior to seeking asylum in 2012, Assange coordinated a series of high-profile document dumps through Wikileaks, including the 2007 release of secret military hardware used by U.S. forces in Afghanistan, the 2010 release of 250,000 State Department cables (Cablegate), and the 2011 release of Guantanamo prison details. While these actions were immediately perceived as national security threats, Assange’s coordination with Russia in the run-up to the 2016 election, and his potential collaboration with members of the Trump team in particular, has become a more predominant concern among the national security community.

In January 2017, the Office of the Director of National Intelligence (ODNI) released Assessing Russian Activities and Intentions in Recent US Elections, a report which concluded with “high confidence” that Russia’s main intelligence directorate (GRU) relayed material it acquired from senior Democratic officials and the 2016 DNC hack to WikiLeaks. It described WikiLeaks’s close partnership with Russian publication RT, one of the Kremlin’s principal outlets for international propaganda.

In April 2018, the House Intelligence Committee also produced a heavily redacted Report On Russian Active Measures, which recognized that “Wikileaks played a key role in Russia's malign influence campaign and served as a third party intermediary for Russian intelligence during the period leading up to the 2016 U.S. presidential election.” The House report concluded that it found “no evidence that the Trump campaign colluded, coordinated, or conspired with the Russian government.” Nonetheless, the report detailed conversations between Wikileaks and Donald Trump Jr. through direct message on Twitter as well as conversations between Roger Stone and Wikileaks.

Democrats argued that the majority House Intelligence Committee report had provided a dangerously partial picture subsequently provided their own report , which argued that Russian intelligence had “used intermediaries and cutouts to probe, establish contact, and possibly glean valuable information from a diverse set of actors associated with President Trump and his campaign,” while stating more work was needed to assess the extent Trump staffers collaborated with Russia. The report argued that because Republicans had not subpoenaed Twitter for records related to communication between the organization of WikiLeaks and its founder Julian Assange with Trumps’s campaign or between the Russian “cutouts” such as Guccifer 2.0 and DC Leaks with Trump’s campaign, “any conclusions reached about witness interaction between the Trump campaign and WikiLeaks or other Russian cutouts is based on an incomplete investigative record.”

The Senate Intelligence Committee Report produced an unredacted summary report in July 2018, which suggested that Russia helped Donald Trump win the election. A full version has not yet been released. The summary does not mention Assange.

Mueller’s July 2018 indictment of 12 Russian military officials states in Count 1, paragraph 6 that “conspirators staged and released tens of thousands of the stolen emails and documents. They did so using fictitious online personas, including ‘DCLeaks’ and ‘Guccifer 2.0.’ Paragraph 7 goes on to say that “the Conspirators also used the Guccifer 2.0 persona to release additional stolen documents through a website maintained by an organization.”

The organization is believed to be Wikileaks; however, Assange has insisted that he did not receive any documents from the Russians. In January 2017 he told Fox news, "Our source is not the Russian government, and it is not a state party." In July 2018, one of Assange’s lawyers, Jennifer Robinson, reiterated that Wikileaks did not collaborate with the Russian state: “WikiLeaks has made very clear they were not engaged in any way with the Russian state with respect to that publication. There is no connection between WikiLeaks and any of those who have been indicted."

On July 27, 2018, ten Democratic Senators published an open letter to Vice-President Mike Pence urging him to raise concerns with President Moreno on his upcoming trip to Ecuador, regarding Ecuador’s support for Assange. The letter states, “the United States is still seeking clarity about the full extent of Russian intervention in our elections and Russian interference in elections across the world, it is imperative that you raise U.S. concerns with President Moreno about Ecuador’s continued support for Mr. Assange at a time when WikiLeaks continues its efforts to undermine democratic processes globally.”

Will Sweden extradite Assange?

It’s highly unlikely that Sweden will extradite Assange. The U.S.-Sweden framework for extradition is governed by the U.S.-Sweden extradition treaty of 1961, the supplementary agreement of 1983, and the 2003 U.S.-EU Extradition Agreement (which supplements and modifies the bilateral treaties the United States has with the various EU member states). While it’s unclear which charges the U.S. would bring against Assange, Article 5(4)-(5) of the 1961 Convention precludes extradition for so-called “political” offenses. While there is no clear definition of what constitutes a political offense in the treaty, Foreign Policy reports that Swedish courts have consistently concluded that espionage is a political offense, famously refusing to extradite former CIA agent Edward Lee Howard in 1992 for his work on behalf of the USSR. Swedish legal scholar Mark Klamberg has outlined the full process for extradition in this blog post, citing a few additional hurdles. He argues first that because Sweden (like the U.K.) is a party to the European Convention on Human Rights, it would be prohibited from extraditing a person who may face the death penalty.

