Friday, May 17, 2019

Abortion Clinics To Alabama: Drop Dead

Alabama had three abortion clinics prior to this week’s passage of a new law that essentially banned the practice. Now the state has… three abortion clinics. The law doesn’t go into effect for six months, but the Alabama abortionists say that even then they have no plans to close their doors.

“We've been through this fight over and over again,” Dalton Johnson, owner of Alabama's Women's Center in Huntsville told “Our main goal is to keep the women apprised that we will be challenging it in court.”

At Johnson’s abortion clinic, two doctors perform about 2,000 abortions annually. Alabama’s Women’s Center is the only abortion clinic in the state that performs abortions up to the state’s previous limit of 20 weeks. As a result, the center sees women from across Alabama as well as surrounding states. After the law takes effect, performing abortions illegally will be a Class A felony punishable by between 10 and 99 years in prison.

“We don't see any interruption in any kind of service whatsoever,” agreed an employee of Reproductive Health Services in Montgomery.

The abortion providers are gambling that the courts will issue an injunction to prevent the law from taking effect on schedule. An employee at the West Alabama Women’s Center in Tuscaloosa said, “If the law goes into effect . . . we're not criminals; we would not be able to stay open, but until it's all resolved, we will be here.”

The ACLU has already announced plans to file a lawsuit to prevent the law from going into force. Rebecca Seung-Bickley told, “This will never go into effect, as long as ACLU is in litigation.”

Indeed, the purpose of the Alabama law seems to be to troll for legal challenges in order to send a test case to the Supreme Court. After the appointment of two new justices by President Trump, pro-life legislators believe that the time may be right to launch a challenge to Roe v. Wade.

Rep. Terri Collins, the Republican member of Alabama’s House of Representatives who sponsored the bill, told the Washington Post, “This bill is about challenging Roe v. Wade and protecting the lives of the unborn because an unborn baby is a person who deserves love and protection. I have prayed my way through this bill. This is the way we get where we want to get eventually.”

Incidentally, Collins, the author of the bill, is a woman.

Whether the Court reviews the Alabama abortion ban or not, it is likely that an abortion case will be reviewed over the next few years. Several states have recently enacted heartbeat bills that prohibit abortions after a fetal heartbeat has been detected. Other states are considering similar legislation. All are likely to be challenged by pro-abortion activist groups.

The best-case scenario for the pro-life movement would be for the Court to take at least one of the pending abortion cases and strike down Roe in its entirety. This would send the abortion battle back to the states. Some states, such as New York, would enact very liberal abortion policies while others, such as Alabama, would ban the practice.

A more likely outcome is that Chief Justice Roberts and Justice Kavanaugh take a more incremental approach. The narrow constitutionalist majority will likely agree that Roe was a bad decision but will be reluctant to toss it out abruptly after almost 50 years. We can expect the Court to allow states more latitude in restricting and regulating abortion but still stop short of allowing a full ban.

In either case, the abortion battle is far from over. In one case, statehouses will become the new battlefield while, in the other, the focus will continue to be on the Supreme Court. The new abortion laws are merely one more skirmish in a long war.

Originally published on The Resurgent

Trade War Gets Real As Walmart Increases Prices

In the latest sign that the trade is starting to affect the greater economy, Walmart has announced that President Trump’s tariffs on Chinese goods will lead to increased prices at the giant retail chain.

“We're going to continue to do everything we can to keep prices low. That's who we are. However, increased tariffs will lead to increased prices, we believe, for our customers,” CNN reported that Walmart Chief Financial Officer Brett Biggs told reporters on a conference call discussing earnings for the first quarter of 2019.

Biggs did not say which products would be subject to the price increases, but President Trump’s most recent round of tariffs, which applied a 25 percent import tax to $200 billion of Chinese goods, affects a wide range of products that are purchased by a large number of Americans. Per CNN, Walmart imports about 26 percent of its merchandise from China and with a Walmart store within 10 miles of 90 percent of Americans, the vast majority of the country will be paying more for consumer goods.

Walmart’s announcement undercuts the president’s claim that China is paying the tariff taxes. Instead, Chinese manufacturers have largely kept their old pricing structure and American importers have paid the tax. Importers pass the tax along to retailers like Walmart, who are now passing it along to their customers.

The Walmart price increases will hit a core segment of the Trump coalition. Walmart is known for its blue-collar clientele and the fact that its stores are often the only option for many items in rural areas. It is these blue-collar, rural voters who have formed the most stable part of Trump’s base as support for Republicans among most other demographics has declined since 2014.

Depending on the length of the trade war and whether more tariffs are applied in coming months, Trump may find that his rural base fracturing. Already farmers, who are among the hardest hit from the trade war, are showing their discontent with the policies that have closed off Chinese markets for American agricultural products.

“We’re in a free fall out here in agriculture. We've seen a 30 percent decrease in prices of soybeans, and this isn't all about soybeans,” Christopher Gibbs, an Ohio farmer said on CNN. “With the geopolitical turmoil that the president has thrown into the mix over the last year, the markets just don't have anywhere to go.”

Now, with Walmart and other retailers raising prices to pass along Trump’s tariff tax to their customers, farmers and other exporters are being squeezed from both sides. They are earning less as foreign markets find cheaper, untaxed alternatives to American goods and they are paying more due to price increases.

As we’ve reported previously, Morning Consult tracks presidential approval across the 50 states. Polling this year shows Trump underwater across the Rust Belt and with a net approval of fewer than five points in many typically Republican farm states such as Georgia, Indiana, Nebraska, and Texas. Unless the president gets a deal to resolve the trade war with China soon, we may find out how low he can go.

Originally published on The Resurgent

Thursday, May 16, 2019

No Abortion Restriction Is Reasonable Enough For Pro-Choicers

Much of the debate on the new anti-abortion laws in Georgia and Alabama has centered on Alabama’s lack of an exception for rape and incest victims. While the Georgia law does contain such an exception, some pro-abortion advocates argue that it is not broad enough. After watching the abortion debate over the past 30 years or so, I can say without reservation that no matter what exceptions the authors of the bill had carved out, it would not be enough for the pro-abortion lobby.

Since I first became aware that abortion was legal, a mind-blowing revelation to an elementary school student, I’ve followed the debate and legal wrangling that has been involved with probing the limits of Roe v. Wade. In that time, I cannot recall a single example of any restriction on abortion, no matter how trivial or rational, that has not been opposed by the abortion special interest groups.

Among the first challenges to Roe were attempts to require that minors get the permission of their parents before having an abortion. Pro-choice groups, often led by Planned Parenthood, fought these common sense restrictions, but, beginning in 1979 with Bellotti v. Baird, the Supreme Court began to allow these laws that protected parental rights if they included an exception that allowed pregnant minors to get approval from a judge instead of their parents. This was affirmed in Planned Parenthood of Kansas City v. Ashcroft (1983) and Planned Parenthood of S.E. Pennsylvania v. Casey (1992).

The original Roe v. Wade ruling essentially prohibited restrictions on abortion in the first trimester and required that laws covering the second trimester be focused on the health of the mother, per Pew Research. Justice Harry Blackmun wrote in the decision that the state has an interest in protecting “potential life” in the third trimester and could ban abortions at that point as long as exceptions were made for the life and health of the mother. These guidelines were later overhauled by Planned Parenthood of Southeastern Pennsylvania v. Casey.

