November 26, 2020 / by 

 

Some Important Historical Details Michael Cohen Probably Shared with Mueller’s Team

The attention since Michael Cohen pled guilty has focused largely on his role in brokering a Trump Tower deal, which was the substance of his lies to Congress as detail in his plea. But there are other things about which he was surely a really useful witness for Mueller. ABC provided some sketchy details, including the enticing detail that Cohen knew about pardon offers (possibly, even for him).

Cohen has spent more than 70 hours in interviews with Mueller’s team. The questioning has focused on contacts with Russians by Trump associates during the campaign, Trump’s business ties to Russia, obstruction of justice and talk of possible pardons, sources familiar with the discussions have told ABC News.

But I want to point to two historical details of particular interest.

It’s clear that Mueller has some interest in campaign finance irregularities, at least those of Roger Stone. But the crowd Roger rat-fucks with actually has a history with Michael Cohen. Cohen set up a 527 in 2011 into which Trump Organization funneled probably illegal cash.

As I’ve noted, in 2011, one of the people closely involved in Stone’s 2016 rat-fucking, Pamela Jensen, was involved in a 527 called ShouldTrumpRun that listed Michael Cohen as President.

The organization was apparently laundering Trump corporate cash into campaign spending. But when the issue came before the FEC, Commissioner Don McGahn helped kill an investigation into it.

During McGahn’s FEC tenure, one of those he helped save from enforcement action was Trump himself. In 2011, when the future president-elect was engaged in a high-profile process of considering whether to enter the 2012 race for the Republican presidential nomination, Trump was formally accused in an FEC complaint of violating agency regulations. The case was dismissed on a deadlocked vote of the FEC commissioners.

A four-page complaint filed by Shawn Thompson of Tampa, Fla., accused Trump of illegally funneling corporate money from his Trump Organization into an organization called ShouldTrumpRun.com. McGahn and fellow FEC Republicans Caroline Hunter and Matthew Petersen voted to block FEC staff recommendations that Trump be investigated in the matter—designated Matter Under Review (MUR) 6462.

Ultimately, Trump opted not to run for president in 2012. Nonetheless, FEC staff attorneys concluded his activities before that decision may have violated campaign finance rules regarding money raised to “test the waters” for a candidacy. A staff report from the FEC Office of General Counsel, based largely on news articles and other documents about Trump’s flirtation with running for president—including Trump’s own quoted statements— recommended that the commissioners authorize a full FEC investigation backed by subpoena power.

FEC Democrats voted to pursue the recommended probe, but the votes of McGahn and the other FEC Republicans precluded the required four-vote majority needed for the commission to act.

McGahn and Hunter issued a “ statement of reasons” explaining their votes in the Trump matter in 2013. The 11-page statement blasted FEC staff attorneys in the Office of General Counsel for reviewing volumes of published information regarding Trump’s potential 2012 candidacy in order to determine whether to recommend that the FEC commissioners vote to authorize a full investigation. McGahn and Hunter argued that the FEC counsel’s office was prohibited from examining information other than what was contained in the formal complaint submitted in the case.

The Office of General Counsel shouldn’t be allowed to pursue an “unwritten, standardless process whereby OGC can review whatever articles and other documents not contained in the complaint that they wish, and send whatever they wish to the respondent for comment,” the Republican commissioners wrote.

And this public trial balloon in 2011 is interesting for another reason. It means that when Trump set up the Miss American deal in 2013, the Russians knew he might consider running for President. Cohen was closely involved in that deal, too.

That Cohen was involved in negotiations with the Agalarovs in 2013  is interesting enough. But I’m particularly intrigued by something that happened in the wake of the disclosure of the June 9 meeting. As the Trumps and Agalarovs started getting testy about each others’ response, Ike Kaveladze called Roman Beniaminov’s attention to a picture from the Las Vegas announcement party that got leaked to the press, highlighting Cohen and Keith Schiller.

On July 13, 2017, Ike Kaveladze (who was really in charge of the meeting for his boss, Aras Agalarov) and Roman Beniaminov (Emin Agalrov’s assistant, who heard ahead of time the meeting was about dealing dirt on Hillary to the Trumps) had the following exchange by text (PDF 34).

[Kaveladze sends link]

Beniaminov: But I don’t recall taking any video. And I can’t understand why it looks so similar.

Kaveladze: I mean his trump organization employees.

By July 13, the Agalarovs and Trumps were increasingly at odds on how to respond to the story, not least after the Trumps leaked Rod Goldstone’s name to the press after saying they wouldn’t. After that, there seemed to be increasing amounts of dirt being leaked, perhaps by both sides.

It appears that Kaveladze may have phoned Beniaminov right before this to raise this CNN story, which had just been posted. Beniaminov seemed to think Kaveladze had suggested that he, Beniaminov, had taken the video, even while he seems to have been present at the Las Vegas event back in 2013.

Scott Balber, the Agalarov’s ever-present lawyer (who had actually represented Trump on a Miss Universe related issue in 2013), was quoted in the piece.

“It’s simply fiction that this was some effort to create a conduit for information from the Russian federal prosecutors to the Trump campaign,” Balber said on CNN’s “New Day.” “It’s just fantasy world because the reality is if there was something important that Mr. Agalarov wanted to communicate to the Trump campaign, I suspect he could have called Mr. Trump directly as opposed to having his son’s pop music publicist be the intermediary.”

I don’t rule out Balber having taken and leaked the video.

Or maybe not: What Kaveladze is interested in highlighting to Beniaminov is the presence of two other Trump employees in the video: Keith Schiller and Michael Cohen, shown above.

I don’t know what to make of the reference — though it’s equally possible they were involved in the 2017 response, or were viewed for some other reason as an additional concern regarding the June 9 meeting.

While Schiller actually was in the loop of the June 9 meeting (Rob Goldstone chatted with him the day of the meeting and asked about how to mail things to Trump given increased security), there’s no public evidence Cohen was.

But perhaps Kaveladze realized Cohen might know something about the 2013 events that would be of concern as the investigated heated up.

In any case, we know from Mueller’s questions he thinks the 2013 does serve as a key part of the investigation. And while Schiller — with his sinecure at the RNC — may not be talking, Michael Cohen is.

There are other aspects of Trump’s business that Cohen will explain for Mueller, including corrupt deals with Russians and related countries.

But these two past events are likely to be of particular interest for Mueller’s prosecutors.


Should Trump Run: Don McGahn Has Been Covering for Roger Stone’s Pro-Trump Rat-Fucking for Seven Years

It has become clear to me that today’s big puff piece in the NYT about Don McGahn was designed to hide that Mueller is challenging the White House Counsel, former FEC Commissioner, and Trump campaign finance advisor on past work he has done for Trump.