Will the U.K. extradite Assange?

Maybe. The U.S.-U.K. extradition framework is governed by a 2003 bilateral treaty. Article 2 lists the relevant offenses which are extraditable. It is arguably more lenient than Sweden’s framework providing that “[a]n offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.” At present, Sweden has dropped the charges against Assange. Should Sweden later reinstate charges or introduce new ones, any extradition request to the U.S. would be governed by U.K. Extradition Act of 2003. It states that in cases where warrants from two countries compete, the home secretary must decide which took precedence based on a variety of factors including: the relative seriousness of the offences, the date the requests were received, and whether the person had been accused or convicted.

As between Sweden and the U.K. or between the U.K. and another EU country, the European arrest warrant (EAW) is instructive. It provides that a warrant issued by one EU country's judicial authority is valid throughout the EU. Unlike traditional extraditions, decisions are made by judicial authorities alone with no political considerations involved.


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FOCUS: The Day Donald Trump Told Us There Was Attempted Collusion With Russia Print
Tuesday, 07 August 2018 10:39

Davidson writes: "On August 5, 2018, precisely forty-four years after the collapse of the Nixon Presidency, another President, Donald Trump, made his own public admission."

The president's Sunday-morning tweet should be seen as a turning point. (photo: Lyne Lucien/The Daily Beast)
The president's Sunday-morning tweet should be seen as a turning point. (photo: Lyne Lucien/The Daily Beast)


The Day Donald Trump Told Us There Was Attempted Collusion With Russia

By Adam Davidson, The New Yorker

07 August 18

 

ugust 5, 1974, was the day the Nixon Presidency ended. On that day, Nixon heeded a Supreme Court ruling and released the so-called smoking-gun tape, a recording of a meeting, held two years earlier, with his chief of staff, H. R. Haldeman. Many of Nixon’s most damaging statements came in the form of short, monosyllabic answers and near-grunts—“um huh,” the official transcript reads, at one point—as he responds to Haldeman’s idea of asking the C.I.A. to tell the F.B.I. to “stay the hell out of” the Watergate investigation. The coverup is clearly of Haldeman’s design. Nixon’s words are simple: “All right. Fine.” Then, “Right, fine.”

Haldeman’s idea seemed clever. He believed the F.B.I. was close to concluding that the break-in at the Democratic National Committee offices at the Watergate hotel was the work of a C.I.A.-led operation, which had something to do with Cuba and the Bay of Pigs. Nobody would have to actually lie, he seems to suggest—it wasn’t “unusual” for the C.I.A. to warn the F.B.I. to drop an investigation that could harm national security. “And that will fit rather well because the F.B.I. agents who are working the case, at this point, feel that’s what it is. This is C.I.A.”

Nixon’s strongest statement to Haldeman is, surprisingly, a word of caution. “Don’t lie to them to the extent to say there is no involvement, but just say this is sort of a comedy of errors, bizarre, without getting into it,” he says. “Say that we wish, for the country, don’t go any further into this case, period!” When Nixon released the tape, he acknowledged that it would lead to his impeachment. Three days later, he resigned the Presidency.

Listening to the tape today, it’s hard not to imagine an alternate strategy, one that Nixon’s aide, Roger Ailes—hired at Haldeman’s request—would surely have endorsed. Nixon could have released the tape himself and declared it as proof of his innocence, pointing out that he did, in fact, tell Haldeman not to lie. He could have argued that he didn’t mean “yes” when he said “um huh”—that the transcript should have read “unh-unh,” a clear sign that he was against the whole scheme. Instead of embracing impeachment, congressional Republicans could have supported an effort to do just what Haldeman and Nixon had attempted: end the investigation.

On August 5, 2018, precisely forty-four years after the collapse of the Nixon Presidency, another President, Donald Trump, made his own public admission. In one of a series of early-morning tweets, Trump addressed a meeting that his son Donald, Jr., held with a Russian lawyer affiliated with the Russian government. “This was a meeting to get information on an opponent, totally legal and done all the time in politics - and it went nowhere,” he wrote. “I did not know about it!”

