Donald Trump’s Big, Beautiful War on the Media

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When President Donald Trump took to Twitter to declare the media the “enemy of the American people” on Friday, the whole of elite opinion gasped in horror. Coming on the heels of an angry press conference less notable for news than the President’s dressing down of those that cover it, the mainstream media was aghast — and not without reason. “Even by the standards of a president who routinely castigates journalists — and who on Thursday devoted much of a 77-minute news conference to criticizing his press coverage — Mr. Trump’s tweet was a striking escalation in his attacks,” wrote the New York Times’ Michael Grynbaum.

Trump’s supporters are loving every minute.

To his supporters though, President Trump’s war on the press is a glorious and long overdue angry fist to the nose of the Washington media elite. All the hyperventilating over over the immigration executive order, Michael Flynn’s resignation and lingering questions about connections to Russia are, in their view, contrived by liberals embedded within the bureaucracy desperate trying to cling to power. President Trump’s supporters see all the recent media outrage as further evidence that he is accomplishing his mission. To them, he is doing exactly what he promised, ripping the status quo up by the roots and unshackling the public discourse from the stranglehold of Washington elites. That almost no one in the mainstream media sees it this way confirms that they just don’t get it. In Trump’s America, if the Washington establishment is rattled things are going exactly as planned. After a week of bad news, Trump has changed the subject entirely. Battling with the media returns to familiar ground that energizes his base and gets the White House back on the offensive.

A Familiar Complaint

Donald Trump is hardly the first President to be infuriated by the media. No one in public life for any length of time feels they get a fair shake from the press. Trump’s predecessor, Barack Obama, was covered as gingerly by the mainstream media as any President. Yet, even he complained bitterly about leaks and unfavorable media coverage. President Obama griped about the “false equivalence” of reporting that placed the point of view of his opponents on equal footing with his own. The conceit underlying it, of course, is that Obama’s perspective represented the exclusive truth and his opponent’s nonsense. Take away the rhetorical bombast, and Trump is making essentially the same point. While President Obama was nuanced in his criticism, he was singularly aggressive in his attempts to control the message. The Obama Administration prosecuted twice as many leakers under the Espionage Act than all of its predecessors combined. Yet, with no hint of irony, the Obama White House also elevated sanctioned leaks intended to curry favor with journalists and shape the news cycle to an art form. “Whenever I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s [Obama’s],” Bob Schieffer, CBS News anchor and chief Washington correspondent, told Len Downie, in a Washington Post column. “Every administration learns from the previous administration. They become more secretive and put tighter clamps on information. This administration exercises more control than George W. Bush’s did, and his before that.”

Trump’s War on the Press

Like everything he does, Donald Trump’s war on the media is bigger, louder and more spectacular. In doing so, he is pushing dangerously close to the line between legitimate complaint and stifling dissent. Unlike Obama, Trump has hardly gone out of his way to endear himself to mainstream reporters. At campaign events journalists corralled in the press pen often found themselves captive props for jeering diatribes against the media. At Thursday’s press conference, Trump delighted in pointing out the declining trust in the media. “The press — the public doesn’t believe you people anymore,” Trump told reporters adding almost as a point of pride, “Now maybe I had something to do with that. I don’t know.” According to Gallup, he has a point. Trust in mass media is now at an all-time low of 32%. This fall in trust has been especially pronounced among Republicans (14%) and independents (30%), but among Democrats too, barely half of whom (51%) trust the press. In a separate poll, substantially more Americans say they think that the press is too tough on Trump (36%) than thought the same about Obama (11%). However, this polling also indicates danger for Trump. A majority (59%) think the press is either getting it about right on Trump (31%) or are not tough enough (28%) on him. Nearly every major news outlet has found itself on the receiving end of Trump’s weaponized bully pulpit. With trust in the press already at an all time low, Trump is likely to find a receptive audience.

Aspiring Autocrat?

In the precision-guided fury pouring from the President’s lips and his Twitter account, Trump’s detractors see ominous signs of autocratic tendencies. Sunday on Meet the Press, Sen. John McCain, among Trump’s most strident critics within the GOP, defended the press:

“If you want to preserve — I’m very serious now — if you want to preserve democracy as we know it, you have to have a free and many times adversarial press,” McCain said. “And without it, I am afraid that we would lose so much of our individual liberties over time. That’s how dictators get started.”

While McCain didn’t go so far as to accuse Trump of being an aspiring autocrat. Others have noted parallels with Vladimir Putin’s rise in Russia. Susan Glasser, a former Moscow correspondent, observed in a New York Times op-ed that you need not believe the conspiracies about Trump and Russia to be concerned about the path he is taking:

“Both Mr. Trump’s rhetoric and actions as president bear more than a passing resemblance to those of Mr. Putin during his first years consolidating power…the similarities are striking enough that they should not be easily dismissed…

“The media-bashing and outrageous statements. The attacks on rival power centers, whether stubborn federal judges or corporations refusing to get in line. The warnings, some of them downright panic-inducing, that the country is not safe — and we must go to war with Islamic extremists because they are threatening our way of life. These are the techniques that Mr. Putin used to great effect in his first years in power, and they are very much the same tactics and clash-of-civilizations ideology being deployed by Mr. Trump today.”

