Monday, April 29, 2019

After Mueller: Seeing What is Before You-On 3Q

“Read your fate, see what is before you, and walk on into futurity.” —Henry David Thoreau

It has been a little over a week since the redacted Mueller Report was released, and so many words have been spilled that there could be a drought by summer if the umbrage reservoirs are not refilled. Can we just retire the word “closure”?

The legal verdict is in, and I don’t plan to re-litigate it here. Robert Mueller determined there was not enough to charge President Trump with collusion, and Attorney General William Barr decided that Trump did not obstruct justice. We all can look at the (unredacted) facts they based their judgments on, and question whether those judgments were correct, but this phase of it is almost certainly over. The President and his inner circle are not going to be indicted.

That certainly is life-affirming. What’s next? How do we read our fate, see what is before us, and walk on into futurity?

We might start with perhaps the most under-reported angle of the cycle: the practical implications of Mueller’s finding that the Trump Campaign’s scores of contacts with the Russians and WikiLeaks were not, per se, illegal. Despite diligent efforts, despite countless dots, Mueller could not find what he thought would have been determinative—a hard agreement that would have nailed down collusion. His team evaluated a lot of meetings, a lot of discussions, a lot of timing coincidences, but, in the absence of a specific exchange of quid pro quos, smoke, no fire.

I’m not critiquing Mueller’s thought process. I accept it. But it leaves us with a serious problem.

If we concede that what Trump did was legal, then he created a template for the future: Meet as much as you want with a foreign power, talk, explore points of mutual interest, but don’t actually “agree” to anything. Apparently, as long as you don’t say, “Wouldn’t mind some traffic problems in Cuyahoga County, what would you want on sanctions relief?” it’s not criminal. This is exactly the thinking that leads the Trump team to send Rudy Giuliani out there on a Sunday morning to tell Jake Tapper, “There’s nothing wrong with taking information from the Russians.”

Let us all hope that when we get a little distance from this, smart principled people from both sides will realize the incredible threat Rudy’s ravings constitute. You don’t talk to the Russians, or the Chinese, or any other country, or a stateless entity like WikiLeaks, whether they are friend or foe of the United States, to gain an advantage in an election. Those folks will see it as transactional and, sooner or later, if something is not paid for, will present a bill for services rendered that can only be redeemed in the currency of national interest.

But what Trump did, he did. The election is over; Mueller is not the Deus Ex Machina. Big win for Trump, no matter how you spin it. He’s been fundraising off it from the moment Barr dropped the four page summary with the smiley-faces plastered all over it.

Of course, some wins are more pleasurable than others, and Trump is not feeling the love quite so much anymore. That’s why he keeps up a stream of invective-laden tweets and comments including phrases like “hit job” and “true Trump-haters” rather than just taking a lap. The Mueller Report is terribly damaging to Trump’s image. What we have is a portrait of a grifty, swampy, unserious, unqualified man and his grabby, often corrupt team playing footsie with the Russians and WikiLeaks, then lying about it continuously, screaming “fake news,” and letting (and encouraging) his underlings do the same. What’s more, Trump’s impulses are awful. Mueller documented 10 close calls which, if Trump’s staff had actually done what their boss demanded, clearly would have constituted obstruction. Since their scruples led them to refuse, and Mueller had some concerns about indicting a sitting President, he passed the obstruction decision to Barr, who then applied his somewhat more idiosyncratic moral code to assume the dual role of defense counsel and judge and then exonerate his own client.

What about all that nasty “spying” on the Trump campaign? Mueller thoroughly undermined the rationale for that one, although it won’t stop Trump and his conservative allies in Congress and the media from screeching about it and demanding investigations. Ask yourself seriously whether the intelligence agencies should ignore roughly 140 contacts between any Presidential campaign and a foreign power, much less one with which we have been fighting proxy wars in Eastern Europe and the Middle East, and to which we just gave notice of withdrawal from a major nuclear arms control treaty over its non-compliance.

In a way, Mueller and perhaps even Barr did us a favor. A legal solution was never going to be satisfactory. Trump’s actions as a candidate and then as a President need to be judged in a political forum. Congress has to do its job and decide whether remedies like impeachment or censure are appropriate, and the electorate has to do theirs, by making their preferences known to their representatives, and marching to the voting booth next November.

Impeachment? The House can certainly start if it wants. We impeached a President for skanky personal behavior with a White House aide; why can’t we impeach one for actions that challenged the legitimacy of our elections and potentially compromised our national security? But see what is before you. It is not done in a vacuum. Nancy Pelosi and Steny Hoyer are almost certainly right. The public doesn’t currently support it, and the chances of 20 Republican Senators voting to convict are roughly equal to those of William Weld knocking Trump out in the primaries.