The tweet contains several crucial pieces of information. First, it is a clear admission that Donald Trump, Jr.,’s original statement about the case was inaccurate enough to be considered a lie. He had said the meeting was with an unknown person who “might have information helpful to the campaign,” and that this person “primarily discussed a program about the adoption of Russian children.” This false statement was, according to his legal team, dictated by the President himself. There was good reason to mislead the American people about that meeting. Based on reporting—at the time and now—of the President’s admission, it was a conscious effort by the President’s son and two of his closest advisers to work with affiliates of the Russian government to obtain information that might sway the U.S. election in Trump’s favor. In short, it was, at minimum, a case of attempted collusion. The tweet indicates that Trump’s defense will continue to be that this attempt at collusion failed—“it went nowhere”—and that, even if it had succeeded, it would have been “totally legal and done all the time.” It is unclear why, if the meeting was entirely proper, it was important for the President to declare “I did not know about it!” or to tell the Attorney General, Jeff Sessions, to “stop this Rigged Witch Hunt right now.”

The President’s Sunday-morning tweet should be seen as a turning point. It doesn’t teach us anything new—most students of the case already understand what Donald Trump, Jr., Paul Manafort, and Jared Kushner knew about that Trump Tower meeting. But it ends any possibility of an alternative explanation. We can all move forward understanding that there is a clear fact pattern about which there is no dispute:

• The President’s son and top advisers knowingly met with individuals connected to the Russian government, hoping to obtain dirt on their political opponent.

• Documents stolen from the Democratic National Committee and members of the Clinton campaign were later used in an overt effort to sway the election.

• When the Trump Tower meeting was uncovered, the President instructed his son and staff to lie about the meeting, and told them precisely which lies to use.

• The President is attempting to end the investigation into this meeting and other instances of attempted collusion between his campaign staff and representatives of the Russian government.

It was possible, just days ago, to believe—with an abundance of generosity toward the President and his team—that the meeting was about adoption, went nowhere, and was overblown by the Administration’s enemies. No longer. The open questions are now far more narrow: Was this a case of successful or only attempted collusion? Is attempted collusion a crime? What legal and moral responsibilities did the President and his team have when they realized that the proposed collusion was under way when the D.N.C. e-mails were leaked and published? And, crucially, what did the President know before the election, after it, and when he instructed his son to lie?

Earlier on Sunday, Trump wrote another tweet, one that repeated a common refrain: journalists are the enemy of the people. “I am providing a great service by explaining this to the American People,” it read. In a way, he did provide a great service. He allowed us to move away from a no-longer-relevant debate about whether or not he and his campaign had done anything wrong. Our nation can now focus on another question: What do we do when a President has openly admitted to attempted collusion, lying, and a coverup?


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In 2008, America Stopped Believing in the American Dream Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=6853"><span class="small">Frank Rich, New York Magazine</span></a>   
Tuesday, 07 August 2018 08:31

Rich writes: "The mood in America is arguably as dark as it has ever been in the modern era. The birthrate is at a record low, and the suicide rate is at a 30-year high; mass shootings and opioid overdoses are ubiquitous."

It's not hard to pinpoint the dawn of the deep gloom: It arrived in September 2008, when the collapse of Lehman Brothers kicked off the Great Recession. (photo: David McNew/Getty Images)
It's not hard to pinpoint the dawn of the deep gloom: It arrived in September 2008, when the collapse of Lehman Brothers kicked off the Great Recession. (photo: David McNew/Getty Images)


In 2008, America Stopped Believing in the American Dream

By Frank Rich, New York Magazine

07 August 18

 

f you were standing in the smoldering ashes of 9/11 trying to peer into the future, you might have been overjoyed to discover this happy snapshot of 2018: There has been no subsequent major terrorist attack on America from Al Qaeda or its heirs. American troops are not committed en masse to any ground war. American workers are enjoying a blissful 4 percent unemployment rate. The investment class and humble 401(k) holders alike are beneficiaries of a rising GDP and booming stock market that, as measured by the Dow, is up some 250 percent since its September 10, 2001, close. The most admired person in America, according to Gallup, is the nation’s first African-American president, a man no one had heard of and a phenomenon no one could have imagined at the century’s dawn. Comedy, the one art whose currency is laughter, is the culture’s greatest growth industry. What’s not to like?

