JERRY FALWELL JR.’S NEW ASSIGNMENT

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Since his inauguration, Donald Trump has dominated news cycles with chaos. It was easy to miss his new task force charged with deregulating higher education. The leader is Jerry Falwell, Jr., president of Liberty University.

“The goal is to pare it back and give colleges and their accrediting agencies more leeway in governing their affairs,” said Falwell, an evangelical leader with a law degree.

Heaven help us all.

Liberty University

Falwell’s father founded Liberty University in Lynchburg, Virginia. It thrives on federal student loan and grant dollars — $347 million for undergraduates alone in 2015, according to The New York Times. Liberty’s nominal student loan default rate within three years of graduation is nine percent. But only 38 percent of Liberty borrowers are paying down at least one dollar on their student loan principal amounts within three years of leaving the school. The Times also reports that six years after entering college, 41 percent of Liberty students earn less than $25,000 a year. That’s about what a typical 25-year-old with only a high school diploma earns.

For years, law schools have been the leading edge of this crisis. Falwell’s Liberty University has one of those, too. Tuition is $32,000 a year. Twenty percent of first-year students entering in 2014 left for academic reasons. Of 61 students who graduated in 2015, only half got full-time long-term jobs requiring a J.D. —  including one graduate who went to work for Liberty. There was some relatively good news: the average debt load for Liberty’s class of 2015 students who borrowed for law school was $68,000 — a lot lower than the $112,000 average for all law schools.

Reversal of Fortune 

Any progress that the Obama administration made to increase accountability in higher education seems destined for Trump’s dustbin. The Department of Education had put heat on schools that were exploiting students who incurred enormous educational debt for degrees of dubious value. Last summer, one of the department’s advisory committees took the American Bar Association to task for allowing law schools to run such scams. In November, the ABA put Charlotte Law School on probation while the school tried to work out its problems. In December, Charlotte lost its eligibility for federal student loans and its death spiral accelerated.

At long last, someone noticed that federal money was allowing bottom-feeder law schools to stay in business. But the legal profession’s accrediting agency – the types of organizations that Falwell says he wants to vest with greater decision-making power – hadn’t pulled the trigger on Charlotte. The DOE had.

President Obama also moved the vast majority of student lending from the private sector to the federal government. The expectation is that Trump will move it back. Since the election, the stock prices of private student lenders and loan servicing companies have soared. They’re a good bet. Federal guarantees protect lenders; borrowers can’t discharge educational debt in bankruptcy.

The end result is that marginal schools still have no financial skin in the game. They keep filling classrooms with students who borrow huge sums for degrees that aren’t worth it. Income-based repayment programs may provide some relief, but eventually someone will figure out that the U.S. Treasury will wind up footing that bill, which could become a very big number. When loan forgiveness programs shrink or disappear, an entire generation will live — and, in many cases, die — with educational debt incurred to pay the big salaries of people like Jerry Falwell, Jr.

How much damage could Falwell’s task force do? Plenty. The ABA is institutionally incapable of cracking down on law schools that should have closed long ago or never opened at all. Watch out for this: If the federal student loan spigot reopens for Charlotte Law School, there’s no bottom in sight.

What Would Jesus Do?

Jerry Falwell, Jr. was an anchor of Trump’s evangelical constituency. As president of Liberty, he earns $900,000 a year. In fact, Falwell said Trump offered him the Secretary of Education position that DeVos now occupies, but he turned it down. Trump wanted a four-to-six year commitment; Falwell reportedly said he couldn’t afford to work at a cabinet-level job for more than two years.

As Falwell and others like him prosper, their students suffer. Now that Falwell is in charge of deregulating higher education, Trump’s victory speech after winning the Nevada primary last year takes on new meaning: “We won the evangelicals… We won with poorly educated. I love the poorly educated.”

I suspect Jerry Falwell, Jr. loves the poorly educated, too. When it comes to selling a dubious degree from a marginal school, they’re especially inviting targets.

THE TRUMP RESISTANCE PLAN: A TIMELINE — RUSSIA AND PRESIDENT TRUMP

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[This article first appeared on billmoyers.com on February 15, 2017 (updated on on February 17). You can read the earlier installments in my Trump Resistance Plan series here.]

The last installment of the Trump Resistance Plan began with Thomas Paine’s 1776 observation in Common Sense, “Time makes more converts than reason.”

Sometimes, it doesn’t take much time at all. Russia interfered with an American presidential election; Congressional Republicans unwilling to convert and seek the truth no longer have anywhere to hide.

Putin’s 2016 Ticket

Investigative reporters have begun to fill out the Trump/Russia timeline. To keep everything in one location, here’s an updated summary (so far):

— Trump’s efforts to develop business in Russia date to 1987. In 1996, he applied for his trademark in that country. Discussing ambitions for a Trump hotel in 2007, he declared, “We will be in Moscow at some point.”

— October 15, 2007, Trump said: “Look at Putin – what he’s doing with Russia – I mean, you know, what’s going on over there. I mean this guy has done – whether you like him or don’t like him – he’s doing a great job.”

— September 2008, Donald Trump, Jr. said: “Russians make up a pretty disproportionate cross-section of a lot of our assets… we see a lot of money pouring in from Russia.”

— June 18, 2013, Trump tweeted: “Do you think Putin will be going to The Miss Universe Pageant in November in Moscow – if so, will he become my new best friend?” While at the pageant, Trump said, “I have plans for the establishment of business in Russia. Now, I am in talks with several Russian companies to establish this skyscraper.”

— October 17, 2013: On The Late Show, David Letterman asked Trump, “Have you had any dealings with the Russians?” Trump answered, “Well I’ve done a lot of business with the Russians…” Letterman continued, “Vladmir Putin, have you ever met the guy?” Trump said, “He’s a tough guy. I met him once.”

November 2013, Trump said: “I do have a relationship [with Putin] and I can tell you that he’s very interested in what we’re doing here today [at the Miss Universe Pageant in Moscow]… I do have a relationship with him… He’s done a very brilliant job in terms of what he represents and who he’s represented.”

— November 11, 2013, Trump tweeted: “TRUMP TOWER-MOSCOW is next.”

— March 6, 2014, Trump said: “You know, I was in Moscow a couple of months ago. I own the Miss Universe Pageant and they treated me so great. Putin even sent me a present, a beautiful present.” On the same day, President Obama signed an Executive Order imposing sanctions on Russia for its unlawful annexation of Crimea.

— June 16, 2015: Trump declares his candidacy for president.

— September 29, 2015, Trump told Bill O’Reilly: “I will tell you in terms of leadership he [Putin] is getting an ‘A,’ and our president is not doing so well.”

— November 10, 2015, Trump said: “I got to know [Putin] very well because we were both on 60 Minutes. We were stablemates, and we did very well that night.”

— December 10, 2015: Lt. Gen. Mike Flynn, who would become Trump’s National Security Adviser, sat at Putin’s table for the 10th anniversary gala of Russia’s state-owned television propaganda network, RT. Flynn had made a paid appearance on the network. 

— February 17, 2016: As questions about Russia swirled around Trump, he changed his story: “I have no relationship with [Putin], other than he called me a genius.”

— April 20, 2016: Paul Manafort became Trump’s campaign manager. Reports surfaced about his 2007 to 2012 ties to Ukraine’s pro-Putin former president, whom Manafort had helped to elect. 

— July 18, 2016: The Washington Post reported that the Trump campaign worked behind the scenes on a Republican convention platform plank. It gutted the GOP’s longstanding support for Ukrainians’ popular resistance to Russia’s 2014 intervention.

— July 22, 2016: On the eve of the Democratic National Convention, WikiLeaks released its first trove of emails stolen from the DNC.

— July 27, 2016, Trump said: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” At the same press conference, he insisted: “I never met Putin. I’ve never spoken to him.” In an interview with CBS, he reiterated: “But I have nothing to do with Russia, nothing to do, I never met Putin, I have nothing to do with Russia whatsoever.”

— July 31, 2016: Manafort denied knowing anything about the change in the Republican platform. That afternoon, Boris Epshteyn, Trump’s Russian-born adviser, spouted the Kremlin’s party line telling CNN: “Russia did not seize Crimea. We can talk about the conflict that happened between Ukraine and the Crimea…But there was no seizure by Russia. That’s an incorrect statement, characterization, of what happened.”

— August 6, 2016: NPR confirmed the Trump campaign’s involvement in the Republican platform change on Ukraine.

—August 19, 2016: As reports of Manafort’s financial connections to Ukraine intensified, he resigned from the Trump campaign.

— October 1, 2016: Six days before Wikileaks released emails that the Russians had hacked from John Podesta’s email account, Trump’s informal adviser and surrogate, Roger Stone tweeted: “Wednesday@HillaryClinton is done. #Wikileaks.”

— October 4, 2016: Trump tweeted: “CLINTON’S CLOSE TIES TO PUTIN DESERVE SCRUTINY.”

— October 7, 2016: In a joint statement, the Department of Homeland Security and the Director of National Intelligence said, “The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from U.S. persons and institutions, including from U.S. political organizations… We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.” But two other stories dominated the news cycle: WikiLeaks began publishing stolen emails from the account of Hillary Clinton campaign chairman John Podesta, and Trump’s infamous Access Hollywood tapes became public.

— October 12, 2016: Roger Stone told NBC News, “I have back-channel communications with WikiLeaks.”

— October 19, 2016: During the third presidential debate, Trump dismissed the October 7 U.S. intelligence findings: “[Clinton] has no idea whether it is Russia, China or anybody else… Our country has no idea.” And he said this: “I don’t know Putin. I have no idea… I never met Putin. This is not my best friend.”

— November 9, 2016: After Putin announced Trump’s election victory, Russia’s Parliament erupted in applause.

— November 10, 2016: Russia’s deputy foreign minister admitted that during the campaign, the Kremlin had continuing communications with Trump’s “immediate entourage.”

— December 9, 2016: In response to a Washington Post report that the CIA had concluded Russia had intervened in the election to help Trump win, he said, “These are the same people that said Saddam Hussein had weapons of mass destruction. The election ended a long time ago in one of the biggest Electoral College victories in history. It’s now time to move on and ‘Make America Great Again.’ ”

— December 11, 2016: Trump praised Rex Tillerson, chairman of Exxon Mobil and recipient of Russia’s “Order of Friendship” Medal from Vladimir Putin in 2013, as “much more than a business executive” and a “world-class player.” Trump said Tillerson “knows many of the players” and did “massive deals in Russia” for Exxon. Two days later, Trump nominated him to be Secretary of State.

— Also on December 11, 2016: Asked about the earlier U.S. intelligence report on hacking, Trump said, “They have no idea if it’s Russia or China or somebody. It could be somebody sitting in a bed some place. I mean, they have no idea.”

— December 13, 2016: NBC News’ Richard Engel reported from Moscow on Trump’s secretary of state pick, Rex Tillerson. Former Russian Energy Minister Vladimir Milov told Engel that Tillerson was a “gift for Putin.”

— December 29, 2016: On the same day that President Obama announced Russian sanctions for its interference with the 2016 election, NSA-designate Lt. Gen. Flynn placed five phone calls to the Russian ambassador.

— December 30, 2016: After Putin made a surprise announcement that Russia would not retaliate for the new sanctions, Trump tweeted, “Great move on delay (by V. Putin) – I always knew he was very smart.”

— January 3, January 4, and January 5, 2017: Trump tweeted a series of attacks on the integrity of the U.S. intelligence community’s findings that Russia had hacked the election.

— January 6, 2017:The CIA, FBI and NSA released their unclassified report concluding unanimously, “Vladimir Putin ordered an influence campaign in 2016 aimed at the U.S. presidential election. The three intelligence agencies agreed that “the Russian Government aspired to help President-elect Trump’s election chances when possible.” The report also stated that Wikileaks had been Russia’s conduit for the effort.

— January 11, 2017: At his first news conference, Trump said, “As far as hacking, I think it was Russia. But I think we also get hacked by other countries and other people.”

— Also on January 11, 2017: the final question of Trump’s news conference came from Ann Compton of ABC News:

“Mr. President-elect, can you stand here today, once and for all, and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?”

Trump never answered her. Away from cameras and heading toward the elevators, he reportedly said, “No,” his team didn’t have contact with Russia.

The Flynn Affair

— January 13, 2017: In response to The Washington Post’s article about General Flynn’s December 29 conversations with the Russian ambassador, press secretary Sean Spicer said it was only one call. They “exchanged logistical information” for an upcoming call between Trump and Vladimir Putin after the inauguration.

— January 15, 2017: “We should trust Putin,” Trump told The Times of London. Expressing once again his skepticism about NATO, Trump lambasted Germany’s Chancellor Angela Merkel.