While this is worrying, suggesting Donald Trump is a malevolent autocrat in the making might be a little premature. It’s a far leap from Trump admiring Putin to emulating him. Even if you believe the worst about Donald Trump, there is little risk of a Putinesque autocracy taking root here. Unlike Russia, the U.S. has sturdy institutions and constitutional checks on power that protect against erosions of liberty. Still concern about Trump’s threat to freedom of the press are not entirely without merit. Distrust in the mainstream press and the rise of social media as an alternate form of communication has created an environment in which reality can be distorted in more subtle ways to undermine dissent. Trump’s fondness for counterfactual hyperbole creates confusion about whether anything can be reliably understood as objective truth, blunting the effectiveness of contrary facts in holding him accountable. Whether deliberate or not, it is a tactic literally ripped right from the Russian information warfare playbook. “Multiple untruths, not necessarily consistent, are in part designed to undermine trust in the existence of objective truth, whether from media or from official sources.” writes Keir Giles, a scholar at London-based Chatham House in a recent NATO lithograph, The Handbook of Russian Information Warfare. “This contributes to eroding the comparative advantages of liberal democratic societies when seeking to counter disinformation, by neutralizing the advantages associated with credibility.” When the media cannot be trusted and facts are unreliable, criticism loses its effective power giving politicians far more scope to operate without accountability. “Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins,” Benjamin Franklin wrote in a 1737 essay. “Republics…derive their strength and vigor from a popular examination into the action of the magistrates.” Worries about Trump’s threat to freedom of the press are not entirely without merit. Still, there are less far-fetched explanations for Trump’s war on the media than a plot to subvert democracy. Trump’s jousting with journalists may be nothing more than typical frustration with unfavorable press coverage, in typical Trumpean style, turned up to eleven. Either way, a Presidential war on the press should viewed with skepticism. “I think we’ve learned through history to beware of presidents playing press critic,” Tom Rosenstiel, director of the Project for Excellence in Journalism told the New York Times in an article about Obama’s complaints about the press. “They’re not press critics — they’re people trying to advance a political agenda.”

Trump and Russia: Smoke, Mirrors and Fire

Listening to the partisan debate over President Donald Trump’s White House and Russia, one of two things must be be true. Either, as Trump supporters contend, the media and U.S. intelligence community are engaged in a politically motivated effort to undermine the legitimately elected President of the United States; or, if the more hysterical among Democrats are to be believed, Moscow has placed their man in the Oval Office — or at the very least managed to infiltrate the highest levels of American government. Both possibilities are deeply disturbing. The reality is likely somewhere in between.

Take a Deep Breath…

Washington has been a partisan tinderbox for a while now. Any minor dust up gets affixed with the suffix “-gate” and immediately becomes a media obsession. (Monday’s resignation of Michael Flynn is “Flynngate” in case you’re keeping score.) Everyone needs to calm down and check their political reflexes. The swirl of controversy around connections between Trump’s team and Russia reached gale force Monday with the resignation of National Security Advisor Michael Flynn. It hit full hurricane strength Tuesday with a New York Times bombshell headline sure to send everyone to their partisan corners: “Trump Campaign Aides Had Repeated Contacts With Russian Intelligence.” The responses have been predictable. For Trump supporters, more fake news from a leftist media and their subversive “deep state” intelligence community sources, for Democrats, a smoking gun. Upon careful reading, the Times story is less dramatic than it first appears. Officials say they have found no evidence of collusion with the Trump team related to Russian election interference; investigators have yet to substantiate any of the more explosive allegations in the famous opposition research dossier; and, members of Trump’s team had private business interests entirely separate from the campaign that might explain at least some of the contacts.

So Far, No Evidence of Collusion

If the Times‘ report of repeated contacts with senior Russian intelligence officials is accurate, then the next question is what those conversations were about. Based on what we know so far jumping to the conclusion that these contacts indicate that Trump’s associates were in on Russia’s effort to influence the election is premature:

“The intelligence agencies then sought to learn whether the Trump campaign was colluding with the Russians on the hacking or other efforts to influence the election. The officials interviewed in recent weeks said that, so far, they had seen no evidence of such cooperation.”

The Trump Dossier Remains Unverified

The F.B.I.’s investigation has, in part, focused on verifying the opposition research dossier produced by former British intelligence officer Christopher Steele. According to the Times, those efforts have so far not born fruit:

“The F.B.I. has spent several months investigating the leads in the dossier, but has yet to confirm any of its most explosive claims.”

“It’s not like these people wear badges.”

Paul Manafort, Trump’s former campaign manager, is the only individual mentioned by name in the Times story. It is well-known that Manafort served as a political advisor to the pro-Russian former President of Ukraine Viktor Yanukovych. So, it’s not particularly surprising that he might have contacts with people in Moscow’s orbit. Manafort calls the implication of collusion with the Russian government “absurd” and is adamant that he has never knowingly spoken to Russian intelligence officers. “It’s not like these people wear badges that say, ‘I’m a Russian intelligence officer,’” Manafort told the Times. Anyone doing business in Russia, as several of Trump’s associates have, is likely to unknowingly encounter Russian intelligence operatives in the normal course of commerce. Acknowledging this, the Times adds that, “[l]aw enforcement officials did not say to what extent the contacts might have been about business.”

Trump Strikes Back

President Trump has struck back in recent days, casting all this as a politically motivated smear campaign. In a series of tweets and public comments lashing out at the media and the leakers themselves. In a press conference Thursday, a frustrated President Trump denounced the stories. “The press is honestly out of control,” he said. “The level of dishonesty is out of control.” On Twitter, Trump contended that it is all as an extension of the political rancor of the campaign. For President Trump, illegal leaks are the real problem, a consistent theme of his Tweets in recent days.