Plenty, as it turns out. The mood in America is arguably as dark as it has ever been in the modern era. The birthrate is at a record low, and the suicide rate is at a 30-year high; mass shootings and opioid overdoses are ubiquitous. In the aftermath of 9/11, the initial shock and horror soon gave way to a semblance of national unity in support of a president whose electoral legitimacy had been bitterly contested only a year earlier. Today’s America is instead marked by fear and despair more akin to what followed the crash of 1929, when unprecedented millions of Americans lost their jobs and homes after the implosion of businesses ranging in scale from big banks to family farms.

It’s not hard to pinpoint the dawn of this deep gloom: It arrived in September 2008, when the collapse of Lehman Brothers kicked off the Great Recession that proved to be a more lasting existential threat to America than the terrorist attack of seven Septembers earlier. The shadow it would cast is so dark that a decade later, even our current run of ostensible prosperity and peace does not mitigate the one conviction that still unites all Americans: Everything in the country is broken. Not just Washington, which failed to prevent the financial catastrophe and has done little to protect us from the next, but also race relations, health care, education, institutional religion, law enforcement, the physical infrastructure, the news media, the bedrock virtues of civility and community. Nearly everything has turned to crap, it seems, except Peak TV (for those who can afford it).

That loose civic concept known as the American Dream — initially popularized during the Great Depression by the historian James Truslow Adams in his Epic of America — has been shattered. No longer is lip service paid to the credo, however sentimental, that a vast country, for all its racial and sectarian divides, might somewhere in its DNA have a shared core of values that could pull it out of any mess. Dead and buried as well is the companion assumption that over the long term a rising economic tide would lift all Americans in equal measure. When that tide pulled back in 2008 to reveal the ruins underneath, the country got an indelible picture of just how much inequality had been banked by the top one percent over decades, how many false promises to the other 99 percent had been broken, and how many central American institutions, whether governmental, financial, or corporate, had betrayed the trust the public had placed in them. And when we went down, we took much of the West with us. The American Kool-Aid we’d exported since the Marshall Plan, that limitless faith in progress and profits, had been exposed as a cruel illusion.

Unlike 9/11, which prompted an orgy of recriminations and investigations, the Great Recession never yielded a reckoning that might have helped restore that faith. The Wall Street bandits escaped punishment, as did most of the banking houses where they thrived. Everyone else was stuck with the bill. Millennials, crippled by debt and bereft of Horatio Alger paths out of it, mock the traditional American tenet that each generation will be better off than the one before. At the other end of the actuarial spectrum, boomers have little confidence that they can scrape together the wherewithal needed to negotiate old age. The American workers in the middle have seen their wages remain stagnant as necessities like health care become unaffordable.

In the Digital Century, unlike the preceding American Century, the largest corporations are not admired as sources of jobs, can-do-ism, and tangible goods that might enrich and empower all. They’re seen instead as impenetrable black boxes where our most intimate personal secrets are bought and sold to further fatten a shadowy Über-class of obscene wealth and privilege trading behind velvet ropes in elite cryptocurrencies. Though only a tiny percentage of Americans are coal miners, many more Americans feel like coal miners in terms of their beleaguered financial status and future prospects. It’s a small imaginative leap to think of yourself as a serf in a society where Facebook owns and markets your face and Alphabet does the same with your language (the alphabet, literally) while paying bogus respects to the dying right to privacy.

It would be easy to blame the national mood all on Donald J. Trump, but that would be underrating its severity and overrating Trump’s role in creating it (as opposed to exacerbating it). Trump’s genius has been to exploit and weaponize the discontent that has been brewing over decades of globalization and technological upheaval. He did so in part by discarding the bedrock axiom of post–World War II American politics that anyone running for president must sparkle with the FDR-patented, chin-jutting optimism that helped propel John F. Kennedy and Ronald Reagan to the White House. Trump ran instead on the idea that America was, as his lingo would have it, a shithole country in desperate need of being made great again. “Sadly, the American Dream is dead,” he declared, glowering, on that fateful day in 2015 when he came down the Trump Tower escalator to announce his candidacy. He saw a market in merchandising pessimism as patriotism and cornered it. His diagnosis that the system was “rigged” was not wrong, but his ruse of “fixing” it has been to enrich himself, his family, and his coterie of grifters with the full collaboration of his party’s cynical and avaricious Establishment.