— January 15, 2017: Appearing on CBS’s Face the Nation, Vice President Pence said Flynn’s call to the Russian ambassador on the same day President Obama announced new sanctions was “strictly coincidental”: “They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure on Russia…. What I can confirm, having to spoken with [Flynn] about it, is that those conversations that happened to occur around the time that the United States took action to expel diplomats had nothing whatsoever to do with those sanctions.”

— January 22, 2017: Lt. Gen. Mike Flynn was sworn in as National Security Adviser, a position that did not require Senate confirmation.

— January 23, 2017: At Sean Spicer’s first press briefing, he said that none of Flynn’s conversations with the Russian ambassador touched on the December 29 sanctions. That got the attention of FBI Director James Comey. According to the Wall Street Journal, Comey convinced Acting Attorney General Sally Yates to delay informing the White House immediately about the discrepancy between Spicer’s characterization of Flynn’s calls and U.S. intelligence intercepts showing that the two had, in fact, discussed sanctions. Comey asked Yates wait a bit longer so the FBI could to develop more information, including an interview of Flynn that occurred shortly thereafter.

— January 24, 2017: According to a subsequent article in The Washington Post, Flynn reportedly denied to FBI agents that he had discussed U.S. sanctions against Russia in his December 2016 calls with the Russian ambassador.

— January 26, 2017: Acting Attorney General Yates informed White House counsel Don McGahn that Flynn had made misleading statements about his late December conversations with the Russian ambassador. Sean Spicer later said that Trump and a small group of White House advisers were “immediately informed of the situation.”

— January 30, 2017: Trump fired Acting Attorney General Sally Yates. According to his statement, the reason was that she had “betrayed the Department of Justice” by refusing to defend Trump’s travel ban in court.

— February 8, 2017: Flynn told reporters at The Washington Post that he did not discuss U.S. sanctions in his December conversation with the Russian ambassador.

— Also on February 8, 2017: Jeff Sessions, the first senator to endorse Trump’s candidacy and the former chair of theTrump campaign’s national security advisory committee, became Attorney General. Every Republican senator and Democrat Joe Manchin of West Virginia voted to confirm him. During the confirmation process, Sessions had said he was “not aware of any basis to recuse myself” from the Justice Department’s Russia-related investigations of Trump.

— February 9, 2017: Through a spokesman, NSA Mike Flynn changed his position: “While [Flynn] had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

— February 10, 2017: Trump told reporters he was unaware of reports surrounding Flynn’s December conversations with the Russian ambassador.

— February 13, 2017: The Washington Post broke another story: Then-acting Attorney General Yates had warned the White House in late January that Flynn had mischaracterized his December conversation with the Russian ambassador, and that it made him vulnerable to Russian blackmail. Later that evening, Flynn resigned.

— February 14, 2017: The New York Times corroborated the Russian Deputy Foreign Minister’s admission on November 10. Based on information from four current and former American officials, the Times reported, “Members of the Trump campaign and other Trump associates had repeated contacts with senior intelligence officials in the year before the election.” Meanwhile, advisers to Attorney General Jeff Sessions reiterated his earlier position: Sessions saw no need to recuse himself from the ongoing Justice Department investigations into the Trump/Russia connections.

— February 15, 2017: Trump tweeted a series of outbursts attacking the Trump/Russia connection as “non-sense” and diverting attention to “un-American” leaks in which “information is illegally given out by ‘intelligence’ like candy.”

Shortly thereafter, Utah Rep. Jason Chaffetz and other congressional Republicans formally asked the Justice Department’s Inspector General to investigate the leaks, but they and their GOP colleagues resisted the creation of an independent bipartisan commission with the power to convene public hearings and discover the truth about the Trump/Russia connections.

During an afternoon appearance with Israel’s Prime Minister Benjamin Netanyahu, Trump refused to answer questions about connections between his presidential campaign and Russia. That evening, The New York Times reported that Trump was planning to appoint Stephen A. Feinberg, a billionaire hedge fund manager and Trump ally, to lead “a broad review of American intelligence agencies.” Feinberg has no prior experience in intelligence or government, but he has close ties to Steve Bannon and Jared Kushner.

— February 16, 2017: Trump continued his diversionary twitter assault on intelligence leaks that were intensifying scrutiny of his Russia connections. At Trump’s afternoon press conference, he said: “I own nothing in Russia. I have no loans in Russia. I don’t have any deals in Russia… Russia is fake news. Russia — this is fake news put out by the media.” Reporters asked repeatedly about anyone else involved with Trump or his campaign. “No,” Trump said. “Nobody that I know of… Russia is a ruse.”

Keep Sending the Message

In response to the latest controversy surrounding Mike Flynn and Russia, Trump tweeted a Valentine’s Day diversion: “The real story here is why are there so many illegal leaks coming out of Washington?”

No, the real story is the question Trump ducked on January 11 and deflected repeatedly on February 16: What contact did Trump or anyone on his team have with Russia before the U.S. election?

Stay on message. Tell Republicans in Congress that American democracy requires an answer – under oath – to Ann Compton’s January 11, 2017 question: “Mr. President-elect, can you stand here today, once and for all, and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?”

Putin knows the answer. So does the Russian Deputy Foreign Minister who said in November that the Kremlin had maintained continuing communications with Trump’s “immediate entourage” prior to the election. So do any campaign members and other Trump associates who, according to The New York Times, had “repeated contacts with senior Russian intelligence officials in the year before the election.”

But the American people don’t, and that asymmetry of information could give Putin the power to blackmail the country’s leaders. On January 7, Senator Lindsay Graham urged an investigation “wherever it leads.” A few Republicans want the Senate Intelligence Committee to add the Flynn affair in its ongoing inquiry – but they’re offering too little, too late. At this point, a credible investigation requires the approach that Senator John McCain initially proposed: a bipartisan commission with subpoena power. American democracy can no longer trust Senate Republicans to run this show. Nor can hearings be conducted secretly.

Congress must authorize a special independent 9/11-type commission. Step 2 of The Trump Resistance Plan has contact information for messages to Republicans and Democrats in Congress. The message to all of them is simple: “Step up, stand strong, and save democracy while someone still can.”

 Call, write, email, march, and win.

PRAISING STEPHEN MILLER? SERIOUSLY?

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Donald Trump liked what he saw in adviser Stephen Miller’s appearances on the February 12 Sunday morning talk show circuit:

“Congratulations Stephen Miller – on representing me this morning on the various Sunday morning shows. Great job!” Trump tweeted, as the world pondered North Korea’s missile test.

Question: What had the 31-year-old Miller — a non-lawyer who had been Jeff Sessions’ communications director before joining the Trump campaign — done to deserve such praise from his boss?

Answer: Betray a tragic ignorance of the U.S. Constitution while continuing Trump’s assault on the judiciary.

And he majored in political science at Duke!

Dangerous Stuff

“There’s no such thing as judicial supremacy,” Miller told NBC’s Chuck Todd.

“The judiciary is not supreme,” he said to ABC’s George Stephanopoulos.

“We have a judiciary that has taken far too much power and become in many cases a supreme branch of government,” Miller explained to CBS’s John Dickerson. Then came his most chilling line: “The end result of this, though, is that our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”

That’s third world dictator-type rhetoric coming from a top presidential adviser. No competent attorney who cared about the U.S. Constitution could have vetted Miller’s talking points. Judicial review and the power of federal judges to invalidate unconstitutional executive and legislative actions date to the early years of the republic.

Where Are the Lawyers?

The principle is not negotiable. Perhaps some of Trump’s key advisers with law degrees could tell him. There are plenty to choose from: Vice-President Mike Pence (J.D., ’86, Indiana University), Kellyanne Conway (J.D., ’92, George Washington University), Jared Kushner (J.D.’07, NYU), Reince Priebus (J.D., ’98, University of Miami), White House counsel Donald McGahn II (J.D, ’94, Widener University Law School), and many more. But that would require telling Trump something that he doesn’t want to hear.

Trump and his key advisers swore an oath to uphold the Constitution of the United States. It’s time for someone to conduct a brief in-house seminar on its key principles. I’ll bet the attorneys who attended could even get continuing legal education credit for it.

THE TRUMP RESISTANCE PLAN – STEP 3

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[This article first appeared on billmoyers.com on February 2, 2017. It’s the fifth in my series. You can read the first four installments here, here, here, and here.]

“Time makes more converts than reason.”

— Thomas Paine, Common Sense (1776)

Stay on message. The Trump Resistance Plan focuses on two messages that are central to our democracy: “Russia interfered” and “Presidential corruption matters.” This installment covers the first one: “Russia interfered.”

In a joint interview with Senator Lindsay Graham on January 7, Senator John McCain described the stakes: “What Putin did poses a threat to the very fundamentals of our democracy…”

Senator Graham emphasized that this is not a partisan issue: “We should get to the bottom of all things Russia when it came to the 2016 election, period. Wherever it leads in whatever form…”

Trump and Russia

Putin engaged successfully in a sophisticated cyberattack on a cherished American right – voting. Among other methods, Russia used WikiLeaks to distribute emails that it had hacked from the Democratic National Committee. The public record is incomplete, but the relatively few known facts paint a disturbing picture. Roll the tape:

— Trump’s efforts to develop business in Russia date to 1987. In 1996, he applied for his trademark in that country. Discussing ambitions for a Trump hotel in 2007, he declared, “We will be in Moscow at some point.”

— October 15, 2007, Trump said: “Look at Putin – what he’s doing with Russia – I mean, you know, what’s going on over there. I mean this guy has done – whether you like him or don’t like him – he’s doing a great job.”

— 2008, Donald Trump, Jr. said: “Russians make up a pretty disproportionate cross-section of a lot of our assets… we see a lot of money pouring in from Russia.”

— June 18, 2013, Trump tweeted: “Do you think Putin will be going to The Miss Universe Pageant in November in Moscow – if so, will he become my new best friend?” While at the pageant, Trump said, “I have plans for the establishment of business in Russia. Now, I am in talks with several Russian companies to establish this skyscraper.”

— November 11, 2013, Trump tweeted: “TRUMP TOWER-MOSCOW is next.”

— November 2013, Trump said: “[Putin’s] done a very brilliant job in terms of what he represents and who he’s represented.”

— March 6, 2014, Trump said: “You know, I was in Moscow a couple of months ago. I own the Miss Universe Pageant and they treated me so great. Putin even sent me a present, a beautiful present.”

— November 10, 2015, Trump said: “I got to know [Putin] very well because we were both on 60 Minutes. We were stablemates, and we did very well that night.”

— December 10, 2015: Lt. Gen. Mike Flynn, who would become Trump’s National Security Adviser, sat at Putin’s table for the 10th anniversary gala of Russia’s state-owned television propaganda network, RT. Flynn had made a paid appearance on the network. 

— February 17, 2016: As questions about Russia swirl around Trump, he changed his story: “I have no relationship with [Putin], other than he called me a genius.”

— April 20, 2016: Paul Manafort became Trump’s campaign manager. Reports surface about his 2007 to 2012 ties to Ukraine’s pro-Putin former president, whom Manafort had helped to elect. 

— July 18, 2016: The Washington Post reports that the Trump campaign worked behind the scenes on a Republican convention platform plank. It gutted the GOP’s longstanding support for Ukrainians’ popular resistance to Russia’s 2014 intervention.

— July 27, 2016, Trump said: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

— And at the same press conference, he insisted: “I never met Putin. I’ve never spoken to him.”

— July 31, 2016: Manafort denied knowing anything about the change in the Republican platform. That afternoon, Boris Epshteyn, Trump’s Russian-born adviser, spouted the Kremlin’s party line telling CNN: “Russia did not seize Crimea. We can talk about the conflict that happened between Ukraine and the Crimea…But there was no seizure by Russia. That’s an incorrect statement, characterization, of what happened.”

— August 6, 2016: NPR confirmed the Trump campaign’s involvement in the Republican platform change on Ukraine.

—August 19, 2016: As reports of Manafort’s financial connections to Ukraine intensified, he resigned from the Trump campaign.

— October 1, 2016: Six days before Wikileaks released emails that the Russians had hacked from John Podesta’s email account, Trump’s informal adviser and surrogate, Roger Stone tweeted: “Wednesday@HillaryClinton is done. #Wikileaks.”

— October 4, 2016: Trump tweeted: “CLINTON’S CLOSE TIES TO PUTIN DESERVE SCRUTINY.”

— October 12, 2016: Roger Stone told NBC News, “I have back channel communications with WikiLeaks.”

— November 9, 2016: After Putin announced Trump’s election victory, Russia’s Parliament erupted in applause.

— November 10, 2016: Russia’s deputy foreign minister admitted that during the campaign, the Kremlin had continuing communications with Trump’s “immediate entourage.”