One of those things must be McGahn’s effort, while at FEC in 2011, to stymie any investigation into a PAC involving Roger Stone and Michael Cohen, called Should Trump Run.

As I’ve noted, in 2011, one of the people closely involved in Stone’s 2016 rat-fucking, Pamela Jensen, was involved in a 527 called ShouldTrumpRun that listed Michael Cohen as President.

The organization was apparently laundering Trump corporate cash into campaign spending. But when the issue came before the FEC, Commissioner Don McGahn helped kill an investigation into it.

During McGahn’s FEC tenure, one of those he helped save from enforcement action was Trump himself. In 2011, when the future president-elect was engaged in a high-profile process of considering whether to enter the 2012 race for the Republican presidential nomination, Trump was formally accused in an FEC complaint of violating agency regulations. The case was dismissed on a deadlocked vote of the FEC commissioners.

A four-page complaint filed by Shawn Thompson of Tampa, Fla., accused Trump of illegally funneling corporate money from his Trump Organization into an organization called ShouldTrumpRun.com. McGahn and fellow FEC Republicans Caroline Hunter and Matthew Petersen voted to block FEC staff recommendations that Trump be investigated in the matter—designated Matter Under Review (MUR) 6462.

Ultimately, Trump opted not to run for president in 2012. Nonetheless, FEC staff attorneys concluded his activities before that decision may have violated campaign finance rules regarding money raised to “test the waters” for a candidacy. A staff report from the FEC Office of General Counsel, based largely on news articles and other documents about Trump’s flirtation with running for president—including Trump’s own quoted statements— recommended that the commissioners authorize a full FEC investigation backed by subpoena power.

FEC Democrats voted to pursue the recommended probe, but the votes of McGahn and the other FEC Republicans precluded the required four-vote majority needed for the commission to act.

McGahn and Hunter issued a “ statement of reasons” explaining their votes in the Trump matter in 2013. The 11-page statement blasted FEC staff attorneys in the Office of General Counsel for reviewing volumes of published information regarding Trump’s potential 2012 candidacy in order to determine whether to recommend that the FEC commissioners vote to authorize a full investigation. McGahn and Hunter argued that the FEC counsel’s office was prohibited from examining information other than what was contained in the formal complaint submitted in the case.

The Office of General Counsel shouldn’t be allowed to pursue an “unwritten, standardless process whereby OGC can review whatever articles and other documents not contained in the complaint that they wish, and send whatever they wish to the respondent for comment,” the Republican commissioners wrote.

Jensen, her family, and Stone teamed up on a number of equally dubious efforts in 2016, including a 527 called Stop the Steal, which McGahn provided legal protection for in both its early (convention focused) and its late (Democratic voter suppression) incarnations. The latter effort at least paralleled Russian voter suppression efforts.

In other words, White House Counsel Don McGahn — the subject of a Maggie and Mike puff piece suggesting he would only be of interest on the obstruction investigation — has for at least seven years been right in the thick of defending Roger Stone’s legally dubious rat-fucking on behalf of Donald Trump.

And Roger Stone has been the focus of Mueller investigation for six months.

Those are the same six months during which Maggie and Mike have been pushing an increasingly absurd claim that Trump and his associates are only at risk in an obstruction investigation, not the conspiracy investigation McGahn has surely been questioned in.


The Unlearned Lessons of Obama’s Guns, God, and Religion Comments

It will take some time to understand everything that went into Tuesday’s Hillary loss. But one of the most striking things we can see in actual results is that in the Midwest, Trump ran up the score in rural areas that Obama had won in 2008, counterbalancing Hillary’s ability to win in key exurbs. Not incidentally, this is the same thing Bernie was able to do in the primaries: win big in places with small populations.

That got me thinking of this, a key moment in the 2008 election — when Obama was caught on tape suggesting forgotten rural voters often cling to their guns, god, and religion.

Here’s how it is: in a lot of these communities in big industrial states like Ohio and Pennsylvania, people have been beaten down so long, and they feel so betrayed by government, and when they hear a pitch that is premised on not being cynical about government, then a part of them just doesn’t buy it. And when it’s delivered by — it’s true that when it’s delivered by a 46-year-old black man named Barack Obama (laugher), then that adds another layer of skepticism (laughter).

But — so the questions you’re most likely to get about me, ‘Well, what is this guy going to do for me? What’s the concrete thing?’ What they wanna hear is — so, we’ll give you talking points about what we’re proposing — close tax loopholes, roll back, you know, the tax cuts for the top 1 percent. Obama’s gonna give tax breaks to middle-class folks and we’re gonna provide health care for every American. So we’ll go down a series of talking points.

But the truth is, is that, our challenge is to get people persuaded that we can make progress when there’s not evidence of that in their daily lives. You go into some of these small towns in Pennsylvania, and like a lot of small towns in the Midwest, the jobs have been gone now for 25 years and nothing’s replaced them. And they fell through the Clinton administration, and the Bush administration, and each successive administration has said that somehow these communities are gonna regenerate and they have not. So it’s not surprising then that they get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.

Um, now these are in some communities, you know. I think what you’ll find is, is that people of every background — there are gonna be a mix of people, you can go in the toughest neighborhoods, you know working-class lunch-pail folks, you’ll find Obama enthusiasts. And you can go into places where you think I’d be very strong and people will just be skeptical. The important thing is that you show up and you’re doing what you’re doing.

Hillary pounced on the comments, accusing Obama of being tone deaf about rural issues. But over the course of the year, Obama worked to win the votes of these people.

Eight years later, this very same disheartened voters, who remain cynical that the government can do anything for them, voted for a billionaire grifter who thinks wages are too high.

That’s a bad enough story. It’s bad enough that giving people access to (too expensive and complicated) health insurance didn’t provide needed relief.

But then Hillary missed the importance of these same rural areas, because the algorithm that did all the campaign’s thinking underestimated it and so Hillary made few or no campaign stops there.

So where did Ada go wrong?

About some things, she was apparently right. Aides say Pennsylvania was pegged as an extremely important state early on, which explains why Clinton was such a frequent visitor and chose to hold her penultimate rally in Philadelphia on Monday night.

But it appears that the importance of other states Clinton would lose — including Michigan and Wisconsin — never became fully apparent or that it was too late once it did.

Clinton made several visits to Michigan during the general election, but it wasn’t until the final days that she, Obama and her husband made such a concerted effort.

As for Wisconsin: Clinton didn’t make any appearances there at all.

Like much of the political establishment Ada appeared to underestimate the power of rural voters in Rust Belt states.

Trump, partly out of desperation, did see these voters.

Hillary failed Obama’s challenge — convincing people that we can make progress when there’s little evidence of it. That said, I think in the White House, Obama failed that challenge as well.