It’s hard to recall now how upbeat the American mood had been just a decade ago. The worst financial crisis since 1929 notwithstanding, the election of Barack Obama offered genuine hope, not just the branded version on his campaign poster. He would hire smart people to dig us out of the Wall Street greed and criminality that had victimized so many Americans. (Never mind that some of those smart people on the Obama financial team had cashed in their own chips in a private back room before the casino went bust.) He vowed to downsize the two wasteful wars on which his predecessor had squandered so much blood and treasure. His personal qualities as a committed husband and father, not to mention his unlikely rise from obscurity, would make him a role model to the young. The mere fact of his election would also suggest to many, my naïve white self included, that the country might somehow at long last be capable of rising above its original sin of slavery. Time summed up the national sentiment best in its cover story crowning him 2008 Person of the Year. Obama was “infusing our democracy with a new intensity of participation” and “showing the world and ourselves that our most cherished myth — the one about boundless opportunity — has plenty of juice left in it.” As he took office, polling found that “a strong majority of Americans believe he will accomplish most of what he aims to do.”

Boundless opportunity! A government that would accomplish its aims! What were we thinking? We all know what happened next: The opposition party, once again pandering to the racist base it has cultivated ever since Barry Goldwater ran against the Civil Rights Act of 1964, vowed to defeat the new president’s governance no matter what he did. Even so — and despite being thwarted by that partisan resistance, by the stubbornness of the downturn he had to reverse, and by his own unforced errors — Obama did succeed at leading America out of its economic crisis and largely extricating it from war. But he had to scale back his other aspirations, including immigration and financial reform. History will surely bless him for preventing a second Great Depression, among other achievements, including presiding over the most scandal-free White House in memory. But in real time, his presidency was still fairly young when some contemporaneous voters started moving on from Yes, We Can to No, We Can’t and/or No, We Won’t.

Obama didn’t cause that broken spirit any more than Trump did. It had been building all along — or can be seen to have been, depending on the lens through which you view modern American history. In the more salutary version of that story, the nation triumphed over the back-to-back cataclysms of depression and world war to flourish in a post-victory boom. In 1964, the perennial poll question measuring trust in “government in Washington to do what is right” reached a peak 76 percent. That number would decline as Americans were battered by the Vietnam quagmire, the political violence and assassinations of 1968, and Watergate. But eventually Reagan would “win” the Cold War and his salesmanship of the “shining city upon a hill” would vanquish memories of the Nixon White House’s criminality. The awesome record of LBJ’s civil-rights legislation would mask the less encouraging on-the-ground story of intractable racial conflict and second-class African-American citizenship in both the South and North.

But it’s an alternative narrative of this history — the less splashy and more insidious economic narrative of widening inequality, rather than the epic headline events of a History Channel documentary — that may have mattered most in landing us where we are now. As the historian Elaine Tyler May, a scholar of postwar America, has written, the Cold War boom solidified and projected to the world a “vision of middle-class affluence” that testified to “the benefits of the American capitalist system” over the Soviet alternative. Central to that vision was “the belief that free-market capitalism would benefit everyone” and that its fruits would be distributed equitably, “providing the good life to an ever-expanding middle class.” Even at this boom’s height, this egalitarianism was a myth as far as black Americans were concerned, but the white majority bought it: This bedrock belief in economic fairness “motivated white working-class and middle-class Americans to play by the rules.” The assumption was that the ownership class would play by them too.

In truth, that assumption had been an open question from the moment massive American fortunes started being built in the late-19th century’s Gilded Age. In Behold, America, a fascinating new look at “the entangled history” of “America First” and “the American Dream,” out this fall, Sarah Churchwell unearths a 1900 editorial in the New York Post fretting about how multimillionaires “are very rarely, if ever, content with a position of equality.” The paper hypothesized that “the American dream,” a term not yet in common parlance, could be ended by their greed. A similar 1908 editorial in the Leavenworth, Kansas, Times, again invoking “American dreams,” championed “the equitable distribution of wealth” while making pointed note of the vast discrepancy between the pay of an insurance-company executive and a headmaster: “Why do we accord highest place to money mongers and lowest place to teachers of ideals?”

Populist movements would ask similar questions through each American cycle of boom-and-bust, but to no lasting avail. While the Gilded Age tycoon J.?P. Morgan posited that the ratio between a boss’s income and that of workers should be 20-1, today that ratio often exceeds 150-1. Yet, as May points out, in the postwar era, it was not until the free fall of 2008 that a wide public fully focused on the gap between the top one percent and everyone else. “Unlike the 9/11 attacks,” she writes, the catastrophic crash “was homegrown and had been brewing for many years.” But it took the Great Recession’s destruction “of what had been the markers of citizenship for more than half a century” — a secure job and home ownership — to make unmistakable to all “the end of the era of widespread prosperity that had characterized the United States in the early years of the Cold War.”

