Trump White House Continues To Block Congressional Inquiries

Since the release of the Mueller Report, the White House and the Democrat-controlled House of Representatives have been deadlocked in a showdown as Democrats seek to expand their investigations into the findings in the Special Counsel’s report and other matters,

The first manifestation of this came when the report itself was released and, instead of turning the report over to Congress, Attorney General William Barr sent Congress a written summary that purported to summarize the findings of the report. With members of both the House and Senate complaining at the time that Barr’s letter was insufficient the Justice Department ultimately provided Congress with a redacted copy of the report. It quickly became clear from even the redacted report that Barr had substantially misrepresented the contents and conclusions of the report, something that became a focus of his appearance before the House Judiciary Committee in April. As of yet, the Administration has yet to make a full unredacted copy of the Special Counsel’s report available to Congress, claiming that it is covered by Executive Privilege. Barr, meanwhile, has been held in contempt by the House Judiciary Committee, although there has yet to be any formal action on this front.

In addition to playing games with the Special Counsel’s report, the Administration has been refusing to comply with seemingly legitimate requests for copies of documents. The most notable example of this came in response to the request of the Chairman of the House Ways and Means Committee for copies of the President’s tax returns. Initially, and despite a Federal law that seems to clearly authorize the Chairman to make such a request, Treasury Secretary Steve Mnuchin refused to comply with the request, arguing that it lacked a “legitimate legislative purpose.” When the committee followed up with a subpoena for the tax returns, Mnuchin repeated his objection and again refused to provide the committee with copies of the requested documents, meaning that the matter is likely leading to Mnuchin being held in contempt and probable litigation on the part of the committee to enforce its subpoena and its rights under the relevant provision of the U.S. Code and enforce its subpoena.

In yet the latest example of this stonewalling, the White House is refusing to allow former White House Counsel Don McGahn, who had been the primary contact between the Trump White House and the Special Counsel’s office for the better part of the first two years of Trump’s Presidency, to testify before the House:

The White House on Monday blocked former counsel Donald McGahn from testifying to Congress, the latest act of defiance in the ongoing war between House Democrats and President Trump.

McGahn, who Democrats hoped would become a star witness in their investigation into whether Trump obstructed justice, was subpoenaed to testify Tuesday morning. The former White House counsel delivered critical testimony in several instances of potential obstruction by Trump detailed in special counsel Robert. S. Mueller III’s report.

“The Department of Justice has provided a legal opinion stating that, based on long-standing, bipartisan, and constitutional precedent, the former counsel to the president cannot be forced to give such testimony, and Mr. McGahn has been directed to act accordingly,” said White House press secretary Sarah Sanders in a statement. “This action has been taken in order to ensure that future presidents can effectively execute the responsibilities of the office of the presidency.”

Trump, speaking to reporters Monday evening, called the directive “a very important precedent. And the attorneys say that they’re not doing that for me. They’re doing it for the office of the president. So we’re talking about the future.”

The 15-page legal opinion written by Assistant Attorney General Steven A. Engel argues McGahn cannot be compelled to testify before the committee, based on past Justice Department legal opinions regarding the president’s close advisers.

The memo says McGahn’s immunity from congressional testimony is separate and broader than a claim of executive privilege.

The immunity “extends beyond answers to particular questions, precluding Congress from compelling even the appearance of a senior presidential adviser – as a function of the independence and autonomy of the president himself,” Engel wrote.

That immunity, the memo insists, does not evaporate once the adviser in question leaves the government, because the topics of interest to Congress are discussions that occurred when the person worked for the president.

As a private citizen no longer in the government, McGahn is not necessarily bound by the White House directive, or the OLC memo, to refuse to comply with the subpoena. In a letter to the committee obtained by The Washington Post, McGahn’s lawyer, William A. Burck, said the former counsel would not testify.

“Mr. McGahn remains obligated to maintain the status quo and will respect the President’s instruction,” Burck wrote.

Testifying could jeopardize business and professional standing for McGahn, who works for Jones Day, a Republican law firm with close ties to the Trump campaign and electoral politics. Jones Day will still be involved in the reelection campaign but will have a reduced role from 2016, campaign officials say, when they were the main firm.

The move to bar McGahn from answering lawmakers’ questions angered House Democrats already eager to hit back at what they view as White House stonewalling. The defiance raises the possibility that the House will hold McGahn in contempt of Congress, as House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) has threatened.

“It is absurd for President Trump to claim privilege as to this witness’s testimony when that testimony was already described publicly in the Mueller report,” Nadler said in a statement. “Even more ridiculous is the extension of the privilege to cover events before and after Mr. McGahn’s service in the White House.”

The chairman said the committee would still meet on Tuesday morning, and “Mr. McGahn is expected to appear as legally required.”

While the White House is free to invoke Executive Privilege with respect to specific conversations between McGahn and the President or his senior advisers, the idea that the White House has the authority to completely block McGahn from testifying at all is quite simply absurd.