Despite the original decision that allowed some regulation of abortion, decades later pro-abortion activists were fighting restrictions on partial-birth abortion, a barbaric procedure in which the abortionist dilated “the woman's cervix, then pulling the fetus through it feet first until only the head remained inside. Using scissors or another sharp instrument, the head was then punctured, and the skull compressed, so it, too, could fit through the dilated cervix.” The abortion community fought attempts to ban partial birth abortion, technically called a “D&X,” dilation and extraction, despite the fact that there seems to be no medical necessity for the procedure, which NPR notes, was developed “to perform second-trimester abortions without an overnight hospital stay, because local hospitals did not permit most abortions after 18 weeks.”

As technology has improved, the pro-abortion community has resisted attempts to require that abortion clinics inform women about the choice for abortion. Several states require that mothers be presented with an ultrasound image of their baby before the make the choice for an abortion. Again, the advocates for women’s rights fought to keep women from seeing the scientific evidence that the child within them is a living human being.

The pro-choice community also fought to prevent health and sanitary standards for outpatient surgery centers from being applied to abortion clinics. In Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court struck down a Texas law that required that abortionists have admitting privileges at a local hospital and that abortion clinics meet the same health and sanitary standards as an outpatient surgical center.

The Texas law was passed after a woman died in Kermit Gosnell’s Philadephia abortion clinic. Philadelphia’s NBC-10 reported that Karnamaya Mongar, 41, died after experiencing severe pain at the clinic. It took an hour for an ambulance to arrive to take Mongar to the hospital and firefighters had to cut bolts off the clinic’s emergency door to extricate her. Gosnell was convicted of manslaughter in the case in addition to three counts of murdering infants that were born alive. He was also accused of allowing extremely unsanitary conditions in the clinic and hiring unqualified workers who he then allowed to perform abortions unsupervised.

In about 30 years, I can’t recall a single instance where pro-abortion groups voluntarily submitted to even the most reasonable of abortion restrictions. Even the NRA has occasionally bowed to pressure for more gun controls as it did earlier this year when President Trump ordered bump stocks to be banned, but the abortion advocates seem to have never given an inch. We can reasonably conclude that if the new laws allowed unrestricted abortion access to victims of rape and incest that the pro-abortion crowd would find something else to complain about.

The truth is that the debate about rape and incest exceptions is a red herring. The Guttmacher Institute found that only one percent of abortions were due to rape and less than half a percent were due to incest. The vast majority of abortions are elective procedures that are performed as a method of birth control. It is these hundreds of thousands of abortions annually that the pro-abortion acitvists are fighting to protect.

Rape and incest victims will not be without options under the new laws. Heartbeat bills and even the Alabama law do not outlaw morning-after pills. There are also charities that provide transportation for mothers to areas where abortion is legal and clinics still operate. In Georgia, the law specifically provides an exception up to 20 weeks for women are willing to file a police report alleging rape or incest.

The fight over abortion and protecting the lives of pre-born humans is not over and won’t be for a long time, regardless of what courts decide about the current crop of laws. There is little doubt, however, that whatever laws are passed to limit the killing of babies, the pro-abortion groups will be there to oppose them, whatever they are. For pro-choice groups, it’s all about unrestricted access.

Originally published on The Resurgent

Brace Yourself: More Abortion Laws Are Coming

It has been a bad week for abortion proponents and it just keeps getting worse. After Georgia passed its heartbeat bill last week, Alabama followed with an even more restrictive bill that was signed into law on Wednesday. Now it seems that more states are poised to follow in passing bills that severely limit abortions within their borders.

The Associated Press reports that the Missouri Senate approved a bill by a 24-10 vote that would ban abortions after eight weeks. The bill contains exceptions for medical emergencies but not for cases of rape or incest. The bill must now be approved by the House of Representatives, which is controlled by Republicans, before it can be signed into law by Gov. Mike Parson, also a Republican.

Another state, Louisiana, is also considering a heartbeat bill that would ban abortions on unborn babies old enough to have a detectable heartbeat. The Louisiana bill contains exceptions to prevent the mother’s death, if there is “a serious risk of the substantial and irreversible impairment of a major bodily function,” or if the pregnancy is deemed “medically futile,” but also omits exceptions for rape and incest per the AP. The bill has been approved by House and Senate committees but has not yet been voted on by either chamber.

While much of the recent abortion debate is centered on the lack of exceptions for rape and incest, the Guttmacher Institute found that abortions are rarely performed for those reasons. In a large study that ranged from 1987 through 2004, only one percent of abortions were due to rape and less than half a percent were due to incest.

In addition to Georgia and Alabama, Kentucky, Mississippi, and Ohio have also passed new laws aimed at reducing the number of abortions. The laws are designed to test the Supreme Court’s adherence to the Roe v. Wade precedent in the wake of the addition of two new Trump-appointed justices, Neal Gorsuch and Brett Kavanaugh. It is likely that the Court will strike down portions of the laws, if not rule them entirely unconstitutional, but a ruling would let legislators know how far they can go in regulating abortion in their states.

Regardless of the uproar, the laws have strong support among Republicans who control the state legislatures in these states. With the failure of the national GOP to defund Planned Parenthood and two new friendly justices on the Supreme Court, pro-life advocates hope that the tide may finally be about to turn.

Originally published on The Resurgent

Monday, May 13, 2019

Democrats: Trump Wants To Be Impeached

Why haven’t Democrats begun impeachment hearings against President Trump after the special counsel could not exonerate the president on charges of obstruction of justice? The answer that many Democrats are giving is that they think that Donald Trump wants to be impeached.

“The President is almost self-impeaching because he is, every day, demonstrating more obstruction of justice and disrespect for Congress' legitimate role to subpoena,” Speaker Nancy Pelosi said Friday to CNN. Yet despite Trump raising the stakes, Pelosi still resists launching a formal House impeachment effort. The speaker has stated on several occasions that she does not support impeachment and that seems unchanged, but why?

House Intelligence Committee Chairman Adam Schiff answered that question Sunday on ABC News, saying, “Part of our reluctance is we are already a bitterly divided country and an impeachment process will divide us further. He [Trump] certainly seems to be trying and maybe this is his perverse way of dividing us more ... He thinks that's to his political advantage, but it's certainly not to the country's advantage.”

Why would impeachment be to Trump’s political advantage? The most obvious answer would be to shore up his base as the trade war heats up and core parts of the Trump coalition feel more and more economic pressure. A Morning Consult poll from early May showing state-by-state approval of the president found that Trump’s approval was underwater all across the vital Rust Belt as well as soft in many traditionally Republican farm states. President Trump has a net approval of fewer than five points in Georgia, Indiana, Kansas, Montana, Nebraska, and Texas. Impeachment hearings might cause Republicans in these states to circle the wagons and defend Trump from the Democrats just as they rallied in support of Brett Kavanaugh last year.

Impeachment would also lend credence to Trump’s claims that the Mueller investigation was part of a coup attempt aimed at removing him from office. The president may hope that he could spin an impeachment attempt as the preordained conclusion to a corrupt investigation. This might not sway independents, but it would help to stoke support from Republicans.