It was during the Great Recession that it also became clear how oblivious — or complicit — both major parties’ Establishments were when it came to heists by those at the top. To take just one example of this culture at work: In 2011, with much fanfare, President Obama convened a new jobs council, which, in a bipartisan gesture, he put in the charge of a prominent Republican CEO, Jeffrey Immelt of GE. No one in the Obama White House seemed to know or care, as the New York Times would soon report, that GE had laid off a fifth of its American workers since 2002 and, in 2010, had paid almost no federal taxes on $14.2 billion of profit. Immelt remained in place at the jobs council nonetheless. Unlike such frauds as Enron and its current copycat, Theranos, or the robber-baron enterprises of the more distant past, GE was one of the most widely admired American corporations, if not the most widely admired, for decades. Founded by Thomas Edison, it was one of the original dozen components of the Dow Jones industrial average at its inception in 1896. In the 1950s and early ’60s, GE’s image and Reagan’s were burnished in tandem when the future president hosted General Electric Theater on CBS. In the 1980s and ’90s, Immelt’s immediate predecessor, Jack Welch, was lionized as America’s wisest economic guru. Today, GE’s shareholders have been financially shafted along with its workers, and in June it was booted off the Dow. The record Immelt left behind as Obama’s job czar, it should be noted, is no more impressive than that as GE’s CEO: He accomplished nothing, at one point going for a full year without convening the council at all. But there has been no accountability for his failures in either the private or public spheres, let alone reparations.

Perhaps the sole upside to the 2008 crash was that it discredited the Establishment of both parties by exposing its decades-long collusion with a kleptocratic economic order. If the corporation that introduced the lightbulb was a sham ripping off its employees, shareholders, and consumers, not to mention America’s taxpayers, you had to wonder who at the top was not. The moral abdication of would-be liberal reformers, who failed to police such powerful economic actors, only added to the national disgust with elites. It’s that vacuum that created the opening for a master con man. Once in the White House, of course, Trump conducted the biggest spree of grand larceny ever carried out by the wealthiest sliver of the country in the name of “tax reform.” Everyone knows he is doing it except those among his base who dismiss all unwanted news as “fake news.” But it’s a measure of how much the country is broken that we just shrug with resignation when the wealthy Democratic Goldman Sachs alum Gary Cohn joins this administration to secure an obscene tax cut, then exits without apology to enjoy his further enrichment at the expense of the safety net for the country’s most vulnerable citizens.

Trump’s nationalistic right-wing populism, which scapegoats immigrants and minorities to deflect rage from Cohn and his fellow profiteers, is nothing new. As Churchwell tracks in Behold, America, the original America First movement of the 1920s and ’30s grew in tandem with the widening economic discrepancies of the time. She reminds us that the plutocratic villain of The Great Gatsby, Tom Buchanan, is a white supremacist prone to observations like “if we don’t look out the white race will be … utterly submerged” and “It’s up to us who are the dominant race to watch out or these other races will have control of things.” Up against such powerful one-percenters, the vision of limitless human potential implicit in Jay Gatsby’s innocent American Dream didn’t stand a chance. As Churchwell writes, “Between 1923 and 1929, 93 percent of the country experienced a drop in per capita income,” even as a rise in monopolies and mergers left “only two hundred large corporations in control of over half of American industry” and one percent of the population owning 40 percent of America’s wealth.

That hastening concentration of American economic power wasn’t fully understood by most Americans then, and neither was Gatsby, which was published to disappointing sales and reviews in 1925. It’s almost too exquisite an irony that just two years later, the budding real-estate developer Fred Trump would be arrested at a Ku Klux Klan riot in Queens, not far from Tom Buchanan’s home in Fitzgerald’s fictional Long Island enclave of East Egg. The rest is history inexorably leading America to this dark place where, nearly a century later, the green light at the end of Daisy’s dock is so distant it just may be in China.


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The Republican Gerrymandering Wall Is Starting to Crumble Print
Tuesday, 07 August 2018 08:24

Millhiser writes: "Even as the Supreme Court refuses to enforce the Constitution, two of the most gerrymandered states dealt severe blows to partisan election rigging this year, and a third is likely to follow suit this November."