I have seen very reasonable arguments that the rule of law needs to be defended, that history demands it, and that public hearings might be cathartic and informative, as Nixon’s were. There is a lot of truth in them. But Trump’s America is not Nixon’s. Yes, this could be a great civics lesson, but it could also turn into a circus. What’s more, I cannot see Kevin McCarthy, Mitch McConnell, and Lindsey Graham making a solemn visit to the White House to deliver the bad news that time is up. This isn’t your father’s Republican Party.

So what are Democrats to do when it just burns us up to see all this? Not only is Trump President because, in part, he had an affair with Putin, but he’s kicking the crap out of us—going after everything we care about with the venom of an outlaw-biker-gang leader on meth. It burns even more that, after all those lies, he calls us the traitors (the dirtiest word in the English language) and blasts as an Enemy of the People anyone in the media who dares cover him with anything less than fulsome praise.

See what is before you. We Democrats have to control ourselves. To beat Trump, to start the process of cleaning the stables, we need to see him thoroughly repudiated by the electorate. That is not going to be easy. He cheats—we know that. The Russians are already sowing discord in Democratic ranks and targeting Bernie voters, and reports are that the subject can’t even be discussed in the White House. He’s the incumbent and has a tremendous amount of leverage to use taxpayer assets for his benefit. Republicans control voting procedures in some critical states—and no, Brett Kavanaugh is not going to help us out on voter suppression. Trump’s base remains a rock—his approval ratings have a hard floor. As for money, the people who have quietly benefited from Trump, even those who wouldn’t be caught dead with him, are going to hold their noses and write some seriously big checks to protect their investments.

All this is known. And, at times like this, what do we Democrats do? We see what is beside us, and form a circular firing squad. Amy was mean to her staff; Kirsten was mean to Al Franken; Kamala was mean to criminals; Joe can’t be mean (he’s not a mean guy), but he is a little touchy. Pete is not mean, but he’s so many things at the same time we can’t even keep track of them. He’s also not really a Liberal. Bernie, on the other hand, is not really a Democrat—and, from looking at last year’s tax return, not really a Socialist. Elizabeth is not really a Native American. And Beto is not nearly as neato as Pete-O. And that’s just the first tier! Wait until we get to Dancer and Prancer and Vixen and Comet—have you heard what they have been saying about reindeers? Personally, I was rooting for Sherrod Brown (but isn’t he kind of rumpled?).

Come, on, Democrats. Surely, we can get past this crazy, fault-finding variation on the “Blind Men and the Elephant” where we feel a tusk and think it’s Amy Klobuchar’s salad-scooping comb? Even the Rushmore Four were flawed. No one ever achieved high office (maybe not even Mayor of South Bend) without being a little sharp-elbowed or “flexible” at times. It’s not like we’ve always been pure ourselves—after all, we nominated both Clintons.

Arizona, Iowa, Wisconsin, Michigan, Pennsylvania, Ohio, Florida, North Carolina. We need a good candidate. Articulate, tough, fearless, willing take a punch to give one. Americans admire someone who is willing to fight for something they care about—it’s part of the reason why some of them took a chance on Trump in the first place. We have to compete for those votes—just energizing our base will lead to bigger margins in Blue States and more complaints about the Electoral College.

So, let’s play Trump Voter eharmony (or Tinder, depending on whether you want a long term relationship or would be content with an Election Day fling). How are we going to woo enough of those folks who decided to date the bad-boy with the cool convertible last time, particularly since we’ve been telling them for the last 2 ½ years they have terrible taste in partners and must have some moral flaw for sticking with him?

See what is before you. It’s not just about Trump, because many Trump supporters have internalized his excesses and still see something that they like in him. It’s us—our failure to offer an attractive alternative, not merely in a candidate, but also in ideas and vision. It is possible, by being the Anti-Trump and hoping he self-destructs, that we might chip away just enough votes to regain the White House. But that’s betting on an inside straight.

What we need to do is remake ourselves on the fly and, in the words of a very smart Millennial I know, give the voters something they did not get with Hillary—the sense of being part of a movement and not merely supporting a candidacy. “I’m with her” was a terrible slogan. “She’s with us” would have been the better one.

In the end, everyone worries about the future, and his or her part in it. Trump addresses that: Put aside every tweet, every insult, and every rant, and the core of his campaign (especially his focus on immigration) is that the solution to the future is to restore the America of the past. This may be regressive, but it is particularly potent with voters who feel their standing is challenged.

We have to do better. Our balance is off—inequality and injustice are important issues, but so also are healthcare, the environment, opportunity at a time where technology is increasingly replacing jobs, and privacy in a pervasively intrusive world. We should work to make the latter four ours.

If we Democrats can, then we can construct a new winning coalition and begin to recapture the things we value. But, if we can’t, if all we can do is bicker and fall back on self-indulgent outrage, then we are doomed to repeat recent history.

But it will be a worse history. As Steve Bannon said in an interview with Politico, “You’re going to get pure Trump off the chain. Four years of Donald Trump in payback mode.”

See that before you.

