Thursday, June 13, 2019

Kellyanne Conway versus the Law: What is the Hatch Act and Why Do We Have It?


Note: I have written four books and at least seven articles that have discussed or examined the Hatch Acts.

Kellyanne Conway serves in her official capacity as White House counselor to President Donald Trump. She  has been accused by the Office of Special Counsel of violating the Hatch Act and should be dismissed from office.  Most people have not heard of the Hatch Act, yet the Act, actually several Acts, are important federal public administration laws.  They are part of a cluster of federal laws and Supreme Court decisions going back 150 years seeking to limit the ability of the president or his staff from using federal office or resources for partisan
At the end of the nineteenth century public administration scholars such as future president Woodrow Wilson, Frank Goodnow, and other reformers sought to clean up the federal government which had become corrupted by the patronage or spoils system.  The spoils system gave the president to politicize the federal bureaucracy and use it for partisan and political gain. The argument of the reformers was that the administration of government should be separate from politics.  Public administrations should be guided by the public interest, not partisan politics, and no one should be allowed to use their position for personal or party interest.
This move to separate politics from administration and prevent the president from politicizing the federal government began in 1876 when Congress passed a law that prohibited all members of the Executive branch who had received Senate confirmation from "requesting, giving to, or receiving from, any other officer or employee of the government, any money or property or other thing of value for political purposes."  In Ex Parte Curtis, 106 U.S. 371 (1882) the Supreme Court upheld the Act.
Second,  the 1883 passage of the Pendleton Act  initiated the creation of the federal service.  This Act and its extensions placed the employment of most federal employees under a merit system that limited the ability of the president to make hiring and firing decisions based on partisanship.
Third in United States v. Wurzbach, 280 U.S. 397 (1929) the Court upheld a 1925 Corrupt Practices Act that made it illegal for officers and employees of the United States to promote their candidacy or reelection in a party primary.  Justice Holmes, writing for the Court, ruled that Congress could provide measures that would limit the political pressure that employees might face to contribute money if they were to retain employment.   In both the Curtis and Wurzbach cases, the First Amendment rights of workers could be limited in order to encourage political neutrality and abate potential political corruption.
Fourth, starting in 1939, Congress passed a variety of acts that sought to place limits upon the ability of the Roosevelt administration to use the federal bureaucracy for political/partisan purposes. The Act, bared employees and officers of the executive branch from taking any active part in political management or in political campaigns.  It also barred them, while on government time or in their official capacity, from using their office for partisan purposes.  “Partisan purposes” includes among other things, making endorsements for candidates, working for them, using government resources, or in a way, shape or form using public office, position, or resources for partisan purposes.  The Hatch Acts make clear which government agencies and officials are covered by the law, and it also  makes it generally clear the type of permitted and prohibited political activity.
The primary purpose of the Hatch Acts was to depoliticize the federal government so that no president, subordinate, or political party could use the government for partisan benefit.  Twice the US Supreme Court was asked to adjudicate the constitutionality of the Hatch Acts, and the laws were upheld as not a violation of the First Amendment.
First in United Public Workers v. Mitchell, 330 U.S. 75 (1947) and then again in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973)  the Court upheld against First Amendment challenges  the political activity bans in the Hatch Act.
In Mitchell the Court stated that "the interference with free expression is seen in better proportion as compared with the requirements of orderly management of administrative personnel” (94)   For the Court, several factors contribute to the need to limit the political activity of workers in order to promote good administrative management.  First, it notes how if political activity of federal workers hurts the civil service, its damage is no less than if the activity occurs after work hours (95-6).  Second, the Court indicated how free speech rights had to be balanced against the needs to protect a democratic society against the evils of political partisanship in the federal service (95-6).  The Court, in citing public administration scholarship as authority (97), argued that there was a need to limit political activity in order to promote "political neutrality for public servants as a sound element for efficiency” (97). Elsewhere, the Court also noted how an "actively partisan governmental personnel threatens good administration” (98), hurts political neutrality and that, overall, partisan political activity is a threat to efficiency, political neutrality, and discipline.
United States Civil Service Commission v. National Association of Letter Carriers was also a challenge to Section 9 of the Hatch Act and again the Court upheld the Act.  The Court stated that "federal service should depend upon meritorious performance rather than political service, and that the political influence of  federal employees on others and the electoral process should be limited” (548)  The basis of this claim rested in the majority's recounting the 19th century reforms directed against spoils and in their agreement that "partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly” (547)  Political neutralization is thus required by the First Amendment.
The Hatch Acts decisions stated that the political neutrality of federal employees was dictated by the First Amendment.  Taxpayers had a right not to have public officials use public resources for  partisan purposes. However, the Hatch Acts need also to be read in conjunction with five Supreme Court decisions that also sought to depoliticize the federal bureaucracy, promote political neutrality, and respect the First Amendment rights of taxpayers and employees.
The patronage decisions (Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1979); Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990); Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996); and O'Hare Truck Service Inc. v. City of Northgate, 518 U.S. 712 (1996)) placed limits upon the government using political affiliation as a factor in hiring, firing, and promotion decisions.  In these decisions the Court engaged in extensive debate concerning the merits of patronage with arguments over the supposed contributions that spoils had to the maintenance of democracy, political parties, public accountability, and administrative control.  These debates made significant reference to political science and public administration scholarship on these topics.  These debates were framed within the rhetoric of the neutral competence.  In all five of these decisions the Court finds that the consideration of partisan affiliation or party activity in the hiring, firing, promotion, or letting of contracts was a violation of the First Amendment.  It did so by declaring the use of partisanship or party preference is not a compelling governmental interest in employment decisions. In all of these decisions, the Court also appeals to the ideology of neutrality and neutral competence.
If one reads the patronage, Hatch Act, Wurzbach, and Curtis cases together, they demonstrate  a commitment to taking the partisan politics out of public administration and service.  These laws have been instrumental and important tools in abating government corruption and promoting neutral government.  If, as the Office of Special Counsel has shown, Kellyanne Conway has made repeated  partisan statements in her official government capacity, she has clearly violated the Hatch Acts, as well as nearly 150 years of growing norms to prevent this type of abuse of government position or authority.  Should Trump not dismiss her it would be yet another example of how his administration has simply disregarded the law and norms governing America, seeking to limit presidential power.