 


Cuba Libre! A Momentous Shift in Relations

Without any question, the news of the day is the direct turnabout in relations between the United States and Cuba announced this morning. There is a rather long list of areas in which many people, including me, have profound disappointment with Barack Obama over. Lack of accountability for torture is but the latest and greatest in the news consciousness of the attuned public. But today is not such a day; today Barack Obama has risen to at least part of his once heralded promise. Today, Mr. Obama has my love and affection. Today is one of the type and kind of foreign policy, whether toward middle east or other global neighbors, moments promised in Cairo and rarely, if ever, fulfilled in tangible deeds instead of words. So, today, sincere thanks and appreciation to President Obama.

Here are the basics from the AP:

The United States and Cuba have agreed to re-establish diplomatic relations and open economic and travel ties, marking a historic shift in U.S. policy toward the communist island after a half-century of enmity dating back to the Cold War, American officials said Wednesday.

The announcement came amid a series of sudden confidence-building measures between the longtime foes, including the release of American prisoner Alan Gross, as well as a swap for a U.S. intelligence asset held in Cuba and the freeing of three Cubans jailed in the U.S.

President Barack Obama and Cuban President Raul Castro were to separately address their nations around noon Wednesday. The two leaders spoke by phone for more than 45 minutes Tuesday, the first substantive presidential-level discussion between the U.S. and Cuba since 1961.

Wednesday’s announcements followed more than a year of secret talks between U.S. and Cuban officials in Canada and the Vatican. U.S. officials said Pope Francis was personally engaged in the process and sent separate letters to Obama and Castro this summer urging them to restart relations.

This news alone would have constituted something earth shattering, but there is much more than just that. In fact, the AP laid out the merest of backgrounds with that opening. There is much, much, more. I have the official press release, and

it is so good, and compelling, I am going to put it up, all here, right now (it is long, and makes this post long, so bear with me. If you want to, feel free to skip back down to analysis and thoughts):

Today, the United States is taking historic steps to chart a new course in our relations with Cuba and to further engage and empower the Cuban people. We are separated by 90 miles of water, but brought together through the relationships between the two million Cubans and Americans of Cuban descent that live in the United States, and the 11 million Cubans who share similar hopes for a more positive future for Cuba.

It is clear that decades of U.S. isolation of Cuba have failed to accomplish our enduring objective of promoting the emergence of a democratic, prosperous, and stable Cuba. At times, longstanding U.S. policy towards Cuba has isolated the United States from regional and international partners, constrained our ability to influence outcomes throughout the Western Hemisphere, and impaired the use of the full range of tools available to the United States to promote positive change in Cuba. Though this policy has been rooted in the best of intentions, it has had little effect – today, as in 1961, Cuba is governed by the Castros and the Communist party.

We cannot keep doing the same thing and expect a different result. It does not serve America’s interests, or the Cuban people, to try to push Cuba toward collapse. We know from hard-learned experience that it is better to encourage and support reform than to impose policies that will render a country a failed state. With our actions today, we are calling on Cuba to unleash the potential of 11 million Cubans by ending unnecessary restrictions on their political, social, and economic activities. In that spirit, we should not allow U.S. sanctions to add to the burden of Cuban citizens we seek to help.

Today, we are renewing our leadership in the Americas. We are choosing to cut loose the anchor of the past, because it is entirely necessary to reach a better future – for our national interests, for the American people, and for the Cuban people.

Key Components of the Updated Policy Approach:
Since taking office in 2009, President Obama has taken steps aimed at supporting the ability of the Cuban people to gain greater control over their own lives and determine their country’s future. Today, the President announced additional measures to end our outdated approach, and to promote more effectively change in Cuba that is consistent with U.S. support for the Cuban people and in line with U.S. national security interests. Major elements of the President’s new approach include:

Establishing diplomatic relations with Cuba-
· The President has instructed the Secretary of State to immediately initiate discussions with Cuba on the re-establishment of diplomatic relations with Cuba, which were severed in January 1961.
· In the coming months, we will re-establish an embassy in Havana and carry out high-level exchanges and visits between our two governments as part of the normalization process. As an initial step, the Assistant Secretary of State for Western Hemisphere Affairs will lead the U.S. Delegation to the next round of U.S.-Cuba Migration Talks in January 2015, in Havana.
· U.S. engagement will be critical when appropriate and will include continued strong support for improved human rights conditions and democratic reforms in Cuba and other measures aimed at fostering improved conditions for the Cuban people.

· The United States will work with Cuba on matters of mutual concern and that advance U.S. national interests, such as migration, counternarcotics, environmental protection, and trafficking in persons, among other issues.

Adjusting regulations to more effectively empower the Cuban people-
· The changes announced today will soon be implemented via amendments to regulations of the Departments of the Treasury and Commerce. Our new policy changes will further enhance our goal of empowering the Cuban population.

· Our travel and remittance policies are helping Cubans by providing alternative sources of information and opportunities for self-employment and private property ownership, and by strengthening independent civil society.

· These measures will further increase people-to-people contact; further support civil society in Cuba; and further enhance the free flow of information to, from, and among the Cuban people. Persons must comply with all provisions of the revised regulations; violations of the terms and conditions are enforceable under U.S. law.

Facilitating an expansion of travel under general licenses for the 12 existing categories of travel to Cuba authorized by law-
· General licenses will be made available for all authorized travelers in the following existing categories: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.

· Travelers in the 12 categories of travel to Cuba authorized by law will be able to make arrangements through any service provider that complies with the U.S. Treasury’s Office of Foreign Assets Control (OFAC) regulations governing travel services to Cuba, and general licenses will authorize provision of such services.

· The policy changes make it easier for Americans to provide business training for private Cuban businesses and small farmers and provide other support for the growth of Cuba’s nascent private sector. Additional options for promoting the growth of entrepreneurship and the private sector in Cuba will be explored.

Facilitating remittances to Cuba by U.S. persons-
· Remittance levels will be raised from $500 to $2,000 per quarter for general donative remittances to Cuban nationals (except to certain officials of the government or the Communist party); and donative remittances for humanitarian projects, support for the Cuban people, and support for the development of private businesses in Cuba will no longer require a specific license.

· Remittance forwarders will no longer require a specific license.

Authorizing expanded commercial sales/exports from the United States of certain goods and services-
· The expansion will seek to empower the nascent Cuban private sector. Items that will be authorized for export include certain building materials for private residential construction, goods for use by private sector Cuban entrepreneurs, and agricultural equipment for small farmers. This change will make it easier for Cuban citizens to have access to certain lower-priced goods to improve their living standards and gain greater economic independence from the state.

Authorizing American citizens to import additional goods from Cuba-
· Licensed U.S. travelers to Cuba will be authorized to import $400 worth of goods from Cuba, of which no more than $100 can consist of tobacco products and alcohol combined.

Facilitating authorized transactions between the United States and Cuba-
· U.S. institutions will be permitted to open correspondent accounts at Cuban financial institutions to facilitate the processing of authorized transactions.