Both Trump and the Democrats might also be looking back at the impeachment of Bill Clinton in 1998. CNN polling in December 1998 found that Clinton’s approval jumped 10 points after his impeachment by House Republicans while approval of the GOP fell by 10 points. Gallup reported that Clinton received a record-high approval rating at 73 percent after his impeachment. Donald Trump, a longtime friend of Bill Clinton, likely remembers how impeachment backfired on the GOP and hopes to repeat history.

Both Trump and the Democrats can also read polls and the data shows that most Americans do not favor impeachment. A Harvard CAPS/Harris Poll from early May that, while 56 percent of Democrats supported impeachment, 65 percent of the total were opposed to the idea. More recently, Reuters/Ipsos poll found more support for impeachment but still only a minority of 45 percent. The president may hope to goad Democrats into following an unpopular strategy that would become the major issue of the 2020 campaign.

Finally, Trump is probably willing to take the embarrassment of impeachment in the House because he understands that it would be meaningless. Democrats lack the votes to remove him from office in the Senate where Republicans retain a majority. The president may well be willing to go down in history as one of the few presidents to be impeached if he could turn the tables on Democrats by remaining in office and possibly rallying voters to give him a second term.

It is most likely the last reason that prevents Nancy Pelosi from giving the go-ahead to the impeachment effort. The risk that Trump’s impeachment would have a Clintonian effect on the president’s reelection effort is one that she is unwilling to take unless the president goes so far that even Republicans abandon him in large numbers.
Originally published on The Resurgent

Trade War Escalates As China Responds With New Tariffs

The Trump Administration implemented a new 25 percent tax on $200 billion of Chinese imports last Friday. This morning the Chinese responded with their own salvo of additional trade taxes that will be applied to American-made goods. The Chinese government announced that it would increase tariffs on more than 5,000 US-imports effective June 1. The tax on American goods will rise from 5-10 percent to between 20 and 25 percent.

CNBC reported that many of the new duties attack US agricultural products, which have proven especially vulnerable to the trade war. Despite a $12 billion bailout last year, farm incomes fell by $11.8 billion in the first quarter of 2019. The drop was steep enough to sap national figures on personal income growth even though farmers make up only two percent of the nation’s workers. The effects of the trade war on farmers may be contributing to the softness of Trump’s approval in many red states where agriculture makes up a large part of the economy.

President Trump responded to the Chinese announcement with a tweet that warned, “China will be hurt very badly if you don’t make a deal because companies will be forced to leave China for other countries.”

Contrary to the president’s statement, the new US taxes on Chinese goods will ultimately be paid by American consumers and will not make Chinese goods more expensive elsewhere. Likewise, the Chinese retaliatory tariffs on American goods will apply only to American goods imported to China. The trade war will affect on trade with other countries except that prices will rise due to decreased competition.

Prior to last week, US officials sounded confident on the progress of trade talks with China, but there were hints that the picture was not as rosy as it was depicted. In March, President Trump signaled his resistance to lifting the tariffs, saying, “We’re not talking about removing them, we’re talking about leaving them for a substantial period of time, because we have to make sure that if we do the deal with China that China lives by the deal because they’ve had a lot of problems living by certain deals.” At the time, The Resurgent pointed out that a deal would be difficult if the tariffs were not removed.

Similarly, US demands that China change its laws have been met with resistance. The South China Morning Post reported earlier this month that China wanted to provide verbal assurances and small concessions on issues such as government subsidies, intellectual property rights, and technology transfers, but the US was standing firm.

Now China says that it will not agree to Trump’s demands. “At no time will China forfeit the country’s respect, and no one should expect China to swallow bitter fruit that harms its core interests,” said a commentary in Communist Party newspaper. “If they weren’t being seriously provoked, the Chinese people would not favor any trade war. However, once the country is strategically coerced, nothing is unbearable for China in order to safeguard its sovereignty and dignity as well as the long-term development rights of the Chinese people.”

Over the weekend, White House Economic Advisor Larry Kudlow also contradicted President Trump’s claims that the tariffs would be paid by China. Speaking to Fox News, Kudlow agreed with host Chris Wallace’s statement that China “may suffer consequences, but it’s U.S. consumers and businesses who pay.” Kudlow added that “both sides will suffer.”

Indeed, the pain may spread beyond American farmers to become more widespread under the current round of tariffs. A report by Trade Partnership Worldwide found that the taxes on trade have offset the gains from the tax reform. Goldman Sachs noted that consumer prices have risen sharply since President Trump implemented his policy of tariffs last year. The increasing cost of taxes on trade means that The trade war is costing American consumers money, both directly through higher taxes and indirectly through higher costs resulting from less competitive markets.  

As the trade war continues to escalate, it will become harder for both President Trump and Chinese President Xi Jinping to back down and reach an agreement. As both sides suffer the effects of the trade war, President Trump may find it that the economic pain makes his reelection campaign difficult.

Originally published on The Resurgent

Saturday, May 11, 2019

Myth Busted: Georgia Heartbeat Bill Would Not Imprison Women For Miscarriages

Rumors have been going around that Georgia’s new fetal heartbeat law contains a number of onerous provisions. Opponents of the law claim that it would allow authorities to lock up women who have miscarriages or cross state lines to get abortions. If that sounds stupid enough to raise red flags with you, you aren’t alone. Rather than taking the internet’s word for it, I decided to go straight to the source to find the truth.

The text of HB 481, the “Living Infants Fairness and Equality (LIFE) Act,” is readily available and the full bill runs less than 10 pages. With much of the text struck through from previous versions, it’s a quick read so I encourage others to read the bill as well. Quotations in this article are taken from the Georgia General Assembly website’s current version of the bill as of May 11, 2019. Here’s what the law actually says.

 The core provision of the law is the statement, “ Unless otherwise provided by law, any natural person, including an unborn child with a detectable human heartbeat, shall be included in population based [sic] determinations.” This means that unborn children with a detectable heartbeat are considered to be people for legal purposes. For example, the law specifically states that “any unborn child with a detectable human heartbeat… shall qualify as a dependent minor” for purposes of filing a Georgia income tax return.

The law also defines what an abortion is and is not. The new law defines abortion as the “act of using, prescribing, or administering any instrument, substance, device, or other means with the purpose to terminate a pregnancy with knowledge that termination will, with reasonable likelihood, cause the death of an unborn child.”

Further, the law provides two exceptions that it says will not be considered to be an abortion. These are “removing a dead unborn child caused by spontaneous abortion” and “removing an ectopic pregnancy.”

The law defines “spontaneous abortion” as “the naturally occurring death of an unborn child, including a miscarriage or stillbirth.” This definition puts lie to the claim that women could be prosecuted for a miscarriage.

The law is not a total abortion ban as it does provide limited exceptions that allow an abortion to take place after a heartbeat has been detected. These include cases of “rape or incest in which an official police report has been filed alleging the offense” and the “probable gestational age of the unborn child is 20 weeks or less” or when a “physician determines, in reasonable medical judgment, that the pregnancy is medically futile.”

The law defines “medically futile” to mean “in reasonable medical judgment, an unborn child has a profound and irremediable congenital or chromosomal anomaly that is incompatible with sustaining life after birth.” Note that abortions performed when the pregnancy is deemed to be medically futile are not subject to the 20-week limitation.