— January 11, 2017: the final question of Trump’s first news conference came from Ann Compton of ABC News:

“Mr. President-elect, can you stand here today, once and for all, and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?”

Trump paused, and then reverted to a standard Trump strategy: deflecting, diverting, and distracting. He never answered her. Away from cameras and heading toward the elevators, Trump reportedly said, “No,” his team didn’t have contact with Russia.

Other characters lurk in the background. After the election, Carter Page – an early foreign policy adviser to Trump – was in Moscow to “meet with business and thought leaders.” Rick Gates was involved with Paul Manafort in Ukraine and a deputy on the Trump campaign.

Find All Dots and Connect Them

The known data points cluster to create a clear impression: Putin helped Trump win and Trump welcomed the assistance. Why?

Trump’s admiration enhances Putin’s status on the world stage. If he can get Trump to lift economic sanctions imposed after Russia’s annexation of Crimea, so much the better. Those sanctions are crippling Russia’s economy. Meanwhile, Trump’s persistent questioning of U.S. intelligence findings undermined those agencies’ credibility while emboldening Putin to continue flexing his cyber-muscles in European countries’ democratic elections.

What does Trump get in return? The presidency and who knows what else. His refusal to release comprehensive information about his business connections to Russia – or anywhere – leads to ugly inferences. Trump should want to dispel them, unless he can’t because they’re correct. Whatever Putin knows – and he may know a lot – might give him enormous leverage over the president.

Now add Trump’s comment to The Times of London on January 15, 2017: “We should trust Putin.”

Expressing once again his skepticism about NATO, Trump lambasted Germany’s Chancellor Angela Merkel. That would have pleased Putin. The Western alliance contributed mightily to the collapse of the Soviet Union, which he called the “greatest geopolitical catastrophe of the century.” Putin seeks to destabilize the West and restore Russia’s lost sphere of influence.

Send the Message

Congress must authorize a special independent “9/11” type commission. Step 2 of The Trump Resistance Plan offers contact information and language for messages that concerned citizens can send to Republicans and Democrats in Congress, especially senators. Phone calls, written letters, and office visits are even better.

Americans possess another potent weapon: The power of peaceful protest. Keep using it. And keep expanding the ranks.

The Women’s March was more successful because it also included husbands, fathers, brothers, and sons. To be sure, issues affecting women affect everyone. But with new executive orders every day, Trump will generate additional protests on the environment, health care, civil rights, immigration, and more. Divergent individual motivations for public demonstrations on any such issues need not undermine a united collective purpose.

To the contrary, they can complement it. The Revolutionary War was the first model for diverse Americans uniting to achieve a common objective. In the 1960s, the combined force of the civil rights and anti-war movements created a whole vastly greater than the sum of its parts.

Here’s the key point: Every patriot can join any anti-Trump demonstration. In addition to posters expressing concerns about particular issues, anyone can bring a banner that unites us all: “Russia interfered” and, as the next installment in this series explains, “Presidential corruption matters.”

Woody Allen said, “Showing up is 80 percent of life.”

Stay on message and keep showing up.

WORDS v. DEEDS

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Jan. 11, 2017: Sheri Dillion and Trump’s law firm, Morgan, Lewis & Bockius, release the White Paper describing their plan to deal with Trump’s conflicts of interest.

It includes this line: “The sole responsibility of the Chief Compliance Officer is to assure that the Trump Organization businesses are operating at the highest levels of integrity and are not taking any actions that actually exploit, or even could be perceived as exploiting, the Office of the Presidency.”

Jan. 31, 2017: A picture displaces 2,000 lawyer-words: https://twitter.com/ZekeJMiller/status/826592233281486849

Zeke Miller on Twitter
“Trump sons greet the senators”
TWITTER.COM|BY ZEKE MILLER

TRUMP CONFLICTS PLAN – Part 3

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It seems like a long time ago. On January 11, Donald Trump’s lawyers revealed a plan to resolve the clash between his business interests and his presidential duties. Whether the result of impulse, intention, or incompetence, his subsequent chaos has accomplished one objective: He diverted attention from his plan’s assault on one of American democracy’s central pillars: a presidency free of institutionalized corruption.

This installment addresses his conflict of interest problems. They are related to — but distinct from — his constitutional Emoluments Clause violations addressed in Part 2 of this series. Part 1 described the unfortunate role that Sheri Dillon and her law firm, Morgan, Lewis & Bockius, played in shilling for Trump’s plan.

A Lawyerly Approach

Dillon, a tax lawyer, focused on a technical legal question: Does the federal conflict of interest statute applicable to all other federal employees apply to the president?

By its terms, the answer is no. But just because something is legal doesn’t make it right. And when it comes to preserving the integrity of the presidency in ways that protect it from corruption and impropriety, legal permissibility is just the beginning of the relevant inquiry. But not for Trump.

Trump’s attitude in making the deal that resulted in the Morgan Lewis Plan was that of a negotiator who held all the cards. Whatever he offered, his opposing parties — the office of the president and the country — could not refuse. He admitted it:

“[A]s you know, I have a no-conflict situation because I’m president….it’s a nice thing to have… I have something that others don’t have…”

Bigger Stakes

To counter Trump’s continuing conflation of the issues, Walter Shaub, director of the Office of Government Ethics, set him straight:

“Now, some have said that the President can’t have a conflict of interest, but that is quite obviously not true. I think the most charitable way to understand such statements is that they are referring to a particular conflict of interest law that doesn’t apply to the President…”

As Shaub explained, “Common sense dictates that a President can, of course, have very real conflicts of interest. A conflict of interest is anything that creates an incentive to put your own interests before the interests of the people you serve.”

Who Represents America? 

Shaub then cited Chief Justice Earl Warren’s opinion in a 1961 U.S. Supreme Court decision. The chief justice observed that a conflict of interest is “an evil which endangers the very fabric of a democratic society, for a democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of corruption.”

Shaub outlined the implications for Morgan Lewis’s assignment:

“That same Court referred to what it called a ‘moral principle’ underlying concerns about conflicts of interest. The Court cited…’the Biblical admonition that no man may serve two masters, a maxim which is especially pertinent if one of the masters happens to be economic self-interest.’ A President is no more immune to the influence of two masters than any subordinate official. In fact, our common experience of human affairs suggests that the potential for corruption only grows with the increase of power.”

“For this reason,” Shaub emphasized, “it’s been the consistent policy of the executive branch that the president should act as though the financial conflict of interest law applied.”

The question isn’t mere technical compliance with a statute; it’s preserving a central norm that underlies the moral authority of the nation’s highest office.

What Would Scalia Say

Even Trump’s model U.S. Supreme Court Justice, Antonin Scalia, lands on Shaub’s side of the argument. In a 1974 memorandum, then-Justice Department attorney Scalia concluded that the text of a particular conflict of interest law didn’t apply to the president. Remarkably, Dillon cited that memorandum to support her position. She didn’t discuss Scalia’s final recommendation in that memo:

“Notwithstanding the conclusion that neither the Executive Order nor the regulations pursuant to it legally bind the President or Vice-President, it would be undesirable as a matter of policy for the President or Vice-President to engage in conduct proscribed by [them]…. Failure to observe these standards will furnish a simple basis for damaging criticism, whether or not they technically apply,”

Shaub emphasized Scalia’s point: Those at the top of government set the example for everyone else — at least they should.

“The sheer obviousness of Justice Scalia’s words,” Shaub continued, “becomes apparent if you just ask yourself one question: Should a President hold himself to a lower standard than his own appointees?”

Missing the Big Picture

The Morgan Lewis Plan ignores that big picture. In waiving the attorney-client privilege by divulging Trump’s directives for developing a plan, Dillon opened the door to several unanswered questions:

— What limits did put he on removing himself from his business?

— Did his attorneys recommend additional steps?

— Did Trump reject them?

Here’s a directive that Trump did not give:

“I want to preserve the integrity of the presidency. There can be no basis for any claim that anyone — foreign or domestic — is trying to curry favor through my family businesses. Even the appearance of a bribe, corruption, self dealing, or other impropriety is unacceptable. Tell me what is necessary, and I will do it. The presidency demands no less.”

That command would not have produced the plan that Dillon tried to sell Americans on January 11:

— Rather than divest Trump from his business, it allows him to reap its benefits while in office.

— Rather than establish an independent trustee to manage his business assets, it places control in the hands of his two adult sons and a current Trump executive.

— Rather than maintain even the pretense of a blind trust, it permits Trump to see periodic reports of how his business is doing.

The plan’s failures are equally evident from its illusory window dressing: a “trust” that is far from blind; a promise that the Trump Organization won’t do any new foreign deals; an “Ethics Advisor” to sign off on new domestic deals (backsliding from Trump’s December 12 tweet, “No new deals will be done during my term(s) in office”); an unenforceable assurance that Trump will learn about new deals “only through the media, as the American people would.” (The last promise is another violation of a blind trust principle, namely, that he should know nothing whatsoever about his personal financial affairs while in office.)

And then there is the ultimate window dressing in human form — Fred Fielding, who served as associate and deputy counsel for President Richard Nixon from 1970 to January 1, 1974. He was there for Watergate. He was there for the “Saturday Night Massacre” when Nixon fired his attorney general and deputy AG before finding someone willing fire independent counsel Archibald Cox, who had asked Nixon to produce his White House tapes.

“Mr. Fielding has been extensively involved with and approved this plan,” Dillon declared at the press conference.

Fielding didn’t say a word.

It’s hard to believe that it was only three weeks ago. I wonder what Fred Fielding thought on January 30, when Trump fired acting Attorney General Sally Yates. In eroding the integrity and dignity of the presidency, Trump has already made Richard Nixon look like an amateur — and a saint.

TRUMP’S CONFLICTS PLAN – Part 2

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On January 22, 2017, Kellyanne Conway confirmed what everyone should have known all along: Donald Trump is never going to release his tax returns. Lawyers who rose to defend Trump’s silly “under audit” excuse from a man seeking the nation’s highest office might want to think twice before embracing his plan to deal with his business conflicts of interest.

“Fool me once….”

The first installment in this series dealt with the unfortunate role of Sheri Dillon and her firm, Morgan Lewis & Bockius, in shilling for Trump. This and future posts detail some of the Morgan Lewis Plan’s deficiencies.

The clash between Donald Trump’s businesses and the integrity of the presidency creates three separate issues: violation of the U.S. Constitution’s emoluments clause prohibiting federal officials from accepting benefits from foreign countries, conflicts of interest generally, and federal statutes relating to those conflicts.

Trump conflates and confuses these three issues with a single imprecise and inaccurate phrase: “The President can’t have conflicts.” Let’s keep the issues straight, starting with the emoluments clause.

Emoluments

In the final minutes of her speech, Dillon discussed Trump’s constitutional problem. Her framing of the issue adhered to an accompanying Morgan Lewis “White Paper” that was as masterful as it was disingenuous:

“Some commentators have claimed that the Constitution prevents the President-elect from owning interests in businesses that serve foreign customers. In particular, they object to the Trump International Hotel in Washington, D.C.”

In that nifty sleight-of-hand, Dillon elided past Trump’s even bigger foreign-state problems: loans from banks to the Trump Organization and its projects, tenants paying rent for office space in its buildings, investors, and unknown other foreign-state connections to his assets. Never mind Trump’s tax returns. Ascertaining the financial structure of Trump’s empire goes far beyond whatever they might show. Just ask any real estate developer.

Dissecting the Plan

The Morgan Lewis White Paper’s emoluments defense starts with this premise: “The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text.”

Yes and no. The late Justice Antonin Scalia championed such “originalism.” The White Paper’s sole supporting citation for its premise is a book that Scalia co-authored. But as recently as 2005, even Justice Scalia acknowledged that originalism was a minority view:

“I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”

More importantly, Justice Scalia noted that even for originalists, the text is only the beginning of constitutional interpretation, not the endpoint. In a 1988 lecture, he offered this example:

“What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an eighth amendment challenge.”

Moving Beyond the Words

Justice Scalia understood that a slavish adherence to the Constitution’s language can produce “medicine that seems too strong to swallow.” (Scalia also had things to say about presidential conflicts of interest generally, but we’ll get to those next time.)

Morgan Lewis’s argument qualifies as originalist medicine “too strong to swallow.” Among the founding fathers’ foremost concerns was foreign influence over America’s political leaders. In Federalist No. 68, Alexander Hamilton wrote about the necessity of protecting elections from foreign interference. In Federalist No. 22, he wrote, “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”

Discussing the emoluments clause in 1986, then-Assistant Attorney General Samuel A. Alito, Jr. wrote, “[T]he answer to [an] Emoluments clause question must depend [on] whether the [arrangement] would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition.”

