Under Pressure Comey Briefs Congress on Trump and Russia Today, 5 Things to Watch

By Karoun Demirjian, The Washington Post

20 March 17

 

BI Director James B. Comey and Adm. Mike Rogers, director of the National Security Agency, are scheduled to appear Monday before the House Intelligence Committee to speak about alleged Russian meddling in the 2016 elections, including potential connections between President Trump’s inner circle and the Kremlin.

It is the first time Comey and Rogers will testify publicly since Trump took office two months ago — a period during which Trump’s first national security adviser, Michael Flynn, resigned and Attorney General Jeff Sessions recused himself from Trump-related investigations involving the campaign. The hearing was scheduled to start at 10 a.m. Monday.

In recent weeks, Trump joined the fray with counter-accusations of his own, such as his unfounded charge that the Obama administration conducted a wiretap of his phones at Trump Tower in New York.

The chairman of the House Intelligence Committee confirmed on “Fox News Sunday” that there was no evidence to suggest that Trump was wiretapped. Rep. Devin Nunes ­(R-Calif.) said he has seen Justice Department documents requested by the panel confirming that information; they were turned over to his committee Friday.

“Was there a physical wiretap of Trump Tower? No, but there never was, and the information we got on Friday continues to lead us in that direction,” Nunes said.

The Intelligence Committee hearing is the opening foray into getting public answers on these topics. On March 28, former spy chiefs and administration officials are set to appear before the panel to give their views on what, if anything, transpired between Trump’s team and Russian officials during the heat of the presidential campaign.

Even as intelligence officials publicly answer lawmakers’ questions, political jockeying is casting a cloud over attempts to look into how deep the counterintelligence investigation involving the president’s inner circle goes.

Here are five things to watch at Monday’s House Intelligence Committee hearing, which is to begin at 10 a.m.:

1. Can Republicans stop the bleeding? Can Democrats unearth a smoking gun?

Republicans have been scrambling to help the president avoid the specter of scandal since allegations about contacts between Trump’s team and Russian officials first surfaced.

Nunes has repeatedly said he thinks there is no evidence of improper contact, taking pains to shift the focus of the investigation toward ferreting out who leaked information about such contacts to the news media — saying that the leaks are the only “major crimes” that occurred.

But Trump complicated Republicans’ efforts with his insistence that the Obama administration wiretapped his phones in Trump Tower — an assertion that GOP leaders could not and did not try to defend. In recent days, some influential Republicans have even called on Trump to apologize to former president Barack Obama.

Democrats have yet to find a smoking gun firmly establishing that the president, or his top surrogates, colluded with Russian authorities to swing the election in Trump’s favor. That is a tall order, based on the conversations thus far disclosed: Flynn and Sessions bowed out of their roles because they had misled the vice president and lawmakers, respectively, not because they admitted to discussing anything improper with the Russian ambassador to the United States, Sergey Kislyak.

Expect Democrats to focus on links not just between people who served in Trump’s administration and Russian authorities, but also between top campaign surrogates such as former Trump campaign manager Paul Manafort and adviser Carter Page, who have had financial and business ties to Russians and their allies.

2. Will Comey admit to an investigation?

News outlets have reported that the FBI and the Justice Department are conducting probes into the allegations surrounding Russia, the 2016 elections and the Trump team, but Comey has yet to acknowledge this publicly on Capitol Hill.

His silence — predicated on his insistence that he never comments on ongoing investigations — has irked members of both parties and invited bipartisan charges that Comey is stonewalling Congress.

Democrats allege that perhaps Comey is biased: They say he was perfectly willing to talk about Hillary Clinton’s emails — though Comey says he commented in that case because it was a closed investigation. Others have said the director is simply being uncooperative.

Some of that vitriol has lessened in recent days, after Comey arrived on Capitol Hill to brief the Gang of Eight — senior lawmakers who receive Congress’s highest-level intelligence briefings — on matters related to Russia. Members also secured a promise from the intelligence community that committee members will be privy to the same information provided to the Gang of Eight, a concession lawmakers say is necessary for them to conduct their investigation.

Still, many members of the Senate Judiciary Committee have been clamoring for Comey to publicly state that the investigation exists and is ongoing — and members of the House Intelligence Committee are likely to use Monday’s forum to challenge him to answer that question.

3. Is it just about wiretapping — or could there be other surveillance involved?

We now know that the Justice Department had no information to back up Trump’s claim that the Obama administration was tapping his phones in Trump Tower. Comey had been pushing the Justice Department to come clean about that for a while.

What we still do not know, though, is whether there were wiretaps of Trump’s affiliates outside the tower — or, in the course of other investigations, whether the intelligence community picked up on communications the president or his team had with Russia during the campaign or the transition period.

