TRUMP ALERT

Here are the key sentences in the December 4 New York Times article about the North Dakota pipeline:

“President-elect Donald J. Trump, however, has taken a different view of the project and said as recently as last week that he supported finishing the 1,170-mile pipeline, which crosses four states and is almost complete….

“Mr. Trump owns stock in the company building the pipeline…”

 

THE ABA IS RAISING THE WRONG BAR

“[W]hen we look at these low performing schools, you guys are doing absolutely nothing.”

So said a member of the Department of Education’s National Advisory Committee on Institutional Quality and Integrity last June. I wrote about the painful session in August. The question on the table was whether the American Bar Association should lose its power to accredit law schools. The ABA leaders on the receiving end of that stinging rebuke had expected routine approval. What they got instead was a three-hour thrashing.

Disaster Avoided

The ABA beat back the committee’s recommendation of a 12-month suspension of its accreditation power. Even worse, it learned nothing from the episode. That became apparent in October, when the ABA’s Section of Legal Education and Admissions to the Bar recommended a rule change that it thought was monumental. It’s actually far too little coming far too late.

The new rule would require at least a 75 percent of a law school’s graduates to pass a state bar exam within two years of receiving their degrees. The current standard requires a 75 percent pass rate within five years. Since 2000, only four law schools have faced difficulty under the current standard, and all were restored to full accreditation.

Looming Disaster Remains

The Department of Education’s heat directed at schools taking advantage of their students could cool significantly under President Trump, who recently paid $25 million to settle former students’ fraud claims against Trump University. The troubling law school backstory is a less dramatic variation on the same theme.

Plummeting national bar passage rates coupled with growing student debt for degrees of dubious value are the culmination of a dysfunctional market in legal education. That dysfunction is taking a cruel toll on a generation vulnerable to exploitation by elders who know better. Sooner or later, we’ll all pay the price.

The ABA’s latest misfire toward a remedy misses the key point: even passing the bar doesn’t mean getting a law job. Within 10 months of graduation, fewer than 60 percent of 2015 graduates obtained full-time long-term employment requiring bar passage. Compared to the class of 2014, the number of such positions declined by 10 percent (from 26,248 to 23,687). The total number of 2015 graduates: 40,000.

Students attending marginal schools bear the greatest burden. Their schools use a business model that relies on federal student loan dollars to fill classrooms. Because schools have no accountability for their graduates’ poor employment outcomes, they are free to dip ever deeper into the well of unqualified applicants. Prospective employers have noticed.

Disaster For Many Students

The ABA’s persistent refusal to confront the employment rate problem brought the Department of Education into the picture. At the June hearing, committee members posed tough questions that ABA Managing Director Barry Currier had a tougher time answering. As some marginal schools received huge federal dollars, the committee noted, the vast majority of their graduates couldn’t get law jobs.

Now the ABA proposes tinkering at the edges. Even at that, based on the outrage generated from some inside the professorial ranks, you’d think it was trying to do something truly revolutionary. Some educators complained that shortening the 75 percent bar passage rate period from five years to two would discourage schools from admitting minority candidates, thereby leading to a less diverse profession.

That’s a non sequitur. If an additional three years after graduation is needed for some graduates to pass the bar, whatever they’re learning during that post-graduate period can’t be coming from their former classrooms. And, of course, nothing in the ABA proposal solves the employment problem.

Disaster Rewards a Few

As educators rely on student debt to keep their law schools operating, they’re getting paid, regardless of how their graduates fare in the job market. That frames the issue with which the ABA should be grappling but continues to dismiss: Marginal law schools are unable place most of their graduates in full-time long-term bar passage-required jobs.

Solving that problem requires schools to have financial skin in the game. Here’s one suggestion: tie the availability of a student’s federal loan dollars to a law school’s employment outcomes. That would create accountability that no dean or administrator currently possesses. And they sure don’t want it.

The ABA is institutionally incapable of embracing the change required to create a functional market in legal education. Vested interests are too embedded. The clout of the marginal schools is too great.