· The regulatory definition of the statutory term “cash in advance” will be revised to specify that it means “cash before transfer of title”; this will provide more efficient financing of authorized trade with Cuba.

· U.S. credit and debit cards will be permitted for use by travelers to Cuba.

· These measures will improve the speed, efficiency, and oversight of authorized payments between the United States and Cuba.

Initiating new efforts to increase Cubans’ access to communications and their ability to communicate freely-
· Cuba has an internet penetration of about five percent—one of the lowest rates in the world. The cost of telecommunications in Cuba is exorbitantly high, while the services offered are extremely limited.

· The commercial export of certain items that will contribute to the ability of the Cuban people to communicate with people in the United States and the rest of the world will be authorized. This will include the commercial sale of certain consumer communications devices, related software, applications, hardware, and services, and items for the establishment and update of communications-related systems.

· Telecommunications providers will be allowed to establish the necessary mechanisms, including infrastructure, in Cuba to provide commercial telecommunications and internet services, which will improve telecommunications between the United States and Cuba.

Updating the application of Cuba sanctions in third countries-
· U.S.-owned or -controlled entities in third countries will be generally licensed to provide services to, and engage in financial transactions with, Cuban individuals in third countries. In addition, general licenses will unblock the accounts at U.S. banks of Cuban nationals who have relocated outside of Cuba; permit U.S. persons to participate in third-country professional meetings and conferences related to Cuba; and, allow foreign vessels to enter the United States after engaging in certain humanitarian trade with Cuba, among other measures.

Pursuing discussions with the Cuban and Mexican governments to discuss our unresolved maritime boundary in the Gulf of Mexico-
· Previous agreements between the United States and Cuba delimit the maritime space between the two countries within 200 nautical miles from shore. The United States, Cuba, and Mexico have extended continental shelf in an area within the Gulf of Mexico where the three countries have not yet delimited any boundaries.

· The United States is prepared to invite the governments of Cuba and Mexico to discuss shared maritime boundaries in the Gulf of Mexico.

Initiating a review of Cuba’s designation as a State Sponsor of Terrorism-
· The President has instructed the Secretary of State to immediately launch such a review, and provide a report to the President within six months regarding Cuba’s support for international terrorism. Cuba was placed on the list in 1982.

Addressing Cuba’s participation in the 2015 Summit of the Americas in Panama-
· President Obama will participate in the Summit of the Americas in Panama. Human rights and democracy will be key Summit themes. Cuban civil society must be allowed to participate along with civil society from other countries participating in the Summit, consistent with the region’s commitments under the Inter-American Democratic Charter. The United States welcomes a constructive dialogue among Summit governments on the Summit’s principles.

Unwavering Commitment to Democracy, Human Rights, and Civil Society
A critical focus of our increased engagement will include continued strong support by the United States for improved human rights conditions and democratic reforms in Cuba. The promotion of democracy supports universal human rights by empowering civil society and a person’s right to speak freely, peacefully assemble, and associate, and by supporting the ability of people to freely determine their future. Our efforts are aimed at promoting the independence of the Cuban people so they do not need to rely on the Cuban state.

The U.S. Congress funds democracy programming in Cuba to provide humanitarian assistance, promote human rights and fundamental freedoms, and support the free flow of information in places where it is restricted and censored. The Administration will continue to implement U.S. programs aimed at promoting positive change in Cuba, and we will encourage reforms in our high level engagement with Cuban officials.

The United States encourages all nations and organizations engaged in diplomatic dialogue with the Cuban government to take every opportunity both publicly and privately to support increased respect for human rights and fundamental freedoms in Cuba.

Ultimately, it will be the Cuban people who drive economic and political reforms. That is why President Obama took steps to increase the flow of resources and information to ordinary Cuban citizens in 2009, 2011, and today. The Cuban people deserve the support of the United States and of an entire region that has committed to promote and defend democracy through the Inter-American Democratic Charter.

ztv906tzt4tppfoxrxweThe whole statement was put up here because every type inch of it is worth knowing and pointing out. I wonder if this letter from “America’s Society/Council of the Americas” didn’t presage a lot of today’s result (h/t Olivier Knox). Either way, it is nothing less than the formal ending of the cold war between the United States and Cuba, and that is one spectacular point in time. Cold War dead enders, and people whose hatred of the Castro regime supersedes their common sense and acceptance of a changed world, will decry today’s move and slime Mr. Obama for having made it. Mental midgets, from both sides of the aisle of idiocy, such as Bob Menendez and Marco Rubio, have already done that. But they are the rotting rump of over 50 years of failed policy that has denied Cubans the very means and base from which to effect the very change the critics demand.

I think the press release is both elegant, detailed, and compelling. Other than bullheadedness, there hasn’t been any good reason to not do this for a long time. to quote Ken Gude on Twitter:

Is there any real argument for not normalizing relations with #Cuba? It has been the single dumbest & least effective US policy for decades.

Yes, that is exactly correct. Hey, even the Pope was involved! And Americans who do travel to Cuba will be able to legally bring back cigars. So there is that too for “cigar aficionados”, which undoubtedly, and illegally, have included some of the bellicose political humps in DC who have screamed against this for decades. Sorry backwards Beltway boobs, it is a new day now, and the American people, and even the Latino community in Florida, support the new day in substantial margins as shown in this Atlantic Council poll graph.

Okay, here are a few parting thoughts: First, Mr. Obama must immediately move his Administration to remove Cuba from the list of State Sponsors of Terrorism list. Secondly, the Obama Administration should immediately seek out and work with Bob Corker, the incoming Chair of the Senate Foreign Relations Committee, and a man whou ought be far more responsible and approachable than the foreign relations belligerent that has been Democrat Bob Menendez. Thirdly, the Administration should immediately facilitate, in every manner possible, the collaboration between American and Cuban health officials and modalities, both to fight ebola, AIDS, and as to general medicine and treatment.

In closing, while there is still much to be done, and many deadenders to overcome, this is a beautiful day. The language from the opening paragraph of the Administration press release is a perfect close:

We are separated by 90 miles of water, but brought together through the relationships between the two million Cubans and Americans of Cuban descent that live in the United States, and the 11 million Cubans who share similar hopes for a more positive future for Cuba.

A more positive future for both sides of that 90 miles of water is in order. And a long time coming. Today is the first day of a new, and exciting beginning. Before I was born, my parents’ favorite place to travel was to Cuba. It was not just my mother’s love of Hemmingway, but both of their love for Havana and the people and places of Cuba. I very much look forward to seeing what they saw, and felt so strongly.