None of those principles made the cut in the Morgan Lewis presentation. But consistent with Sheri Dillon’s expertise as a tax lawyer, technical legal arguments did.

Words Not Found in the Constitution

“So long as foreign governments pay fair-market-value prices,” the Morgan Lewis White Paper continues, “their business is not a ‘present’ because they are receiving fair value as a part of the exchange.” It argues that any transaction at “fair-market-value” between Trump businesses and foreign states is not a violation of the emoluments clause.

That’s another nifty and unpersuasive sleight-of-hand. For good reason, the words “fair-market-value” are nowhere in the Constitution. The concept does not satisfy the Constitution’s core concern. Any foreign state patronizing a Trump-owned or licensed business knows that it confers a financial benefit on Trump. So does Trump.

As Sheri Dillon put it, “President Trump can’t unknow he owns Trump Tower….” And as her client told The New York Times on November 22: “The brand is certainly a hotter brand than it was before.”

Self-Refuting Arguments

“The Constitution does not require President-elect Trump to do anything here,” Dillon asserted. Nevertheless, he’ll “donate all profits from foreign government payments made to his hotel to the United States Treasury.” The Morgan Lewis White Paper broadens his largesse to include “his hotels and similar businesses,” whatever that means.

In one sense, that concession is a tacit acknowledgement of his larger problem. How about other Trump enterprises? Foreign loans to his projects? Royalties and licensing fees? And how will the Trump Organization calculate profits from foreign governments’ individual stays at his hotels?

On January 18, 2017, The Wall Street Journal reported Trump spokeswoman Hope Hicks’ response to some of those questions: Accounting and financial personnel “will perform the profit calculation and would track payments from foreign governments” which will be done “through its accounting systems.”

Pressed for clarification, Hicks answered, “Profit is calculated as revenues minus expenses = profit.”

Winners and Losers

The January 23 complaint against Trump details just some of his known business interests that collide with his presidential duties. It’s a safe bet that Trump’s attorneys will do everything they can to avoid testing the substantive arguments that Sheri Dillon and the Morgan Lewis White Paper presented on January 11.

Instead, they will try to prevent any court from reaching the merits of their originalist argument. They’ll probably focus on whether the plaintiff in this and other cases has suffered a sufficient injury to sue (“standing”). They might assert that only Congress can resolve the issue because it presents “political questions.” Perhaps they’ll urge that the only remedy for a presidential breach of the emoluments clause is impeachment.

One great danger is that if any of those preliminary defenses prevail, Trump will overstate his victory as proof that he was right all along: “The president can’t have conflicts.”

If a court gets to the merits of the claims, the Morgan Lewis legal arguments will get a severe test that they aren’t likely to pass. If Trump’s lawyers lose, their client still wins: Trump will have lawyers to blame.

However it turns out, the country is the loser. It already is.

THE TRUMP RESISTANCE PLAN: STEP 2

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[This article first appeared on billmoyers.com on January 23, 2017. It’s the fourth in my series and you can read the first three installments here, here, and here.]

“It is not in numbers, but in unity, that our great strength lies…”

— Thomas Paine, Common Sense (1776)

Americans acting in good faith are destined to disagree on many issues of public concern. Colonists fighting the Revolutionary War couldn’t agree on much either, but they fought side-by-side for independence from foreign governments and the rejection of official corruption. Those two founding principles formed central pillars of American democracy. They still do.

Facts Are Stubborn Things

The truth is that on a critical issue, we are more united today than most people may realize, but not in a way Donald Trump likes. His approval ratings have plummeted to dramatic and historic pre-inauguration lows:

ABC News/Washington Post: 40% — Compare that to the three most recent presidents-elect immediately prior to their inaugurations: Obama – 80%; G. W. Bush – 72%; Clinton 81%

Every major poll confirms Trump’s dismal standing with the American people:

CBS: 37%

CNN: 40%

Gallup: 44%

NBC/Wall Street Journal: 44%

Quinnipiac: 37%

Trump famously ignores or denies the accuracy of polls that disfavor him, as he did in this January 17 tweet: “The same people who did the phony election polls, and were so wrong, are now doing approval rating polls. They are rigged just like before.”

That’s Trump’s “Three-D’s Strategy” in action: deflect, divert, and distract. Although pre-election polls missed on individual state totals that determined the electoral college results, they got the popular vote outcome about right: he lost by two percent compared to the final average of all pre-election polls that had him behind by three — well within the polls’ three percent margin of error. Giving Trump the benefit of the same margin barely moves the needle.

Former career pollster Kellyanne Conway and Republicans in Congress surely grasp the harsh truth. Already a historic popular vote loser, Trump is rapidly becoming a regret for many who chose him. As the Republican Party’s albatross, he grows heavier by the hour.

It’s time for Americans to demonstrate their unity, strengthen it, and mobilize.

TRP Unity Strategy #1: Unite in Opposition

Abandon the circular firing squad and look at the big picture: Vladimir Putin and Donald Trump played all of us against each other, and they’re still at it. Rather than continue an internecine battle over how the last war was lost, resolve to prevail in this one.

The disenfranchised American majority should stop squabbling with itself. Some Sanders supporters believe that party regulars betrayed them by tilting the playing field against their guy. Some Clinton supporters think Sanders people didn’t respond with sufficient enthusiasm to her nomination. Jill Stein and Gary Johnson voters think that neither party focused on the correct issues. All of them have a point. Acknowledge it, shake hands, join arms, and move forward together.

TRP Unity Strategy #2: Embrace Trump Voters

Most Trump voters are American patriots, and many are now having buyer’s remorse. Welcome them to the Trump Resistance Plan. Loyal citizens take differing sides on many social and political questions. Organized, issue-related, protests should continue in earnest. But unity in the defense of democracy is now a transcendent imperative for all.

TRP Unity Strategy #3: Search for Senate Help

Guarding against foreign interference in our elections and resisting institutionalized corruption in the presidency are central to preservation of the republic. If Trump prevails in his assault on those fundamental principles, party labels will cease to have meaning. Many Republican senators already understand that vital point, which makes them natural allies of the TRP.

Senator John McCain (R-AZ) chairs the Senate Armed Services Committee seeking the truth about Putin’s interference with the 2016 election. He and Senator Lindsay Graham (R-SC) are leading that charge. Likewise, Senator Richard Burr’s (R-NC) Intelligence Committee is investigating possible connections between the Trump campaign and Russia. Three more Republicans represent states that Hillary Clinton carried: Maine’s Susan Collins, Colorado’s Cory Gardner, and Nevada’s Dean Heller. And another six found candidate Trump’s behavior especially problematic, to say the least: Arizona’s Jeff Flake, Utah’s Mike Lee, Alaska’s Lisa Murkowski and Dan Sullivan, Ohio’s Rob Portman, and Nebraska’s Ben Sasse.

Contact all of them – as well as the senators from your own state – and demand a relentless search for the truth. Write and repeat. Every week, send a message that conveys this central point:

On the January 8 edition of “Meet The Press,” Senator Graham promised to take the Trump/Russia election investigation wherever it leads, including Trump’s business conflicts of interest. Hold him to that promise and support his efforts.

With Democrats unified, it takes only three Republicans to deprive Trump of his leverage over the Senate. Then he’ll have to deal with those representing a majority of Americans who never wanted him in the Oval Office. Most Republicans in Congress will be reluctant warriors. But love of country and the encouragement of fellow citizens will help them do the right thing. Support the brave and bolster the wary.

Unity Strategy #4: Don’t Forget the House

The House of Representatives poses special challenges. Rep. Devin Nunes (R-CA) heads the Permanent Select Committee on Intelligence that could follow the Senate’s lead. But Nunes was also on Trump’s transition team, so send him a message along these lines:

The House must follow the Senate’s lead in pursuing the Trump/Russia election investigation wherever it leads. Choose democracy over the defense of a dangerous president’s reputation.

Even better, give him a call or visit one of his offices. Contact his fellow Republicans on the committee. Encourage Democrats on the committee – especially ranking member Adam Schiff (D-CA) – to remain though and stand strong. In messages to your own state’s representatives who aren’t on Nunes’ committee, express your fear that democracy is in peril.

Unity Strategy #5: Shine a Spotlight on Corruption

Trump’s stonewalling with respect to his financial conflicts of interest undermines the institutional integrity of the presidency. But so far, that crucial norm of democracy has not found strong Republican defenders comparable to Senators McCain and Graham on Russian election interference.

Until a courageous Republican voice emerges, it’s up to Senate Democrats to keep the public focused on the issue. In questioning HUD Secretary-designate Ben Carson, Senator Elizabeth Warren demonstrated skillfully how pervasive Trump’s financial conflict of interest problems are. As Trump’s agenda makes its way through Congress, those problems will become ubiquitous and the spotlight on them must shine ever brighter.

Unity Strategy #6: Think Beyond Your Own Bubble

Regardless of party, support any member of Congress — and anyone else — who stands up to Trump in defending the two central pillars of democracy that he’s attacking. They’re worried about Trump’s branding skills and thinking twice before risking his wrath. That’s a testament to the effectiveness of Trump’s “Bully and Intimidate Strategy.”

As brave patriots step forward – especially those from Trump’s own party and others who voted for him – reward them and rebrand them: America’s New Heroes.

KELLYANNE CONWAY’S TERRIBLE, HORRIBLE, NO GOOD, VERY BAD WEEKEND

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Two questions for former Trump campaign manager and now counselor to the president, Kellyanne Conway (who has a JD degree from George Washington University) :

— “Now the you’ve admitted that Trump will never release his tax returns, what did you know and when did you know it?”

— “What is the difference between what you told Meet the Press’s Chuck Todd was ‘alternative fact’ and a lie?”

A message to lawyers who defended candidate Trump’s “under audit” ploy as an appropriate excuse for anyone seeking the presidency: “Consider yourself duped.”

A lesson for any Trump supporter who believed that he would ever release his tax returns or adhere consistently to the truth: “Fool me once, shame on you….”.

IT’S STILL ALL ABOUT CREDIBILITY

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You can’t say I didn’t warn you. An Inauguration Address that was only 17 minutes long and filled with lies aplenty!

Here’s are the fact-checkers:

Washington Post

Politfact

PBS

Fact-check.org

Vanity Fair

The winners? Those who heeded my call and refused to listen to him speak.

QUESTION: How more many minutes to go in this presidency?

ANSWER: Too many.

THE TRUMP RESISTANCE PLAN: STEP 1

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[This article first appeared on billmoyers.com on January 18, 2017. It’s the third in my series and you can read the first two installments here and here.]

“The king and his worthless adherents are got at their old game of dividing the Continent, and there are not wanting among us, Printers, who will be busy in spreading specious falsehoods…”

— Thomas Paine, Common Sense (1776)

When the victors write history, the resulting narrative often focuses on why things happened. Far more important to the contemporaneous participants is the question of how. Mounting an effective resistance requires understanding an adversary’s strategies. Donald Trump’s most effective delivery system is a duet: Trump and Kellyanne Conway. Tracking a single example reveals their techniques.

Strategy #1: Lie

In the tradition of notorious “Strongmen,” Trump promulgates Big Lies. These outrageous fictions are easier to sell because listeners can’t imagine that the speaker would make them up. Since the election, one of Trump’s biggest has been his supposed “landslide” victory that gives him a mandate. The truth is that Trump’s percentage of the popular vote makes him a historic loser — close to Michael Dukakis in 1988. He ranks in the bottom quartile of Electoral College winners.

Strategy #2: Repeat the Lie

To reinforce the Big Lie, Trump and Conway use repetition to create a false reality. It has worked before. Thanks to Trump’s “birther” Big Lie, 72 percent of Republicans still have doubts about President Obama’s American citizenship. Here is a sample of the same technique in action on the “landslide” Big Lie:

“In addition to winning the Electoral College in a landslide…”– Trump tweet, Nov. 27, 2016

“Landslide. Blowout. Historic.”– Conway tweet, Nov. 28, 2016

“We had a massive landslide victory in the Electoral College, as you know…”– Trump’s interview with Fox News’ Chris Wallace on Dec. 11, 2016

All independent fact-checking organizations have rated the “landslide” claim false.

Strategy #3: Deflect, Divert, and Distract

After U.S. intelligence agencies concluded unanimously that Trump’s tenuous victory had come with the aid of Vladimir Putin, he and Conway deployed their “Three ‘D’s’” strategy: deflect, divert, and distract.

— Trump deflection on Dec. 9: Mocking U.S. intelligence findings, his transition team issued this terse statement: “These are the same people that said Saddam Hussein had weapons of mass destruction.”

No, they aren’t. Discussing Trump’s false assertion and the enormous changes to intelligence gathering and reporting since 2002, CIA chief John Brennan said, “It’s been light years since the WMD report.”