Sunday, May 26, 2019

Fixing Minnesota Government: Why Cultural Change Requires Structural Change

Merely pledging “cultural change” at the Minnesota State Capitol and hoping the politics will be different  is reminiscent of  the Scottish proverb "If wishes were horses, beggars would ride."  Declarations of good intentions are nice but naive:  It is not just about leaders saying they will work together, but instead the state government needs to build new structures and institutions if it truly wishes to change the culture and politics at the Capitol and avoid in the future the problems that defined the 2019 session.
Promises at the start of the session were made by all to play nice and cooperate.  Yet it is no surprise that the 2019 Minnesota legislative session ended with another gridlock that went into overtime and accomplished far less than most hoped.  It was also eventually a clandestine process where many critical decisions took place in secret.  The reason for all this is elementary–fundamentally nothing structural was changed in the process of how the legislature and the governor do their business.  The rules and processes for the last generation that have led to special budget sessions 80% of the time, three partial or near governmental shutdowns, and two major State Supreme Court fights were  the same one in place this year.
As the cliche goes, insanity is doing the same thing over and over and expecting to get different results.  Political insanity is the same–following the same process deployed in the past and expecting different results.  Expecting  different results this year simply because political leaders wanted it to be different ignores the incentives that have produced the breakdown at the Capitol.
Polarization is a fact of life there now.  It  is more than a result of partisan attitudes, a result of many forces, including deep-seated party differences over the role government should have.  But these attitudes are also reinforced by election rules that produce few swing districts that converge toward center, election rules that augment the power of divergent interest groups, and lobbyist and campaign finance laws that do little to curb the impact of big money.  All of these forces create political incentives not to cooperate, no matter what the intentions at the Capitol.
But in addition, the rules for doing business at the Capitol may be broken. There is perhaps too much work and too little time to do a near $50 billion budget under constitutional rules established decades ago.  The budget process does not work, the legislature flouts the single-subject and germaneness rules (and the State Supreme Court gives them a pass), and the most basic requisites of a democracy–respect for openness and transparency–are ignored.
Minnesota politics needs to be fixed, but somewhere in the last generation the appetite for reform died.  Back in the early 1990s Minnesota was a national leader in campaign finance reform, open government, lobbyist disclosure, and other innovations that gave the state high marks for it government.  But since then the state has done little, now meriting near failing grades from the Center for Public Integrity.  The state rested on its laurels, letting others surpass Minnesota in critical areas.  Fundamentally, there has not been a major piece of political or campaign reform adopted in Minnesota in over a generation.  The state is no longer a cradle for innovative good government.  Politics has changed in Minnesota, but the basic governing processes and institutions have not.
That is why it is not a surprise nothing changed this year in Minnesota.  Instead of opting for  political reform of the process, use partisanship and gridlock as a strategic tool to campaign on in the next election.  “Political reform” is beating up the other party, seeking single-party dominance where one can move an agenda without serious opposition.
This year there were pledges of cultural change, but no legislative proposals to enable that.  No legislator seems interested in political reform anymore.  Cultural change necessitates institutional change; alter the rules regarding how the process operates and you will create the incentives and capabilities to change the results.
So if the legislature and the governor really want cultural change, they need to consider rules changes and institutional reform.  What might these reforms be?  Here is a list of possibilities, some big and small, that need to be considered as either constitutional, statutory, or joint chamber reforms.