The Disturbing Paradox of the David Barron Nomination

CryingJusticeBarack Obama has a preternatural preference for ivory tower elites from Harvard when it comes to judicial and executive branch appointees, and David Barron is the latest example. The White House is in the final stages of an all out push to insure David Barron gets confirmed to a lifetime Article III seat on the First Circuit.

In this regard, Mr. Barron has gotten exactly the kind of fervent support and back channel whipping the Obama White House denied Goodwin Liu, and refused to give to the nominee at OLC that David Barron stood as the designated and approved Obama acting placeholder for, Dawn Johnsen.

It turns out Mr. Obama and his White House shop really can give appropriate support to nominees if they care, which seemed to be a trait entirely lacking earlier in the Obama Presidency. And by giving the ill taken legal cover to Mr. Obama for the extrajudicial execution of American citizens, that Obama had already attempted once without, Mr. Barron certainly earned the support of the Obama White House.

It would be wonderful if Mr. Obama were to give support to candidates for judicial seats and key legal agencies who protect the Constitution instead of shredding it for convenience, but it appears to not be in the offing all that consistently. Obama has never been the same since blowback from the release of the Torture Memos when he first took office. Even Federal judges like Mary Schroeder and Bill Canby who, less than a month after Obama took office, were stunned by the about face, and wholesale adoption, by Obama of the Bush/Cheney security state protocols. From a New York Times article at the moment:

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

Make no mistake, from my somewhat substantial knowledge of Mary Schroeder, that was the voice of shock and dismay. But it was an early tell of who and what Barack Obama, and his administration, would be on national security issues from there forward. And so, indeed, it has been.

What was unconscionable and traitorous to the rule of law and Constitution for Obama, and the Democratic majority in the Senate, under George Bush is now just jim dandy under Barack Obama. It is intellectual weakness and cowardice of the highest order.

So we come back to the case of David Barron. Frankly, it is not hard to make the argument that what Barron has done is actually worse than the travesties of John Yoo and Jay Bybee. As unthinkable, heinous and immoral as torture is, and it is certainly all that, it is a discrete violation of domestic and international law. It is definable crime.

But what David Barron did in, at a minimum, the Awlaki Targeted Kill Memo (there are at least six other memos impinging on and controlling this issue, at a minimum of which at least one more is known to be authored by Barron, and we don’t even deign to discuss those apparently), was to attack and debase the the very foundational concept of Due Process as portrayed in the Bill of Rights. Along with Habeas Corpus, Due Process is literally the foundation of American criminal justice fairness and freedom under our Constitution.

David Barron attacked that core foundation. Sure, it is in the so called name of terrorism today, tomorrow it will justify something less in grade. And something less the day after. Such is how Constitutional degradation happens. And there is absolutely nothing so far known in Mr. Barron’s handiwork to indicate it could not be adapted for use domestically if the President deems it so needed. Once untethered from the forbidden, once unthinkable Executive Branch powers always find new and easier uses. What were once vices all too easily become habits. This is exactly how the once proud Fourth Amendment has disappeared into a rabbit hole of “exceptions”.

This damage to Due Process occasioned by David Barron can be quite easily argued to be more fundamental and critical to the Constitution, the Constitution every political and military officer in the United States is sworn to protect, than a temporally limited violation of criminal statutes and international norms on torture as sanctioned by Yoo and Bybee. But it is not treated that way by cheering Dems and liberals eager to confirm one of their own, a nice clean-cut Harvard man like the President, to a lifetime post to decide Constitutional law. What was detested for Jay Bybee, and would certainly be were John Yoo ever nominated for a federal judgeship, is now no big deal when it comes to David Barron. Constitutional bygones baybee; hey Barron is cool on same sex marriage, what a guy! Screw Due Process, it is just a quaint and archaic concept in a piece of parchment paper, right?

If the above were not distressing enough, the Barron nomination was supposed to, at a minimum, be used as leverage to get public release of the Barron handiwork legally sanctioning Mr. Obama to extrajudicially execute American citizens without a whiff of Due Process or judicial determination. Did we get that? Hell no, of course not. A scam was run by the Obama White House, and the Senate and oh so attentive DC press fell for it hook, line and sinker. We got squat and Barron is on the rocket path to confirmation with nothing to show for it, and no meaningful and intelligent review of his facially deficient record of Constitutional interpretation.

Barron cleared cloture late Wednesday and is scheduled for a floor vote for confirmation today, yet release of the “redacted memo” is nowhere remotely in sight. This framing on Barron’s nomination, irrespective of your ultimate position on his fitness, is a complete and utter fraud on the American citizenry in whose name it is being played. And that is just on the one Awlaki Memo that we already know the legal reasoning on from the self serving previous release of the “white paper” by the Administration. Discussion of the other six identified pertinent memos has dropped off the face of the earth. Booyah US Senate, way to do your job for the citizens you represent! Or not.

Personally, there is more than sufficient information about David Barron’s situational legal, and moral, ethics in the white paper alone to deem him unfit for a lifetime Article III confirmed seat on a Circuit Court of Appeal.

But, even if you disagree and consider Barron fit, you should admit the American citizenry has been ripped off in this process by the Democratically led Senate, and an Obama Administration who has picked a dubious spot to finally get aggressive in support of one of their nominees.

If Goodwin Liu and Dawn Johnsen, two individuals who had proven their desire to protect the Constitution, had received this kind of support, this country, and the world, would be a better place. Instead, Mr. Obama has reserved his all out push for a man who, instead, opted to apply situational ethics to gut the most basic Constitutional concept of Due Process. That’s unacceptable, but at a minimum we should have the benefit of proper analysis of Barron’s work before it happens.


Obama White House Sponsors Young and Rich Narcissistic 1% Fucktards That Will Ruin the World

Proving it is never too late to shine your lame duck ass for a new generation of 1% oligarchs, Barack Obama laid open the real constituency of national politicians. And proved certain any inference that such was only the constituency and province of the GOP, Koch Brothers et. al is false.

If this is not stupid and ugly to the common Democratic fanchild, it is hard to imagine what is, or could be. From the New York Times hagiography:

On a crisp morning in late March, an elite group of 100 young philanthropists and heirs to billionaire family fortunes filed into a cozy auditorium at the White House.

Their name tags read like a catalog of the country’s wealthiest and most influential clans: Rockefeller, Pritzker, Marriott. They were there for a discreet, invitation-only summit hosted by the Obama administration to find common ground between the public sector and the so-called next-generation philanthropists, many of whom stand to inherit billions in private wealth.

“Moon shots!” one administration official said, kicking off the day on an inspirational note to embrace the White House as a partner and catalyst for putting their personal idealism into practice.

“Moon shots!”

I guess the Obama White House couldn’t fathom a better phrase for coming in their pants over big money.

If there is a more sick comment on the perverted state of US national politics, it is hard to imagine what it would be.