As a preliminary matter, it’s important to note that McGahn’s conversations with the President or his advisers are not covered by the attorney-client privilege. This is because, as a Federal employee rather than being one of Trump’s private attorneys, McGahn has no attorney/client relationship with Donald Trump the person. Instead, his “client,” such as he had one during the time he was serving as White House Counsel, was (and remains) the Presidency as an institution and the White House generally. Since there is no attorney/client relationship, and thus no privilege.

Second, while Executive Privilege may apply in some specific circumstances as I noted above, it cannot be used to bar McGahn’s testimony as a whole because it’s clear that not all of McGahn’s activity falls within the confines of that privilege. This is especially true regarding testimony regarding McGahn’s interactions with the Special Counsel’s office, which is clearly not covered by any conceivable privilege.

Finally, it is important to note that McGahn has already spoken to third parties regarding many of the subject matters that the Judiciary Committee would be questioning him about. Specifically, I am referring to his conversations and interviews with Special Counsel Mueller and his team of investigators. These interviews reportedly totaled more than thirty hours and were conducted with the full approval of the White House and are set forth in unredacted portions of the Mueller Report made available to Congress. In that respect, it is arguably the case that the White House has waived any possible objection to McGahn testifying before Congress.

For these reasons, it seems clear to me that the effort to block McGahn from testifying at all is without legal justification.

Notwithstanding the fact that McGahn’s attorney has made clear that his client will not appear this morning, the House Judiciary Committee still intends to meet as scheduled. At that point, assuming that McGahn does not appear, the committee will face the same options that other House Committees have been presented with in the face of this pattern of stonewalling.

None of this is new, of course, it is instead part of a strategy that the White House has engaged in for the past two months to block legitimate Congressional inquiries. It is rooted, of course, in Trump’s vow to resist “all” subpoenas by House Democrats, a strategy that the White House has complied with in full to the point that even routine requests for cooperation from House committees that have been complied with in the past by both this Administration and those preceding it.

While it has been true that there have been fights between the Legislative and Executive Branches over some specific document or testimonial requests in the past, this blanket strategy of refusing to comply with any request from Congress is without precedent. I would call it Nixonian, but even Nixon didn’t stonewall Congress to this extent, and it is worth noting in that regard that Article III of the Articles of Impeachment that were approved by the House Judiciary Committee against President Nixon covered the President’s failure “without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. ” This is the same pattern of behavior that the Trump Administration is engaging in.

They can, of course, hold McGahn in contempt, but this avenue is somewhat moot given the fact that the Justice Department will obviously choose not to prosecute any such contempt citation. Alternatively, they can go to Court seeking to compel McGahn’s appearance before the committee. More broadly, the Committee and Congress as a whole have the option of pursuing the ultimate sanction by opening an impeachment inquiry against the President notwithstanding the fact that neither public opinion nor the current makeup of the Senate, where any Articles of Impeachment would be tried, support such a move. As a political matter, I’ve noted that this is a strategy that Democrats ought to avoid, but at some point, it seems as if it will become the only option left for Congress to move forward with the investigations that it is Constitutionally entitled and obligated to undertake.

Here’s the memorandum from the Department of Justice’s Office of Legal Counsel regarding McGahn’s testimony:

Memo From DoJ Office of Leg… by on Scribd

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Trump Administration Punts Yet Again On Putting Harriet Tubman On The $20 Bill

In the closing years of the Obama Administration, it was announced that the Treasury Department was considering redesigning American currency by placing a woman on the $10 bill in place of Alexander Hamilton, the first Secretary of the who had also served as a delegate to the 1787 Constitutional Convention and an aide to George Washington during the American Revolution. Thanks largely to the popularity of the Broadway musical Hamilton, though, the plan to replace Hamilton was scrapped and it was announced that the abolitionist Harriet Tubman, an escaped slave who later helped to found the Underground Railroad that led escaped slaves to freedom in the 19th Century and later served as a Union agent in the South during the Civil War, would replace former Andrew Jackson on the $20 bill. After the Trump Administration took power, though Treasury Secretary Steve Mnuchin seemed to throw cold water on that idea, although it wasn’t clear if the idea was being abandoned entirely.  Asked about the issue again last year Mnuchin still would not commit to the idea of making any change to the $20 bill.

Today, the Treasury Secretary made clear that there would be no immediate change to the design of the bill and that any such change likely wouldn’t be seen in circulation until well into the next decade:

Treasury Secretary Steven Mnuchin punted again Wednesday when pressed about an Obama-era plan to put Harriet Tubman on the $20 bill.

Rep. Ayanna Pressley, a Massachusetts Democrat, questioned Mnuchin during a House Financial Services Committee hearing, asking about plans to put the Underground Railroad hero on the bill as part of its redesign.

“I’ve made no decision as it relates to that,” Mnuchin replied.