Change the budget process.  This includes timing of fiscal forecasts, when budget targets are set, and perhaps creating joint House-Senate committees to expedite decisions.  Also, change the law  tht allows inflation to count for state revenues but not obligations when making the budget and fiscal  forecasts.  Among the worst feature of Minnesota politics is budgetary dishonesty.
Adopt a permanent automatic continuing resolution law that would guarantee state funding at current levels plus inflation if no budget is adopted on time.
Serious adherence to the single-subject and germaneness rules.
Apply the rules of open meeting laws to all activities of the legislature.  This would require all conference committees, budget negotiations, and legislation to be done in public.  The current  closed door negotiations undermined the ability of legislators, especially new ones, to learn policy and negotiation skills, thereby undermining the development of new leadership.
Rethink campaign finance rules, including limits on special interest money contributions to the parties and legislative caucuses.
Strengthening of the public financing for campaigns.
Increase lobbyist disclosure rules so we know what legislators they are talking to and about what.
Creation of a non-partisan redistricting commission to draw legislative districts.
Replacement of current single-member, first-past-the-post election districts with multi-member ones selected with ranked choice voting.
Consider a constitutional convention to undertake a more comprehensive review of the structures of state government (the last major constitutional reforms were in the 1970s).  Many states  have changed their constitution more than one since statehood.  Minnesota more or less has the same one in place from 1857.
Certainly these are not the sum of possible political reforms the state should consider, but the important point is that real political reform needs to go back on to the legislative agenda.  Maybe the ugly 2019 session will the catalyst for that.

Tuesday, May 21, 2019

Another Minnesota legislative session, another that goes to overtime: Reflections on the Causes of Minnesota Legislative Deadlock

Another Minnesota legislative session, another that goes to overtime.  Too many cliches describe
where Minnesota politics is now.  One can say that it was entirely predictable that the 2019 legislative session would not end with a final budget passed.    In fact, as I argued two years ago, this is the new normal in Minnesota.

Minnesota’s Growing Dysfunctional Politics

A quick review of recent Minnesota politics should prove that the state may not have the most dysfunctional legislative politics in its history, and over the last generation, it has one of the worst track performances of any state.

Of the now 53 special sessions that now have occurred or will this year since statehood. 24 or 45% were called to finish required budget work not completed during regular session.  This suggests that getting all the work done during the constitutional deadline has always been a problem but it is even more so in the last 20 years.

In the last 20 years special sessions are far more frequent and have shifted from occurring on average once every four years (since statehood) to three out of four years.  Since 1999, there have been ten legislative sessions devoted to the budget, eight of them have required special sessions. We have had two partial governmental shut downs (one under Dayton in 2011, one under Pawlenty in 2005), and a near shutdown under Ventura in 2001.  Also under Pawlenty in 2009 there was a significant budget fight that involved his unallotment of money to balance the budget that was eventually struck down by the Minnesota Supreme Court in 2010. And in 2017 fights over the budget led Governor Dayton to line-item veto the legislature’s funding. Getting to yes in Minnesota is increasingly more problematic.

The Causes of Dysfunction

There are several reasons for the increasing dysfunction in Minnesota politics, and they all played out in the 2019 session.

First, Minnesota’s partisan polarization mirrors national politics.  The two major political parties have polarized down to the point where they represent distinct geo-political regions in the state.  This polarization divides along the issues of the role and purpose of government, taxes, spending and social issues.  The Democrats and Republicans represent increasingly contrasting views about the world, and given the agenda of the House DFL and the Walz Administration, it was no surprise the Senate Republicans would oppose tax increases and other spending priorities.