We are ruled by a bunch of oligarchs, and political handmaidens that kiss the oligarch’s asses and hew their beck and call. If the fact the great once and forever symbol of the common citizen “hope and change”, Barack Obama, is such a distant leader, constantly beholden to not only the future of the moneyed class, but the current too, then there is no reality for the American public.

The well-heeled group seemed receptive. “I think it’s fantastic,” said Patrick Gage, a 19-year-old heir to the multibillion-dollar Carlson hotel and hospitality fortune. “I’ve never seen anything like this before.” Mr. Gage, physically boyish with naturally swooping Bieber bangs, wore a conservative pinstripe suit and a white oxford shirt. His family’s Carlson company, which owns Radisson hotels, Country Inns and Suites, T.G.I. Friday’s and other brands, is an industry leader in enforcing measures to combat trafficking and involuntary prostitution.

Oh my. And holy crap.

The New York Times penned a factual report of this sick instance. Will the New York Times, Washington Post, Wall Street Journal, or any of the other august opinion pages of national press, deign themselves honest enough to write opinion and/or editorial pieces recognizing this political cancer for what it really is?

If you did not view the video, and listen to the lyrics in the video above, do so. Because that is exactly the class of “super citizens” your elected leaders are beholden to. The handful of billionaires count for far more than the actual billions of people on this earth.

Want proof? Look no further than the “liberal”, “socialist”, “Democratic” Obama White House, who just demonstrated the problem in Technicolor.

And, before you chafe, of course it would be even worse with Republicans in charge. But the question is no longer just which party is in control of the levers of power (though it DOES matter for SCOTUS), but where the values of the country really are.

It is almost impossible to fathom the country’s values are with the pimple faced, Bieber banged, teenager scions of billionaires the Obama White House so calmly and cooly glad-hands.

[Seriously, watch the video from the one, the only, fantastic Tubes:

Young and rich
Everything I desire
Light bulbs with shades
in every room
And work is play–believe me
Nothing must come too hard
It comes in the mail
most everyday

Maybe our leaders should find a more representative, and morally balanced, set of leaders for the future.]


The Return of the NFL: It’s ON!!!

[Hey there Lugnuts!! We are having a fundraiser here at Emptywheel. Help the effort out! We have been really hesitant about doing this in the past. To the best of my recollection, we have not done one at all since leaving FDL. Marcy will not toot her own horn, but I will. The level, depth, independence, and rationality, of what Ms. Wheeler does makes most “Main Stream” and other “blogs” look feeble. And it is not just her, Jim White, Rayne and, occasionally, I who also contribute. This is a valuable forum. We live for you, but we also need your help. To the extent you can give it, it would be remarkably well placed, and much appreciated. Thank you!]

I have been being heckled about this Trash Talk stuff forever. Marcy is just cranky jonesing for football and Jim White thinks the Devil Rays count. But this ain’t called “Trash Talk” for nothing you know. Pre-season fake football and baseball in the swamps are not enough. Nosirree. Not in a sophisticated joint like this.

But there was a little smattering of real college football last Saturday, so there was primordial Trash. But, now, my friends, there is REAL, professional grade, NFL football in the queue. Let it be known, unless I meet a bigger margarita pitcher and burrito that looks like this tomorrow night, there will by Saturday morning be additional MAJOR LEAGUE Trash for the weekend. NCAA, NFL and the F1 Circus at Monza (yes, that really may be the bigger story worldwide. Formula One rules; get used to it).

But, tonight, there are two games on the schedule. The biggest, of course, is a replay of last season’s AFC Divisional Playoffs between the Denver Broncos and Baltimore Ravens. Ought to be a great game. Despite what the naysayers say, Peyton Manning’s arm is turning bionic in its incredible strength. The Bronco’s, however, are a bit wounded with Elvis Dumervil now on the Ravens and Von Miller suspended for the first six games. The Ravens have also lost a LOT of weight from last year’s Superbowl team, including Ray Lewis and Ed Reed. As much as the media and fans have always focused on Ray Lewis, I cannot help but believe the absence of Ed Reed, one of the most incredible ball hawks in the history of the NFL, is every bit as big a loss. Broncos are at home and are PISSED about that last minute loss last year to the Ravens. My money is on Peyton and the ARM OF HULK.

Secondarily, and I, (maybe you?) will probably have to DVR this, but the ASU Sun Devils are opening their season tonight at 10:00 pm EST against Sacramento State. Okay, this won’t be much of a game. But, GO DEVILS!!

That’s it for now. More later as promised. This is the best blog in the world, if I do say so from my completely neutral perch! Rock and roll my friends. Today’s music is by Government Mule. Because Donkos and Peyton rock….and, because, the US Government, collectively, are a bunch of War Pigs.


Operation Ballsack Labor Day Football Trash Talk

Hello. Is there anybody in there? Just nod if you can hear me.

I am not sure how well the Trash Talk Machine is greased after such egregious neglect. But, we can only do what we do, and carry on. And those skilz have NOT been forgotten jack. So saddle up cowboys and cowgirls.

You would think being a blogger is an easy, Cheetos filled, lifestyle. Not the case. It is hard work, hard work I tell ya. I have suffered the indignation of Marcy and Jim yammering about wanting “trash this” and “trash that”. Weeeeelllllll that is so much SPAM! So, as I said earlier, it’s not easy, you know. I get no respect!

To make a quick comment on the title of this 2013 football season opening trash, shit is truly fucked up and bullshit. We have Mr. Constitutional Nobel Scholar President agitating to make unilateral bizarrely unnecessary war on Syria….apparently because he screwed up and drew a moronic “red line” in the sand and now has to prove he actually has bolas, in addition to stupidity and hubris. The man who when seeking votes to be elected in 2007-2008 claimed war without Congressional assent was wrong, and whose Vice-Predident called such unsanctioned war bullshittery and an “impeachable offense”, now insists without the UN, without the Brits, and with a coalition of effectively one (one who were previously described as “cheese eating surrender monkeys” not that long ago in American lore). But that is where we are now. Which is why the best name for this clusterfuck is “Operation Ballsack“. Yes, it is all about Obama’s balls, and his desperate need to prove he actually has a primordial pair.

Huh? Oh, wait! This was supposed to be football Trash Talk wasn’t it?!?!

Yikes, better get to that then. Last night was a pretty exciting open to the NCAA 2013 schedule. The ‘Ole Ball Coach Spurrier and the ‘Cocks did not seem all that animated, but still clocked a fairly solid NC Tarheel team. Looked like Vady was gonna take a bite off the ‘Ole Miss Rebels, but Ole Miss tailback Jeff Scott let loose with a 75 yard TD romp with 1:07 left, giving the Rebels a 39-35 last minute win. Good stuff. In other news, Lane Kiffen proves the question of why he has not been fired yet is still very salient by coaching a narrow win for Tommy Trojan over the Rainbows. Mighty Troy barely made it over the Rainbows. Yay. If that is all USC has, even the Sun Devils are going to wax them this year (a game I will be attending by the way). also, from Friday night, let me just say that Sparty has some VERY sticky fingered defenders. Look out B1G.