The law further stipulates that “if the child is capable of sustained life, medical aid then available shall be rendered” and requires that abortions “performed after the first trimester” take place “in a licensed hospital, in a licensed ambulatory surgical center, or in a health facility licensed as an abortion facility by the Department of Community Health” and be performed by a licensed physician. If abortions are performed in violation of these requirements, the woman is entitled to collect civil damages, but this excludes the accidental results of treatment or if a “woman sought an abortion because she reasonably believed that an abortion was the only way to prevent a medical emergency.”

“Medical emergency” is defined as “a condition in which an abortion is necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” This exception does specifically exclude mental and emotional conditions as well as the threat that the “that the pregnant woman will purposefully engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.”

Penalties under the law are focused on abortionists, not mothers. The bill states, “In addition to any criminal or civil penalties provided by law, failure by any physician to conform to any requirement of this Code section constitutes unprofessional conduct for purposes of… to medical licensing sanctions."

The law does amend the Georgia code to stipulate, “For the homicide of an unborn child, the right to recover for the full value of the life of such child shall begin at the point at which a detectable human heartbeat.” This does open the question of whether an abortion can be considered homicide when the law goes into effect next year. The law does not specifically address this question, but the implication considering a child to be a person is that it would.

While the new law does not specify penalties for the “homicide of an unborn child,” previous Georgia law already declared “feticide” and “voluntary manslaughter of an unborn child” to be a felony with a penalty of between one and 20 years. As previously written, the law excluded abortions, people providing medical treatment, and “any woman with respect to her unborn child” from prosecution. The State of Georgia would obviously have no jurisdiction in abortionist that take place in other states.

The outlandish claims being propagated by the pro-abortion crowd are easily debunked by reading the law’s text. The law contains reasonable exceptions for rape, incest, stillbirths, and medical emergencies. The law specifically protects women in the case of miscarriage and when their life is deemed to be in danger. Finally, the law does not create a criminal penalty for either abortionists or women who seek abortions. Instead, the focus is on preventing physicians from performing elective abortions under the threat of losing their medical licenses and facing civil penalties.

This myth is busted.

Originally published on the Resurgent

We Aren't In A Constitutional Crisis. We're In Several.

House Speaker Nancy Pelosi said this week that she agrees with House Judiciary Chairman Jerry Nadler that the United States is undergoing a constitutional crisis due to Attorney General William Barr’s refusal to provide an unredacted version of the Mueller report to Congress. Pelosi is correct that the US is in a constitutional crisis – a series of constitutional crises to be exact – but not in the way that she means.

There have been many explanations of why the Democrats are off base with their contempt vote against Barr so I won’t cover that ground here except to say that Barr is following the law in his actions. Certain parts of the report cannot be released because federal law prohibits it. President Trump’s claim of executive privilege, which will most likely only last until Barr can ready a more lightly redacted version of the report for congressional distribution, is justified in this case.

When it comes to the congressional request of President Trump’s tax records, the shoe is on the other foot. The IRS code requires the Treasury Secretary to provide certain congressional officials with any taxpayer’s return and tax information. Nadler has provided a legitimate, if contrived, reason for the request, but Secretary Mnuchin has refused to comply. Since the request falls under congressional oversight of the executive branch and the separation of powers specified in the Constitution, Mnuchin’s refusal could be considered as fomenting a constitutional crisis.

Yet the congressional fishing expedition with respect to Trump’s personal financial data is transparent. Even though House Democrats are acting within the law with respect to the subpoenas of Mnuchin and Trump’s tax returns, their unspoken rationale of finding dirt, possibly criminal wrongdoing, on the president or simply using the information to embarrass him is outside the scope of congressional powers. Congress has rights to the information for certain reasons but not for the purpose of seeking revenge on the president. Nevertheless, “because it will embarrass the president” is not a legal ground to refuse a legitimate congressional request. If Congress abuses its authority to oversee the president then that is also a constitutional crisis.

A third constitutional crisis regards President Trump’s tariff war. The first salvo in the trade war was fired on March 1, 2018, when the president announced his intention to impose protective tariffs on steel and aluminum. The tariffs were imposed under section 232 of the Trade Expansion Act of 1962 which allows the president to impose national security tariffs. While the rationale was doubtful given the strength of the US steel and aluminum industries, a court did declare these tariffs constitutional earlier this year. Further, CNN pointed out that under a series of laws such as the Trading with the Enemy Act of 1917, the International Emergency Economic Powers Act of 1977, and the Trade Act of 1974, the president has almost unlimited authority to declare tariffs without congressional approval.

The constitutional crisis, in this case, is that Congress has abrogated its authority to “lay and collect taxes, duties, imposts and excises” under the Constitution. Congress has delegated this important power away to the president and the country is now feeling the effects of congressional impotence. Congress needs to reclaim this authority, if not now, then soon after President Trump leaves office.

Yet another constitutional crisis concerns the internal Department of Justice memo that prevents indictment of a sitting president. The special counsel’s decision to abide by the DOJ policy and then pointedly state that he could not say that Donald Trump did not obstruct justice left America in limbo. The claim of “no collusion, no obstruction” is obviously incorrect, but as yet there is no resolution to the president’s unethical, quasi-illegal behavior. The president should not be above the law. If he committed an act that would be a crime for an ordinary, nonpresidential American then he should be prosecuted just as they would. The DOJ memo was intended to prevent baseless persecution of the president by the opposition, but it unintentionally created a Get-Out-of-Jail-Free card for presidents without respect for the rule of law.

Next is President Trump’s decision to declare a national emergency to bypass Congress. When the emergency was announced in February it was big news, but this crisis has since been forgotten with the onset of a number of succeeding scandals. Yet the national emergency is a constitutional crisis that undermines the very existence of Congress. Under President Obama, Republicans were adamant that the House had the “power of the purse,” but now most feel that it is fine for President Trump to ignore a Congress that won’t do his bidding. Regardless of whether building the wall is a good idea or not, claiming a national emergency to procure funds for it against the express will of Congress is a horrible precedent, but one that is sure to be repeated by future presidents if it is not quashed by either Congress or the courts.  

The final constitutional crisis (at least so far) is Congress’s failure to rein in the imperial presidency. Donald Trump figures prominently in many of the ongoing constitutional crises but not all are unique to him. For example, Barack Obama’s executive decisions on DACA usurped congressional authority and his executive agreement with Iran undercut the Senate’s constitutional role of ratifying treaties. The abdication of congressional authority to levy tariffs goes back decades. The presidency will continue to become ever more powerful unless Congress takes steps to assert itself.

A major part of the problem is that congressional partisans have an attitude that the end justifies the means. Partisans of both sides refuse to hold their own presidents accountable because they like the results of their expansion of executive power. Democrats approved of Obama’s DACA deal and Republicans love Trump’s national emergency. If Congress is going to successfully limit presidential authority, it will require both sides to cross the aisle and work together to uphold the constitutional limits on the executive branch.

Reaching across the aisle is often considered traitorous these days, but the Congress has a higher duty to the Constitution than to the political parties. If Congress doesn’t act to defend the Constitution, presidents of both parties will keep chipping away at it until there is no need for the legislative body at all.

Benjamin Franklin famously said at the close of the constitutional convention that the delegates had decided on “A Republic if you can keep it.” The slow erosion of congressional authority shows that the struggle to keep the Republic must go on.