"After Mueller: Seeing What Is Before You" was first published on on April 29, 2019.  For it, and other original content, please visit:

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Michael Liss

Monday, April 1, 2019

Tales From An Audiophilic Childhood-On 3Q

By Michael Liss
How do you raise kids in an increasingly harsh and atonal world?  
We all have our templates for seeking harmony. Mine were my own parents. They were not performing artists or even musicians; neither played an instrument (I think the kazoo doesn’t qualify), and neither could sing. But, as listeners, they were virtuosos. Classical, of course, but also big band and swing, boogie-woogie and jazz, klezmer, folk and protest songs. My father even harbored a secret passion for some pretty hardcore mountain music—the real thing, serious pickin’ and fiddlin’ without the Nashville gloss. My sister and I think he gave this up, along with drinking and smoking, when he met my mother.
Then, there was opera. I’ve written before about being tied to a chair in the Orchestra section of the old Met when my legs were still too short to make it all the way to the floor. It was all true: I saw Tosca jump off the parapet, and Madame Butterfly do herself in, and Mimi tragically pass, and Violetta tragically pass, and Radames and Aïda jointly and severally tragically pass, and Baron Scarpia and Don Giovanni not-so-tragically pass. All that passing was inescapable; to quote Bugs Bunny in the towering “What’s Opera Doc?” (as even he passed, a victim of Elmer’s spear and magic helmet), “What did you expect in an opera, a happy ending?” 
In retrospect, I should have been honored that my parents had such confidence in my emotional stability that they felt assured I could cope with all that passing. In the moment, however, I don’t think it ever entirely registered with me, especially since all the adults would then cheer wildly. Brava, she’s dead?
Of course, one couldn’t spend all one’s days in the stalls, but the music didn’t stop when the fat lady sang. It surrounded you. At home there was a NASA-like command center featuring a lot of ten-stop switches, open-reel tape decks, a variety of vacuum-tubed paraphernalia, and multiple sets of mics and speakers strategically placed through the apartment. Not unlike the Pyramids, the design and construction phase of this involved immense human labor and suffering, a variety of exotic curses, and the discovery of some unexpected talents—my mother proved to be extraordinarily gifted with a soldering iron.   
On the road, whether driving or actually having arrived at a destination, the challenges were different. You can’t lug half a ton of audio equipment with you, even in a car with a trunk the size of a swimming pool. As for sound quality, car radios were for keeping cars company, so they wouldn’t be lonely, and not for people. Besides, if you didn’t like what was on WQXR, you were going to be out of luck. Let me just add that silence in an automobile, in which you were a captive, seat-belted audience, was not always a blessing, as Nature abhors a vacuum, and my Dad would fill it.

Into the breach stepped the “Miracle in a Matchbox” Uher 4400 Report Stereo, a compact, battery powered, five-inch reel, multiple-speed tape deck. This machine was not only versatile, it was actually cool (they used it in the TV version of “Mission Impossible”). Since the Uher could go anywhere, it replaced the scorned car radio sound with “Parent” mixtapes.  

Here’s where the fun came in—how to arrange the playlists. The five-inch reels created a challenge; even when recorded at half speed, they had a maximum 45 minute run time per side. Opera just didn’t fit (since the Statute of Limitations has run, I now can say I wasn’t terribly upset about that.) Nor did a lot of the rest of the classical oeuvre—either too short or too long. Very often, Beethoven, Brahms, and the gang showed a lack of foresight when it came to the importance of hitting that 45-minute mark, or an exact fraction of it. Take the Saint-Saëns Symphony No. 3: powerful, but 37 minutes. Dad-favorite Mendelssohn Violin Concerto in E Minor, or mine, the Mozart Clarinet Concerto in A Major? Both 29 minutes. That’s a lot of extra tape to try to fill without constantly adding snippets from the Polovtsian Dance No. 2 by Borodin.

The situation demanded creativity, and here is where my parents truly excelled. Yes, they were dedicated to the real adult stuff—the brown liquor of staffs and clefs and notes and intimidating sopranos. And they never wanted to infantilize their children: once we got out of the Itsy Bitsy Spider and Sing a Song of Sixpence phase, if theyenjoyed it, then so should we. But they also liked to have fun (with a purpose, of course), and therein came a chance for a little cultural-political-musical proselytizing.

Mom and Dad were devout New Deal Liberals. They held to a bunch of antique ideas, like the unbreakable connection between Labor and the Democratic Party, freedom of speech and the press, civil rights, and wars being generally bad things, unless fought for good reasons. And they wanted to pass it on.

So, when there wasn’t enough room on those reels for Tchaikovsky or Sibelius, they threw in a bit of Pete Seeger, a little Paul Robeson, and, for extra flavor, a schmear of Allan Sherman. Just a touch of subversiveness amidst all that solemnity, a peek behind the parental curtain, like Bug’s grin in Rhapsody Rabbit.