Trump Versus Spies

President Trump is correct that leaking signals intelligence intercepts is illegal. Whatever you think of Trump, the permissiveness with which this kind of highly sensitive information is leaking should be a concern. The Washington Post story that ultimately led National Security Advisor Michael Flynn to tender his resignation was based on the anonymous accounts of “[n]ine current and former officials, who were in senior positions at multiple agencies at the time…” That so many officials were willing to do so is worrying. Trump has pledged an investigation to get to the bottom of it. President Obama’s extensive mole hunts and aggressive leak prosecutions have already set a standard for this. Better it be handled independently at the Justice Department than directed by the White House. There is doubtless a political component. At least some of the “former officials” mentioned by the Washington Post are likely to be former Obama administration staffers with a political ax to grind. Still, it is wrong to chalk it all up to just petty revenge. There are reasons other than politics that the intelligence establishment might harbor some ill-feelings about Trump. There is a pervasive unease about Trump among career intelligence officers stemming from a broader clash of worldview between Trump and the foreign policy and intelligence community on consensus issues like Russia and NATO. Trump has also said many less than flattering things about America’s spy agencies. All this has “generated unprecedented enmity in our Intelligence Community,” according to John Schindler, a former NSA spy and professor at the Naval War College. There’s also the possibility, which must be at least considered, that at least some of the leaks are rooted in real concerns about connections between Trump’s inner circle and the Kremlin. So far, none of the leaks directly implicate Trump, a substantial oversight if the aim is to just make stuff up to damage the President. Trump is hardly the first President to face the ire of the intelligence community. Spies also got all leaky over pressure from the Obama White House to sugar-coat intelligence reports about ISIS. Then there is Edward Snowden and Chelsea Manning. Leaks are bipartisan. The leaks of some in the intelligence community do not justify broad condemnation of intelligence agencies. Most intelligence officers are deeply patriotic men and women who put their lives on the line overseas doing incredibly dangerous things to get the President and policy-makers the information they need to make critical national security decisions. This, at least, is worthy of respect.

This is a time to ask questions, not answer them.

It is valid to believe that career intelligence professionals should be, well, more professional about these things while simultaneously being concern that the new President and those around him appear overly cozy with Moscow. It is appropriate that Congress investigate both. If President Trump is correct that it is all “fake news,” the White House should welcome the opportunity. Until this question is settled, President Trump will find it difficult to implement his agenda. If the intelligence community is actively working against the President by fabricating connections to Russia, it is unlikely to stop on its own. With each new leek, the President bleeds political capital he will need to accomplish the big things he promises. If there is truth to the allegations, a secret this explosive is bound to find its way out of the shadows one way or another. But, in the meantime, caution is warranted. The whole country descending into a partisan food fight of conspiratorial speculation does not serve our national interests. As Danielle Pletka, a foreign policy scholar at the American Enterprise Institute and frequent Trump critic wrote recently, that’s exactly what Russia wants:
Those who gain the most from this are people and countries that seek to undermine our system, erode belief in our institutions, seed questions about the quality of our democracy and distract from that which is real.
It is possible that the Trump-Russia connection is a lot of smoke and mirrors. But, there may be some fire too. Either way, this is a time to ask questions, not answer them. Follow on Twitter: @tgriffinnc

What to make (and not make) of Michael Flynn’s resignation

The resignation of President Trump’s National Security Advisor Michael Flynn is the latest plot twist in a young administration not short on drama. Flynn’s departure follows weeks of intrigue surrounding his frequent contacts with Russian Ambassador Sergei Kislyak and ongoing questions about Russia’s role in hacking emails of the Democrat National Committee during last year’s election.

Will Flynn’s departure be a tourniquet on the Russia issue or a new injury?

Michael Flynn, a former Army General who led the Defense Intelligence Agency under President Barack Obama, has a reputation as a brilliant intelligence analyst but a bit of a bull in the china shop. It was the latter quality that got him sacked by Obama, but his hard-charging style and refusal to mince words about the threat of radical islamic terrorism is also what endured him to Donald Trump. Like his boss, Flynn doesn’t fit the mold of his predecessors. It was unusual for an incoming National Security Advisor to be coordinating so closely with a foreign diplomat during the transition, but not particularly surprising in an administration about which there is little that is usual. And, before we all get carried away, it’s worth noting that it wasn’t illegal either, as Dani Pletka’s excellent column points out. Rather, it was misleading his White House colleagues, specifically Vice President Mike Pence, that got Flynn in trouble. In Flynn’s words, “Unfortunately, because of the fast pace of events, I inadvertently briefed the Vice President Elect and others with incomplete information regarding my phone calls with the Russian Ambassador.”

Flynn’s resignation raises new questions even as it answers old ones.

It also renews speculation about broader issues regarding Russia’s involvement in the 2016 campaign and contacts between campaign officials and the Russian government. At the least it is yet another distraction for an administration still finding its footing. The Washington Post reported that then Acting Attorney General Sally Yates informed White House Counsel Donald McGahn that Flynn had misrepresented his conversations with Russia’s ambassador, raising concern that he was vulnerable to Russian blackmail. National Security Advisor is among the most sensitive posts in the government, making the message Yates delivered especially alarming. It is not known whether McGahn shared the information about Michael Flynn with President Trump. If Trump was aware of Yates’ message, it is legitimate to ask why someone potentially compromised by any foreign government, much less Russia, was allowed to continue in this position for so long. If Flynn’s actions were only addressed because news reports made him a liability, there is further reason to be concerned. If the Washington Post had more incompetent reporters (and Trump a less leaky administration), how long would Flynn have been allowed to stay? Coming on the heels of revelations about Russian hacking of the DNC and unverified reports of inappropriate contacts between Russian officials and members of Trump’s team, there’s a lot of smoke. It is easy to start confusing speculation with evidence of fire.

Manafort, Page, and Now Flynn…

Michael Flynn is the third member of Trump’s orbit to resign amid rumors related to Russia. Paul Manafort, Trump’s former campaign manager was dismissed this summer amidst a swirl of rumors about his financial dealings with the former pro-Russian President of Ukraine, Viktor Yanukovych. Carter Page, a campaign foreign policy advisor to Trump, stepped down in September in the wake of reports that U.S. intelligence agencies were looking into whether Page was secretly coordinating with Russian officials. And now Michael Flynn… All three are implicated in the opposition research dossier compiled by former MI6 agent Christopher Steele, much of which remains unverified. While recent reports have verified that some of the conversations between Russian officials described in Steele’s dossier did take place, it’s important to note that the accusations about Manafort and Page are still largely unsubstantiated.