— Conway deflection on Dec. 18: “The professional political left is attempting to foment a permanent opposition that is corrosive to our constitutional democracy and ignores what just happened in this election…The left is trying to delegitimize his election.”

No. Republican stalwart Senators John McCain and Lindsay Graham are leading the charge to investigate Russia’s interference with the election.

— Conway deflection and diversion on December 18: “In response to CBS News’ John Dickerson’s question about President Obama’s sanctions against Russia’s hacking, she said, “It does seem to be a political response at this point, because it seems like the president is under pressure from Team Hillary who can’t accept the election results.”

No. Senators McCain and Graham are among a bipartisan group complaining that President Obama’s sanctions were not sufficient.

— Trump diversion and distraction on Dec. 31: “I know a lot about hacking. And hacking is a very hard thing to prove. So it could be somebody else. And I also know things that other people don’t know, and so they cannot be sure of the situation.”

When asked what he knew that others did not, Trump added this cliffhanger: “You’ll find out on Tuesday or Wednesday.” Trump’s big reveal never materialized.

— Trump diversion on Jan. 3: “The ‘Intelligence’ briefing on so-called ‘Russian hacking’ was delayed until Friday, perhaps more time needed to build a case. Very strange!”

Senior intelligence officials told NBC News that the briefing was always set for Friday.

— Trump deflection and diversion on Jan. 7: After receiving the intelligence briefing, Trump tweeted: “Intelligence stated very strongly there was absolutely no evidence that hacking affected the election results. Voting machines not touched!”

No. The report actually says: “We did not make an assessment of the impact that Russian activities had on the outcome of the 2016 election. The US Intelligence Community is charged with monitoring and assessing the intentions, capabilities, and actions of foreign actors; it does not analyze US political processes or US public opinion.” (Emphasis supplied)

Trump’s “voting machine” red herring diverted attention from the report’s conclusion: Putin infected America’s body politic with a sophisticated cyber-assault that included propaganda and the daily drip of Wikileaks materials hacked from Democrats’ computer systems.

— Conway deflection on Jan. 8: “In terms of Russia…they did not succeed in throwing the election to Donald Trump. That’s very clear in this report…”

No.

Strategy #4: Bully and Intimidate

If someone resists Trump’s Big Lies, he attacks.

— Trump on Jan. 4: “@FoxNews: Julian Assange on U.S. media coverage: ‘It’s very dishonest.’ #Hannity ‘More dishonest than anyone knows.'”

The U.S. intelligence report concluded that to help Trump defeat Hillary Clinton, Russian military intelligence used Julian Assange’s Wikileaks as the vehicle for releasing materials Russia had hacked from the DNC.

— Trump on Jan. 8: “Kellyanne Conway went to @MeetThePress this morning for an interview with @chucktodd. Dishonest media cut out 9 of her 10 minutes. Terrible!”

Network news shows editing guest spots is nothing new, especially guests who deflect, divert, and distract.

— Trump distraction on Jan. 9 (3:27 am): After Meryl Streep’s Golden Globe acceptance speech alluding to Trump’s offensive behavior toward a disabled reporter, he tweeted, “Meryl Streep, one of the most over-rated actresses in Hollywood… Just more very dishonest media!”

Strategy #5: Confuse

All strategies morph into an overriding message: Trust Trump and no one else. Unless he blesses it, believe nothing that you see, hear, or read. Those who question the Great Man are unpatriotic, biased liars. The playground bully has become the school principal.

Already exhausted from an ugly campaign, Americans get dizzy on Trump’s accelerating merry-go-round. The faster it goes, the more difficult to get your bearings. When your head is spinning, it’s impossible to keep your eye on the ball.

Future installments in this series will suggest ways to defeat Trump’s assault. I invite readers to share their ideas. Here’s a modest beginning:

TRP Strategy #1: Disconnect from Trump

Unfollow him. Starve him of attention. Drive down his ratings. When he or his minions appear on TV, change the channel.

Take a cue from the entertainment industry: boycott the Inaugural — unless you’re there to protest peacefully. Everyone else should resist the universal human temptation to watch a train wreck unfold. Tell everyone you know to do likewise. Low ratings will send a message. With his ever-changing stories and grandiose plans, missing his speech won’t mean missing anything that matters. If he can’t reach you, he can’t confuse you.

TRP Strategy #2: Seek the Truth

Some citizens weary of partisan bickering view the unprecedented controversies swirling around Trump as more of the same. They prefer to disengage from everything. It’s tempting. But even leading Republicans agree that Trump is different – and not in a good way. An unwillingness to seek the truth allows purveyors of falsehoods to prevail. Facts know no party lines and ignorance is no friend of democracy.

So after Trump takes office, follow this general rule: Keep close tabs on what Trump does to America and the world, but rely on news source(s) that will rigorously fact-check his every utterance. Follow only credible outlets that are willing to call out a Trump lie when they encounter one. Avoid those that repeat his falsehoods as if they were true, or give his minions a platform for lies and the Three “D’s.”

Apply that standard to me. My columns link every factual assertion to a sourced reference. I invite scrutiny.

TRP Strategy #3: Fight Back

Boycott and tweet out the companies sponsoring irresponsible platforms, so they are held accountable for their actions. Take a look at Sleeping Giants. It provides a do-it-yourself approach to influencing companies that advertise on “hate news” sites. Most of the businesses you challenge will be grateful to hear from you because a computer algorithm chooses their ad sites. Literally, these companies don’t know what they’re doing. The strategy works for “fake news,” too.

Throughout the campaign, Trump’s strategies produced ratings that were a media bonanza. Not any more. Remember that your time and your clicks translate into money for media outlets.

For eight years, American colonists fought to win freedom from Great Britain. Every citizen has a duty to preserve and protect it.

 

TRUMP’S CONFLICTS PLAN – Part 1

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Someday, Sheri Dillon and her colleagues at Morgan, Lewis & Bockius may regret her performance at Donald Trump’s January 11 press conference. Public relations people saw the event as “beautiful” and “the best thing ever.” It wasn’t. For the legal profession, it was ugly.

Everyone Gets a Lawyer

Dillon represents a controversial client. So did Clarence Darrow. That’s part of any attorney’s job description. Like all citizens, Donald Trump is entitled legal counsel. In fact, the country’s best hope is that he heeds sound advice from lawyers who aren’t afraid to tell Trump when he’s wrong.

Sheri Dillon is Donald Trump’s tax lawyer. Again, that’s fine. His complex financial affairs require capable tax counsel. But on January 11, Dillon allowed herself and her great law firm to become Trump’s prime public defender of a patently insufficient plan to address his business conflicts of interest and wholly separate Emoluments clause problem under the U.S. Constitution.

Future installments in this series will detail the flaws in the Dillon/Morgan Lewis plan. Based on Dillon’s remarks and an accompanying Morgan Lewis memo, here’s a bottom-line preview from Office of Governmental Ethics Director Walter Shaub:

“[T]he plan does not comport with the tradition of our Presidents over the past 40 years.”

The Lawyer’s Role

Like any client, Trump set the parameters of Sheri Dillon’s engagement and the limits of her authority. Faced with those constraints, she did what lawyers do: Dillon created a plan and then defended it. On January 11, she made a closing argument, just as an attorney would to a judge, a jury, or the IRS.

But this time her audience was the American people. And she had no adversary arguing the other side of the case. In fact, her opposition was a central norm of democracy, namely, an Office of the President free of even the appearance of institutionalized corruption. Until Office of Government Ethics Director Walter Shaub responded with his accurate observations of the plan’s wholesale failures, no one was representing that norm.

This is the first in a series that examines the myriad problems with the Dillon/Morgan Lewis plan and Dillon’s effort to defend it. Along the way, Sheri Dillon morphed into yet another public relations spokesperson for Trump’s talking points.

A Summary of the Plan’s Major Failures

The press conference came complete with theatrical props — piles of papers on a large table near the podium. But Dillon did not provide the pubic with any documents implementing the Dillon/Morgan Lewis plan. Without the ability to scrutinize the various trust instruments and related materials, it’s impossible to verify any of the claims she made about her plan’s ability to do any of the things she promised. But even based on her description, a brief summary of the fatal shortcomings include:

— Trump is not divesting. He will retain all benefits that flow from owning assets that create his massive conflicts of interest. Those conflicts compromise the integrity of the Office of the President. While in that Office, Trump and his family will benefit from any increase in the value of those assets.

— Trump’s children remain active managers of his assets.

— Trump plans to resume management of those assets after his presidency.

— Trump’s agreement to give away hotel profits from foreign governments does not solve his wholly separate Emoluments clause problem. And it’s a red herring that doesn’t even attempt to address the issues arising from his numerous other foreign entanglements — bank loans on Trump structures, payments from building tenants, royalties, and the like.

Dillon was more precise, but Trump conflates his conflicts and Emoluments clause problems. He lumps everything together and talks about “conflicts” that he “cannot have” because he’s president. The truth is that the scope and magnitude of both problems remain unknown because Trump has not revealed the detailed financial structure behind his empire. That includes loans, investors, and other information that even his personal tax returns would not disclose.

About Those Tax Returns

Trump hasn’t released those returns, and he probably never will. At his press conference, Trump reiterated, “I’m not releasing the tax returns because as you know, they’re under audit….”

As he spoke, Sheri Dillon stood nearby. She had co-signed a March 2016 letter, stating that the IRS audits had been completed through 2008. He hasn’t released those earlier returns, either. Her letter explaining why probably presages the argument that Trump will make to withhold all of them forever:

“Your returns for these years report items that are attributable to continuing transactions or activities that were also reported on returns for 2008 and earlier. In this sense, the pending examinations are continuations of prior, closed examinations.”

Hers was a lawyer’s argument. And not a particularly good one for a client who was seeking — and now has won — the Presidency of the United States.

Dillon As Trump’s Newest Minion

Dillon’s completed her transformation from legal adviser to just another Trump spokesperson with her concluding lines:

“We believe this structure and these steps will serve to accomplish the president-elect’s desire to be isolated from his business interests and give the American people confidence that his sole business and interest is in making America great again, bringing back jobs to this country, securing our borders and rebuilding our infrastructure.”

The final words in that sentence — “bringing back jobs to the country, securing our borders and rebuilding our infrastructure” don’t appear in the accompanying “White Paper” on Morgan Lewis letterhead. They’re certainly extraneous to any reasoned professional legal opinion. So are Dillon’s concluding sentences:

“The American people were well aware of President-elect Trump’s business empire and financial interests when they voted. Many people voted for him precisely because of his business success.

“President-elect Trump wants to bring this success to all Americans.”

Donald Trump, Kellyanne Conway (who has a JD), or some other Team Trump person probably wrote that ending. But Dillon spoke it, so whatever fees Trump paid Morgan, Lewis & Bockius for this assignment, he got his money’s worth.

Specifically, Dillon confirmed publicly the soundness of a fatally flawed plan. When things go badly for Trump under that plan, he’ll have lawyers to blame. For him, it’s a win-win. For Dillon and the reputation of a great law firm, not so much.

By The Way…

OGE Director Walter Shaub’s reward for his uncommon courage in speaking the truth about the Dillon/Morgan Lewis plan was an immediate summons to the principal’s office of Rep. Jason Chaffetz (R-UT), chairman of the House Committee on Oversight and Government Reform. After the infamous Access Hollywood tape surfaced, Chaffetz declared that he would not vote for Trump. Three weeks later, he reversed himself and reboarded the Trump train, promising years of investigations into Hillary Clinton if she won.

In light of Dillon’s performance at Trump’s press conference, the most ironic sentence in Chaffetz’s letter to Shaub was this: “Your agency’s mission is to provide clear ethics guidance, not engage in public relations.”

Then came the most threatening passage: “OGE’s statutory authorization lapsed at the end of fiscal year 2007 and the Committee has jurisdiction in the House of Representatives for reauthorizing the office.”

Just when you think Trump’s conflict of interest and Emoluments problems can’t descend to some frighteningly new level, they do.

LATEST TRUMP DISTRACTION FROM HIS RUSSIA PROBLEM

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TRUMP DISTRACTION: Launches 6:00 am Saturday morning Twitterfit aimed at Rep. John Lewis (and lies about the actual condition of Lewis’ Congressional district — see this from the Atlanta Constitution: “Trump trashes John Lewis’ district: Things to know about 5th Congressional District.”)

REAL STORY: Nine hours earlier, the Senate Intelligence Committee announced an investigation that Trump doesn’t like: “Intel Panel to Examine Possible Campaign Links With Russia.”