There was a kind of magic to all this. Pete, both in solo and with The Weavers, drew on a tremendous traditional songbook filled with the music of causes and ordinary folks, such as When the Saints Come Marching In, Last Night I Had the Strangest Dream16 Tons, Brother Can You Spare a Dime, Pay Me My Money Down, Waist Deep In the Big Muddy, and The Rock Island Line. With Lee Hays, he wrote The Hammer Song, later popularized by Peter, Paul and Mary, and recorded by artists as diverse as Trini Lopez and Johnny Cash. Paul Robeson’s mighty bass-baritone lit up Ballad for AmericansThe House I Live In, Old Man River, and Joe Hill. And Allan Sherman was just a goofball. He sang about Muddahs and Faddahs, Harvey and Sheila, and Hungarian Goulash No. 5. My parents didn’t mind a little silly.

Sadly, we lost them way too soon, but both my sister and I, with the cooperation of our tolerant spouses, thought we should keep with tradition. My kids were raised on all of the above. We played our video of “The Weavers: Wasn’t That a Time” so often we wore it out. We added Marriage of Figaro and Rabbit of Seville (operas with happy endings), sang Burl Ives, Chattanooga Choo Choo, and We’re Your Friendsfrom The Jungle Book (I provided the questionable bassline)They got early training in conducting from Stokowski himself in Long Haired HareAnd what sophisticated childhood would be complete without Tom Lehrer’s “The Elements” and “Poisoning Pigeons in the Park”?

It was a perfect fit, because serendipitously, both my children (and my sister’s) showed some musicality, perhaps indicating a previously hidden ancestral gene expressing itself in a later generation. One very early indicator: when my daughter was just a peanut, barely talking, she would wait for the chorus in Pete and Lee Hays’ “Kisses Sweeter Than Wine” and squeak out “WINE!” on cue, and with the correct pitch. Two decades later, she’s a Mahler enthusiast who hopes to sing Tosca.

Puccini and The Weavers. Somehow that just seems right. Our recording of “Kisses” has Pete and Ronnie Gilbert the soloists, Lee Hays and Fred Hellerman joining in the chorus. A couple goes from young love to old—first kiss, marriage, working their farm, raising their kids, having grandchildren, and then looking back in gratitude.  

“Now that I’m old and ready to go
We get to thinkin’ what happened a long time ago
We had a lot of kids, trouble and pain
But, oh Lord, we’d do it all again”

The four of us were together last weekend for dinner and then a seriously competitive game of Hearts, and our kids are still singing the same songs, just with grown-up voices. Their grandparents would be pleased. They probably would have joined in the refrain.

“Oh kisses sweeter than wine
Oh kisses sweeter than wine”

Tales From an Audiophilic Childhood was first published on April 1, 2019 in
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Monday, March 4, 2019

Emergency!!!! On 3quarks

By Michael Liss

The man for whom the word “Emergency” must have been invented (“serious, unexpected, and dangerous situation requiring immediate action”) pulled the pin out of yet another hand grenade.

Our President, Donald J. Trump, bollixed, frustrated, stymied, and parboiled (twice) by the evil Nancy Pelosi, went off and did just what he wanted to do anyway. He picked up the compromises made by Democrats in bipartisan negotiations to re-open the government, put them in his pocket, and grabbed for more.

What a fine drama it was. He summoned Senate Majority Leader Mitch McConnell to the White House, heard him say the votes were there to pass the bill, and told McConnell that he, Trump, did not care what Congress thought. It was irrelevant. The President had consulted his legal advisors, his portrait of Andrew Jackson, and his statue of Winston Churchill, and concluded that the term “emergency” also encompassed any situation in which he did not get his way.

“Mitchie,” he thundered (the exact transcript has been suppressed and placed in a secure location with the Putin conversations), “I want my Wall, and I will smite this bill unless you pledge your undying support for my Emergency Declaration.” The Senior Senator from Kentucky, wily cephalopod that he is, complied. None of us need speculate over exactly what curses, orbs, and scepters were employed, or whether McConnell extracted something for himself, but he knelt, thanked his master, and then left the Oval Office back-side first, bowing at every other step.

Game on! So we move to the most frequently used phrase in the Trump Era, “Can he do this?”

Even to approach this question rationally, you have to wait until the adrenaline wears off, and show the extraordinary discipline of forgetting that it’s Trump. It is a challenge. The infection rate of Trump Derangement Syndrome (both the adoring and abhorring variants) in the population is extraordinarily high. Scientists are feverishly working on a cure, but right now, the only treatments are palliative, such as throwing your iPhone at your MacBook, and watching both bounce off a screen with either Rachel Maddow or Sean Hannity whack-whacking back at you.  This is probably best done in a hotel bar, where, along with ample lubrication, most establishments have installed high-impact glass in response to previous incidents.

Take a breath. Other than his being the ultimate catalyst, this isn’t about Trump, and it’s certainly not much about the Wall. It’s about the role of the Presidency, and the exercise of political power, and the balance among the three branches of government. To be more explicit, it is about virtually anything a President says he wants that a Congress won’t give. Can he just take it?