Paul Ryan. (photo: Chip Somodevilla/Getty Images)
Paul Ryan. (photo: Chip Somodevilla/Getty Images)


The Republican Gerrymandering Wall Is Starting to Crumble

By Ian Millhiser, ThinkProgress

07 August 18


Take that, John Roberts!

ne of retired Justice Anthony Kennedy’s final acts as a sitting justice was to stare partisan gerrymandering directly in the eye and cry out a resounding “meh.” A pair of cases argued last term were supposed to deliver sharp blows to such gerrymandering. Instead, the Court punted, Kennedy retired, and there is no longer a plausible way to form a majority that could halt this anti-democratic practice.

Yet, even as the Supreme Court refuses to enforce the Constitution, two of the most gerrymandered states dealt severe blows to partisan election rigging this year, and a third is likely to follow suit this November.

So gerrymandering is not dead, and there is a very real risk that the Supreme Court will invigorate it if Judge Brett Kavanaugh is confirmed to replace Justice Kennedy. For the moment, however, the GOP’s death grip on U.S. House redistricting is starting to crumble.

How we got here

Every ten years, the states must redraw their legislative districts to comport with the most recent census. As a result, if one party dominates the election immediately proceeding a redistricting, that victory can have consequences that extend for years or even decades. The party that dominates in an redistricting year can draw maps that lock it into power for the next ten years — and is more likely than not to over-perform in the next election immediately proceeding a redistricting cycle.

Which brings us to 2010, a Republican wave election year that allowed the GOP to draw rigidly gerrymandered maps in multiple swing states. Indeed, in 2012, the first election with the GOP’s new gerrymandered maps, Republicans won lopsided majorities in six key states’ congressional delegations, even though President Obama won the popular vote in each of these states — in some instances, not by close margins.


In 2012, Democratic House candidates narrowly won the national popular vote over their Republican counterparts, but Republicans entered the 113th Congress with a solid majority. Democrats began 2013 with just 200 House seats. If the six states depicted above had drawn fair maps, Democrats would, in all likelihood, have won 17 of the 18 additional seats they needed to win a majority.

With such a majority, Democrats could have stimulated the economy, expanded Obamacare, and avoided a government shutdown. Arguably, had Hillary Clinton campaigned during the stronger economy such stimulus would have provided, she would be president right now, and Justice Merrick Garland would have been on hand to provide the necessary fifth vote to declare partisan gerrymandering unconstitutional.

The wall starts to crumble

Though the Supreme Court of the United States is content to let Republican lawmakers rig congressional elections, the Pennsylvania Supreme Court was not. Last January, the state supreme court held that the state’s existing maps violate the state constitution and ordered new maps drawn for the 2018 election.

The new maps still favor the GOP — they include “four swing districts, eight that favor Republicans, and six that favor Democrats” — but that’s still a substantial improvement for Democrats over the previous maps, which made Republicans the  strong favorite in 13 districts.

Then, in May, Ohio voters overwhelmingly approved a ballot measure that would make it harder for either party to recreate the kind of gerrymander Republicans enacted in 2010. The initiative creates a Rube Goldberg-like method of drawing Congressional districts that will be in effect in the 2021 redistricting cycle.

Ohio’s solution is not perfect, and it is difficult to summarize concisely (if you want to learn the details, you can read about them here), but it uses a combination of supermajority requirements, requirements that new maps be approved by some members of the minority party, and a fail safe that causes maps drawn by the majority party to expire in four years if the two parties cannot reach a consensus. At the very least, it will seriously complicate Republican efforts to keep in place maps like the ones Ohio has now.

Then, on Tuesday, the Michigan Supreme Court voted 4-3 to reject a lawsuit seeking to remove a ballot initiative targeting gerrymandering in that state. The court’s decision was mildly surprising because Republicans enjoy a 5-2 majority on the state supreme court, and the court has long been a bastion of ideological conservatism.

Chief Justice Stephen Markman, who dissented from the court’s decision, once said that he is “committed to the judicial values that are often identified with the Federalist Society”

As a result, Michigan voters will decide in November on a ballot initiative which would transfer power to draw legislative districts to an independent commission whose members “will be randomly selected from a pool of registered voters, and consist of four members who self-identify with each of the two major political parties, and five non-affiliated, independent members.” If the lopsided vote on Ohio’s ballot initiative is any sign, Michigan’s initiative is likely to pass.