Take a Deep Breath…

Even if the allegations are all true, and that’s still a big if, it is not at all clear that that Flynn, Manafort and Page were acting at the direction, or even knowledge of President Trump. It is entirely conceivable that Manefort and Page were peddling their ties to Trump to their own financial advantage and that’s where it ends. It’s easy to jump to conclusions. That is unwise until until we know more. In the meantime, there’s nothing wrong with asking questions. The FBI is investigating and will continue to do so. It is appropriate that Congress look into this as well. Just because the story so far reads like a spy thriller, doesn’t necessarily mean that it will end like one.

7 Best Quotes from Marco Rubio’s Brilliant Response to Elizabeth Warren

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Earlier this week, as the outrage over “silencing” Sen. Elizabeth Warren was hitting fever pitch, Senator Marco Rubio took to the Senate floor to give an impassioned defense of respectful political discourse. Rubio’s speech largely went unnoticed. That’s too bad. What he had to say was important, and well worth taking a few minutes of your time to hear. Here are a few of the best quotes.

Seven best quotes from Senator Rubio’s speech

  1. “We are becoming a society incapable of having debate anymore.”

  2. “I don’t know of a single Nation in the history of the world that has been able to solve its problems when half the people in the country absolutely hate the other half of the people in that country.”

  3. “We are reaching a point in this republic where we are not going to be able to solve the simplest of issues because everyone is putting themselves in a corner where everyone hates everybody.”

  4. “In this country, if you watch the big policy debates that are going on in America, no one ever stops to say: I think you are wrong. I understand your point of view. I get it. You have some valid points, but let me tell you why I think my view is better.”

  5. “As soon as you offer an idea, the other side jumps and says that the reason you say that is because you don’t care about poor people, because you only care about rich people, because you are this or you are that or you are the other.”

  6. “I think what is at stake here tonight…is not simply some rule but the ability of the most important Nation on Earth to debate in a productive and respectful way the pressing issues before us.”

  7. “I am so grateful that God has allowed me to be born, to live, and to raise my family in a nation where people with such different points of view are able to debate those things in a way that doesn’t lead to war, that doesn’t lead to overthrows, that doesn’t lead to violence.”

On the Senate floor, a reverence for its elaborate traditions of civility still survives like a living fossil from another era. It is one of the last good things in Washington that the rank partisan atmosphere has yet to destroy. It won’t be long now before that to is eroded away. We should at least allow for the possibility that the invocation of Senate Rule XIX was not an attempt to silence Senator Warren, but to preserve the respect for each other that allows Senators, and our country, to debate pressing issues productively.

Why Sen. Elizabeth Warren Was ‘Silenced’

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The partisan outrage mill was restocked with fresh grist on Tuesday night when Senators invoked a century-old rule to rebuke Massachusetts Sen. Elizabeth Warren for remarks disparaging another Senator. For most people, it likely appeared to be politics as usual. Why should she be “silenced”? The backlash in the media has been swift, fierce, and almost universally wrong. The indignant reaction misunderstands the unique customs and traditions of the United States Senate. We asked a long-time former Senate staffer to explain why. 

  Let me state at the outset that I do not know anything about this particular incident. I do not know what led to one Senator invoking Senate Rule XIX , and I do not know what caused the other Senator to continue after being advised of the violation. I’m writing only to share my relevant experiences as a long-time Senate staffer, by way of illuminating what this is all about.

A Unique Institution

I love the Senate. It’s out of fashion to speak highly of any governmental institution these days, but so be it: it’s far from the only way I’m unfashionable. I believe it an important, vital institution, with much to teach us. It’s not a strictly majoritarian body. Individual Senators have significant power to gum things up, and this forces Senators to deal with each other with a certain amount of mutual respect. Not every legislative body around the world works this way.
Daniel Webster Addressing the United States Senate
Daniel Webster Addressing the United States Senate / In the Great Debate on the Constitution and the Union 1850. Credit: U.S. Senate Collection
The Senate also has certain rules of decorum. When you debate in the Senate, you don’t address other Senators directly. This means you don’t say “you” when referring to another Senator in debate – you address your remarks to the presiding officer, and you generally refer to a colleague as “the Senator from (Name of State)” rather than using his or her name. This helps to keep the focus on issues rather than on personal disputes. The Senate observes other rules that are not only important in the context of the Senate, but which impressed me so much while working there that I have tried to import them into my personal conduct. You are not permitted to impugn another Senator or to characterize their motives.
“NO SENATOR IN DEBATE SHALL, DIRECTLY OR INDIRECTLY, BY ANY FORM OF WORDS IMPUTE TO ANOTHER SENATOR OR TO OTHER SENATORS ANY CONDUCT OR MOTIVE UNWORTHY OR UNBECOMING A SENATOR.” – U.S. SENATE RULE XIX
This, frankly, is great advice for everyone. So many debates we have would be more constructive if we would all agree to refrain from doing these things. None of us can ever really know another’s motives, so when we attribute someone else’s view to a nefarious motive, we’re usually ducking the issue in question to seek undeserved advantage. One reason the tenor of Senate debate doesn’t descend into the muck and mire associated with social media exchanges is precisely because of rules like Rule XIX against such tactics.
It is rare for the rule to be formally invoked. It is not so rare for Senators to be cautioned about it.
I have one recollection of an instance, which may be inaccurate in some respects, involving Senator Al Simpson in 1992, where the rule came up. Then-Senator Al Gore, running for Vice President at the time, had been taking what Senator Simpson viewed as very cheap shots out on the campaign trail at his friend President Bush. (Note, the Senate rules don’t prevent a Senator from saying whatever he wants outside of the Senate). Senator Simpson got a bellyful and went to the Senate floor to give a speech in which he complained about several things Senator Gore had done. During the speech I believe it was Senator Pryor who came in, and looking very concerned, asked for time and reminded Senator Simpson of rule XIX and how it forbade him to impugn Senator Gore’s motives or character. Senator Simpson took the point and stopped. I don’t recall whether any of his words were excised from the record. This, in my experience, is how it typically works. A Senator crosses the line by saying something that disparages another Senator’s character. They are then reminded of the existence of the rule, and typically will be apologetic and withdraw the remarks. I do not know why that did not happen in this case. I will say this: it saddens me greatly to read a lot of the commentary I’ve read over the last 24 hours. I’ve read not one but two ridiculous, childish pieces respectively in the online editions of the Washington Post and the New York Times that sought to make a gender-conflict issue out of the fact that the Senator who invoked the rule was male, while the Senator who proceeded in spite of it was female. Anyone who cares about the Senate must find this framing destructive and outrageous in the extreme. There are no gender specifications in Rule XIX. Every Senator is required to abide by it, and the sex of the Senator who invokes it is irrelevant. We can’t start carving out gender exceptions to the basic rules of Senate decorum to settle some perceived longstanding score about the politics of cross-gender communication.
The Senate rules of comportment are not about political positioning. They are about preserving respectful debate.
I’ve been equally frustrated by the speculations about the supposed strategy behind what one Senator or the other did. The Senate rules of comportment are not about political positioning. They are about preserving respectful debate. It shouldn’t matter who gains or loses politically from a violation or invocation of the rules.
View of the Senate of the United States in Session.
View of the Senate of the United States in Session. By J. Rodgers. 1850 ca. Credit: U.S. Senate Collection
I realize mine is a lonely voice in a social media environment that seeks to construct political advantage out of anything and everything. But as someone who worked in the Senate a long time, I can tell you that the Senate rules of decorum are important, it’s good that they exist, and all Senators should respect them.

