Friday, April 26, 2019

Did Anything Interesting Happen While I Was Gone?

by Neil H. Buchanan

As I have noted in various recent columns (most recently here), since late January I have been on a semester-long trip to the UK and some other northern European countries.  With my return to the United States scheduled for this coming Monday, this is my last Dorf on Law column from the other side of the Atlantic (for now), which presents an opportunity to reflect on what has happened over the last three months in my home country.

Before getting to those larger issues, I will note that the biggest change for me personally since I left the U.S. is that I have accepted the James J. Freeland Eminent Scholar Chair in Taxation at the University of Florida.  I continue to be excited about this next stage in my career, in particular because UF is giving me the resources needed to continue my research collaborations with scholars abroad while potentially bringing graduate tax students to Gainesville for our top-tier LL.M. and J.S.D. programs.

With my last stop in Europe being Amsterdam, the capital of a country one-sixth of which is below sea level, perhaps this is an apt way to launch my move to the state of Florida, which might soon need to borrow some Dutch technology to keep out the rising ocean waters.  Should I ask around during my visit here?

Unfortunately, as a friend of mine who grew up in the Caribbean (and thus knows something about these things) told me, Florida's land sits atop porous rock, which means that rising seas will simply come up from underneath.  Yikes!  Talk about a time-limited gig.  By the time I leave UF, I might end up moving back to the exciting new Atlantic beaches of Washington, D.C.  Who needed the Chesapeake Bay, anyway?

Although I am very good at denial in some ways, however, I have been insistent on seeing with brutal clarity what is happening politically in the U.S. and elsewhere in the world.  Which brings me back to a reflection on the non-personal issues that have dominated the news over the past three months.  This is an especially important exercise because, as many have noted, the news cycle has become so accelerated that there are very few opportunities to take a breath and think about what has been happening with any sense of perspective.

When I left the U.S. on January 26, the record-breaking government shutdown had just ended.  In fact, when I flew to Florida the previous week for my campus visit, there was serious concern about airport security, because the TSA workers were being forced to work without pay.  I thus felt some comfort at Dulles Airport as I left for the U.K, because I knew that the workers had finally been released by Donald Trump and the Republicans from their hostage situation.

The shutdown completely changed the narrative about the new Congress, especially Nancy Pelosi's role in Washington.  Before then, she was still being challenged from within the Democratic caucus from all sides, and it had been a surprise that she was even elected Speaker.  By absolutely owning Donald Trump during and after the shutdown, however, she was transformed, with even her detractors admiring her skills and conceding that she is the Democrats' most important asset.

This in turn has given people who would otherwise be more inclined to push for impeachment proceedings right away (people like me) reason to give Pelosi the benefit of the doubt.  After all, Pelosi is not saying that there is no way that impeachment should happen but only that the process of impeachment involves various steps, some of which can happen right away without saying out loud that those steps are "starting the impeachment process."  In some sense, the impeachment process for every president begins before they are even elected, because Congress will (if it is doing its job) exercise oversight that might turn up evidence of high crimes and misdemeanors.

I am not saying that Pelosi's preferred strategy is necessarily the best approach, because there is something to be said for being candid and saying that -- whatever other facts we might turn up along the way -- there is more than enough reason already (and there has been for two years or more) to remove Trump from office.  But because of Pelosi's hard-won reputation as, to be blunt, an absolute badass, her approach is receiving at least grudging support.  (Goodwill toward her also explains why there is not more annoyance about her trash-talking the Green New Deal and other progressive causes.)

But I have skipped over the intervening steps in this drama, which of course are the dual roll-outs of the Mueller report.  The first round was an absolute disaster for the media, nearly all of whom treated now-exposed Trump toady Bill Barr's four-page summary as gospel.  (Side note: That Barr and Kellyanne Conway both earned their law degrees from The George Washington University in no way contributed to my willingness to leave.)

It is actually amazing that The New York Times managed to slide past its absurd headline -- "A Cloud Over Trump's Presidency Is Lifted," which treated the Barr summary as both credible and exonerating -- with its reputation intact.  Seriously, where is the blowback from that?  It is not as bad as The Times's support of Judith Miller's cheerleading for the Iraq War, I suppose, although the consequences could be worse in their own way.

Although very few people were calling out The Times regarding Barr's first report, there was at least some sense over the next few weeks that the entire media had gotten it all very wrong (almost by default).  Luckily for all of them, there was a do-over.  Even that initially did not look good, however, with The Washington Post writing on the morning of the release of the Mueller report that "only light redactions [are] expected" (language that, revealingly, soon disappeared from the article).

Now, however, it is fair to say that the second go-round on the Mueller report has been rather a high point in U.S. media history.  True, no one seems to know what "attempt" means, as in Post columnist Dana Milbank's weird take that Trump's people are "Too stupid to conspire. Too incompetent to obstruct."  Attempted obstruction of justice is still a crime (and people know it), and it is certainly impeachable.  Other commentators continue to say that Mueller "cleared" Trump of conspiracy (or, even worse, of "collusion"), when in fact Mueller only said that he could not establish the crime of conspiracy beyond a reasonable doubt.

So yes, there is still plenty of annoying and misleading analysis, but I have to say that the overall coverage has been impressive.  Barr's "straight-shooter" reputation is destroyed, and no one (outside of Trump's bubble) is buying the exoneration nonsense.  One way to know that this has gone so badly for Trump is that the concern trolls and timid Democrats are not saying, "Mueller didn't find enough to impeach," and are instead reduced to fretting over the possible consequences of pursuing impeachment even in light of what Mueller's (still-redacted) report found.

Even more interestingly, Trump's response to having Pelosi as an opponent and Mueller as an investigator is to accelerate his descent into dictatorial madness.  I say "interestingly" rather than "disturbingly" or "terrifyingly" only because I have been so certain that this was coming.  That is, it was never a question of whether Trump would openly flout all constitutional constraints, but when and how.

I continue to believe that he will refuse to accept losing the 2020 election and will then attempt what will in fact be a coup d'etat (backed by his party), but he might not even get that far before shutting down the Constitution.  After all, he is now in full-blown banana republic mode, obstructing justice by refusing to allow Congress to investigate obstruction of justice.  Why wait to say that you as president are above the law?

Although there was less action on the judicial side of things, certainly the Supreme Court's five-man majority of movement conservatives stands ready to assist the people who put them on the bench.  Notwithstanding my nine-part series exploring "how bad will things become" under the new hyper-conservative Court, I naively believed that they would not allow the Census Bureau to add a citizenship question to next year's enumeration.  The arguments are just too ridiculous.

But reports from last week's oral argument suggest that the Unfab Five are fully ready to allow Trump's people to rig the census, once again looking the other way while an administrative agency enacts a racist policy but papers it over with the thinnest of rationalizations.

In short, over the last three months, the Democrats (and Nancy Pelosi in particular) have gotten stronger, Mueller's report has done serious damage to Trump, the Supreme Court has stopped bothering to pretend that it is even a tiny bit nonpartisan, and Trump's march toward dictatorship has accelerated.

On the personal front, I am moving to a place that is in ever greater danger from Republican climate denialism.  But at least Brexit was delayed -- twice -- so that I was not stuck in the U.K. as groceries ran out of food.

Also, more people decided to run for president.

Maybe I should stay over here.

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