With Minnesota as the only state in the national with a legislature split in terms of partisan control of the two chambers, rival views on government and what it should do were obviously going to cause problems.  Winner-take-all politics is a feature of the new normal; one-party wins it all and it simply moves its agenda.  Dayton and the DFL did that in 2013-2014, and no doubt Walz and the DFL are hoping 2020 elections do the same for them.

But partisan dysfunction is only one reason for the new normal.  A second problem may be that government has become so complex that the budget process is broken.  Maybe at one time the length of sessions was enough to put together a $1, 10, or even 25 billion budget, but it may simply be insufficient time to do it for a near $50 billion one with a part time legislature.

Third, as I have argued for nearly 15 years, the budget process is broken.  It makes no sense to have a fiscal forecast, do a budget (with often a previous governor), inaugurate a new legislature into session, wait several weeks for a gubernatorial budget, then wait a few more weeks for a new fiscal forecast and then a revised budget from the governor.  By the time all this occurs, the legislature has lost perhaps two months time.  How the budget is made, along with timings and deadlines, need fixing.

Fourth, legislators are human.  They are prone to the same procrastination as so many others are.   Tough choices often await final last-minute negotiations because humans simply prefer to avoid them.  There seems to be a dearth of leadership or ability to corral legislators to overcoming an institutional time-management skill problem.

Fifth the new normal is also a product of an increasingly flawed election process.  Single-member, first-past-the post elections encourage production of polarized safe legislative seats where individual representatives and senators have little incentive to work together.  Additionally, the state has done little in the last 20 years to address issues such as special interest money, lobbyist influence, and other structural matters than corrupt the legislative process.  The two major parties have become captured by group interests that effectively make compromise impossible, and our elections process only takes a bad problem and exacerbates it.

Finally, the new normal means that the electoral and political sting of legislative failure are gone.  There is such a low expectation that the governor and legislature will reach agreement on time that no one expects they will.  Repeated shutdowns, missed deadlines, and other political fights mean tht voters probably no longer punish representatives for special sessions, thereby meaning that legislative members too no longer fear it.

Conclusion Fixing Dysfunctionalism 

There is no single silver bullet to cure the above dysfunctionalism.  Reforming the budget process, campaign finance reform, and  ranked choice voting are among the needed cures.  Unfortunately, the  very reasons why the legislative process has become so dysfunctional and broken also bode against it being able to fix itself.  Maybe longer-term the fix is simply demographics, where an increasingly  urban state turns the state more DFL, allowing for one-party rule to prevail.    Yet it is not a certainty that demographics are a political destiny to cure dysfunctionalism–Trump and the GOP could be competitive in 2020 in Minnesota–leaving the new normal in place for years to come.

Saturday, May 11, 2019

On the Basis of Race? Making Sense of the Noor Verdict

Could a reasonable jury based on the facts have concluded that former Minneapolis Police Officer
Mohamed Noor was guilty of  a third-degree murder  and second-degree  manslaughter, or can the verdicts only be explained on the basis of race?  This is the question still being debated more than a week after a jury rendered its verdict. The question of how race factored into this decision or, more structurally, a variety of actions surrounding the Minneapolis police department and government make it difficult to render a clean answer.  However, to many, even if facially neutral, it is hard to account for what has happened unless race is considered.

As many who study policing can attest, the law favors them when it comes to the use of force.  Constitutionally, the standard of “objective reasonableness” in terms of whether an officer feared for his life or that of others is a high bar to overcome to find  police criminally liable for use of force.  Jurors are loath to second-guess police use of force, and often the victim of the force is someone accused or guilty of a crime.  A racially neutral argument is that few police are found guilty of use of excessive force is that the laws favors them and they used force appropriately.

A less than racially-neutral argument asserts that the reason why so few officers are charged and found guilty is because of race.  It is both the race of the officer (generally white) and the race of the victim (generally a person of color).  The racism is not necessarily individual and intentional, but it could also be institutional or societal. By that, the racism is not explicit or conscious, but woven into the fabric of our institutions, law, and society. Use of force by white police officers against people of color tells us something about whose lives matter in our society.

The Mohamad Noor trial was complicated. Three charges were brought against him, with convictions on two of them for third-degree murder  and second-degree  manslaughter. According to the judge’s instructions, a jury could find Noor guilty of third-degree murder if it concluded that
Noor caused (Ruszczyk’s) Damond’s death “by perpetuating an act eminently dangerous to others and evincing a depraved mind” without regard for life but also without intent to kill and was committed in a “reckless or wanton” manner understanding that someone may be killed.