VIDEO

Sen. Warren reminded of Rule XIX

Sen. Steve Daines, serving as the Senate presiding officer, banged his gavel to remind Warren of Senate Rule XIX. This includes, he added after consulting with the parliamentarian, “quotes, articles and other materials.”

Sen. McConnell invokes Rule XIX

As Warren’s speech reached the 50-minute mark, Senate Majority Leader Mitch McConnell invoked Rule XIX to call Warren out of order, ending her remarks. 

Sen. Warren’s full remarks

In Defense of Sean Spicer

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White House Press Secretary Sean Spicer made his satirical debut on Saturday Night Live this weekend. President Lyndon B. Johnson might have some advice.
“IT IS PART OF THE PRICE OF LEADERSHIP OF THIS GREAT AND FREE NATION, TO BE THE TARGET OF CLEVER SATIRISTS.”
On the Smothers Brothers Comedy Hour, which celebrates its 50th Anniversary this year, President Johnson was a target of frequent and, at times, more bitter than funny satire. So, when Tom and Dick Smothers received a letter from LBJ himself, they were more than a little surprised. “It is part of the price of leadership of this great and free nation,” Johnson wrote, “to be the target of clever satirists.” In full disclosure, Sean Spicer is a friend of mine. He ranks among the smartest communications professionals with whom I’ve had the pleasure of working. Melissa McCarthy’s send up of Sean bears little resemblance to the man I know. Or, for that matter, the man Americans see standing at the White House podium most days. McCarthy’s approach to Spicer is notable not for the accuracy of its mimicry, but for the depth of its absurdity. That Sean Spicer, a patriot and man’s man who has long balanced a career at the highest levels of Washington with service in the U.S. Naval Reserve would be played by a woman is the pinnacle of absurdist shtick. McCarthy’s gum chewing, super-soaker wielding, insult hurling, intemperate and utterly ludicrous White House Press Secretary is a cartoon character. Like the mischievous goof-ball elementary school student George Bush of the Comedy Central series “Lil Bush,” McCarty’s Spicer is a satire rooted in fanciful ridiculousness.

The Real Sean Spicer

The real Sean Spicer is a talented communicator and a gifted strategist. While I am not privy to the internal deliberations of the White House, I am more than confident that Sean is a consistent source of wise counsel to President Trump.
Sean Spicer talks with HLN’s Robin Meade, Jan. 19, 2017. (Instagram)
Sean Spicer has perhaps the hardest job in America. Each briefing he walks before an especially hostile press corps, all of whom Twitter apps at the ready to greet the slightest stumble with outrage, indignation and ruthless snark. The job of any press secretary requires courage and nerves of steel. Sean Spicer faces a more oppositional press corps, often with a more difficult brief, than most of his predecessors. For him, this goes doubly. It is a tradition of White House press secretaries to pass down a flack jacket to their successor. Spicer’s predecessor, Josh Earnest, might have done well to have left him one of those bomb suits from the Hurt Locker. It is the press secretary’s job to represent the White House’s point of view. Sean Spicer represents a highly unconventional President before a remarkably skeptical press. He does this all while keeping his wits about him and resisting the temptation to put a fist through the wall. It is a task that would drive a lesser man to madness.

Taking it all in stride

President Johnson’s letter was in reply to one the Smothers had sent to the former President after watching his televised address to the nation announcing he would not seek reelection. Impressed at what they saw as his act of courage, the Smothers wrote to Johnson apologizing for the lengths to which they went in mocking him. “We have taken satirical jabs at you,” they wrote, “and more than occasionally overstepped our bounds.” Perhaps Sean Spicer might someday receive a similar letter from McCarthy. In the meantime, as a man who takes his job, but not himself, seriously Sean Spicer is taking it all in stride. “I think Melissa McCarthy needs to slow down on the gum chewing,” Spicer told Extra. “Way too many pieces in there.”
“I think Melissa McCarthy needs to slow down on the gum chewing. Way too many pieces in there.”
President Johnson’s reply to the Smothers contained great advice for anyone who finds themselves in the public spotlight. “May we never grow so somber or self-important that we fail to appreciate the humorous in our lives.” It is advice that Sean Spicer seems to be heeding.