Originally published on The Resurgent

Friday, May 10, 2019

Bernie And AOC Team Up To Attack Credit Cards

An epidemic of economic illiteracy seems to have inflicted both parties. While Republicans suffer from President Trump’s fixation on taxing imports to make America great again, Democrats, eager to prove that they also fail to understand basic economic principles, have unveiled a proposal for price controls on credit cards.

The proposal is the brainchild of the Democratic Party’s two leading democratic socialists, Sen. Bernie Sanders (D-Vt.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) and is targeted at what the pair call “exorbitant credit-card interest rates” in a statement. Their “Loan Shark Prevention Act” would a 15-percent federal cap on interest rates and empower individual states to establish lower limits.

Channeling Ron Paul’s references to “banksters,” Sanders said, “The reality is that today’s modern-day loan sharks are no longer lurking on street corners breaking kneecaps to collect their payments. They wear three-piece suits and work on Wall Street, where they make hundreds of millions in total compensation and head financial institutions like JPMorgan Chase, Citigroup, Bank of America and American Express.”

Per the statement, the pair claims that the median credit card interest rate is currently 21 percent and argues that there is no reason for banks to charge such a high interest rate.

“There is no justifiable reason that a person—no matter their background—should be charged an interest rate higher than 15 percent,” Ocasio-Cortez said. “Rates higher than 15 percent are predatory debt traps, designed to keep working families underwater and allow predatory companies to enrich themselves off the misfortune of others.”

Like many bad ideas, this one sounds good on the surface. Bankers make an easy target for populists and everyone hates paying credit card bills.

In reality, however, high interest rates on credit cards do serve important purposes. One of the most important purposes is to discourage consumers from carrying even larger amounts of revolving debt. By March 2018, Americans carried $1.027 trillion in debt on their credit cards. Without high interest rates, the amount of indebtedness would be even higher.

By making revolving credit expensive, banks encourage consumers to only charge to their cards what they can pay off at the end of the month. If you pay off your balance every month, you don’t pay any interest at all.

High interest rates also signal the risky nature of credit card loans. Credit card default rates are down from a high of 6.7 percent during the Great Recession, but credit card payments are often one of the first things to stop when times get hard. With an average balance of $6,354, banks can be left on the hook for many thousands of dollars when credit card holders default.

Even though credit card debt can be hazardous to your financial health, credit cards are a near-necessity of modern life. The availability of high interest rate cards allows many people who are considered credit risks to get a card that would not be available to them otherwise. If the Sanders-Ocasio-Cortez bill becomes law, the effect would be a shortage of credit for many Americans. It is axiomatic that price controls, such as an interest rate cap, lead to market shortages.

In the early days of credit cards, the now-ubiquitous plastic payment devices were used almost exclusively by the wealthy. It has only been in recent decades that credit cards became commonplace among the middle- and lower-income groups. Under the Democratic proposal, it’s likely that the trend of easily available credit for the common man would be reversed.

Some would argue that reducing credit card use would be a good thing. I have sympathy for this argument as a guy who has paid off thousands of dollars in credit balances more than once. Credit cards are a financial tool that can be very destructive if used improperly.

The problem with the Bernie-AOC solution is that government intervention in the markets would inhibit people who need access to credit from getting it. Rather than reducing credit card use overall or capping interest rates, a better solution would be to teach consumers to use credit responsibly.

Until then, I'm sure that Bernie and AOC would give voters the guarantee, "If you like your credit card, you can keep your credit card."

Originally published on The Resurgent

Trump’s Massive New Tax Hikes On Trade Start Today

As threatened, President Trump allowed a 25 percent tax on $200 billion of Chinese imports to go into effect today. The increase in tariffs, which is another name for taxes on international trade, took effect despite the fact that US and Chinese negotiators are still conducting trade talks. China says that it will retaliate for the tax increase but has not yet announced what measures it will take.

In a tweetstorm this morning, the president played it cool, saying, “Talks with China continue in a very congenial manner - there is absolutely no need to rush - as Tariffs are NOW being paid to the United States by China of 25% on 250 Billion Dollars [sic] worth of goods & products.”

Of course, the president once again misses the fact that China is not paying his tariffs. Americans are. As with a sales tax, which is ostensibly levied on retailers, the actual cost of the tax is borne by American consumers and companies. When consumers buy Chinese products or companies import raw materials, the tariff is added to the cost of their purchase.

Even if consumers choose to buy domestic products instead, the effect is the same. They pay higher costs due to decreased competition. Either way, consumers have fewer dollars left in their pockets.

Trump’s tweetstorm continues as he shows his plan for big government interference in markets to plan out the new economy. “With the over 100 Billion Dollars in Tariffs that we take in, we will buy agricultural products from our Great Farmers, in larger amounts than China ever did, and ship it to poor & starving countries in the form of humanitarian assistance,” he writes. What President Trump is proposing is a massive intervention in markets that results in both a subsidy to farmers and, in a sudden reversal, increased foreign aid.

Trump’s proposal combines a number of typically Democrat ideas. The president is proposing a transfer of wealth from American consumers and businesses to farmers. This wealth transfer will supposedly undo the damage to farmers that Trump’s own trade policies are wreaking. Then, since the US government has no real need of all the food that it is going to buy at taxpayer expense to prop up farmers who can’t sell to China because of Trump’s tariff war, the government is simply going to give the food away. In one series of tweets, we have a tax increase, transfer payments, a government expansion, increased government spending, government subsidies, government handouts, and expansion of executive authority.

Ironically, Trump’s tax increases on trade came on the heels of tax reform. The average tax cut for the middle fifth of wage earners was estimated to be only about $1,000 annually so it’s likely that Trump’s tax increases on imports will eat up the middle-class tax cut and then some.

Republicans inherently understand that income tax cuts on businesses and individuals put more money in their pockets, but the party is a bit schizophrenic when it comes to taxes on trade. Many Republicans deny that tariffs are taxes at all while others somehow take on the progressive view that tariffs can somehow tax America into prosperity.

The great economist Milton Friedman explained that this mistaken view is due to the fact that the jobs protected by tariffs are easily visible but the jobs and businesses killed by trade taxes are often hidden from view because these losses occur in other parts of the economy. (Milton Friedman’s interview with Phil Donohue is available on YouTube and is an entertaining and informative lesson on trade economics. It’s well worth the time it takes to watch it. Donohue, a famous liberal of the day, sounds a lot like Trump today.)

With today’s internet news sources, the hidden damage done by protective tariffs is more apparent than ever. America’s farmers have been among the hardest hit by the trade war with farm income dropping so drastically since Trump’s election that it weighed down personal income growth for the entire country. This was despite a $12 billion farm subsidy passed last year to bail out farmers from the trade war damage.

The damage from tariffs doesn’t stop with farmers, however. A number of companies, such as Harley Davidson, have moved production outside the United States to escape the tariff war. Earlier this week, Polaris announced that it would consider moving production of its recreational vehicles from Minnesota to Mexico if Trump followed through on more tariffs. Because the tax increases on steel imports make manufacturing more expensive, companies such as Mid Continent Nail of Missouri are losing money and on the verge of bankruptcy.

Of course, trade wars hurt both sides. Trump’s obvious strategy is to wage a war of attrition against China in the hopes that the US economy can stave off disaster longer than the Chinese economy. A possible miscalculation here is that the US is a mostly free nation and China is authoritarian. Chinese leaders don’t have to wait until the US economy crumbles, they only have to wait until unhappy voters send President Trump the message, “You’re fired,” next year. It’s unlikely that any candidate other than Bernie Sanders would continue Trump’s trade policies.