For a second-degree manslaughter conviction, jurors needed to conclude that Noor demonstrated “culpable negligence,” that he was reckless, and created an “unreasonable risk” and knowingly took the chance of causing a death or great bodily harm.

Could a reasonable jury have concluded the facts supported these charges?  Perhaps so and from a racially-neutral perspective, the evidence was significant to overcome the high constitutional bar.

But too many other factors create problems for this case, making it look like the prosecution, conviction, and City reaction were all on the basis of race.  This is the first conviction of an officer for murder in Hennepin County if not Minnesota.  Contrary to other recent high profile cases such as the trial of Jeronimo Yanez (a Latino police officer) who was not convicted in the shooting of Philando Castile (an African-American), this was a person of color charged and convicted of killing a white female.

Second, the City of Minneapolis quickly settled the civil suit against them for a record $20,000,000 payout.  But on same day the Minneapolis City Council rejected settling a far less than rumored $100,000 amount arising out of the shooting of Jamar Clark (African-American) by a white police officer in 2015.  This action led federal judge Michael Davis to order the City to court to explain their behavior.  Third, after the Noor verdict, Minneapolis police officials called for a re-examination of their procedures.

It is possible all of the above could be explained neutrally and not on the basis of race. But for many, especially in the Somali community, while similar reactions or responses did not occur when it involved white officers and persons of color as victims.  Over the years there have been many allegations of police brutality but little call for reform until now.  Perhaps this is the privilege of being white and why black lives appear not to matter.

Friday, May 10, 2019

Republicans are Not Wannabe Democrats: What polarization really means

Republicans are not closet Democrats.  Slowly Governor Walz and the Minnesota DFL may or may not be learning this point.  What is the case is that what polarization means is that the two parties disagree not only on policy issues, but perhaps more fundamentally on the goals and purposes of government, with such difference not easy to bridge.
Too often Democrats seem to lament or exasperate to the effect of “When will Republicans come around and recognize the need to spend more on education, health care, or infrastructure?”   Or recently one Democrat opined “I will give Republicans one more chance to go along with spending more on roads and schools.”  Both of these sentiments naively assume that Republicans  share the same basic values, priorities, or view of government and eventually they will come along to the views held by Democrats or else.  Or else what?  What will compel them to agree with Democrats?  This is the problem Governor Walz and the DFL House is facing now.  “We won, we have the majority, you know we are right, you have to or will eventually go along with us at some point.  It’s inevitable.”
Such a belief is like waiting for Godot.  It may never happen.  Such a sentiment is premised on the idea that there is a basic consensus on certain things when in reality what polarization has come to mean is a breakdown on this agreement.
What does polarization mean?  Think of political consensus along five dimensions at least.  When James Madison and our Founding Fathers drafted the Constitution they were interested in a first-order question–Why government?  This is a question about the necessity of government and its most fundamental role in our lives.
A second-order question investigates the specific functions of government, asking not “Why government?” but “What should government’s do?”  This question looks to specific functions or tasks to be performed by the government. A third-level question is about ideology, querying “What values or interests should a government promote?” This level  looks to how majority preferences are translated into public policy or how the public interest is defined.  Finally, there are fourth and fifth levels the former investigating “What public administrators should do?” and the latter asking questions such as “How can public organizations or policies perform more efficiently?” 
Perhaps two generations ago there was broad consensus on the first and second-order questions.  In a Cold War era there was basic consensus supporting the welfare state and fighting communism.  There was arguably even significant overlapping consensus on third-order questions regarding what interests government should promote or what constitutes the public interest.  During this time the Republican and Democratic parties were ideologically diverse, with both containing  liberals, moderates and conservatives.  At one point in Minnesota a pro-life Democrat Rudy Perpich  and a pro-choice Republican Arne Carlson could be governors.  Those days are gone.
Where we are now is little consensus on third-order issues and increasing even on second and first-order views on government.  Partisan differences on the validity or legitimacy of the Electoral College attest to the depth of the partisan disagreement in the US, going to the very structures of how our political system is designed.
Republicans and Democrats are exasperated with one another and know the US is polarized.  Look to every major poll on the president, social issues, taxes, and other matters and the partisan split is significant.  Yet both sides seem convinced they are correct, the other side wrong, and if the other party simply came to its senses it would see their folly and the wisdom of the other side.
Slowly, but not quite yet, this is where Walz and the DFL are now in Minnesota.  It was entirely foreseeable after last November’ election Minnesota was headed to the stalemate they are in now.  Republican and Democratic Party priorities are far apart and there is little incentive for either side to compromise.  In fact, the polarization in Minnesota–like so much of the US–is geographic, and there are few regions or voters who swing.  Political attitudes have hardened and so have the constituencies and interest groups that support them.  US and Minnesota political institutions were premised on a belief of shared values across many levels, with legislation only possible with consensus or worse now, one party dominance in a winner-take-all approach to governing.
This is what polarization is really about now.