The Berkeley Controversy Over Milo Yiannopoulos Has Echoes in Legal History

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In 1964, Clarence Brandenburg, a KKK leader from Ohio, invited local media reporters to cover a rally where a handful of his supporters were in the audience. While Brandenburg himself was unarmed, several of his supporters in the audience were, and during the course of his speech, he stated that “we’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”
While there is no denying that Brandenburg’s speech consisted of incredibly vulgar language, the Supreme Court looked closely at the threat of “revengeance” that he alluded to. In the aftermath of his speech, he was arrested for violating an Ohio law that criminalized the advocacy of the “duty, necessity or propriety of crime sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” The justices of the Supreme Court reversed this conviction, writing that:
The constitutional guarantees of free speech of free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
The parallels between Brandenburg and Milo Yiannopoulos’ recent attempt to speak at UC Berkeley are obvious. Milo’s detractors argue there is hardly a dime’s worth of difference between what he has to say and what Brandenburg spoke about decades ago. However strongly people may disagree with Milo’s speeches, he does not threaten “revengeance,” now or down the road.
If only non-controversial speech were covered by the First Amendment, there would barely be a need for it to begin with, because people would have no objections to it.
Additionally, if only non-controversial speech were covered by the First Amendment, there would barely be a need for it to begin with, because people would have no objections to it. The First Amendment needs to cover topics that raise objections. 90 years ago, Justice Louis Brandeis stated that “fear of serious injury cannot alone Justify suppression of free speech and assembly…the remedy to be applied is more speech, not enforced silence.” The only thing preventing people from engaging in dialogue and discussion with Milo to challenge him on his ideas was the riot itself. The violence that erupted was shocking but far from unexpected, with the Berkeley Police Department receiving a letter that read, in part, “you can protect Milo but you will not be able to protect [College Republicans President] Jose Diaz.” To its credit, Berkeley itself refused to cancel Milo’s appearance until the protests made it incredibly difficult for it to proceed (although it did charge College Republicans a security fee of several thousand dollars, which was waived after the speech failed to take place). Its chancellor’s office stated that “our Constitution does not permit the university to engage in prior restraint of a speaker out of fear that he might engage in even hateful verbal attacks.”

“Not a Proud Night” for Berkeley

Prohibition against prior restraint of speakers has been a critical element of First Amendment doctrine in America for centuries. A university spokesman said that the night of riots was “not a proud night for this campus, the home of the free speech movement.” The protesters who shut down this event did so in direct violation of Berkeley’s wishes This entire incident demonstrates how universities can either abide by their histories of supporting free speech or abandon them to the loudest voices at any given moment. As a student at the University of Chicago, I have been lucky to attend an institution that considers itself a leader in the free speech movement. Our history with free expression dates back at least to the 1930s, when a Communist Party leader spoke on campus. At the time, UChicago President Robert Maynard Hutchins defended the hosting of Foster, saying “our students … should have freedom to discuss any problem that presents itself.”
“free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry, [and] that without it they cease to be universities.” – UChicago President Robert Maynard Hutchins
Hutchins later summed up the importance of open inquiry in higher education: “free inquiry is indispensable to the good life, that universities exist for the sake of such inquiry, [and] that without it they cease to be universities.” If only more presidents of universities had the conviction to echo that statement these days. Fortunately, UChicago has continued to build on its legacy with Professor Geoffrey Stone’s Report of the Committee on Freedom of Expression and Dean Jay Ellison’s famed letter to UChicago’s Class of 2020. With any luck, more schools will look to us as an example for the Classes of 2021 and beyond. How does the Brandenburg standard apply to cases like this? The three key elements of this standard are held by many First Amendment experts to be: intent, imminence, and likelihood. However, the standard can’t quite be applied to Milo’s scenario, because the riots happened before he started to speak. That said, it is all but guaranteed that Milo’s speech would have been protected and that there would be no First Amendment justification to restrict his talk under the Brandenburg specifications. A Supreme Court precedent that is also pertinent to this instance is that of Terminiello v Chicago, where Arthur Terminiello gave a speech that was critical of various racial groups, and where he also egged on the protesters, whom he referred to as snakes, slimy scum, and more. The protesters who were gathered outside smashed the building’s windows and threw stink bombs into the crowd packed inside. This doesn’t nearly approach the damage caused to Berkeley’s campus, which might run into the hundreds of thousands of dollars. Despite how Terminiello was arguably “asking for” the protesters to disrupt his event and destroy property, the Supreme Court held that “a function of free speech under our system of government is to invite dispute….or even stir people to anger. [That] is why freedom of speech, though not absolute, [is] nevertheless protected against censorship and punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” The definition of “substantive evil” is relatively subjective, but it is important to remember that Milo’s words did not produce the riots at Berkeley: protesters were rioting over the fact that he was going to speak later that day.
Berkeley was once home to a vibrant free speech community, but their work seems to be forgotten by the protesters of today.
Milo Yiannopoulos’ visit to UC Berkeley clearly demonstrates how much work needs to be done on college campuses. Berkeley was once home to a vibrant free speech community, but their work seems to be forgotten by the protesters of today. Unfortunately for them, the law is not on their side.

Trump’s Travel Ban and the Perils of Populism

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The first two weeks of the Trump Presidency have been a wild ride. The breakneck pace of executive orders, battles with the media and generally doing exactly as he said he was going to do has delighted Trump’s supporters even as it alarms official Washington and draws hackles from the media. On the campaign trail, Trump promised simple, populist solutions to complex problems. Many in Washington assumed that when faced with the practicalities of governing, Trump would abandon his more immodest proposals and adopt a more conventional, pragmatic approach. The travel ban demonstrates that Trump and his team have no intention of doing anything of the sort. A picture is emerging of a White House determined to make good on President Trump’s campaign pledges, critics be damned. Now, the travel ban is testing whether the nativist populism that won Trump the White House can be translated into workable government policy. The results so far are not promising.