For example, the head of the ABA’s last “task force” on the challenges of financing legal education was also serving as the chairman of the national policy board of the Infilaw consortium of for-profit law schools, including the Charlotte School of Law. In fact, Dennis W. Archer still chairs the Infilaw national policy board. On November 15, Charlotte was the subject of a rare event: the ABA placed the school on probation because of its admissions practices. The ABA also ordered public disclosure of its bar passage rates.

But the ABA didn’t address the bigger problem with Charlotte that afflicts students at similar schools: dismal full-time long-term bar-passage required employment rates. Charlotte’s rate for the class of 2015 was 26 percent — down from 38 percent in 2012. Here’s the real kicker: from 2011 to 2015, the number of graduates at Charlotte increased from 97 to 456.

Growing supply in response to shrinking demand. That’s what happens when the people running law schools view students as revenue streams for which the schools will never have any financial accountability. The federal government backs the loans; educational debt survives personal bankruptcy; many in a generation of young would-be attorneys begin adulthood in a deep, six-figure financial hole.

Perhaps President-elect Trump will identify with the plight of the student-victims of this continuing disaster. Where would he be today if he had not been able to discharge his business loans through a string of bankruptcy filings? Not in the White House, that’s for sure.

TRUMP ALERT

Fight distractions. Search for the truth.

DISTRACTIONS:

Sunday, November 27: Trump lied about non-existent voter fraud that supposedly cost him millions of votes. CNN responded with facts proving him a liar. Trump doubled-down, purportedly retweeting a 16-year-old kid who derided CNN’s senior Washington correspondent Jeff Zeleny as a “bad reporter.”

(By the way, Trump had edited the kid’s original tweet. Rather than a verbatim “retweet” — as Trump presented it — the President-elect had added “Sad reporter.” But the kid’s later clarification proves that he remains a true Trump believer nonetheless: “Dishonest @CNN is blaming me for calling @jeffzeleny a “bad reporter”. Donald Trump added that to the end of the tweet, not me. Thank you.”)

Tuesday, November 29 (6:00 am): Trump tweeted that flag burners should spend a year in jail and/or lose their citizenship. Settled U.S. Supreme Court precedent renders his frivolous position unconstitutional.

REAL STORIES:

Late Saturday, November 26: Evangelical leader Jerry Falwell, Jr., president of Liberty University, said that Trump had offered him the Secretary of Education position. Falwell turned him down because Trump wanted a four-to-six year commitment. Falwell said he couldn’t afford to work at a Cabinet level job (approximate annual salary $200,000) for more than two years.

As Trump tweeted about flag-burning on Tuesday morning, a front page story in the Wall Street Journal outlined financial conflicts-of-interest relating to Trump’s son-in-law (and transition team key member), Jared Kushner. The conflicts problems plaguing Trump and his immediate family grow daily. He’s counting on Americans to become indifferent to them. Trump apologists, such as Rudy Giuliani, are suggesting that his widespread business interests mean that the normal rules — divestiture and a blind trust — ought not apply.

LIES WORK; BIG LIES WORK BEST

But here’s the thing: far too many people get their news from Twitter and other unreliable social media sources. Much of that so-called news is fake — like Trump’s editing of a supposed verbatim retweet. Donald Trump has now become the nation’s most powerful purveyor of misinformation.

Even worse, Trump knows that once a falsehood begins to circulate — however outrageous it may be and however often actual facts rebut it conclusively — many people will believe it forever. He learned that lesson with his birther claims. According to NBC poll during the summer of 2016, 41 percent of registered Republican believe that President Obama was not born in the United States. Another 31 percent have some doubts about his citizenship.

Big lies are effective; President-elect Trump knows it. When it comes to facts that should inform citizens in a democracy, Trump is the consummate flag-burner.

TRUMP ALERT

Fight distractions.

Donald Trump’s tweets attacking free speech — from Hamilton to Saturday Night Live to The New York Times — are just one of the acts in the media circus for which he will remain ringmaster. A unified and forceful response to his assaults on the Constitution is vital. But it’s important not to allow Trump’s antics draw too much attention away from the dimly lit center ring:

Follow the money, the deals, and the people he selects to run the government.