Well, what else is up I wonder? Hmmmm, appears some fella named “Manziel” was suspended half a game for something. Guess it wasn’t anything bad, cause Dez Bryant got suspended a whole season for eating dinner with Neon Deion Sanders. I sign my name on things a lot too. I get paid to do so. Not sure who would sign thousands of items for zip, nuthin, free. Apparently the crack investigators and accountability specialists at the NCAA found no problem though. And you KNOW how sane they are, cause they banned Penn State from all bowls for four years without having any NCAA violation whatsoever present. Ugh.

Alright. Games. Real ones are being played this weekend. Battle manufactured where it should be. Naturally. By a nerd at ESPN instead of that fake Operation Obama Ballsack baloney.

The game of the weekend looks to be Georgia at Clemson. These are two top ten worthy teams, if not potential national championship contenders. Special players abound everywhere on both teams, including Sammy Watkins the super receiver for the Tigers, and Tajh Boyd his quarterback. For the Bulldogs, Aaron Murray may be the best QB in the conference, and that includes Johnny Football. Awesome game to have so early. Alabama hosting Virginia Tech is another unusual one to start off with. The Tide will roll them, but there could be a struggle. should be a way better game than the Tide expected.

Honorable mentions goes to TCU and LSU in neutral Texas, Boise State/Washington and Cal versus Northwestern. Tell us what you have and why!

The one other thing I want to address is the noggins of the NFL. As you may have heard, there was a settlement this week, and it heavily favored the NFL. The craven plantation owners admitted nothing, gave up no liability findings, and gave up a ridiculously cheap total sum as hard settlement. By the time lawyer’s fees and mandatory testing etc. is deducted, it is criminal how little was gotten for a class of at risk humans. Down the road, if these class members live, they and their representatives will be screaming bloody murder. Here is an outrageously great article laying out the factors, and doing so with the tart and sarcastic truth it deserves

This long Labor Day weekend’s music is from the one, the only, Ms. Linda Ronstadt. I have a real affinity for Linda, and haver seen her numerous times including a couple of very special ones. If there has ever been a better pure female vocal talent, I am not sure I have seen it. Pure, and with a range to die for. The singing voice may be silenced, but Linda is rocking on and fighting for the causes she believes in. And they are, and always have been, great, and the right, ones. Oh, also, in case you didn’t notice, she had a backup band on the first video. Chuck Berry, Keith Richards, Robert Cray and some other chaps. The second is the band she normally toured with (including Waddy Wachtel – but with Mike Botts on drums instead of Russ Kunkel, who I always saw) and, trust me, they were absolutely killer, and very cool people to boot.

That’s it for now. Let Willis, and one and all, rock this joint. We are Livin In The USA. All things considered, it is still pretty fucking grand. Enjoy the holiday weekend my friends.


A Path To Civil Rights History For the Supreme Court, Obama and Verrilli

Supreme Court CoolJust about a month ago, in urging the Obama Administration to file a brief in favor of marriage equality in the Hollingsworth v. Perry Prop 8 case before the Supreme Court, I described the stakes:

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case.

It was true then, it is true now. To the everlasting credit of of President Obama, Solicitor General Verrilli and the Administration, they did indeed file a brief in support. It was a surprisingly strong brief with a clarion call for full equality based upon heightened scrutiny; yet is was conflicted with a final ask only for a restricted ruling limited in application to either just California or, at most, a handful of somewhat similarly situated states. In short, the ask in the Administration’s brief was not for equality for all, in all the states; just in some.

On the eve of one one of the seminal moments of Supreme Court history – it is easily arguable this is far more of a defining moment than the ACA Healthcare scuffle was – it is again incumbent on the Administration to give the justices the headroom to make a broad decision granting equality for all.

Even in the short time since the Obama Administration filed their brief, between February 28 and now, the mounting tide of public opinion and desire for full equality has grown substantially in multiple ways. Colorado, a state where the thought was once beyond contentious, passed full civil union equality and Governor Hickenlooper signed it into law. And a new comprehensive Washington Post/ABC News public poll has found that a full 58% of Americans now support the legality of gay nuptials, and a whopping 81% of adults between the ages of 18 and 29 so support.

The writing is on the wall, and the trend overwhelming. And it simply does not make sense for the Obama Administration to buck this tidal wave and argue only for equality in a handful of states, with equality for some, but far from for all. Barack Obama and Donald Verrilli laid every bit the foundation needed to argue for broad based full equality – in all states – in their brief.

It is time for Mr. Obama and Mr. Verrilli to step up and forcefully tell the Supreme Court that full equality is the right way to rule. The Court granted Solicitor General Verrilli time to express the Administration’s position in the oral argument Tuesday; he should use it in the name and cause of full broad based equality. It is a time for leadership; this is a moment for Mr. Obama and his attorney to display it.

By the same token, it is also time for the Supreme Court to do the same. So often it has been argued the “Court should not get out in front of popular opinion”. Bollocks, the Court should refuse to put themselves behind public opinion, and an ever strengthening one at that, by shamefully ducking the perfect opportunity to stand for that which the Constitution purports to stand, equal protection for all.

There are a myriad of legal arguments and discussions, and just about every commenter and expert in the field has been offering them up over the last week. I will leave that to another day, after the court has heard the oral arguments, we have our first inclination of what the justices are focused on, and the case is under advisement for decision.

For now, here are a couple of warms ups for Tuesday’s oral argument in Hollingsworth v. Perry/Prop 8 and Wednesday’s oral argument in United States v. Windsor/DOMA. First a nice little video “Viewer’s Guide to Gay Marriage Oral Arguments” with Supreme Court barrister extraordinaire, and SCOTUSBlog founder, Tom Goldstein. Here is a handy flow chart of all the different possibilities, and the why for each, of how the court may rule on both cases. It is really pretty neat and useful tool.

The briefing is long done now and the Justices understand the issues. But if the ACA/Healthcare cases taught us anything, it is that Justice Roberts is concerned about the legacy and esteem of the court. And Justice Kennedy has already shown how committed he is to fairness in social justice issues and willing to even go out on limbs ahead of controversial public opinion with his written opinions.

At this point, the most effective leverage is not repeated discussion of the minutiae of law, but rather the demonstration of the righteousness of full equality. History will prove fools of those who sanction continued bigotry against marital equality, and anything less than a broad based heightened scrutiny finding, for equality for all people, in all states, is a continuation of such unacceptable bigotry.