The Courts Have a Vote

Developed by President Trump’s political advisors behind the backs of his national security team, the travel ban executive order was ill-conceived and poorly executed. It left hundreds stranded at airports, sparked protests across the country and unleashed a rash of legal challenges that promise a bruising legal battle in the weeks to come. The language of the Executive Order is shoddily drafted and riddled with legal holes big enough for the ACLU to drive a truck through. As Benjamin Wittes observed on the Lawfare Blog, “This order reads to me, frankly, as though it was not reviewed by competent counsel at all.” The flaw in this approach is already becoming apparent. On Saturday, the State Department ordered staff to resume processing visas from banned countries after a Federal Judge in Seattle issued a temporary restraining order.
“We have reversed the provisional revocation of visas,” a State Department spokesman told the Washington Post. “Those individuals with visas that were not physically canceled may now travel if the visa is otherwise valid.”
To Trump’s fans, the rapid-fire activity of his first weeks in office is evidence that a new day has arrived in Washington. Some bumps in the road are to be expected. But, it is also beginning to give an idea of how Donald Trump will govern that is not reassuring. Politics Versus National Security The White House contends that a broad ban on travel from seven predominately Muslim countries is necessary to protect the homeland from terrorism. Almost no one in the national security community agrees. Former CIA Director Michael Hayden told the Washington Post that the order “inarguably has made us less safe. It has taken draconian measures against a threat that was hyped. The byproduct is it feeds the Islamic militant narrative and makes it harder for our allies to side with us.”
“This kind of thing is causing us great damage right now, and it’s sending shock waves through the international system.” – James Mattis
He’s hardly alone. Some now within Trump’s own administration previously said similar things. In July, Trump’s Secretary of Defense James Mattis warned against campaign trail talk of banning Muslims. “This kind of thing is causing us great damage right now, and it’s sending shock waves through the international system.” While the order does not specifically ban muslims, Secretary Mattis, according to aides, remains strongly opposed. Since 9/11, Presidents of both parties have been forced to make tough decisions about measures required to keep Americans safe. To President Trump and his supporters, the travel ban should be viewed through this same lens. There is legitimate concern, for example, about sufficient vetting for Syrian refugees given the state of chaos in that country. If the ban was limited to a temporary halt on refugee admissions from Syria, it might be more defensible. But, banning all travel from seven majority Muslim countries is a draconian step to be taking on a hunch. In the post 9/11 era, the balance of liberty and security has at times tilted towards security: enhanced screening at airports, tighter-restrictions on visas for travelers from certain countries, and expanded intelligence gathering. Most of these measures have drawn some degree of controversy. Past Presidents took these actions reluctantly, after weighing the implications and circulating drafts among government agencies to smooth out rough edges and avoid unintended consequences. Yet, the travel ban was announced not with reluctance, but glee, underscoring its fundamentally political nature.

Politics Versus Reality

The travel ban is demonstrating the dangers of applying populist politics to sensitive national security issues. The haste with which it was developed and the dubious connection to national security has put the order on legally tenuous ground. Last week, a White House aide described the order as a “massive success.” The comment has been widely mocked, but it all depends on what success means. Seen in terms of national security, process of government and rule of law, Trump’s travel ban indisputably is not a success at all. Yet, Trump’s supporters are thrilled.  In terms of the politics of his base, it is indeed a “massive success.” And here lies the challenge for the man now holding the reins of the federal government. Trump’s populist message depends on the premise that adversaries, muslim terrorists, illegal immigrants and Washington elites are the source of the country’s problems. While there are kernels of truth in each, solutions are not as simple as banning immigrants from muslim countries, building a wall, and putting an outsider in the White House. Ultimately, a Presidency is judged by results, not rhetoric. President Trump is in a position any President would envy. With his party in control of Congress, a steadfastly loyal political base, and a country that mostly wants him to succeed, Trump has the potential to be a consequential President. But, at some point, he will have to decide what success means. Is it actually making America great, or just doing a lot of stuff and claiming he has done so?

For Democrats, Blocking Neil Gorsuch Won’t Pay Off

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Judge Neil M. Gorsuch, President Donald Trump’s nominee for the U.S. Supreme Court has been well-received — certainly among Republicans — and among at least a few Democrats as well. Despite combative early pledges to fight his nomination, Democrats may find it wise to keep their powder dry.
Gorsuch, a widely-respected judge currently serving on the U.S. Court of Appeals for the 10th Circuit, is beloved by conservatives but is by no means an ideologue. Gorsuch is known for his deep conviction that it is the responsibility of the legislative branch, as the people’s representatives, to write laws. Judges are merely its interpreters.
Gorsuch frequently describes his legal philosophy by quoting the man he will replace, the late Justice Antoine Scalia. “If you’re going to be a good and faithful judge,” Scalia said, “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
“Legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But…judges should do none of these things in a democratic society.” – Judge Neil Gorsuch
Like Scalia, Gorsuch is an originalist. He believes that judge’s are bound by the text of the law regardless of personal ideology. “Legislators,” Gorsuch said in a speech earlier this year, “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But…judges should do none of these things in a democratic society.” This view often leads Judge Gorsuch to decisions that are not uniformly politically conservative or liberal — a trait that should recommend him to Democrats regardless of their view of their dim view of the President who nominated him.