A TEST FOR JEFF SESSIONS

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The Justice Department’s Inspector General is looking into James Comey’s disclosures of the Clinton email investigation. But I’m not confident that he’ll reach the most important issue in that debacle: the underlying leaks that probably contributed to Comey’s actions. That will require Jeff Sessions to pick up the baton.

During his Senate confirmation hearings on January 10, Senator Sessions (R-AL) assured colleagues that he’s not Donald Trump’s lackey. Here’s his first test: Find out who at the FBI leaked information to Rudy Giuliani during the final weeks of the campaign.

Those leaks probably forced FBI Director James Comey into the corner producing actions that cost him and the Bureau integrity for years to come. They may have swung the election to Trump, too, but done is done. It’s not about re-litigating the last election. As United States attorney general, Sessions has to assure the integrity of the next one. 

Roll the Tape

In October, polls showed Trump losing so badly that he was likely to cost Republicans the Senate. Three months earlier, Director 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 Trump’s “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.

On October 25, Rudy Giuliani appeared on Fox & Friends. When a host asked whether him Trump 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, 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

Shortly 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. 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.”

Later, 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.”

But Giuliani’s distinction doesn’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” in which they agreed, “[D]ue 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. Trump milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of the 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 campaign manager Kellyanne Conway on whether Trump would stop using the earlier false report in his 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, Trump had 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.”

If all of this had happened to Trump, hearings in the Republican Congress would have begun immediately after the election. Rudy Giuliani would be under oath and senators would be asking him to name his FBI sources — active or retired.

In fact, Trump said that he wanted a full-scale investigation into leaks of the U.S. intelligence report on Russian hacking. The ones that emanated from the FBI are far more consequential to the future of American democracy.

BEGIN THE TRUMP RESISTANCE PLAN BEFORE IT’S TOO LATE

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[This article fist appeared on billmoyers.com on January 9, 2017]

Note from Bill Moyers:  I’m pleased to officially welcome Steven Harper to our site. Steven retired early from a successful career as a litigator to write – and write he has done, including two acclaimed books — The Lawyer Bubble — A Profession in Crisis and Crossing Hoffa – A Teamster’s Story (a Chicago Tribune “Best Book of the Year”). He’s currently working on another, from which I’ve read some riveting excerpts, about the recent downfall of a New York law firm once led by New York State Governor and two-time presidential candidate Thomas Dewey. 

Steven Harper blogs at his site The Belly of the Beast (https://thelawyerbubble.com/), contributes regularly to the monthly magazine The American Lawyer, and is an adjunct professor at Northwestern University. When I read one of his short essays recently and some of his work on his current book project, I invited him to contribute a series of articles providing insights into current events. You can follow him here on our site and on Twitter at @StevenJHarper1. 

 

“Begin The Trump Resistance Plan Before It’s Too Late”

“Immediate necessity makes many things convenient, which if continued would grow into oppression…” 

— Thomas Paine, Common Sense (1776)

Ordinary citizens searching for the convenient satisfaction of immediate necessity are Donald Trump’s unwitting allies in an unseen war on democracy. It’s difficult to blame them. Most Americans are busy leading frenetic lives. In sound bites, they receive what passes for news; there’s no time to confirm its veracity. Politicians like Trump tell them what they want to hear; it pleases them. But quick solutions displace efforts to understand complicated challenges for which there are no easy answers.

Short-term convenience can produce long-run peril. Waiting for Trump’s America to reveal itself assures his victory and the republic’s loss. Perhaps more precisely, it could assure the loss of the republic. Successfully resisting the dangerous Donald Trump requires united action toward a common goal, thoughtful strategy, and flexible tactics.

The Goal

The objective of The Trump Resistance Plan (TRP) must transcend America’s politics and culture wars. Citizens of good will across the political spectrum will always disagree on matters of public concern. That’s healthy democracy.

The larger battle at hand pits democracy against an unknown fate. Throughout the world, populist nationalism is joining with authoritarian leaders to upend longstanding democracies. To repel this historic assault on our shores, the TRP proposes a goal that should find universal acceptance among Republicans, Democrats and independents.

For 230 years, two norms have anchored American democracy. One is that elections must be free of foreign interference. Another is that the presidency must be free of institutionalized corruption. Trump is undermining both. The TRP’s single goal is to preserve those norms.

The importance of the first is clear. America sought independence from the tyranny of remote rule. Foreign agents that subvert our most important democratic process – voting – are enemies. Any citizen giving aid or comfort commits treason. Trump’s belittling of U.S. intelligence conclusions that Russia hacked the election to help him win seems to qualify.

The second norm distinguishes the United States from countries where tyrants increase personal wealth and power at the expense of the people. That principle, too, has roots in the founding of our nation as a rebellion against a king and his corrupt government. Even the appearance that presidential acts are for sale is incompatible with democracy. Trump’s refusal to release his tax returns, liquidate his business holdings, and relinquish his finances to a truly independent blind trust violates that norm.

The Audience

No patriot can reasonably resist the TRP’s goal. After all, it’s not tit-for-tat politics designed to exact revenge for Republican recalcitrance during President Obama’s eight years, although some might prefer that myopic mission. Policy outcomes are important. But the current stakes are greater than the ebb and flow of typical political battles.

To succeed in eradicating two norms that underpin American democracy, Trump requires a compliant Republican Congress. Many GOP members opposed Donald Trump’s candidacy. They knew he lacked the experience and temperament to govern. Rationalizing that anything – even an erratic, irrational, and self-aggrandizing Trump – was better than Hillary Clinton, almost all of those detractors succumbed to his bullying and fell in line.

Now some of those same Republicans have learned that they were actually falling in line with Vladimir Putin. That alone should create a case of buyer’s remorse. But Trump can offer them a deal. They get his support for the hard-right policies that many Republicans have wanted for years. In return, all they have to give him is what he wants: fracturing the two central norms of American democracy. Perhaps some of them now realize that they are playing out a script for which only Putin, Trump and his minions know the ending.

Senator Majority Leader Mitch McConnell (R-KY) doesn’t care. He wants Trump’s deal. Sorting out conflicts of interest for members of what will become the wealthiest cabinet in modern history is a big job. The absence of a thorough Trump transition team vetting process makes it even bigger than usual. But McConnell is working with Team Trump to give the Office of Government Ethics – and the American people – the bum’s rush.

The Challenge

Putin’s stain on Trump’s election is permanent. Everything that he does as president comes with a taint. Everything. Likewise, his failure to eliminate his conflicts of interest means that every presidential act brings with it a presumption of corruption. Any member of Congress who supports legislation that he signs on any subject gets dragged deeper into his mud.

The two norms he seeks to destroy are threshold issues for the moral authority of his office. Whether his actions take the form of appointments, signing legislation, or issuing executive orders does not matter. All are fruit of a poisonous Trump election tree. Whether the subject is health care, tax reform, trade or anything else, the stench of election scandal and a presumption of corrupting financial conflicts of interest hang over everything he touches.

Surely a handful of Republican Senators can find sufficient strength to become profiles in courage. It takes only three heroes to flip his 52-48 margin in the Senate into a bulwark that protects liberty from his assault. Then he’d have to deal with those representing the majority of voters who wanted someone else in the Oval Office. That won’t eliminate his Putin election cloud or the taint of his presumed self-dealing, but it’s a start.

The Stakes

Shortly after the election, The New York Times’ editorial board wrote that it was “ready to support” Trump, “without denying the many disgraceful things he did and said to get elected, the promises he may or may not keep, the falsehoods he peddled that were either delusions or lies.”

Such compartmentalization is treacherous. Character is destiny. The country cannot allow Donald Trump’s character to determine its destiny. In his battle to obliterate the two norms without which democracy cannot exist, every conscientious citizen should force him and his minions to fight for every inch of ground.

No shot has been fired, but make no mistake: the war for America began on November 8.

Turn off your reality-TV shows, folks; this is real.

THE DANGEROUS NORMALIZATION OF DONALD TRUMP

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[This article first appeared at billmoyers.com on January 5, 2017]

There’s a way to keep our short attention spans and Trump’s norm-shattering behavior from damaging the republic: “Expose and Oppose.”

The Dangerous Normalization of Donald Trump

[W]hatever is going to happen is really here now — if only one could see it.”
— H.G. WELLS, 1916

Americans are living through the dangerous effort to normalize the abnormal candidate who won the presidency with a record popular vote deficit of nearly 3 million ballots. Donald Trump has about the same popular support as losing candidates Michael Dukakis (1988) and John Kerry (2004). But that won’t slow him down.

As with many insecure leaders, he’ll attempt to govern as if he had a mandate for sweeping change. He doesn’t. Any mandate resides with the opposition.

The first step in his path toward a destination that only he knows is normalizing him. He’ll succeed and, in the process, subject the republic to incalculable damage only if others let it happen or, even worse, assist him. This column is the first in a series outlining a way to prevent that calamity. I call the strategy “Expose and Oppose.”

Nationwide Attention Deficit Disorder

When leaders fail to respect the underlying behavioral norms of a democratically elected government, its days become numbered. Donald Trump has already shattered some of the most important norms. How quickly many Americans seem to have forgotten his stunning deviations:

— Using crude language to foment ethnic, racial and religious divisions under the guise of discarding political correctness;

— Eliminating reasoned discourse about competing policies and replacing it with name-calling that branded opponents and diverted attention from his inability to offer a coherent set of ideas;

— Bragging about his sexual predation and misogyny;

— Attacking journalists and anyone else who criticized him, thereby transforming them into defenseless targets;

— Embracing dictators who rule America’s dangerous adversaries;

— Becoming a purveyor of “fake news”;

— Refusing to release complete medical records necessary to assess the health of any presidential candidate;

— Stonewalling requests for personal tax returns that would permit voters to evaluate the financial implications of his past, present and future actions; and, most importantly:

— Lowering the bar for assessing his conduct far below that applied to anyone who ever sought the country’s highest office.

As each outrageous act surpassed its predecessor, Trump fatigue settled on the land. People became acclimated to his antics. Grading him on a curve — “Not bad for Trump” — was the only way he could pass the course. As the election neared, he submitted lower and lower scores.

Trump’s reward for such unprecedented bad behavior was a tenuous Electoral College win — he placed 46th out of 58 elections. Now for the punchline: Trump’s presidency is an inflection point in the great American experiment of self-government.

Shattering Post-Election Norms

Trump’s campaign misconduct pales in comparison to more serious norm-busting behavior since the election. Even before taking the oath of office, the president-elect has brought greater instability to the United States and the world order.

— The “one-president-at-a-time” rule whereby a president-elect allows the incumbent to finish his term without interference until Inauguration Day — an honored tradition since the founding of the republic. Trumped!

— The long-standing “one China” policy. Trumped!

— Fifty years of bipartisan nuclear arms reduction efforts. Trumped!

— Divesting business and investment holdings to avoid conflicts of interest that undermine the integrity of the presidency. Trumped!

America At a Crossroads

What norms Trump will jettison after entering office? Imagine the worst, but the most important ones probably are beyond anyone’s contemplation. There’s not a moment to lose.

For those resisting Trump, the challenge is enormous. Complementing his vile messages was the three-headed hydra of disorientation, distraction and dissembling — hallmarks of his candidacy. The election was never about competing substantive policies, but its outcome provided the positive reinforcement necessary for Trump and his minions to continue pursuit of their strategy toward ends that only he and they know.

Since Nov. 8, he has doubled down. The first 100 days of his presidency will be worse. Much worse. Watch them carefully.

A frustrated majority who never wanted a President Trump now say, “I feel helpless. What can I do?”

Help is on the way, but it won’t be an easy or quick fight. The winning strategy will test a people whose attention span is short and whose need for instant gratification is profound. Only an organized, systematic effort can combat the chaos that President Trump is already inflicting from Trump Tower.

Justice Louis Brandeis was right: “Sunlight is the best disinfectant.”

But sometimes sunlight is only a good start. A potent antibiotic is necessary to eradicate the most severe infections.

TRUMP ALERT

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On New Year’s Eve, Trump said he “knew things that other people don’t know” about Russian hacking and promised revelations by Tuesday or Wednesday. Today is Thursday.

In the interim, he derided what he called American “‘Intelligence’ on so-called ‘Russian hacking.'” And Trump cited Julian Assange as his authority on Russian hacking and the U.S. media. Senator Lindsay Graham describes Assange as a man “who has a history of undermining American democracy.”

While the world awaits Trump’s big reveal, the print edition of the Wall Street Journal carries this front page headline: “Trump Plans Spy Agency Overhaul.”

He can’t change the facts that cast a dark cloud over the legitimacy of his presidency, but he can appoint people who will bury them.

TRUMP ALERT

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It turns out that the Jonathan Karl/Sean Spicer “Worst Interview of New Year’s Day” previewed the Trump Team’s latest Russian hacking denial/obfuscation/diversion strategy.

