Anthony Kennedy, You Are a Total Disgrace to America

By Michael Tomasky, The Daily Beast

02 July 18

No one expected Kennedy to allow Donald Trump to pick his successor. But he has. And it should forever taint his legacy as a jurist.

t’s been a few days now, but the shock of Anthony Kennedy’s retirement announcement hasn’t abated a bit. This is partly because of the ghastly coming ramifications, more on which later. But it’s also because I honestly didn’t think Kennedy would allow Donald Trump to name his successor.

I thought he had more respect for the United States of America than to allow this corrupt gangster who’s almost certainly never read a Supreme Court opinion in his life to name his successor. Yes, Kennedy is conservative, so to that extent it makes sense that he’d want a Republican president to make the call, and maybe it’s just that simple. But whatever his motivation, Kennedy has altered and destroyed his legacy.

Let me put it this way. If I owned a restaurant and he walked in, I’d serve him dinner. But if the other diners mocked and shamed him, I wouldn’t exactly cry.

Until last week, Kennedy’s legacy was going to be that of a basically conservative but sometimes interesting jurist. He was awful on money in politics. Awful.

If you never read Jeffrey Toobin’s important New Yorker piece from 2012, a tick-tock on the inside baseball of how the Court decided Citizens United, do so. Toobin shows that it was Kennedy who pushed behind the scenes to move the opinion as far to the right as a majority would accept. When this new Court has struck down any and all limits on campaign donations, as it almost surely will, and this country becomes an open oligarchy, we’ll have Kennedy to thank.

And yet, he helped advance human and civil rights in this country by voting to legalize same-sex marriage. Obergefell v. Hodges was a landmark case that was going to live in history alongside Brown v. Board of Education—a triumphant moment when we as a nation rose above past prejudices, prejudices that will look ridiculous and embarrassing a hundred years from now.

Notice I wrote was going to. Because now, assuming Trump and the Republicans get their justice, it’s only a matter of time before Obergefell is overturned. Look at this map. Most of the countries of the Western Hemisphere have federal laws legalizing same-sex marriage. Canada, Mexico, Argentina, Brazil, Colombia. Someday, the United States will no longer be among them.

Kennedy was also a swing vote, of course, on abortion rights, siding with the liberals and keeping Roe v. Wade law of the land. On Sunday, Maine GOP Senator Susan Collins said seemingly pretty definitively that she’d oppose a nominee who’d overturn Roe.

But all that probably means is that the nominee will lie about it at his or her hearing. Every conservative since Antonin Scalia has sat up there and dispensed obviously insincere tripe about respect for precedent, a history Paul Waldman recounted recently in The Washington Post.

So Collins, reassured by the nominee that s/he will keep an open mind and respects precedent, will cave as she always does.

So this is what Kennedy has done. He has knowingly destroyed that part of his legacy—which was, in fact, his entire legacy, because these were the only interesting and brave things he ever did. And now these precedents will be overturned. Now, Kennedy’s legacy is the destruction of Kennedy's legacy.

But that’s not even the worst part. The worst part is that by retiring in the middle of the Robert Mueller investigation, Kennedy is letting Trump pick one of his own jurors. He obviously had to know he was doing this. And what are we do if the Supreme Court holds sometime in the near future by 5-4, with Kennedy’s successor in the majority, that the president is indeed above the law?

It could be that Kennedy would have been part of such a majority anyway. But if Trump’s two justices are part of that five, it will taint the Court forever, and it will tarnish what remains of our democracy, as the highest court in the land will have ruled that the crookedest president in modern history cannot be called to any kind of legal account.

Kennedy had to have contemplated all this as he pondered his resignation. But he made a decision that renders him not an independent jurist who takes seriously the constitutional responsibility of the judicial branch to check the executive, but just another partisan hack.

And now we learn that on top of everything else, Kennedy may just be corrupt. So his son Justin, if last week’s New York Times account is correct, in essence kept Donald Trump in business for the better part of a decade, overseeing $1 billion worth of loans to the Trump Organization via Deutsche Bank, where he worked. Justin and the Trump kids are buddies, it seems. Justin and Trump himself are palsy-walsy.

This is grotesque. There was once a time in this country, 40 and 50 years ago, when a connection like this might have led an honorable associate justice to recuse himself from every case involving the administration that came before him. Or if not that, at the very least a justice would have cared enough about appearances that he would have tried to stay on until 2021 to see if the country elected a new president, someone who wasn’t arguably saved from bankruptcy and humiliation by his own flesh and blood.

But not only did Kennedy not do that—he chose not to risk the possibility of the Democrats winning the Senate this fall and pulling a Mitch and doing to his successor what McConnell did to Merrick Garland. A jurist who cared more about his legacy would have waited--indeed would have hoped that the Democrats took the Senate, perhaps forcing President Trump to put forward a nominee who was more moderate and who would follow Kennedy's own example on abortion rights and gay rights. But no.

In other words: Anthony Kennedy went out of his way to make sure that a president who was elected with fewer votes than his opponent, and whom time might reveal to have won the White House by cooperating with a foreign adversary, and whose business career was salvaged by none other than Kennedy’s own son, gets to name his replacement—a replacement who is all but certain to undo the only good Kennedy himself ever did.