Trump also faces potential resistance from Congress and the courts. Trump’s initial tariffs on steel and aluminum were based on questionable national security determinations, but his authority to apply tariffs to other imports is even more uncertain. A US trade court upheld the steel tariffs earlier this year but similar suits based on his other tariffs may be more successful. Even congressional Republicans are speaking out against the trade war and there may be an attempt to tie ratification of Trump’s new trade deal with Mexico and Canada to repeal of the tariffs.

So far, markets have been remarkably stable in the face of the looming escalations in the trade war. “Investors seemingly continue to try to cling to hope that policymakers on both sides opt to deescalate,” Deutsche Bank's research strategist Jim Reid said on CNBC. As tariffs increase and profits fall, markets will react sooner or later.

President Trump is betting his reelection on his statement from two years ago at the onset of the trade war. As prices rise and exports fall, Mr. Trump is doubling down on his mistaken belief that, “Trade wars are good and easy to win.”

Neither of those beliefs seems to have held true.

Originally published on The Resurgent

Tuesday, May 7, 2019

Donald Trump Has Fundamentally Transformed Republican Party

Over the past few years since Donald Trump burst onto the political scene as a Republican candidate, there have been predictions that he would destroy the Republican Party. While those predictions have not yet been borne out, a new poll shows that President Trump has fundamentally transformed the GOP.

The Harvard-Harris poll released last weekend was mostly noticed for its revelation that Joe Biden had increased his lead over rival Democrat Bernie Sanders, but the poll also contained an enlightening question for Republican voters. The survey asked self-identified Republicans, “Do you consider yourself to be more a supporter of Donald Trump or more of a supporter of the Republican Party?” The answer was that a plurality considered themselves Trumpists by almost a 20-point margin.

Forty-five percent of respondents said that they supported Donald Trump personally rather than the Republican Party while 27 percent supported the GOP, presumably referring to the party’s traditional, pre-Trump principles. Eighteen percent supported both equally and eight percent supported neither.

These results confirm previous polls that indicate that Republican voters have jettisoned traditional Republicanism for loyalty to Donald Trump. The polling also offers an explanation for why Republican politicians find it difficult to criticize the president and keep their promise to hold him accountable. While many Republicans have simply remained quiet about Trump’s excesses, others, such as South Carolina’s Lindsey Graham, have apparently read the writing on the wall and completed a full 180 to become stalwart Trump defenders.

When asked which selected terms they most identified with, the top answer was “conservative Republican,” but this answer was chosen by only 19 percent of respondents as their first of three choices. The phrase “Trump Republican” finished second with 18 percent, which represents a statistical tie. “Christian conservative” was third at 15 percent followed by “moderate Republican” at 12 percent. Eight percent declared themselves to be “Reagan Republicans. Tellingly in an administration that is running a trillion dollar deficit, only eight percent identified with the phrase “fiscal conservative.”

In total, “conservative Republican” was only chosen as one of three choices by 46 percent of Republican respondents. Overall, 40 percent identified as “Trump Republican.” Thirty-two percent liked the “Reagan Republican” label while 30 percent identified as “moderate Republican” and 27 percent selected “Christian conservative.” Only 26 percent of the total identified as “fiscal conservative” and 13 percent as “social conservative.”

The self-labeling indicates that Donald Trump has changed the perception of what “conservative” means. It is no longer synonymous with the word “Republican” and, to many, the phrase “Trump conservative” is an oxymoron.

While some may view the shift as one that is largely semantic, the realignment of the Republican Party behind Trump represents a major shift in the party’s principles. The party has become overtly anti-immigration and protectionist where in the past it supported legal immigration and free trade. Republicans have jettisoned fiscal conservatism for an exploding deficit and the principle of small government has given way to proposals for regulating social media, creating a national childcare entitlement, expanding policing of the border and the immigrant workforce, and intrusions onto which employees should be hired or fired by private companies. Where guns could formerly be pried from cold dead hands, Republicans now glance away as the Trump Administration requires gun owners to surrender bump stocks without compensation. While it still opposes increased income taxes, Republicans cheer on Trump’s massive taxes on international trade that take as much or more from American pockets as tax reform put in. The party now rejects the rule of law when it is inconsistent with President Trump’s wishes.

It is likely that the future of the Republican Party will not be determined in 2020 but in the post-Trump primaries. President Trump remains overwhelmingly popular among those who remain Republican and no high-profile candidate has emerged to challenge the incumbent president. It will only be after Trump leaves office and Republicans are given a clean slate that we can see whether Trump’s populist approach will take root or if the party will revert to its old conservative character. Given the depth of the party’s adulation of Donald Trump, I’m not optimistic for a return to small government conservatism.  

 Originally published on The Resurgent

Battle Over Trump Tax Returns May Go To Supreme Court

House Democrats announced yesterday that they plan to hold Attorney General William Barr in contempt of Congress. The announcement apparently prompted Treasury Secretary Steven Mnuchin to think, “I need to get me some of that action,” because he promptly set up his own confrontation with congressional Democrats by refusing to turn over Donald Trump’s tax returns.

For those who came in late, the House Ways and Means Committee formally requested copies of Trump’s tax returns way back on April 3. Trump’s tax returns have become an elusive prize akin to Barack Obama’s birth certificate and college transcripts since then-candidate Trump promised to release them while on the campaign trail back in 2016. Since the initial request was made in April, the IRS and Treasury Department have repeatedly refused to hand over the president’s tax information.

The rub is that the law seems to be on the side of the Democrats. Rep. Richard Neal (D-Mass.), chairman of the House Ways and Means Committee, cited IRS Code section 6103(f) in his request:
“Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.”

Per the AP, Mnuchin said that the request “lacks a legitimate legislative purpose” and added that the Justice Department would provide a more complete legal justification as soon as it can think of one. Seriously, the DOJ is expected to cite Supreme Court precedent that holds that congressional requests must relate to “legitimate task of the Congress” and does not include seeking to uncover or expose crimes.

“As you have recognized, the committee’s request is unprecedented, and it presents serious constitutional questions, the resolution of which may have lasting consequences for all taxpayers,” Mnuchin wrote to Neal.

“What’s unprecedented is this Secretary refusing to comply with our lawful, Article I request,” Rep. Bill Pascrell (D-N.J.), a senior Ways and Means member, told the Wall Street Journal. “What’s unprecedented is an entire federal government working in concert to protect a corrupt president from legal accountability. If these guys think they can outlast us with these tactics, they’re dead wrong.”

In a statement accompanying the original request for information, Neal addressed the question of a legitimate purpose, saying that the president’s tax returns were needed to conduct congressional oversight of the IRS “policy of auditing the tax returns of all sitting presidents and vice-presidents.” While Republicans will argue that Neal’s request constitutes a fishing expedition, the chairman seems to have met the letter of the law.

After having been audited numerous times, there is little chance that President Trump’s tax returns contain a smoking gun for illegal activity such as tax fraud. More likely, they contain embarrassing information such as a smaller net worth than what Trump has claimed or miniscule charitable donations (excluding those made to the Trump Foundation). Nevertheless, the statute does not contain an exception that allows the IRS to protect information that would embarrass the president.