As bizarre as it may seem to those of us who were taught about things like checks and balances, the correct answer is…it depends.  It depends on whether it’s authorized by a statute. It depends on whether Congress has the backbone (or the willingness) to stand up to Presidential overreach. And, ultimately, it depends on the Supreme Court.

Let’s save some time (and laughter) on the “Congressional backbone” part (of the more than 60 Republicans who voted to reopen the government on February 14th, just 13 reaffirmed their support less than two weeks later) and head right to litigation. That’s what 16 Blue States did, and their Complaint is as good a place as any to begin to explore the legal issues. 

There is an interesting tension in the law when it comes to political issues. Being “legal” is not the same thing as being wise. Politicians, answerable to the electorate, should be the ones making policy. The Supreme Court’s role is not to decide the wisdom of a policy, but only whether it was properly enacted, and whether a particular application of it conforms to Constitutional requirements.  It’s not the Court’s job to fix basic foolishness.

The first thing you become aware of when asking, did the President have the right to declare an emergency, is that Congress might very well have been foolish. It has, over many years, ceded to the Chief Executive a heck of a lot more than was granted in Article II of the Constitution. The Brennan Center counts a web of up to 123 separate statutes that give to a President some additional emergency authority, the big one The National Emergencies Act of 1976 (“NEA”). For those of us who mocked Texas’s mass flip-out over Jade Helm, the laugh is on us. Try reading this excruciating article by Elizabeth Goitein in The Atlantic and see if you can suppress your urge to visit your safe-deposit boxes and pack your go-bags before you get past the sixth paragraph.  It’s not good.

There is an irony about the NEA: the impetus for it was Congress’s desire to rein in Presidents from going off on their own without Congressional oversight. But, by codifying powers that the President previously didn’t have, an unintended consequence was that Congress may have written a near-blank check. True, Presidential authority is not unlimited: Presidents cannot just conjure up new powers, and Congress can enact a Joint Resolution terminating the Emergency, but there are a notable lack of guardrails after that.

Why?  Best guess is that they thought they were empowering rational Presidents who would act in genuine emergencies (Biblical Ten Plagues sorts of things: floods, pestilence, hail, etc.). They never seriously considered that a future President might use an “Emergency” for a purely political reason. As Monty Python reminds us, no one expects the Spanish Inquisition.  So, off to court it is.
What might your ordinary, run of the mill, appointed-for-life, Harvard or Yale-trained Justice think?  Here are some of the arguments traced out by the 16 States in their Complaint.

1. It’s not an Emergency.  I wouldn’t be surprised at all if a lower court would rule that Trump’s own statements and prior conduct indicate that the Wall was not an Emergency. This has a lot of appeal, given his verbosity, and that 58 former National Security folks just signed a letter saying it wasn’t. That being said, I suspect the majority (quite possibly at least six) of the Roberts Court is going to have at least a very strong preference for not setting a precedent of potentially second-guessing a President’s judgment on what constitutes an emergency, particularly one that potentially involves security. 

2. Congress already considered Trump’s request for this particular project and rejected it. Given the specificity and the closeness in time of the Congressional vote and Trump’s subsequent Declaration, this approach might carry some weight. The President proposes, Congress says no, the President takes what he wants anyway, Congress passes a Joint Resolution reaffirming its previous position…and the President refuses to sign it, thus diluting Congressional power by requiring a two-thirds override vote.  Intuitively, that can’t be right, but the textualists and the hardliners are likely to argue that Congress could have, and perhaps should have, addressed that specifically in the NEA.

3. It violates the “Appropriations Clause.”  Article I of the Constitution is very clear that it’s Congress that gets to write checks: “No Money shall be drawn from the treasury, but in Consequence of Appropriations made by Law.” There is a solid argument Congress can’t properly assign that power, even in limited circumstances, without amending the Constitution itself.  I think this one has a chance, particularly because of the granularity of budget allocations and their impact on individual states. It would be interesting to see how Originalists/Strict Constructionists address that issue, and reconcile it with their support for expansive Executive Powers.

So, what wins here? Difficult to tell, but with Chief Justice Roberts likely as the swing vote, I can see a very narrowly written victory for Trump, authored by Roberts, with a complex multi-concurrence and dissent mashup.  What Roberts might say, is that (a) Congress does have the authority to give flexibility to the Executive in spending and has, in fact, been doing so for a very long time, (b) Congress has a remedy for this specific Trump action of which it failed to avail itself, and (c) (this is a Roberts favorite) poorly-written legislation needs to be re-written by Congress, and not edited by SCOTUS to reflect a legislative intent that was not clearly expressed. 

I suspect that Roberts will probably go on with substantial dicta on how the Court’s decision is on this specific claim only, that it should not be seen as a precedent, and that it’s not an open invitation for Presidents to exceed their authority, and he might even include some scolding of Congress to get right on this and either amend the NEA, and/or pass a Joint Resolution to roll back Trump’s Declaration. No one will pay any attention to any of that.