This sort of “incidental collection” has already helped to take down one member of Trump’s team — Flynn, caught on tape speaking with Kislyak, whose communications were being watched. Nunes has suggested there could be others popping up in such indirect surveillance — possibly even the president himself.

The House Intelligence Committee is waiting on answers to a request for a complete list of names of people who have been “unmasked” during surveillance operations. Committee leaders said Friday that the NSA “partially” responded to their request for that list. But the FBI and CIA have not. A complete list is not likely to make it to lawmakers’ hands before Monday morning, so expect a few questions on this subject.

And remember: Though Nunes has laid to rest speculation the government bugged the phones of Trump Tower, he has not yet commented on whether there were wiretaps of others connected to Trump, outside the tower. The committee’s request covered a very wide range of individuals — including Trump’s business associates, his relatives and his friends. Look for members to grill Comey and Rogers for a fuller reckoning.

4. Will Republicans cross the White House?

An investigation that began as a probe focused on allegations that Russia meddled in the 2016 elections has expanded — and not just to include whether Russian authorities had direct contacts with campaign officials. The investigation now encompasses going after leakers in the administration for publicizing the information linking Trump surrogates to Kremlin officials. It also includes the query about incidental collection, to see whether the intelligence community adhered closely to the law as it was doing its job.

In this highly charged atmosphere, where members choose to direct their questions for Comey and Rogers could reveal a great deal about where they stand.

Democrats will undoubtedly focus on the potential connections between the Trump team and Russia. But watch Republicans: Those who pursue similar questions will be knowingly and openly crossing the White House. It is far safer for Republicans to focus on questions about leaks, which are what the Trump team — and Nunes — say are the real crime.

Still, the GOP is not united around Trump here. As Sen. John McCain (R-Ariz.) said a month ago, “All of us know that leaks happen in this town, and we all don’t like it — but the fact is that you now have a much larger issue to address.”

5. Where do we go from here?

The pomp and circumstance surrounding this hearing is considerable — and understandable, given the investigation, the politics surrounding it and the guest list. But how much new information will we really learn? The answer may be not much at all.

Comey has been very careful about what he says publicly and privately on this matter. More than once, he has come to the Hill for closed-door briefings and members have emerged frustrated — in a public hearing, the FBI director is even less likely to cut loose. Rogers is a bit chattier — but also not likely to divulge state secrets or say anything revealing how the investigation is being conducted, for fear of unmasking sources, methods and classified procedures central to the investigation.

It is unlikely that lawmakers will succeed in getting something shocking, or damning, or even conclusive out of the duo. But as we have seen, the investigation can turn dramatically on unsubstantiated tweets from the president, and anything could happen.

Neil Gorsuch Is No Originalist: The Founders Loathed Corporate Power, He Favors It

By Jay Michaelson, The Daily Beast

19 March 17

 

By favoring corporate power over individual rights, Gorsuch’s legal philosophy flies in the face of the Founders’ original intent.

top calling Judge Neil Gorsuch an originalist. His opinions would make the Founding Fathers turn over in their graves.

The Supreme Court nominee’s record on cases pitting individual against corporate rights tilts consistently in favor of corporations over many years. And while many conservative ‘originalists’ don’t like to talk about it, the Founders hated corporations and sharply limited their power.

In recent years, the Supreme Court has vastly expanded the notion of corporate personhood. For two centuries, it was understood that while corporations enjoy legal personhood, that personhood is a legal fiction. Corporations are like actual people in some ways, but they don’t enjoy every right that an actual human being enjoys. They can’t vote, for example.

Lately, however, corporations have been getting more and more of them thanks to the Supreme Court.

Per Citizens United, corporations have the same free speech rights as flesh and blood people, including the right to spend unlimited amounts of money to “speak” about political affairs. This has led to an astounding transformation of our campaign finance system: one recent study showed that the Court’s recent decisions led to more than $3 billion in spending on the 2016 elections, equivalent to 45 percent of the total cost of the elections.

And according to the Hobby Lobby decision, corporations even possess religious liberty rights under the Religious Freedom Restoration Act. Just as with private citizens, the government must pass an extremely heavy test before it can abridge the religious liberty of a corporation.

Judge Gorsuch’s record strongly suggests that he’ll continue the Rehnquist and Roberts Courts’ expansion of corporate power at the expense of individual rights. As an appellate judge, Gorsuch hasn’t heard high-profile cases like Citizens United. But he has heard many cases balancing corporate and individual rights. And time and again, faced with close cases, he has sided with businesses over individuals: with insurance companies that sought to deny disability benefits, with employers who wanted to cut pension benefits, and with employers defending against employment discrimination claims.