After Mnuchin’s latest denial, the next likely step is for House Democrats to ask the courts to force the release of the tax returns although there is a possibility that they will also decide to hold Mnuchin in contempt. The question may ultimately make its way to the Supreme Court.

Ironically, by delaying the release of the tax returns Republicans may be hurting the president’s reelection chances. By the time the case winds its way through the judicial system, the Supreme Court could mandate a release shortly before the election. Trump’s private financial information may suddenly become a very public issue at the worst possible time. The president might be better off to rip off the Band-Aid while the election is still a year and a half away.
Originally published on The Resurgent

Biden Solidifies Lead As Sanders Fades

Many conservative observers predicted that Joe Biden would be a flash in the pan. Several prominent pundits said that Biden’s first day on the campaign trail would be his best, followed by a quick downhill slide as the radical leftist Democrats tossed the old white moderate aside for younger, more progressive candidates without 50 years of baggage. Those predictions were wrong. Not one but two new polls show Biden surging ahead of his closest competitors.

On Saturday, a Harvard-Harris poll found that Biden had the support of the 34 percent of Democrats while another poll released on Monday by Hill-HarrisX gave Biden 46 percent support. While there is a considerable difference in Biden’s support in the two polls, both are well above his pre-announcement support levels which were typically in the high 20s to low 30s.

Another three polls released on April 30, five days after Biden’s formal campaign announcement, also showed that Biden received a boost after rolling out his official presidential campaign. CNN found Biden with 39 percent support, Quinnipiac had him at 38 percent, and Morning Consult showed 36 percent.

While the exact amount of support that Joe Biden commands is uncertain, it is a certainty that he has gained since announcing his candidacy despite accusations of improper touching and complaints from Democratic activists that he is not progressive enough. Biden seems to have tapped into a heretofore ignored moderate demographic within the Democratic Party.

Equally certain is that Biden’s gains have been at the expense of Bernie Sanders. The two most recent polls show Sanders at 14 percent, down from an average of about 20 percent in pre-announcement polling.

The polling indicating that Biden’s lead is solidifying has several possible explanations. The most obvious is that there are more moderate Democrats than has been generally assumed. Biden’s core support has typically been among blue-collar union Democrats, a niche to which no other Democratic candidate has appealed. This moderate Democrat demographic may be bolstered by Trump Democrats returning after crossing the aisle in 2016 and disaffected Republican moderates who are planning to vote against Trump Republicans as they did in 2018. A second possibility is that Democrats are choosing to forgo ideological purity for the candidate best positioned to defeat Donald Trump. Finally, as I have suggested in the past, the large number of leftist candidates may be splitting the radical Democrat vote and leaving Biden with a plurality. This scenario is similar to how Donald Trump won the 2016 Republican primary.

Being the frontrunner more than six months before the first primary doesn’t guarantee that Joe Biden will be Democratic nominee, but the former vice president remains the candidate to beat, just as he has since the earliest Democratic primary polling. With Sanders already fading and no other serious challengers in sight, the Democratic primary may be a foregone conclusion before the first votes are cast.

Originally published on The Resurgent

Monday, May 6, 2019

Schumer Backs Trump-Trade As New Tariffs Spook Markets

President Trump announced via a tweet over the weekend that he would increase tariffs, taxes on international trade, on Chinese goods to 25 percent from the current 10 percent level because trade talks were proceeding “too slowly.” The announcement sparked a selloff in stock market futures Sunday night that has continued into Monday morning.

Contrary to the president’s claim that China has been paying tariffs and that the trade taxes have been “partially responsible for our great economic results,” economists at the Tax Policy Center pointed out that the Chinese government and companies do not pay Trump’s tariffs at all. Instead, the tariffs are paid by American businesses and consumers who buy Chinese products. Even if consumers buy equivalent products made in the US or elsewhere, they will pay higher prices due to decreased competition for finished products and higher prices for raw materials that go into American-made products.

In a rare but in this case unsurprising turn of events, Senate Majority Leader Chuck Schumer (D-N.Y.) is backing President Trump’s China trade policy. Schumer tweeted that the president should “hang tough on China” and urged him, “Don’t back down.”

It is tempting to speculate that Schumer’s accolades for Trump Trade might be intended to lead the president into slowing economic growth ahead of the election, but the New York Democrat has long supported Trump’s tariff war. Last year, Schumer praised Trump’s tough China trade policy but warned against initiating trade wars against US allies.

In reality, Democrat support of free trade policies in an aberration. Bill Clinton signed NAFTA and Barack Obama negotiated the TPP, but Democrats have traditionally supported protectionist trade policies like the ones that President Trump advocates. In fact, Trump appealed to Bernie voters in 2016 by claiming that his views on trade were “very similar” to those of Sanders. The Vermont senator praised Trump for killing the TPP but has since argued that Trump “is identifying the problem correctly but I’m not sure that his particular solution at this moment is exactly the right one.”

In trading on Monday, markets partially recovered from the 500-point drop seen in futures trading on Sunday, but the president’s trade war remains a significant risk for the economy. After a wild ride in trading late last year, markets settled down on expectations that the US and China would work out their differences. That seems less and less likely. China initially considered canceling their upcoming trade mission to the US. They now say that the diplomatic visit will continue but Vice Premier Liu He may not attend the talks as had been previously planned and the large delegation of more than a hundred people may be scaled down.

The Wall Street Journal points out that Trump’s move to increase tariffs during the negotiations after the Chinese have already offered concessions will make it harder to reach a deal. Chinese executives and industrial policy advocates are concerned that their government is giving up too much to Trump.

“Turning the heat on China would only lead to rising nationalist sentiment,” a Chinese regulator told the Journal. “It’s really not conducive to reaching a deal.”

The economy has been the one unequivocal bright spot of the Trump Administration, but the trade war threatens to undermine this strength. The tit-for-tat tariffs are squeezing US exporters such as farmers as well as increasing costs for American manufacturers and consumers. Steel has posted double-digit price increases since the onset of the trade war and consumers are paying more for a variety of goods from cars to appliances and canned goods.

Thus far the economy has proven to be as resilient against the massive Trump tax increases as it was to the Obamacare tax increases of the previous administration. This is partly due to the Trump Administration’s tax reform and deregulatory successes, but it is an open question whether and for how long growth can continue under increasing prices and slowing exports. China is one of America’s largest trading markets, but the tariff war is being waged against other trading partners as well. If trade talks with China falter before the election, it is possible that President Trump’s reelection campaign could be stymied amid rising unemployment and slowing growth.
Originally published on The Resurgent

Democrats Set To Hold Barr In Contempt

The House Judiciary Committee has taken the first step towards holding Attorney General William Barr in contempt of Congress. The committee announced this morning that it will consider a contempt citation against Barr on Wednesday. If the committee approves the citation, it would advance to a vote before the full House.
“The attorney general’s failure to comply with our subpoena, after extensive accommodation efforts, leaves us no choice but to initiate contempt proceedings in order to enforce the subpoena and access the full, unredacted report,” Chairman Jerry Nadler (D-N.Y.) said in a statement reported by Politico.
The contempt citation refers to a House Judiciary Committee investigation into possible obstruction of justice by the president as well as Barr’s refusal to provide an unredacted version of the Mueller report to congressional investigators. It also notes the Department of Justice guidelines against indicting a sitting president and Mueller’s acceptance of that policy.
“Congress is therefore the only body able to hold the president to account for improper conduct in our tripartite system, and urgently requires the subpoenaed material to determine whether and how to proceed with its constitutional duty to provide checks and balances on the president and executive branch,” the contempt citation says. “Otherwise, the president remains insulated from legal consequences and sits above the law.”
Rep. Doug Collins, the ranking Republican on the committee, said in a statement, “Democrats have launched a proxy war smearing the attorney general when their anger actually lies with the president and the special counsel, who found neither conspiracy nor obstruction.”
NBC News noted last week that Congress has three methods of enforcing its subpoenas. First, the sergeant-at-arms could be dispatched to arrest Barr. This is unlikely since the attorney general is protected by armed DOJ officers. Second, federal prosecutors could charge Barr with criminal contempt. Again, this is unlikely.
The most likely option is the last one. Congress can sue the attorney general under civil contempt statutes. If a federal judge finds that Barr is in contempt, the court can apply civil penalties to attempt force Barr to comply with congressional requests.