For the past two days, the media spent a lot of time discussing Trump’s meetings with television executives, anchors, reporters, and The New York Times. But here’s a sample of other news items that were breaking at the same time — just since yesterday:

Scotland: Trump reportedly spoke with British politician Nigel Farage about opposing offshore wind farms that would interfere with the pristine views from Trump’s golf course.

Argentina: On Election Night, Eric Trump took a selfie with the developer of a planned Trump Tower in Argentina. A week later, Ivanka — a member of Trump’s transition team — was on a call between President-elect Trump and Argentina’s president. Three days after that, the developers issued a press release confirming that the Trump Tower construction project was on track, pending only a city government approval.

The Philippines: The new special trade envoy from the Philippines to the U.S. is the developer of “TRUMP TOWER – MANILA.”

As the circus continues, keep a watchful eye on things moving into and out of the dark center ring. And prepare to learn more about the Emoluments Clause of the U.S. Constitution. I’ll have more to say on that topic.

TRUMP ALERT

Kris Kobach wants to be Secretary of Homeland Security. His “Strategic Plan for the Department’s First 365 Days” includes a Muslim registry (Item #1: “Update and reintroduce and NSEERS screening and tracking system”) and stopping all Syrian refugees (Item #3). So far, the media hasn’t focused on Item 21, which involves “voter rolls.”

Don’t tell anyone about the Kobach Plan. It was supposed to be secret.

OPEN LETTER #3 TO PRESIDENT-ELECT TRUMP: A JOB FOR JEFF SESSIONS

Dear President-elect Trump,

Sometimes your lack of impulse control works for you. For example, on Friday night, you lashed out at the Broadway hit, Hamilton. With the stroke of a few tweets, you dominated the weekend news cycle. The fun ended Sunday morning, when Vice-President-elect Mike Pence told CBS’s John Dickerson that Hamilton was “a great show.”

Pence “wasn’t offended” by a 90-second post-performance comment on behalf of the cast and producers. Your tweets had demanded an apology from them, but it turned out that you now owe one — for misstating the facts and challenging First Amendment principles.

You achieved a larger objective. Your twitter tantrum diverted popular attention from: your thumbs-up group photo after meeting with business partners developing a Trump-branded luxury apartment complex in India; white nationalists convening in Washington to celebrate your election; and your selection of National Security Adviser-designate Mike Flynn, who called Islam a “cancer” and a “political ideology hiding behind religion.” He’s also a board member of ACT for America, which the Southern Poverty Law Center calls “far and away the largest grassroots anti-Muslim group in America.”

Master Distracter

Your Hamilton tweets also moved the spotlight away from your attorney general-designate. In 1986, President Ronald Reagan’s Republican Senate put Antonin Scalia on the Supreme Court and made William Rehnquist chief justice. But even at the height of the Reagan revolution, Alabama’s then-U.S. attorney Sessions became only the second nominee in 48 years to be rejected for a federal judgeship. Now he’ll be your attorney general.

In a normal world, Sessions’ earlier defeat would doom your nominee. But you’re normalizing the abnormal. When Steve Bannon is the baseline for comparison, even Jeff Sessions looks good. He shouldn’t.

Sessions on the Merits

The junior senator from Alabama is one of its most conservative members. He opposes: any path to legalizing undocumented immigrants, gay marriage, abortion, and the legalization of marijuana. He voted against reauthorizing the Violence Against Women Act. His portfolio is a distressing compilation of what you seem to mean by “Make America Great Again.”

Sessions is far out of step with most Americans. (Hillary Clinton’s popular vote victory — 1.5 million ballots and growing — proves that you are, too.) But resigned to his confirmation, I propose a bipartisan assignment for him: restore the integrity of the FBI. It will require a public investigation into events culminating in your election.

Roll the Tape

In October, polls showed you losing so badly that you were likely to cost Republicans the Senate. Three months earlier, FBI Director James Comey had announced that no reasonable prosecutor would bring criminal charges against Hillary Clinton for her use of a private email server while she was secretary of state. But in an unprecedented press conference, he’d opined about her recklessness anyway. That kept your “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.

On October 25, your key surrogate, Rudy Giuliani appeared on Fox & Friends. When a host asked whether you had anything other than “some more inspiring rallies” planned for the remaining 14 days of the campaign, Giuliani chuckled.