The Wrong Fight

In today’s political climate, it is unwise to hold one’s breath waiting for an outbreak of bipartisan comity. Smarting from the Republicans refusal to confirm President Obama’s Supreme Court nominee Merrick Garland in the closing months of Obama’s term, liberals are spoiling for a fight. Republicans justified blocking Garland’s nomination by arguing that it should be for the next President to decide who fills Scalia’s vacancy. As infuriating as this was for liberals, doing the same to Gorsuch at the start of Trump’s will prove much harder to justify.
Senator Chuck Schumer (D-NY)
Still, Senate Minority Leader Chuck Schumer issued a statement — almost certainly prepared in advance — immediately after Tuesday night’s announcement pledging a fight. But, in light of the largely positive reaction Gorsuch has received, at least some Democrats are having second thoughts. Sen. Chris Coons, D-Delaware, a member of the Judiciary Committee told CNN that despite the Republicans’ decision to block Judge Merrick Garland, it would be unwise to return the favor. “I’m not going to do to President Trump’s nominee what the Republicans in the Senate did to President Obama’s,” Coons said. “I will push for a hearing and I will push for a vote.” Other Democrats also agree with that sentiment. “There’s no doubt what they did [on Garland] was wrong and unconstitutional. In the end, I don’t think we should play their game. Have a hearing and vote,” Sen. Jon Tester (D-Mont.), an endangered Democratic incumbent, told Politico.

A Futile Effort

Blocking Gorsuch will prove a futile effort in any case. Republicans are almost certain to respond by employing the so-called “nuclear option,” a tactic employed by Democrats to overcome Republican objections to President Obama’s judicial nominees. By dispensing with the 60 vote threshold required to overcome a filibuster and allow a vote, Republicans could confirm Gorsuch with a simple majority. Forcing Republicans’ hand in an un-winnable fight over Gorsuch will establish a precedent that renders Democrats powerless to stop future Trump nominees.
“Democrats are worried, multiple aides said, about Republicans having an excuse to kill the filibuster on the Supreme Court now, and later use it to ram through an even more conservative nominee if there is another vacancy during Trump’s presidency.” – Politico
President Trump’s early executive actions, especially his ban on travel from seven Muslim countries, appalled Democrats. It has raised considerable concern that Trump is willing to stretch his executive authority beyond what Democrats, and some Republicans, believe permissible. This brings the role of the Judicial branch as a check on the President’s power into sharper focus. Gorsuch’s reputation for independence and his hostility towards ideological interpretations of the law suggest he may prove an ally to Democrats concerned about a Trump Administration running amuck.
“[I]f the Senate is to confirm anyone, Judge Gorsuch…should be at the top of the list.” – Neal Katyal, an acting solicitor general in the Obama Administration.
Neal Katyal, an acting solicitor general in the Obama Administration, argued in a New York Times op-ed that “if the Senate is to confirm anyone, Judge Gorsuch…should be at the top of the list.” Katyal contends that “one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws? I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law.” Even if Democrats succeed in blocking Gorsuch, the next nominee is not likely to be any more acceptable. As law professor Sasha Volokh, a Trump skeptic, wrote, “[i]f Trump’s first choice is, unexpectedly, good, take it, because the second choice will surely be worse.”

Blocking Gorsuch is Politically Risky

Blocking Gorsuch holds political risks for Democrats too. His reputation for fair-mindedness and the respect for him across the political spectrum make Gorsuch hard to demonize. With 23 Democrat Senate seats up for grabs next year, obstructing a candidate as well-qualified as Gorsuch runs the danger of a political backlash. The battle over judicial nominees has a long history that dates back at least to Democrats’ intransigence towards George W. Bush’s judicial appointments. It was a favor returned in kind by Republicans under Obama. Former majority leader Harry Reid’s decision to employ the nuclear option and Republican refusal to confirm Merrick Garland were further escalations. A quixotic battle against Gorsuch would establish a precedent that no nominee offered by an opposition party President will be acceptable. It is a position that Democrats may well regret if they succeed in retaking the White House in 2020. The best move is to call a truce on the judicial nominee war for now and give Neil Gorsuch a chance.

The Trump-Russia Memos, Roughly Explained

The Trump-Russia Memos, Roughly Explained

A collection of opposition research memos containing unverified allegations of collusion between Presidential-elect Donald Trump’s team and Russia to interfere in the 2016 election set off a firestorm. Trump has vehemently denied the allegations and suggested that the memos were leaked by U.S. intelligence agencies seeking to undermine his Presidency before it begins. Despite extensive efforts over several weeks, neither the FBI nor journalists have verified any of the charges. WHAT HAPPENED On Tuesday, CNN reported that U.S. intelligence agencies briefed Presidential-elect Trump on a 35-page dossier of opposition research memos, which included unverified allegations that Russia had compromising information on Trump and that several of his close associates were in regular contact with the Kremlin. Because neither the FBI nor CNN had been able to confirm if the claims were true, CNN declined to give further details. CNN: Intel chiefs presented Trump with claims of Russian efforts to compromise him Following CNN’s report, BuzzFeed News released the full 35-page document. It included details of the compromising information that the Kremlin allegedly had compiled on Trump, including a lurid descriptions of a bizarre sexual encounter between Trump and several prostitutes during a 2013 visit to Moscow. It also included explosive charges that Trump’s team worked closely with Russia in Vladimir Putin’s efforts to interfere in the 2016 election. BUZZED: These Reports Allege Trump Has Deep Ties To Russia The release of the memos was met with angry denials from President-Elect Donald Trump who denounced them as “fake news” and suggested that U.S. intelligence agencies deliberately leaked them to undermine him. U.S. Director of National Intelligence James Clapper disputed this, saying that, to his knowledge, no one in the intelligence community was responsible for the leak. DNI Clapper Statement on Conversation with President-elect Trump WHO WAS BEHIND IT? The memos were first commissioned by one of Trump’s GOP primary opponents. The Clinton campaign continued the investigation that led to the memo’s release. They were written by a former British spy, but are not the work of U.S. or any other intelligence agencies. WHAT DOES IT MEAN? The allegations are serious. If they prove true, it would be among the biggest scandals in history. However, while new information continues to emerge, the key allegations still remain unverified.