On January 1, Karl asked Spicer whether Trump would accept the unanimous U.S. conclusion of U.S. intelligence agencies that Russians had hacked the election. Spicer rambled about inadequate DNC cybersecurity and offered this false equivalence relating to one of the Democratic primary debates:

“Why aren’t we talking about Hillary Clinton getting debate questions ahead of time?”

Today, Trump tweeted:

“Somebody hacked the DNC but why did they not have ‘hacking defense’ like the RNC has and why have they not responded to the terrible things they did and said (like giving the questions to the debate to H). A total double standard! Media, as usual, gave them a pass.”

And this:

“Julian Assange said ‘a 14 year old could have hacked Podesta’ – why was DNC so careless? Also said Russians did not give him the info!”

And this:

“@FoxNews: Julian Assange on U.S. media coverage: ‘It’s very dishonest.’ #Hannity ‘More dishonest than anyone knows.'”

Perhaps the the U.S. Constitution’s emoluments clause isn’t the only lurking legal problem for Trump:

“Whoever, owing allegiance to the United States…adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason…” (18 U.S.C. Sec. 2381)

TRUMP’S DANGEROUS NORMALIZATION EFFORT AND THE ROLE OF THE LEGAL PROFESSION

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Norman Eisen and Richard W. Painter were, respectively, chief White House ethics lawyers for Presidents Barack Obama and George W. Bush. For months before the election, they wrote and spoke frequently about the dangers associated with Donald Trump’s disdain for the established norm of releasing presidential candidates’ tax returns. They warned about unprecedented business conflicts of interest that Trump would face as president. Since the election, they’ve urged divestiture, liquidation, and a blind trust as the only effective ways to resolve those conflicts.

The editorial boards of The New York Times and The Wall Street Journal agree with Eisen and Painter. But on December 10, Edwin D. Williamson at Sullivan & Cromwell penned an op-ed for the Journal that tries to let Trump off the conflicts hook.

“If I were advising Trump,” Williamson writes, “I would strongly urge him to pledge that as president he will make no decision for the primary purpose of benefiting any family financial interest, and any decision involving an entity that has a Trump business relationship will be transparent so questions of favoritism can be scrutinized.”

That’s Williamson’s proposed remedy: a pledge of fidelity, coupled with a promise of transparency from a serial liar who still refuses to release his tax returns. Would he accept that undertaking from opposing counsel to settle a case that Williamson’s client was sure to win? Seasoned litigant Trump sure wouldn’t.

But here’s Williamson’s most dangerous line: “I do not see how he can effectively promise more, and I do not believe more is needed.” He then spins frivolous false equivalence arguments that give all attorneys a bad name.

Excuses, Excuses, Excuses

Williamson’s first hypothetical scenario is the sale of Trump’s interests through an initial public offering. Because the president can appoint a majority of the SEC commissioners, Williamson believes that Trump would be trading one conflict (his business interests) for another (his influence over the SEC as it supervised Trump’ IPO).

Williamson’s second liquidation scenario is a leveraged buyout. Because it would require lending by Trump-regulated banks, that would create a new conflict, too, he writes.

Such sophistry is suffocating. Neither option creates a conflict of interest approaching the magnitude of those that will accompany Trump’s continued ownership of his businesses after Inauguration Day. In fact, Williamson final argument proves it.

Self-Refuting

“[T]he biggest problem of divestiture is that the value of Trump businesses is significantly dependent on, and inextricably tied to, the Trump name,” Williamson writes.

Precisely. The prospect of enriching Trump and his family personally is what entices others — foreign and domestic — to patronize Trump businesses in an effort to curry the President’s favor. It’s already happening at Trump’s new Washington, D.C. hotel.

In a joint letter to The New York Times, Harvard Law School Professor Laurence Tribe and Mark Green, New York City’s first public advocate, explain:

“The Constitution’s Emoluments Clause is unambiguous. It forbids an American president from accepting anything of value from a foreign entity, without congressional consent, because that would open the door to bribery or extortion.”

Tribe and Green continue, “The only way for President-elect Donald Trump to cure this problem would be an arms-length sale by a public trustee, not piecemeal judgments after Jan. 20 about the thousands of possible winks and nods between foreign leaders and the new administration.”

Professional Responsibility in the Age of Trump

Lawyers understand the relationship between preserving vital democratic norms and protecting democracy. Zealous advocacy is one thing. But attorneys err when they offer feeble justifications that aid and abet Trump’s insidious effort to normalize behavior that is not only abnormal, but also wrong. The bad news is that the effort is having an impact. Consider the number of commentators who now start from the false premise, “Well, he can’t sell his businesses….”

Why not?

As Tribe and Green observe, “Mr. Trump chose to put himself in this situation and cannot now act aggrieved, nor is there a too-big-to-sell exemption in the Constitution; if anything, the larger the potential for conflict, the more urgent a sell-off.”

“There’s no precedent,” proclaim Trump’s conflict of interest apologists.

Actually, plenty of analogous precedent resides in the conflict of interest rules applicable to all practicing attorneys. No lawyer can serve two conflicting masters simultaneously, regardless of good faith efforts to be fair and honest to both. And the appearance of conflict is equally debilitating.

Williamson dismisses such appearances as “impossible to avoid” because “almost any decision Mr. Trump makes as president will have an effect — good or bad — on his business interests.” But that argument demonstrates again why Trump must sell those interests, as Eisen, Painter, Tribe, Green, and other attorneys across the political spectrum urge.

Donald Trump isn’t a lawyer, but he will have fiduciary duties to the most important client in the world: the United States of America. At a minimum, all attorneys should hold him to the standard that the country deserves.

Don’t Give Up

Columnist Charles M. Blow offers this creed that’s worth remembering every day:

“To have a president for whom we don’t know the extent of his financial entanglements with other countries — in part because he has refused to release his tax returns — is not normal.

“To have a president with massive, inherent conflicts of interest between continued ownership of his company and the running of our country is not normal.

“Presidents may be exempt from conflict of interest provisions in the law, but exemption from legal jeopardy is not an exemption from fact or defilement of the primacy of a president’s fiduciary duty to empire above enterprise…

“[H]istory will judge kindly those who continued to shout, from the rooftops, through their own weariness and against the corrosive drift of conformity: This is not normal!”

Lawyers should be leading the charge to those rooftops, not blocking the path.

TRUMP ALERT

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The worst Sunday morning interview on New Year’s Day:

ABC’s Jonathan Karl asks Trump’s White House Communications Director/Press Secretary-designate Sean Spicer if Trump will finally accept the unanimous conclusion of all U.S. Intelligence agencies that Russians hacked the presidential election. Spicer dissembles and deflects.

SPICER: “Why aren’t we talking about the influence, other influences on the election? Why aren’t we talking about Hillary Clinton getting debate questions ahead of time? That’s a pretty valid attempt to influence an election…When are we going to start talking about the other side of this. Which is what did Hillary Clinton do to influence the election? Is she being punished in any way? What are we doing to make sure that people don’t get the debate questions ahead of time…”

KARL: “Just to be clear, that was during the Democratic primary, it was not in the debates with Donald Trump. But let me move on.”

Now we know the next false equivalence argument that Trump will utilize in minimizing the significance of Russian hacking that put a thumb on his side of the election scale.

Jonathan Karl is Chief White House Correspondent for ABC News. If he doesn’t grow a spine, bombastic bullies like Spicer will keep running over him — and all of us.

TRUMP CLAIMS MANDATE; FACTS SAY OTHERWISE

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Donald Trump’s Big Lies work. More than half of Republicans believe that he won the popular vote. In fact, he lost by a record 2.8 million ballots. His always frivolous claim that millions of people voted illegally — presumably for Hillary Clinton — has now been “unambiguously debunked.” The historical record is now complete: Trump’s popular vote performance was worse than many recent candidates who lost their elections.

Popular vote:

Trump: 46.2% — 8th lowest winning percentage in history

Clinton 48.3%

Trump’s total compared to modern losers:

Nixon: 49.5 (1960)

Ford: 48.0 (1976)

Gore: 48.4 (2000)

Kerry: 48.3 (2004)

Romney: 47.2 (2012)

TRUMP: 46.2

Dewey: 45.9 (1944)

Dukakis: 45.7 (1988)

McCain: 45.7 (2008)

Imagine Trump’s outrage if he had: won the popular vote by Clinton’s margin over him, lost in the electoral college by a mere 75,000 votes spread across three states (MI, PA, WI), and every U.S. intelligence agency subsequently concluded that Putin had interfered with the election specifically to help Clinton win.

On Election Night in 2012, when it appeared that Obama might lose the popular vote but win in the electoral college, Trump’s 45-minute rant included this tweet: “We should have a revolution in this country!”

Moral: Beware of authoritarian leaders who lie about non-existent popular mandates to justify extreme actions in consolidating and retaining power. The historical precedents are numerous and ugly.

ANOTHER BIG LAW FIRM STUMBLES

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King & Wood Mallesons was never really a law firm. For starters, it was a verein — a structure that allowed three distinct firms to create a branding opportunity — King & Wood in China, Mallesons in Australia, and SJ Berwin in the United Kingdom. As things turned out, when SJ Berwin came on board in 2013, the verein whole quickly became less than the sum of its parts.

As The American Lawyer’s Chris Johnson and Rose Walker put it in their recent article, a verein is “a holding structure that allows member firms to retain their existing form. The structure…enabled the three practices to combine quickly and keep their finances separate.”

But the structure also means that when one member of the verein hits hard times, the others can walk away. For KWM, “the Chinese and Australian partnerships have effectively been able to stand back and watch as the European practice burned.”

Not Just a Verein Problem

To be sure, the verein structure exacerbates SJ Berwin’s current difficulties. But before leaders of big non-verein firms become too self-satisfied, they might consider whether their own firms risk the same dangers now afflicting KWM.

As Johnson and Walker report, the firm’s compensation system produced bad behavior. KWM awarded client credit to the partner who physically signed the invoice. That effectively encouraged partners to refer work to rival firms, rather than other KWM partners.

Think about that last sentence for a minute.

“It was one of the things that killed the firm,” says one former London partner. “If I sent work to other [KWM] partners, it would be out of my numbers at the end of the year. It was better for me to send it to another firm, as I’d then still be the one invoicing the client, so I’d get the credit for everything.”

A Team of One, Not One Team

When it came to cross selling among offices and practice groups, management talked a good game. Indeed, the verein’s 2013 merger tag line was “The Power of Together.” But here, too, behavior followed internal financial incentives. The compensation committee focused on individual partner performance, not the “one team, one firm” sound bite on its “vision and values” website page.

“There was a complete disconnect between what management said we should do and what the remuneration committee would reward us for doing,” says a former partner.

Lessons Not Learned, Again

As KWM’s European arm disintegrates, most law firm leaders will probably draw the wrong conclusions about what went wrong. Emerging narratives include: SJ Berwin had been on shaky ground since the financial crisis hit in 2008; the firm lacked competent management; the principal idea behind the combination — creating a global platform — was sound; only a failure of execution produced the bad outcome.

For students of law firm failures, the list sounds familiar. It certainly echoes narratives that developed to explain the 2012 collapse of Dewey & LeBoeuf. But the plight of KWM — especially the SJ Berwin piece — is best understood as the natural consequence of a partnership that ceased to become a partnership. In that sense, it resembles Dewey & LeBoeuf, too.

The organizational structure through which attorneys practice law together matters. The verein form allows King & Wood and Mallesons to back away from Sj Berwin with limited fear of direct financial exposure. But as SJ Berwin careens toward disaster, fellow verein members will suffer, at a minimum, collateral damage to the KWM brand.

What’s the Future Worth?

The lesson for big law firm leaders seems obvious. Since the demise of Dewey, that lesson has also gone unheeded. A true partnership requires a compensation structure that rewards partner-like behavior — collegially, mentoring, expansion and transition of client relationships to fellow partners, and a consensus to pursue long-term strategies promoting institutional stability rather than maximizing short-term profit metrics.

Firms that encourage attorneys to build individual client silos from which partners eat what they kill risk devastating long-term costs. They’re starving firm of their very futures. Unfortunately, too many big law firm leaders share a common attitude: the long-term will be someone else’s problem.

In a line that stretches back to Finley Kumble and includes Dewey & LeBoeuf, Bingham McCutchen, and a host of others, the names change, but the story remains the same. So does a single word that serves both as those firms’ central operating theme and as their final epitaph: greed.

FOLLOW ME ON TWITTER

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In addition to my weekly posts, you can follow my more frequent reactions to immediate events on Twitter at: @StevenJHarper1

CONFLICTS AND RUSSIA, RUSSIA, RUSSIA

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Donald Trump is trying to keep separate the two biggest controversies swirling around him — business conflicts of interest and the Russia connection. But they’re inextricably intertwined. Even so, he moves adroitly between them as a distraction device.