Originally published on The Resurgent

Thursday, May 2, 2019

The Accurate-But-Incomplete Barr Summary

One of the newest spats to erupt in the continuing saga of the Russia investigation is over Robert Mueller’s letter to Attorney General William Barr regarding his representation of the Mueller team’s findings. As with much of the Russia scandal, the details are sufficiently vague that both sides can claim to be supported by the facts, but Barr’s critics do make valid points. The release of Mueller's letter and Barr's congressional testimony lead to more questions that need to be answered.

To recap the situation for those who came in late, on March 24 Barr released a four-page summary of the Mueller team’s findings. Barr wrote that, with respect to a criminal conspiracy with the Russians, “the Special Counsel did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 presidential election.”  Few, if any, serious observers have problems with this statement.

With respect to the second part of Mueller’s report, the investigation into possible obstruction of justice by the president, Barr quotes the report directly, saying, “While this report does not conclude that the president committed a crime, it also does not exonerate him.” Barr then goes on to say that he and Deputy Attorney General Rod Rosenstein “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” Barr also notes that this determination was made “without regard to, and is not based on, the constitutional considerations that surround the indictment and prosecution of a sitting president.” Barr further says that Trump’s actions could not be proven to have “corrupt intent” beyond a reasonable doubt. Barr’s defenders argue quite reasonably that nothing that Barr wrote in his summary is inaccurate.

As promised in his summary, Barr released a redacted version of the Mueller report on April 18. Readers quickly discovered that while Barr had not misstated any facts in his summary, the facts that he had chosen not to mention changed the characterization of what Mueller and his investigators had determined. Where Barr correctly said that Mueller found no evidence of a criminal conspiracy by the Trump campaign, Mueller’s report found tacit approval of Russia’s actions by the campaign, prefacing its exoneration with the statement, “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts…” But this was not criminal behavior. Fair enough.

Barr’s characterization of the obstruction investigation is more problematic. Barr omitted two very important points from Mueller’s failure to find indictable actions by President Trump. First, Barr ignored Mueller’s statement that the report did not make a prosecutorial judgment because the team “accepted OLC’s legal conclusion” that “’the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’”

Second, Barr omitted Mueller’s statement that “Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” This statement, paired with the statement that, “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” contradicts Barr’s determination that no prosecutable obstruction occurred. Given abuses of power in the examples cited by the report, President Trump’s actions might rise to the level of impeachable offenses even if Barr is correct that they were not prosecutable.

While Mueller did not specifically state that Trump’s actions were impeachable offenses, he seems to have hinted at that possibility. The reference to corruption refers to a “subversion of the political process” and an “act done with intent to give some advantage inconsistent with official duty and the rights of others.” The Constitutional Rights Foundation points out that the “high crimes and misdemeanors” cited in the Constitution as grounds for impeachment don’t necessarily require a finding of illegality. In English law that was familiar to the framers of the Constitution, the phrase had been applied to remove officials from office on a variety of charges, some that were criminal and some that were not. “The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve,” the Foundation notes.

Immediately after the release of Barr’s summary, President Trump took to Twitter to claim, “No Collusion, No Obstruction, Complete and Total EXONERATION.” This tweet explicitly contradicts Mueller’s findings on obstruction. Conservative media outlets picked up the message and trumpeted what they saw as Trump’s vindication.

What we now know is that after Barr released his summary, Mueller sent the attorney general a private letter behind the scenes. In the letter, Mueller stated that the “summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office's work and conclusions.” He wrote that the discrepancy had led to “public confusion about critical aspects of the results of our investigation.” The obvious conclusion is that the confusion that Mueller referred to was the fact that Trump and his supporters were claiming exoneration where the Mueller team failed to find it and specifically pointed out that fact.

Ben Shapiro has said that Mueller was wrong to complain about Barr’s characterization of the report. In Shapiro’s view, the details that the report includes serve only to embarrass the president in the absence of a finding that Trump broke the law. He points out that the details can be found in the publicly released report and were irrelevant to Barr’s summary. This is wrong for two reasons. First, a finding that the president acted corruptly enough that he could not be exonerated deserves a detailed explanation, especially when the president is claiming “no obstruction” and “total exoneration.” Second, at the time Mueller wrote his letter on March 27, the report was not public and there was no way to counter the president’s claims.

Even before this week’s release of the Mueller letter, there were rumblings that Mueller’s investigators were unhappy with Barr’s synopsis of their work. On April 3, the New York Times reported some members of Mueller’s team had said that Barr’s summary failed to accurately reflect their findings.

In his testimony yesterday, Barr said that Mueller told him that he was frustrated with the way the media was portraying the report and that “he was not suggesting that we had misrepresented his report.” It seems likely that Mueller’s problem was with the way that Trump-friendly media was covering the report as an exoneration of Trump rather than the mainstream media parsing the words of Barr’s letter.

The current state of affairs leaves a number of unanswered questions. First, is whether Barr’s failure to find obstruction legally accurate. Several conservative legal scholars such as Judge Andrew Napolitano, Reagan Justice Department official and current Republican candidate Bill Weld, law professor Mimi Rocah and former federal prosecutor Renato Mariotti dispute Barr’s (and Shapiro’s) interpretation of the obstruction statutes.

Second, there is the question of whether Barr intentionally tried to gloss over the parts of the Mueller report that were more damaging to President Trump. A follow-up to this question is whether the instances of Trump’s obstructive behavior cited in the report would have been redacted if it had not been likely that Mueller would have gone public with his objections.

Finally, there is the question of Mueller’s side of the story. Does Mueller agree that Barr’s summary was an accurate representation of the special counsel’s findings? If so, why did he send a written complaint? Barr suggested to House members that Mueller’s letter was “a bit snitty, and I think it was probably written by one of his staff people.” If so, why did Mueller sign it?

When the big picture is examined, it is apparent that while Barr’s summary was factually accurate, it did omit important aspects of Mueller’s report. These omissions changed the characterization of Mueller’s findings that “the evidence we obtained about the President's actions and intent presents difficult issues” to Barr’s determination that “the report identifies no actions… done with corrupt intent.” The only way to resolve these discrepancies and know exactly what Mueller and his investigators took issue with is to have Mueller testify.

Originally published on The Resurgent