Why would Roberts do this when he has to know that the result is potential chaos? Because of the internal dynamics of the Court. Let’s put aside the widely held conviction that there are Justices who are essentially political animals. The more important point is that there are Justices (particularly the two newest) who support the idea of broad Presidential powers, and Roberts needs to give them something, but is not ready to go with them in the (further) direction of an Imperial Presidency. I also suspect that Roberts is canny enough to realize that there will be a time in the future when he and his fellow conservatives and ultra-conservatives want to hem in a Democratic President. A hearty clap on the back for Trump followed by a wagging finger at someone more Blue would be bad optics. And, finally, Roberts does not wish to risk a Constitutional confrontation with Trump, who would almost certainly relish the opportunity to put even the Supreme Court in its place. So, Roberts will leverage his own, necessary, support to achieve the narrowest result. 

What will ensue? We can expect a blizzard of angry commentary, and a gleeful White House spitting out one Emergency after another. And one absolutely miserable man, good old Mitch McConnell. He’s got the tiger by the tail and can’t let go. He really doesn’t want a President—any President—having the kind of power that Trump has just assumed.  McConnell knows, institutionally, it is a catastrophe, a serious erosion of Congressional prerogatives. It’s also going to play havoc with future negotiations with the Democrats. McConnell will have to get Trump’s signature in blood in advance before Pelosi agrees to anything. And there’s another election coming in 2020; McConnell needs to defend his Senate majority; and swing voters will not be enthusiastic about this.
What’s an utterly soulless political operative to do? Start herding cats, and for the long-term good of the country and his party, agree to amend the NEA in a thoughtful way, so Presidents, present and future, can’t do what Trump did (or could do).

That is not going to be easy. Trump will veto anything that in any way limits his power, and that means McConnell (and Kevin McCarthy, House Minority Leader) will have to come up with enough votes from their side of the aisle to join with Democrats and override.  The math is daunting in an era in which Trump’s approval rating among Republicans is sky-high and 80% of them approve of his Emergency Declaration. Who in the shockingly supine GOP Congressional Caucus wants to put a bulls-eye on their back?

Nothing quite like daunting math.  As Albert Einstein put it: “As far as the laws of mathematics refer to reality, they are not certain, and as far as they are certain, they do not refer to reality.”

Not unlike the laws of politics.  Stay tuned.

Emergency! first appeared on on March 4, 2019 at:

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Monday, February 4, 2019

Radical Centrism: Lincoln at Cooper Union

“He knew the American people better than they knew themselves, and his truth was based upon this knowledge.” —Frederick Douglass, Oration in Memory of Abraham Lincoln, April 14, 1876
In October of 1859, Abraham Lincoln received an invitation to come to New York to deliver a lecture at the Abolitionist minster Henry Ward Beecher’s Plymouth Congregational Church in Brooklyn.  
Although Lincoln was, at this time, largely a regional figure among Republicans, and held no public office, the invitation was not accidental. The party was still a bit like a Rube Goldberg contraption, made up of pieces (former Whigs, Know-Nothings, disaffected Northern Democrats) that didn’t all quite fit together. People of influence, notably the newspaper publishers William Cullen Bryant and Horace Greeley, knew the new movement needed a coherent, inclusive platform, and an articulate, attractive man to lead it.
They weren’t, by any means, anointing Lincoln—in fact, they had no idea what he could do. He had acquitted himself well in his 1858 Senate race against Stephen Douglas, the presumed 1860 Democratic Presidential nominee, but he had also lost. There were other questions as well: Would a person some described as a “backwoodsman” play in front of a New York audience?
What was obvious was that the most likely Republican candidates for the nomination were either flawed or disliked, or flawed and disliked. The presumed frontrunner, William Seward of New York, was unquestionably competent, but had made some radical-sounding speeches and was seen by many as a captive of Thurlow Weed’s political machine. Seward’s support was also thin in lower North states like Pennsylvania, Indiana and Illinois—all of which Republicans had lost in 1856 and were essential to victory this time. Other potential candidates had different weaknesses: Ohio’s Salmon P. Chase was an able Governor, but lacked what we would now call retail political skills. Pennsylvania’s favorite, Simon Cameron, was undeniably corrupt. The fourth “first tier” candidate, Edward Bates of Missouri, was 66, barely a Republican, and almost certainly the most conservative. It was hard to see how he could have ignited a movement.
Lincoln knew this, saw the opening, and immediately accepted the invitation. The warm glow that history places around him for his compassion and tragic martyrdom obscures just how practical and even calculating a man he was. The New York speech was his chance to elevate himself in front of a new and potent audience. He threw himself into preparation, researching the historical record and refining his remarks. He knew he didn’t need to persuade his listeners that slavery was wrong—they already believed that. Rather, he had to do what truly great leaders do—elevate the discussion, offer a pathway for a broader campaign based on something more than mere political calculation, and do so in a way that was distinctively his.
He arrived in New York a few days early, and learned that the Young Men’s Central Republican Union (influenced heavily by the not-young Greeley and Bryant) was now the sponsor. They had moved the location to the newly-constructed Cooper Union in Manhattan, and Republican-leaning newspapers were publicizing Lincoln’s appearance as a rebuttal to Stephen Douglas, the Democrats, and slavery in general.
On February 27, 1860, 1500 politically-minded New Yorkers tramped through the snow and filled to capacity the gas-lit auditorium. In the audience were some of the most influential people in the City, including Bryant and Greeley, the publisher H.W. Putnam, former Governor John King, and Peter Cooper himself and his business partner (and later Mayor of New York) Abram S. Hewitt.
He was introduced, and, from every description available, caused people to wonder just what strange species of bird they were looking at. Lincoln’s new suit was wrinkled and seemed cut for a different man altogether. His hair needed combing, his huge hands flapped awkwardly, and his voice, higher pitched than expected, was neither elegant nor sonorous.  
Then, the lawyer began to make his case, and, one by one, his listeners fell under his spell.
Read it, and you may find, as I did, a mystery about this speech. It’s not graceful, not poetic, not filled with the kind of lines you would chisel into marble, except for the famous final few words. It’s not the way we think of Lincoln at his best, yet, there is something about it that made hundreds of skeptical New Yorkers Lincoln enthusiasts, and transformed him into a truly credible candidate for President.
The speech is divided into three thought units, which Lincoln then clinches together  with his distinctive brand of moral clarity.
First, Lincoln explores the question “Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories?”
Every lawyer knows you should never ask a question to which you don’t already know the answer.  But a great lawyer is able to give his own arguments more potency by co-opting the framework suggested by his adversary, and then turning it to his own advantage.
Lincoln quotes Douglas himself, who wrote: “‘Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now.’”
Of course, he agrees with that statement, he adopts it as the starting point for his speech, and then he goes on to ask, and answer, in utterly reasonable and rational terms, “What was the understanding those fathers had of the question mentioned?”
From that point forward, Lincoln is in command. He will define the universe.
First, he picks his court—the “fathers” are the 39 signers of the Constitution, and, later, the 76 members of the first Congress who adopted the first twelve Amendments.
Then, he picks his facts. Meticulously, taking a path of more than 3000 words and nearly 40 years, from regulation of the Northwest Territories in 1785, to the adoption of the Northwest Ordinance, the Louisiana Purchase, the ceding to the Federal government of Tennessee by North Carolina, and Alabama and Mississippi by Georgia, and finally to the Missouri Compromise of 1820, he sketches the history of Federal regulation of slavery in the Territories, and finds support by at least 23 of those fathers for those regulations. Lincoln sets a high standard of proof for himself—even expressions of hostility towards slavery were not enough—the “father” must have actually placed himself on the record on the specific question of Federal control of slavery in the Territories.
It’s a lawyer’s brief, and upon first reading, you wonder whether he is going to lose his audience, such is the focus on detail. But take a little time with it, and you can see that this part of his argument, this careful building of evidence that demolishes Stephen Douglas’s and the South’s claims to unrestricted territorial expansion, leads inevitably to the first emotional climax:  
But enough! Let all who believe that ‘our fathers, who framed the Government under which we live, understood this question just as well, and even better, than we do now,’ speak as they spoke, and act as they acted upon it. This is all Republicans ask – all Republicans desire – in relation to slavery. As those fathers marked it, so let it be again marked, as an evil not to be extended, but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection a necessity. Let all the guarantees those fathers gave it, be, not grudgingly, but fully and fairly, maintained. For this Republicans contend, and with this, so far as I know or believe, they will be content.”