Monday, April 29, 2019

Fort Snelling and what is (revisionist) History?

Last week the Minnesota Senate cut funding for the Minnesota History in apparent retaliation
for the latter changing the name of the Fort Snelling to “historic Fort Snelling at Bdote.” 

“Bdote” is the original name given to the area by the Native-Americans who originally inhabited the area.  Justifying this action, Senate Mary Kiffmeyer declared changing the name is “revisionist history” and that “Fort Snelling is about military history, and we should be very careful to make sure that we keep that. It’s the only real military history in a very unifying way amongst all Minnesotans. It is our premiere entity for military history.”

I leave to others the judgement regarding whether this action is racist or offensive.  Instead,  is this revisionist history?

The days are long gone when historians such as Leopold von Ranke who reputedly argued that the task of history and historical knowledge is to “tell it like it is.”  Such as theory assumes that there are objective historical facts that are timeless ans which can be verified.  For the most part that theory has been refuted and regulated, so to speak, to the dustbin of history.  As later historians such  as E.H Carr and  Fernand Braudel point out, there is no such things as objective historical facts.  The art of history is interpretive– it is historians selecting facts in order to construct a historical narrative. 
Even more, the act of deciding what is a fact is normative, not objective.  History, as the philosophers Soren Kierkegaard and Hans-Georg Gadamer point out, is always understood from the present; it is how we understand the past as viewed through our experiences.  History and historical meaning, as I argued with Leon Goldstein in Conceptual Tension, is perhaps always being revised  in light of new undertandings, meanings, or senses of what is important.  “Facts” thought to have once been important, lose their significance over time or are seen in new light as a new generation come to view the world differently than those in the past.  The best indication of that, is the often  (mis)-quoted statement by Zhou Enlai who when asked by Henry Kissinger  about the impact of the French Revolution said it was “too soon to tell.”  Similarly, George Santayana’s “Those who fail to learn the lessons of history are doomed to repeat it” and G.W.F. Hegel’s “the only lesson of history is that we fail to learn the lessons of history” similarly speak to the notion that there are no objective historical facts that are immutable.  History is how we in the present understand the past.

Kiffmeyer’s concept of history about Fort Snelling suggesting its name is a unifier for Minnesota’s is reminiscent of the quip that history is written by the winners. To say the name Fort Snelling unites Minnesotans lives out many.  It leaves out of course Native-Americans who first inhabited the place for thousands of years before the US military.  Calling it Fort Snelling is revisionist from the name originally given it by the original inhabitants.

Fort Snelling excludes  African-Americans.  After all, the is the place a slave holder took his slave Dred Scott to from the south, resulting in one of the most infamous Supreme Court cases in history Dred Scott v. Sanford which declared black people were property and could not be citizens.  This case precipitated the Civil War.

Finally, it is hard to seen how “Fort Snelling” embraces the Hmong, Latinos, and so many other groups in Minnesota.  What is it they share with that name?

“Fort Snelling is not an immutable name that is inclusive of all.  It is already revisionist history and labeling, much in the same way that so many of the names in Minnesota are revisions of original names whose names and significance have changed over time.  Words matter and as language philosopher Ludwig Wittgenstein pointed out, words get their meaning f rom context and use.  As both change do what words mean.

At one time perhaps “Fort Snelling” conveyed a unifying meaning but no longer does.  “historic Fort Snelling at Bdote” might better capture what the place historically means  represents to a more inclusive  audience, when viewed from the present.  Fort Snelling, to be truly a treasure for all Minnesotans, cannot be something whose name and significance is frozen in the past, held  hostage as property by a few at the exclusion of others.  To think that is really revisionist history.

PS:  Photo courtesy of the Pioneer Press.