What kind of person do you have to be to justify all that to yourself? To abet the dissolution of your own legacy? It’s like a kulak handing a Bolshevik a pistol. Except that the real price here will be paid not by Kennedy, but by the millions of Americans who will lose hard-won rights.

May the name Anthony Kennedy live forever in infamy.

Where the Heck Did the Term "Collusion" Come From?

By Victoria Clark, Lawfare

02 July 18

n the June 21 episode of Preet Bharara’s podcast, “Stay Tuned with Preet,” a listener called in to ask about the legal meaning of the word “collusion.” Bharara and his two guests were quick to set the record straight; the term collusion, despite it frequent use, has no actual legal definition outside of antitrust law. Instead, Bharara raised a different question for his guests: If collusion has no legal meaning in the context of the Russia investigation, then “why has the word … captured everyone’s attention?” What’s more, how did a word with no legal relevance to the case become so associated with the Trump-Russia allegations?

Bharara and his two guests spent a few minutes tossing around different possibilities. Former White House counterrorism adviser Lisa Monaco suggested that Special Counsel Robert Mueller’s February 2018 indictment charging 13 Russian individuals and entities with conspiracy might have put the concept in play. Former New Jersey Attorney General Anne Milgram brought it back further to Rod Rosenstein’s May 2017 letter appointing Special Counsel Robert Mueller. But the trio failed to come up with a definitive answer, admitting that they just didn’t have a firm sense of where the word came from.

I do.

Their conversation prompted me do some digging on the intellectual history of the word “collusion” in the context of L’Affaire Russe, how it got injected into the bloodstream of the conversation, and how it has come to so dominate discussion of Trump-Russia matters that the president can simply tweet “NO COLLUSION!” to convey a huge amount of meaning to his supporters and opponents alike. How did the word “collusion” get introduced into the public lexicon? And who is initially responsible for introducing it? The answer, it turns out, goes back to July of 2016 at the Democratic National Convention.

On July 22, 2016, Wikileaks released more than 19,000 emails from top members of the Democratic National Committee. Two days after the release, Hillary Clinton’s campaign manager Robby Mook told CNN that, according to “experts,” Russian state actors had stolen the emails from the DNC and were releasing them through Wikileaks “for the purpose of actually helping Donald Trump.” 

Mook did not use the word “collusion,” but the press, in reporting his comments, did. Within the hour, in an article timestamped at 9:55 a.m., the Washington Examiner reported that Paul Manafort and Donald Trump Jr, had responded to Mook’s allegations and “vigorously denied any kind of collusion between Trump Sr. and the Russian president.” (To be clear, Manafort denied “any ties” between Putin and the Trump campaign, and Donald Trump Jr. criticized Mook for “lie after lie.” Neither one of them mentioned “collusion.”) Ninety minutes later, at 11:27 a.m., ABC News repeated what it termed Mook’s “allegation of collusion between the campaign and Russia.” And three hours later, at approximately 12:35 p.m., Bernie Sanders’s campaign manager, Jeff Weaver, told CNN’s Jake Tapper, “If there was some kind of collusion between the Trump campaign and Russian intelligence or Russian hackers, that clearly has to be dealt with.”

From there it was off to the races. Over the next two weeks, the word “collusion” was used hundreds of times by politicians like Martin O’Malley and media personalities such as Trevor Noah.

The term caught on, I think, because it captured the general suspicion that the campaign was somehow in on the hack or knowingly benefiting from it while carefully eliding the fact that no tangible evidence had yet emerged tying the Trump campaign to the Kremlin. (Remember that news of the Trump Tower meeting and other contacts between the campaign and Russian actors had not yet become public.)

After this initial spurt, the collusion frenzy tapered off. Through August and September the word appeared only sporadically in the press, as other stories edged out the Trump-Russia narrative for dominance in the campaign. But when Wikileaks published more than 50,000 emails from Clinton’s campaign chairman in October of 2016, the term had a renaissance of sorts.

The popularity of the term continued to wax and wane throughout the final months of 2016. When a big story would break about Trump, the campaign, or Clinton’s emails, the word “collusion” would appear in headlines. Not every story described the relationship as collusion. Some referred to it as “ties” with Russia. Others questioned whether Trump was “coordinating” with Putin. Collusion had not yet become the de facto term to describe the Russia connection. But it was very much in the mix.

On Dec. 9, 2016, the Washington Post reported that the CIA had concluded that Russia intervened in the 2016 election in order to aid the Trump campaign. Although the Post did not mention the word “collusion” in its article, other media outlets such as the Economist, the Guardian, and CNN included the term when they picked up the story. After that day, the use of the word “collusion” spiked dramatically. It became the universally accepted term to describe any potential relationship between Donald Trump’s campaign and Russia. Even the individuals under investigation bought into the use of the word. In July of 2017, for example, Jared Kushner told reporters “Let me be very clear: I did not collude with Russia.” And in September of 2017, Donald Trump Jr. testified before Senate investigators “I did not collude with any foreign government.”

It’s probably here to stay, despite its being a legal non sequitur. As recently as Thursday morning, President Trump took time out of his day to remind the public that “There was no Collusion.”