“Yes,” he grinned.

“What?” a co-host asked.

“You’ll see,” Giuliani answered in a full-throated laugh. “We’ve got a couple of surprises left. I call them surprises in the way we’re going to campaign, to get our message out there. Maybe in a little bit of a different way. You’ll see, and I think it’ll be enormously effective.”

Giuliani then discussed how “all of these revelations about Hillary Clinton, finally, are beginning to have an impact.”

On October 26, conservative radio talk show host Lars Larson interviewed Giuliani.

“There’s a kind of revolution going on inside the FBI about the original [July] conclusion being completely unjustified and almost a slap in the face of the FBI’s integrity,” Giuliani said. “I know that from former agents. I know that even from a few active agents who, obviously, don’t want to identify themselves.”

The same day, Giuliani appeared with Fox reporter Martha MacCallum. As the interview ended, he interrupted her to volunteer, “And I think he’s [Trump] got a surprise or two that you’re going to hear about in the next few days.”

MacCallum tried to conclude the interview, but Giuliani kept pushing: “I mean, I’m talking about some pretty big surprises.”

Finally, MacCallum took the bait.

“I heard you saying that this morning,” she said. “What do you mean?”

“You’ll see,” Giuliani laughed.

Friday, October 28

Only days after Giuliani’s teasers, Comey violated Justice Department guidelines with a letter informing Congress that the Bureau was reviewing additional evidence relating to the Clinton email investigation. Immediately, Giuliani backpedaled.

“I don’t know anything about leaks from the FBI or the Justice Department,” he told CNN’s Wolf Blitzer. “I haven’t talked to anybody in the FBI or Justice Department.”

When Blitzer confronted Giuliani with the Lars Larson interview, Giuliani responded, “Well, the information I’ve been getting is from former FBI agents. If I did say that, that was wrong.”

In 48 hours, Giuliani had gone from “I know that even from a few active agents who, obviously don’t want to identify themselves” to “the information I’ve been getting is from former FBI agents.”

But Giuliani’s distinction didn’t help the Bureau. Whether the leaks came directly from active agents, or whether active agents leaked to retired agents who then went to Giuliani, they originated within the FBI. In addition to professional responsibilities of confidentiality under the ABA Standards on Prosecutorial Investigations, agents sign employment agreements that have sharp non-disclosure teeth. Certain FBI personnel working on the Clinton investigation also signed a “Case Briefing Acknowledgement,” agreeing that “due to the nature and sensitivity of this investigation, compliance with these restrictions may be subject to verification by polygraph examination.”

Lie detectors!

Wednesday, November 2 

Less than a week before Election Day, another FBI leak produced a new bombshell. Bret Baier of Fox News cited “two separate sources with intimate knowledge of the FBI investigations” for what turned out to be a bogus report. He said that the Clinton investigations would likely to lead to an indictment. You milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of your mob added, “Execute her!”

By Thursday, Baier admitted that he’d spoken “inartfully” about the false FBI report. By Friday, he was in full retreat: “That just wasn’t inartful, it was a mistake and for that I’m sorry.”

When MSNBC’s Brian Williams grilled your campaign manager Kellyanne Conway on whether you would stop using the earlier false report in your stump speech, she smiled and said, “Well, the damage is done to Hillary Clinton…”

Sunday, November 6

Then Comey sent another letter confirming that his earlier missive had been a false alarm. But by then, early voters had cast 40 million ballots — almost 30 million of which came after his October 30 letter. Meanwhile, you’d spent the week telling crowds that Clinton’s problems were “bigger than Watergate” and that criminal investigations into her dealings would continue for years into her presidency.

When confronted with Comey’s latest exoneration of Clinton, Kellyanne Conway kept her smile as she told MSNBC, “We have not made this a centerpiece of our messaging… This has not been front and center of our campaign.”

Sessions could put Rudy Giuliani under oath and ask him to name his FBI sources — active or retired. After all, if this had happened to you, hearings in the Republican Congress would already be underway. Now they’ll never happen. To “Make America Great Again,” start with the FBI, if you dare.