It is a brilliant touch. It makes them (the Republicans, and, by extension, every fair-minded person in the audience) the true conservatives. They are not pitchfork-wielding Abolitionists; they are not radicals; they are the keepers of the flame, the heirs to the father’s legacy.
Lincoln then turns his attention to the South, and, here, his language takes an interesting turn. Having been first been cerebral and professorial in the “evidentiary” portion of his case, he becomes almost prosecutorial.  
First, he takes note that the South will not even tolerate Republicans, much less agree with any portion of their ideas. “(W)hen you speak of us Republicans, you do so only to denounce us as reptiles, or, at the best, as no better than outlaws. You will grant a hearing to pirates or murderers, but nothing like it to ‘Black Republicans.’ … Now, can you, or not, be prevailed upon to pause and to consider whether this is quite just to us, or even to yourselves? Bring forward your charges and specifications, and then be patient long enough to hear us deny or justify.”
Since there seems to be no Southerners in the audience, Lincoln then takes charge of the “debate” himself.  
First, Republicans are not sectional: It is the Southerners who refuse to allow Republicans to compete in their region. Lincoln clearly does not expect that Republican ideas would win elections in the slave-holding states, but he does believe they would win votes. The refusal of the South even to grant Republicans an audience is a sign of their unwillingness to abide by democratic principles—and their fear of competition in a war of ideas.
Second, It isn’t Republicans who are accelerating the debate by abandoning the path of the fathers. It is the South, in demanding a laundry list of new policies, and Stephen Douglas, advocating for the “gur-reat pur-rinciple” that “if one man would enslave another, no third man should object,” who are rejecting the intention and the governing ideas of the people who risked all to create America. “Not one of all your various plans can show a precedent or an advocate in the century within which our Government originated.
Third, Republicans are not stirring up slave revolts, or encouraging more John Browns. “John Brown was no Republican: and you have failed to implicate a single Republican in his Harper’s Ferry enterprise.  Lincoln knows they know it as well—he sees the charge simply as political tactic—in contemporary terms, a way of firing up the base. And, he rejects the claim that, even if Republicans are not deliberately encouraging upheaval, it is inevitable because of their stated principles. He makes a very shrewd argument that has to appeal to his audience on an intellectual and emotional level: It is the issue of slavery, and not the political vehicle opposing the spread of it, that creates instability: “There is a judgment and a feeling against slavery in this nation, which cast at least a million and a half of votes. You cannot destroy that judgment and feeling – that sentiment – by breaking up the political organization which rallies around it. …but if you could, how much would you gain by forcing the sentiment which created it out of the peaceful channel of the ballot-box, into some other channel? What would that other channel probably be? Would the number of John Browns be lessened or enlarged by the operation?”
All this leads up to an inevitable conclusion. The South claims the backing of the fathers, but then ignores them to define the constitutional rights of slaveholders as opportunistically and expansively as it wishes. It will not accept either open debate, or a political result with which it does not agree. In one of Lincoln’s most memorable phrases: “But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, ‘Stand and deliver, or I shall kill you, and then you will be a murderer!’”
Still, Lincoln holds back. He turns to his audience and his fellow Republicans and counsels patience and accommodation, with a little twist (Lincoln read Shakespeare avidly, and there’s a bit of Mark Antony’s eulogy in Julius Caesar to this section). “A few words now to Republicans. It is exceedingly desirable that all parts of this great Confederacy shall be at peace, and in harmony, one with another. Let us Republicans do our part to have it so. Even though much provoked, let us do nothing through passion and ill temper. Even though the southern people will not so much as listen to us, let us calmly consider their demands, and yield to them if, in our deliberate view of our duty, we possibly can.”
Having laid out that sweetly reasonable path, he then proceeds to identify all the landmines. He knows, his audience knows, the country knows, that what he’s suggested is impossible. The South will not accept the status quo. They will not accept an offer of all the Territories, to do with them whatever they wish. They will not accept even the most heartfelt and genuine apologies and promises to do better. In Lincoln’s acute turn of phrase, “We must not only let them alone, but we must somehow, convince them that we do let them alone.
How to convince the doubting South? Here’s where Lincoln turns up the courtroom rhetoric: “This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly – done in acts as well as in words. Silence will not be tolerated – we must place ourselves avowedly with them. Senator Douglas’ new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.”
If Lincoln had stopped here, you would have had a fine opening statement, a wonderfully persuasive presentation of evidence, a superb cross-examination, and even a little fist-shaking in front of the jury. But what marked him as an exceptional man—not just a politician looking for a clever formulation—but a moral leader—and what, in my opinion, truly drew people to him, was what followed.
“Wrong as we think slavery is, we can yet afford to let it alone where it is, because that much is due to the necessity arising from its actual presence in the nation; but can we, while our votes will prevent it, allow it to spread into the National Territories, and to overrun us here in these Free States? If our sense of duty forbids this, then let us stand by our duty, fearlessly and effectively. Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored – contrivances such as groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man – such as a policy of ‘don’t care’ on a question about which all true men do care….”
I can’t get this phrase out of my mind: “groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man – such as a policy of ‘don’t care’ on a question about which all true men do care.”  
In a few short words, he transforms himself from forceful, effective advocate to true leader, speaking to the difficulties both he and his audience had in blending a serious-but-secular obligation (fealty to the Constitution) together with a universal one of principle (objecting to the loathsome practice of enslaving another human being). Lincoln tells his audience what they most need to hear: that the law and morality can and must coexist, that there are some things where there is an absolute right and an absolute wrong. Slavery was wrong, their cause was noble, and they were on the side of the angels.
“Let us have faith that right makes might, and in that faith, let us, to the end, dare to do our duty as we understand it.”
And the crowd stood, and cheered, and waved handkerchiefs and hats at the strange-looking man in the ill-fitting suit. Some surely must have agreed with Noah Brooks, then a reporter for The New York Tribune.
Lincoln, he said, “was the greatest man since Saint Paul.”
Michael Liss
Radical Centrism: Lincoln at Cooper Union was first published on February 4th, 2019 on

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