Sunday, April 21, 2019

The Mueller Report: Why Trump is so inept he cannot even obstruct justice effectively

The Mueller report is out and if we learned anything from it, three things are clear.  One, the Report changed few minds.  Two, there was never a chance that Mueller would indict Trump.  Three, Trump is so inept he cannot even effectively obstruct justice.
The Mueller report came out Thursday morning–all 458 pages, single-spaced.  It is a dense, detailed study rich in facts and explanations of law.  But within less than one hour the media was already reporting on its contents or, better, asking experts or partisans what they thought.  Often reporting was pulling out one line here or there and discussing it. For the most part, all this reporting and reaction was useless.  To comment on a report when you have not read it is irresponsible, and even simply reading the executive summaries–as mostly were reported on–was similarly bad journalism or commentary.
But equally, the early evidence on the reaction to the Mueller report has been that it changed the minds of no one.  If the narrative before the Report was that Trump and his associates were guilty or they were not, the Report’s findings have not changed anyone’s mind.  Perhaps t his is related to the fact that almost no one will read the report and judge it themselves.  It is not a total vindication of Trump, and it is not a total condemnation of his administration.  It is more nuanced.
But in reading the Report, it is also clear that there was never a chance the president.  When Mueller began his investigation, he started with the legal premise that a sitting president cannot be indicted for a crime.  This belief was based on several Justice Department and Office of Legal Counsel memoranda from the Nixon to the Clinton era investigations holding this position.  The Muller Report, volume II, page one states: “[T]his Office accepts the OLC’s legal conclusion for the purposes of exercising prosecutorial jurisdiction.”  This is a major point largely missed by everyone.
The opening pages of part II of the Mueller report explains its legal reasoning.  It notes the heavy burden placed upon a sitting president were he to be indicted for a crime.  Second, the Report noted also ( page 2) it wanted to avoid the Nixon situation where a report concluded the president committed a crime but could not be indicted, resulting in him being named an “unindicted co-conspirator” as Nixon had been labeled.  There is, according to the Report, no way the President could clear his name, again leaving a cloud over the presidency that could not be cleared.  Better to indict and let the adversarial process render a verdict, or not indict than leave it in limbo.
As admirable perhaps as the Mueller investigation meant to be, it nonetheless left Trump in limbo because it is clear also that the Report investigated the president under a standard of proof much higher than would be applied to anyone else.  Specifically, when looking at the obstruction of justice issue–Did Trump seek to impede the Russian investigation?–he was given every benefit of the doubt.  Part II reviews numerous instances of possible obstruction, such as firing of the FBI director Comey, but concludes no in every instance.   
The Report does so for at least a couple of reasons.   One, there is the difficulty of sorting out the statutory requirement of showing corrupt intent on the part of the president that could clearly be separated from the president’s authority under Article II, sections one and three which vest executive power in him and allow him to take care that the laws be faithfully executed.   Did the president take some actions to impede an investigation or legitimately acting within presidential power?   There is just enough doubt in the facts that would have made guilt under American law beyond a reasonable doubt.
But despite the mantra in our society no one is above the law or that we all stand equally before the law, the Report makes clear the president does not.    One of the few good things in the Report is to note how so many of Trump’s people did their best to resist the worst of Trump’s impulses by refusing to carry out his orders.  Had they not disobeyed or disrupted Trump’s actions the case for obstruction would have been even greater to resist.  But think about what the Report said.  Look at the president’s conduct with the benefit of doubt to him.  Look also at how his staff impeded his actions. 
What we see in reading between the lines are indications of clear intent to obstruct, but for intervention of staff. No one else but the president gets the break.  Saying the president has not obstructed justice because others prevented him from accomplishing that act is far from saying the president did noting wrong–he was simply not successful in doing what he appeared to want to do.  It is like saying I am not guilty in trying to kill someone because when I shot the gun someone bumped my hand so that I would miss.  I still intended to kill and the law will prosecute me for attempted murder. 
Here, the Report arguably says Trump tried but failed to obstruct justice.  This is a synopsis of the entire Trump presidency–one so inept that it cannot even obstruct justice properly. It is a report that still leaves the president in limbo–decrying that simply not being indicted does not clear Trump of wrongdoing in terms of ethics, leadership, or personal character.  That is why after the initial dust from the Report settled, Trump seethed. Mueller and Attorney General Barr did not indict, but they also left the president in the limbo the investigation sought to avoid.