The most telling of Judge Gorsuch’s opinions are his dissents, in which he frequently departed from his mostly conservative Tenth Circuit colleagues to stake out even stronger pro-business positions. A report by the left-leaning People for the American Way catalogued 35 such dissents, including four out of five workers’ rights cases where the court found for the worker, but Gorsuch dissented to support the company.

Gorsuch voted down a fine against a company that failed to properly train a worker, resulting in the worker’s electrocution on the job. He ruled against a truck driver who was fired after refusing to wait for more than two hours in a broken down truck in subzero temperatures. He dissented to throw out a sex discrimination case despite considerable evidence in the record. And in another dissent, he accused the National Labor Relations Board of acting out of “frustration that it cannot pursue more tantalizing goals like punishing employers for unlawful actions.”

Now, judges make close calls all the time, that’s their job. And no one is alleging that any of these decisions were improper or compromised. But when a consistent trend emerges over several years, it’s reasonable to extrapolate that trend into the future. And that trend suggests that Judge Gorsuch will continue the conservative justices’ radically pro-corporate power approach.

But there’s nothing originalist about this. Nowhere in the Constitution will you find the principle that corporations are people. On the contrary, the Founders had profound misgivings about them.

The earliest corporations, inherited from the British, were primarily cities and schools, not for profit enterprises. Economic concerns don’t begin to be incorporated until the 1790s, and even then, they were of limited duration and subject to revocable charters issued by legislatures. Corporations as we know them today – let alone gigantic trans-national corporations – simply did not exist at the time of the Founding.

On the contrary, the largest corporation of the time – the British East India Company – was derided as an imperium in imperio, a state within a state, and deliberately not replicated in the new republic. Indeed, the Boston Tea Party was as much a protest against the company as it was against the Crown.

General corporate statutes began to crop up in the 19^th century but corporations were still strictly limited as a matter of law. They were temporary, their charters were revocable, they could not hold stock in other corporations (no subsidiaries, no mergers), and owners were personally liable for any criminal acts.

That only changed after the Civil War, when Gilded Age oligarchs began using the Fourteenth Amendment, meant to give rights to former slaves, to give rights to corporations. Suddenly, railroads and massive trusts became recognized as people, and their power expanded dramatically.

The modern regulatory state, which many conservatives regard as a betrayal of American libertarian ideals, was only created in the wake of these changes. The trusts and other mega-corporations that arose in the Gilded Age, not the regulatory state, represent the real departure from the society the Founders envisioned. Regulations were only a correction.

This point is omitted in the elisions of individual and corporate rights that are a hallmark of modern conservatism. The dichotomy between the public sector and the private sector is too simplistic. As the noted liberal theorist Charles Reich has discussed, we should actually understand society as consisting of three parts: the public sector, the individual sector, and the corporate sector. And more often than not, the state steps in to protect one from the other.

For example, Republicans often depict environmental laws as the government regulating the private sector—and criticize them for getting in the way. But this depiction is misleading. Really, the government is regulating the corporate sector to protect the individual sector: preventing pesticide companies from poisoning unsuspecting families, preventing factory farms from polluting drinking water.

In these and thousands of similar examples, it’s not “liberty” in general that’s being curtailed. Corporate liberty is curtailed so that individual liberty (as in life, liberty, and the pursuit of happiness) can grow.

Corporations are useful legal entities, of course. As legal-fictional “people,” they enable actual people to pool resources in ways that have transformed our world for the better. They limit liability so that the aggregate, rather than individual owners or officers, is responsible for debts and damages. They are extremely useful tools.

But they are not people. They outlive human beings, growing in power and accumulating capital more than any individual, or any dynasty, could. They can merge with one another, amassing even more power. And they can span the globe, with eyes, ears, and limbs everywhere in the world.

They are also unlike human beings, who can balance their self interest against things like morality, sustainability, and the common good, because corporations, by their charter, must maximize value to shareholders. Even if a mining company’s board of directors knows that shaving off that mountaintop is bad for the long-term future of everyone, they are duty-bound to do it if maximizes profits. If corporations really were people, they’d be the biggest, most selfish, most obstinate jerks you ever met.

Which brings us back to Judge Gorsuch.

For too long, progressives have given conservatives a pass on the concept of “originalism.” It was never the Founders’ original intent to allow corporations to become as powerful as they are today. Quite the contrary; their original intentions were to limit them or even ban them entirely. It is absurd to suggest that Gorsuch’s pro-corporate rulings, or the Supreme Court’s decisions in Citizens United and Hobby Lobby, in any way reflect the original intentions of the founders.

With Gorsuch’s confirmation hearings fast approaching, we’ll hear a lot of talk about whether the Constitution is to be interpreted as a living document (as progressives usually say) or according to original intent. Whatever we may make of that debate, expanding corporate power is not originalism. Let’s stop pretending that it is.