The Roberts threat

So that’s the good news for supporters of free and fair elections. Three of the most gerrymandered states in the country will likely have permanent safeguards against gerrymandering during the next redistricting cycle. The bad news is that these safeguards may not survive the single greatest threat to voting rights in the United States of America — the Supreme Court of the United States.

In 2015, the Supreme Court decided Arizona State Legislature v. Arizona Independent Redistricting Commission, a challenge to that state’s use of an independent redistrict commission to draw its congressional maps. The premise of this lawsuit was that the Constitution provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof,” and Republicans argued that the word “legislature” can only be read to mean the body of lawmakers elected to make laws — not an independent commission created by a ballot initiative.

But this legal theory ran headlong into precedent. Among other things, the Supreme Court established in its 1916 decision in Ohio ex. rel. Davis v. Hildebrant that the word “legislature” can apply to any body that is empowered to make laws. Thus, a referendum “constituted a part of the state constitution and laws,” and was accordingly “contained within the legislative power.”

Although five justices upheld Arizona’s redistricting commission in the 2015 case, one of them was Justice Kennedy. So if Trump succeeds in picking Kennedy’s replacement, there will no longer be a majority for the proposition that ballot initiatives may target gerrymandering. The Ohio and Michigan initiatives could fall to a Supreme Court hostile to voting rights.

Indeed, after Pennsylvania’s Supreme Court struck down that state’s gerrymander, Republicans argued that a court could not do so — because a court is not a legislature. The Supreme Court of the United States treated this argument pretty dismissively, but — again — that was while Kennedy was still around. With him gone, the Republican Supreme Court may view a case that could eliminate Republicans’ power to rig congressional elections differently.


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This Isn't a Government Anymore. It's a Game of Truth or Dare. Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=11104"><span class="small">Charles Pierce, Esquire</span></a>   
Monday, 06 August 2018 14:00

Pierce writes: "President* Donald Trump is running the dare - and winning."

Donald Trump Jr. speaks at the 2016 Republican National Convention in Cleveland, Ohio U.S. July 19, 2016. (photo: Mario Anzuoni/Reuters)
Donald Trump Jr. speaks at the 2016 Republican National Convention in Cleveland, Ohio U.S. July 19, 2016. (photo: Mario Anzuoni/Reuters)


This Isn't a Government Anymore. It's a Game of Truth or Dare.

By Charles Pierce, Esquire

06 August 18


President* Donald Trump is running the dare—and winning.

don't remember who it was exactly, but someone mentioned over the weekend that the president*'s perception of his political invulnerability seems to have evolved from "I could shoot somebody on Fifth Avenue" to "Yeah, I shot at somebody on Fifth Avenue, but I missed him, so there's no crime here." Any weekend is remarkable when the president* admits being in cahoots with a foreign government full of kleptocratic thugs, thereby contradicting almost three years of official prevarication, and tosses his eldest son under the wheels as a bonus. Of all the tweets in all the gin joints in all the word, this one is the all-timer.

This isn't a government any more. It's an elaborate game of Truth or Dare and, so far, the president* is winning. Contrary to god alone knows how many previous public statements, he now admits the following: that the brain trust of his campaign did indeed take a meeting with Russian ratfckers for the purpose of gaining access to materials stolen from his political opposition; using this material, the rats were successfully fcked during the campaign, and, when the meeting with the ratfckers came to light, it was the president* who concocted the cover story and sent his wonderful son out to peddle the bullshit. One odd thing about the Oval Office—given the right circumstances, you can find yourself cornered there.

That's the truth. The president* is running the dare. He has admitted lying to the country on a profound issue of national security. He is doing next to nothing to prevent a similar attack this fall, and in 2020. He is clearly in league with—or, more likely, in hock to—an authoritarian goon presiding over an economic basket case complete with its own huge and threadbare nuclear arsenal. He is daring the institutions of democracy to do something about him. He is daring the system to work the way it's supposed to work. Waiting until after the midterms is not the way the system is supposed to work. Waiting for the special counsel to do the job for you is not the way the system is supposed to work. God knows, the supine behavior of the Republican congressional majorities is not the way the system is supposed to work.

The process of dealing with a lawless president* who admits to his own lawlessness should be easy, if the system works the way it's supposed to work. Instead, everybody along Fifth Avenue hears gunfire and hides behind a cab. But Robert Mueller, with no expression on his face, reaches across his desk for another file.


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