Roll the tape and follow the ball, as it bounces from conflicts to Russia and back again.

Conflicts

The conflicts between Trump’s worldwide business interests and his Presidential responsibilities have been news for months. He refused to release his tax returns that would reveal all of them, but intrepid journalists have persevered. From the federal government landlord owning the site of his new hotel in Washington, D.C. to his Trump Tower developments around the world, the sun never sets on the empire creating his conflicts.

November 18: Even the conservative stalwart editorial board of The Wall Street Journal says that liquidation of Trump’s businesses is the only way to solve those conflicts.

The same day, Trump diverts attention to his pick for National Security Adviser, Lt. Gen. Mike Flynn, who has appeared on Russian-owned television and sat with Putin at the network’s celebratory dinner in December 2015. (Flynn’s selection itself is a distraction that makes his other two picks of the day — Jeff Sessions (Attorney General) and Mike Pompeo (CIA Director) — look good, which they aren’t. That’s how the Trump process of normalizing the abnormal works.)

Russia

Saturday, December 10: The Washington Post reports that the CIA has reached a new stage in its investigation of Russian efforts to disrupt the presidential election. Russia had a specific goal: Trump’s victory over Clinton.

Over the weekend, bipartisan support grows for an investigation into Russia’s role in manipulating the election. On Sunday morning talk shows, two of Trump’s attorney-enablers, Kellyanne Conway (George Washington, JD, ’92) and Reince Priebus (U of Miami, JD, ’98), parse, deflect, and dissemble in lawyerly fashion the serious questions that the Russia issue raises.

Simultaneously, Exxon Mobil CEO Rex Tillerson — with long and deep ties to Vladimir Putin — emerges as the leading candidate to become Trump’s secretary of state.

Monday morning, December 12: Ten electors send an open letter to Director of National Intelligence James Clapper. Quoting from Alexander Hamilton, they emphasize their constitutional role to prevent a “desire in foreign powers to gain an improper ascendant in our councils.” The electors want to fulfill Hamilton’s charge that they elect a President “endowed with the requisite qualifications.”

The electors request a briefing on all investigations relating to connections between Trump (and his current and former aides) and the Russian government. Later in the day, Senate Majority Leader Mitch McConnell announces his support for Senate hearings on Russia’s interference with the election.

December 12, 3:30 p.m.: University of Chicago Law School Professor Geoffrey R. Stone publishes a powerful editorial calling for the Electoral College to do the job that the U.S. Constitution envisioned for precisely the situation that Donald Trump presents: deliberate over the legitimate question of whether Trump should be President. The Electoral College meets on December 19.

As of Tuesday morning, December 13, another 30 electors have added their names to the Clapper letter — and the number grows by the hour.

Conflicts

Late on December 12: Trump postpones his December 15 press conference on his conflicts plan. Meanwhile, he offers this meaningless assurance:

“Even though I am not mandated by law to do so, I will be leaving my businesses before January 20th so that I can focus full time on the Presidency. Two of my children, Don and Eric, plus executives, will manage them.”

Trump adds a sentence that he assumes no one will remember, but everyone should: “No new deals will be done during my term(s) in office.”

Tuesday, December 13: Trump announces his pick for secretary of state: Rex Tillerson, which takes us back to Russia.

Surprised? Why?

Flashback: During the presidential campaign, Trump praised Vladimir Putin. He rejected the intelligence community’s consensus that Russia was responsible for hacking into Democratic National Committee computers. And he surrounded himself with advisers whose Russian connections should have raised more red flags than they generated — Paul Manafort, Boris Ephsteyn, Carter Page.

A day after the election that Trump lost by almost 3 million popular votes, Russia’s deputy foreign minister admitted to the Kremlin’s continuing communications with Trump’s entourage during the campaign.

Then came Lt. Gen. Flynn as NSA.

Secretary of State Tillerson

In Moscow, Carter Page cheered Tillerson’s selection. Page, formerly a Trump foreign policy adviser, was in Russia to meet with “business leaders and thought leaders.”

As for Tillerson, The Wall Street Journal reports his long and deep relationship with Putin that began in 1999:

“He has had more interactive time with Vladimir Putin than probably any other American with the exception of Henry Kissinger,” John Hamre, a deputy defense secretary during the Clinton administration and president of the Center for Strategic and International Studies, a Washington think tank where Tillerson is a board member.”

In 2012, Putin awarded Tillerson the country’s Order of Friendship, one of Russia’s highest civilian honors. Tillerson favors removing sanctions that the United States imposed after Putin annexed the Crimea. Those sanctions have halted some of Exxon Mobil’s big projects in Russia. If Trump/Tillerson get those sanctions lifted, the company could reap billions of dollars.

End Game

Perhaps Trump is running out the clock on his conflict of interest problems until after the Electoral College meets on December 19. Or maybe his Russia problems are now so huge that he can’t weather another round of criticism over plainly inadequate steps to deal with his business conflicts. Or maybe Trump’s actions are best viewed through the prism of distraction from the biggest issue: the hair on the head of American democracy is on fire from a match that Putin lit.

By the way, if you wonder what the Romney/Trump date night interview for secretary of state was all about, the answer comes from a line in the movie, Superman II: “Kneel before Zod.”

The line applies to other prominent Republicans whom Trump ridiculed repeatedly and who now grovel at the feet of their new emperor who still lacks clothes. Yes, I’m looking at you, Carly Fiorina. After Trump publicly degraded you and all women, you called him out. But you now call his moves “brilliant,” as you audition to become his director of national intelligence.

And you, Rick Perry. You called Trump a “cancer on conservatism.” But now seek to be his energy secretary — a department you promised to abolish if you’d won the presidency.

And you, Paul Ryan. Throughout Trump’s campaign, you admonished him and distanced yourself from his vile words and deeds. He retaliated by calling you a weak and ineffective leader. But now you grin while giving Trump another do-over: “We’re fine. We’re not looking back…That’s behind us, we’re way beyond that.”

We’re not way beyond anything. The battle for America’s soul has barely begun.

DAY OF THE GENERALS

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Rather than as a reality television show, think of the developing Trump administration as a movie. So far, the military members of the cast include:

General James N. Mattis (Marines) — Secretary of Defense (former commanding officer of the current chairman of the joint chiefs of staff, General Joseph F. Dunford (Marines))

Lt. General Mike Flynn (Army) — National Security Adviser

General John Kelly (Marines) — Director of Homeland Security

Still awaiting callbacks after their auditions: General David Petraeus (Army) and Admiral Michael Rogers (Navy)

Throughout Trump’s campaign, he disdained America’s generals. Now he can’t get enough of them. Back in August, military leaders expressed concern that a President Trump might issue illegal orders precipitating a constitutional crisis. Now Trump is what biologists might call their host species.

Movie Time

If life imitates art, then perhaps a 1964 movie, “Seven Days in May” is instructive. In the film, Burt Lancaster plays General James Matoon Scott, an egomaniac chairman of the joint chiefs of staff. Scott assembles a group of officers to stage a coup against President Jordan Lyman, played by Frederic March. The general’s plans turn on a manufactured crisis that will create popular support for his cause.

The film’s lessons have little to do with the antagonists’ specific policy differences. Rather, it reinforces a concern that President Dwight D. Eisenhower expressed as he was leaving office in 1961.

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, of the military-industrial complex,” the former general warned. “The potential for the disastrous rise of misplaced power exists and will persist.”

The Cure

When President Eisenhower referred to “the disastrous rise of misplaced power,” he wasn’t talking about a president like Trump. But his antidote applies just the same: a vigilant, well-informed electorate. Today’s post-factual world and a leader who traffics in “fake news” make that increasingly difficult.

Lt. Gen. Michal Flynn fits Trump’s new normal. For years, Trump ‘s “birther” hoax propelled his political career. Likewise, Flynn has peddled so many falsehoods that his co-workers had a name for them: “Flynn facts.” Some of his most heinous falsehoods involved Islam, which he called “a political ideology that hides behind religion.” He has touted baseless conspiracy theories about Sharia law coming to the United States.

Fake News Can Be Deadly

Proving that if you plant apples, you grow apples, General Flynn’s son was behind the recent fake news story — “Pizza-gate.” The absurd claim that Hillary Clinton was running a child sex-trafficking ring out of a Washington, D.C. pizzeria really riled a North Carolina man, who believed it. On Sunday, December 4, he marched into the restaurant with an assault rifle, apparently intent on rescuing the child-slaves.

After the incident, the younger Flynn tweeted about the “Pizza-gate” conspiracy theory, saying “it’ll remain a story” until it is “proven to be false.” Senator Joe McCarthy would be proud of that upside down approach to the relationship between journalism and the search for truth.

But that’s not the real story.

It Gets Worse

Mike Flynn Jr. had a Trump transition team email account. On November 17, he’d tweeted about his involvement: “I’ve been here last 2 days. Great atmosphere, great mood…. media lying about transition. Couldn’t be going better!” He was even getting a security clearance.

On the Tuesday morning following the Pizza-gate incident, Vice President-elect Pence — who chairs the Trump transition team — responded to questions from MSNBC’s Joe Scarborough about the younger Flynn’s role.

“General Flynn’s son has no involvement in the transition whatsoever,” Pence said. Thrice Scarborough pressed him on the issue; thrice Pence denied Flynn Jr.’s connection to the Trump team.

A few hours later, Pence dissembled as CNN’s Jake Tapper posed the same question to Pence seven times. By the end of the day, Flynn Jr. had resigned (or was fired by Trump himself) from the transition team.

Moral: Beware of Pence’s Boy Scout appearance. He often maintains a safe distance from the truth, too. But we should have learned that from the vice-presidential debate.

Trump the Military Man

President-elect Trump avoided military service because of bone spurs — he couldn’t recall which foot; maybe it was both. Subsequently, he admitted to feelings of guilt for not having served while other young men his age were dying in Vietnam. Perhaps his need to overcompensate for that underlying insecurity explains his boasts during the campaign that he knew more about ISIS than the generals, who had been reduced to “rubble.”

Now Trump has come full circle. Senior military men enthrall him. Maybe it’s the uniform. Maybe it’s their take charge attitude. But civilian control of the military stabilizes our democracy, and the plethora of former general officers in Trump’s administration is unprecedented.

They probably won’t comprise anything comparable to General James Matoon Scott’s band of rebels. But when former generals speak in unison on policy matters that our founders entrusted to civilians, their collective voice could dominate the room. If all you have is a hammer, everything looks like a nail.

Trump the Impressionable

The danger is especially great with President-elect Trump. In addition to being untethered to facts, he has no philosophical core informing his decisions. That’s why he reverses his policy views on a dime — or according to whatever people want to hear — or based on what the last person in the room tells him. (The last item makes Steve Bannon’s proximity to President Trump’s Oval Office particularly frightening.)

Consider the moment that Trump’s Secretary of Defense-designate James Mattis so impressed him. At campaign rallies, Trump repeatedly endorsed waterboarding for the interrogation of suspected terrorists. But with a single offhand remark, General Mattis flipped him.

“[Mattis] said, ‘I’ve never found it to be useful,’” Trump reported later. He added that Mattis found more value in building trust and rewarding cooperation with terrorism suspects.

According to Trump, Mattis told him, “Give me a pack of cigarettes and a couple of beers, and I’ll do better.”

“I was very impressed by that answer,” Trump said.

Torture, Trump continued, is “not going to make the kind of a difference that a lot of people are thinking.” But until his conversation with Mattis, Trump himself was one of those people.

Remain Alert

In Seven Days in May, Kirk Douglas played another military officer, Col. Jiggs Casey. He didn’t agree with President Lyman’s policies, but he recognized the threat that General Scott posed to the Constitution. Trump is no Lyman.

One more point about the movie: Rod Serling wrote the screenplay. He’d also created and written an early 1960s series that opened with these lines:

“It is a dimension as vast as space and as timeless as infinity. It is the middle ground between light and shadow, between science and superstition, and it lies between the pit of man’s fears and the summit of his knowledge. This is the dimension of imagination. It is an area which we call The Twilight Zone.”

The country has entered it.

TRUMP ALERT

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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…”

 

TRUMP ALERT

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DISTRACTION: “Trump ‘saves’ 1000 Carrier Air Conditioning jobs in Indiana.

REAL STORIES: Trump cannot bring back “Rust Belt” jobs lost to automation/globalization, and his Treasury Secretary-desginate a ran a ‘foreclosure machine’ that cost 36,000 families their homes.

THE ABA IS RAISING THE WRONG BAR

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“[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

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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

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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.