UPDATE: Professor Adam Winkler of UCLA has a piece out today that embodies my point in the post perfectly. Discussing the disastrous and ugly 1986 decision of the Supreme Court in Bowers v. Hardwick to uphold sodomy laws when times and opinion had already changed, and the profound regret felt by Anthony Kennedy’s predecessor, Lewis Powell, Professor Winkler writes:

Kennedy is clearly a justice who considers how his legacy will be shaped by his votes. In 1992, when the Supreme Court was asked to overturn Roe in a case called Planned Parenthood v. Casey, Justice Kennedy originally sided with the conservatives to reverse the controversial privacy decision. Like Justice Powell in Bowers, Justice Kennedy then changed his vote. He went to see Justice Harry Blackmun, the author of Roe, and explained that he was concerned about how history would judge Kennedy’s decision to end constitutional protections for women’s right to choose.

Like many people, Justice Kennedy may believe that the public tide against marriage discrimination is growing and that gay marriage is inevitable. History is not likely to be kind to those justices who vote to continue relegating LGBT people to second-class citizenship. As the swing justice ponders how to rule in the gay-marriage cases, Justice Powell’s well-known regret over Bowers, and the widespread recognition that Bowers was wrongly decided, will almost certainly weigh on his mind.

Adam’s article is worth a full read. And I agree with it completely.


Further Reflections on the Obama Amicus Brief in Prop 8

Supreme Court CoolAfter the flurry of fast analysis on the fly, getting a post up for discussion and the crucible of discussion here and on Twitter – and a bit of sleep – I have some further thoughts on the amicus brief filed late yesterday by the Obama Administration in Hollingsworth v. Perry.

My ultimate conclusions on what the Obama amicus means and portends has not changed much, but there are several things that should be said both to explain my criticism and give a little more credit to the Administration where due. First an analogy explaining my criticism of the Obama brief.

Imagine if, when Brown v. Board of Education was being considered, the Eisenhower Administration had instructed it’s Assistant Attorney General and OLC chief, J. Lee Rankin, to amicus brief that only Kansas and a handful of other similarly situated states, but not the rest of the country where the bigotry of segregation was at its most prevalent worst, should be granted desegregation. How would history have held Mr. Eisenhower and Mr. Rankin? That is, of course, not what happened in Brown; the Eisenhower Administration filed an amicus brief demanding equality and desegregation for all citizens, in all states.

Messrs. Obama, Holder and Verrilli, however, fell short of such a demand for equality for all in the civil rights moment, the Brown v. Board, of their time. Let the record reflect they did have the courage to join the game, which is in and of itself a commendable thing, just that they did not muster the full courage to play to win for all Americans, regardless of their particular state of domicile – and especially not for those in the states with the most sexual orientation bigotry and discrimination.

In this regard, I think our friend at Daily Kos, Adam Bonin, summarized the duality of the Obama amicus quite well:

To be sure, the brief argues all the right things about why laws targeting gays should be subject to heightened scrutiny, and that none of the proffered justifications for treating their relationships differently have merit (“Reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.”) Still, for those who were seeking a full-throated endorsement of 50-state marriage equality, you will find this brief lacking.

That said, from the day this suit was filed in May 2009, I have suggested that this limited path is the Court would ultimately take. And it can be dangerous to advance positions which the Court might reject, especially when they are not necessary for the resolution of the instant case. But, still, there was an opportunity for boldness here, and the Obama administration did not take it. As a great man once said:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.

Adam’s point about the fear of overreaching when the Perry litigation was originally filed is a good one. As I think he has evolved to having less fear in that regard over time, the explanation for such a shift comes from the changed nature of the ground underneath the larger issue. It is a testament to the genius of the Perry litigation in its inception, and even more so to the way Judge Vaughn Walker framed an actual trial that laid bare, with both evidence and the inability for haters to provide credible evidence, the hollow immorality and rank bigotry of the Proponents of Proposition 8.

The space created by Judge Walker’s amazing decision created the headroom for a cascade of events in DOMA cases, equality legislation in states and popular votes in other states, all in favor of marriage equality. This past election cycle provided the once unthinkable result of marriage equality going four for four in popular votes.

The ground has so seismically changed, the momentum of social conscience so strong, that we simply occupy a different place now than existed at the start of the Perry litigation. And that is the ground the Supreme Court will have to recognize when they hear oral arguments on March 26 in Hollingsworth v. Perry and March 27 in the DOMA cases.

Regardless of the messy way in which it did so, the Supreme Court (and its Chief Justice, John Roberts) proved in the ACA cases that they are aware of, and attend to, the legacy of the court. It is crystal clear that marriage equality, and equality for sexual orientation, is happening. The only question at this point is how complete, how fast.

This is the great civil rights measure of this period in American history; I find it hard to believe Justice Anthony Kennedy, who has already displayed his social conscience in Lawrence v. Texas, wants to be on the wrong side of history. In August of 2010, on the release of Vaughn Walker’s historic trial court opinion, I quoted Linda Greenhouse in laying out why I thought Justice Kennedy would swing the majority in favor of marriage equality when Perry made its way to the court for review:

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives.

Well, that day is upon us now. Honestly, with the tide of momentum headed in the direction it is, I am less and less convinced John Roberts wants to be on the wrong side of civil rights history either.

But giving the Justices the moral and sociological headroom to grant equality to all the citizens, in all the states, especially those in the discriminatory swaths of the country, is key to the cause. The Perry Plaintiffs have done their part. Yesterday, the Obama Administration had the opportunity to go the distance, and they pulled up slightly short.

I feared Obama might come up so short their brief could be counterproductive; that did not occur. The song could have been, and should have been, stronger; but credit where due, they hit the necessary notes. It is filed and done, and it is overall an important and powerful thing. Perry Plaintiffs’ attorney Ted Boutrous put it well:

Their arguments from start to finish would apply to other states,” he said. “The argument of the day (against same-sex marriage) is the responsible pro-creation argument. The United States takes it apart piece by piece. It’s those same types of arguments that are used in other jurisdictions to justify the exclusion of gays and lesbians from marriage.

And as Marcia Coyle observed in the National Law Journal BLT article the Boutrous quote above came from:

And the heightened scrutiny analysis, he added, is “exceedingly important,” not just in the marriage context but in other contexts where gay men and women face discrimination.

Marcia is exactly right (and her report well worth a read), and between the Perry Plaintiffs’ merits brief and the Obama Administration amicus brief, there is a foundation from which to argue to all the Justices, but especially Anthony Kennedy and John Roberts, for equality for all across the board.

Mr. Obama and Mr. Holder can help immeasurably in the coming days leading up to oral argument and decision by the Justices by using their bully pulpit to advocate for full heightened scrutiny equal protection for all, in all states. The cause endures and their duty maintains. And we, as citizens can give them the support and positive feedback to help them do so. Let the final push for full equality begin.

Copyright © 2020 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/2012-presidential-election/