He said in response to repeated inquiries from Pressley that he is focused primarily on anti-counterfeiting and security measures, and that he anticipates the new $20 bill would not come out until 2028. He went on to say decisions about the imagery on the $20 bill “will not be an issue that comes up until most likely 2026.”

“It’s not a decision that is likely to come until way past my term even if I serve the second term for the President,” Mnuchin said. “So I am not focused on that at the moment.”

The comments on Wednesday were the latest in a years-long saga to redesign the bill.

(…)

President Donald Trump previously slammed the move as “pure political correctness.”

He said that Tubman was “fantastic” and suggested putting her on the $2 bill, which features President Thomas Jefferson, instead.

As President, Trump visited Jackson’s grave and put a portrait of the 19th century populist in the Oval Office.

Mnuchin said in a January 2018 interview that “we haven’t made any decision as to whether we’ll change the bill, or won’t change the bill,” and a Treasury Department spokesperson told CNN this year that Mnuchin’s position remained the same.

As I have said before, replacing Jackson with Tubman would be a measure of justice. Unlike Hamilton, whose place on the $10 bill is apparently secure for now, there is very little about Andrew Jackson that is admirable. In addition to being a slave owner, Jackson was also responsible for the death of thousands of Native Americans who were forcibly removed from their ancestral lands and sent on forced migration to what is now Oklahoma on what came to be known as the “Trail of Tears.” While he was President, Jackson defied Supreme Court orders, including orders directly related his policies toward Native Americans. Additionally, Jackson’s position on the Second Bank of the United States was the primary factor behind the Panic of 1837, which sent the United States into one of the most prolonged economic downturns in its history that in many respects was worse than the Great Depression.  Tubman, on the other hand, stood against pretty much everything that Jackson stood for, was a genuine hero to anyone who respects what America really stands for and assisted Union forces in the South during the Civil War during several crucial moments in history. If any woman deserves to be honored in this manner, she does, and it would be especially appropriate for her to replace someone like Jackson.

Despite that, the Administration has been slow-walking the decision made before it took office. Perhaps the biggest reason for this is the fact thatthe President seems to have some kind of weird affinity for him:

Andrew Jackson was a slaveholder, a populist and an emotionally volatile man who fought in as many as 100 duels during his lifetime.

Naturally, Donald Trump has great admiration for him.

In fact, Trump—despite his gaping and well-demonstrated ignorance of American history—has developed an unusual fixation with the seventh president. In January, Trump described Jackson as “an amazing figure in American history—very unique [in] so many ways” and hung a portrait of the early president in the Oval Office. And on Monday, during an interview with Salena Zito, a host on SiriusXM, Trump made some of his most mystifying historical proclamations to date: He claimed that Jackson might have been able to stop the Civil War. (Jackson died in 1845, a decade and a half before the war broke out.)

(…)

Why does Trump like to compare himself to Jackson? Maybe because so many of his allies made a point of positioning Trump as a successor of Jackson, usually as a way of beefing up his populist credentials.

“Like Jackson’s populism, we’re going to build an entirely new political movement,” White House chief strategist Stephen Bannon said in an interview shortly after Trump’s victory. Newt Gingrich invoked Jackson’s name way back in August, touting Trump’s psychological capabilities by saying that he’s “at least as reliable as Andrew Jackson.” And here’s Rudy Giuliani on election night: “This is like Andrew Jackson’s victory. This is the people beating the establishment.” (Trump surrogates don’t tend to mention the ethnic cleansing stuff.)

Though he boasts constantly of his wealth (and favors a tax plan that would mostly aid the wealthy), Trump clearly likes to be thought of as a champion of the “forgotten man”—and comparing himself to Jackson gives him a historical antecedent that he probably finds flattering. It legitimizes his presidency. Jackson is on the $20 bill. Despite the more despicable aspects of his legacy, he remains reasonably popular among historians. (Though his popularity is sliding, and some are blaming Trump for that.)

The temperamental similarities between the two men are significant, though less commonly remarked upon. Andrew Jackson was known to be vengeful, violent and obsessed with his honor. He fought in dozens of duels and once killed a man who called him “a worthless scoundrel.” (During one of these duels he was shot in the chest, yet carried on and killed his rival.) He was quoted as saying he had two regrets from his presidency: “that I have not shot Henry Clay or hanged John C. Calhoun.” Trump is similarly unstable and obsessed with his enemies, though he generally prefers insulting people on Twitter to fighting duels. Maybe if Twitter was around in 1830 Jackson could have just done that instead of shooting people who pissed him off.00

Trump also displayed that weird affinity, and an odd view of history, on other occasions:

https://platform.twitter.com/widgets.js

This is hardly the most serious issues facing the nation, but it does provide an insight into this President and explains a lot about how he has governed as President. Over the past two years, Trump has clearly operated in the spirit of Jacksonian populism, usually in the worst possible way. Like his campaign, Trump has portrayed himself as a champion of the “common man” notwithstanding the fact that his Cabinet is full of elites from the worlds of banking, business, and Wall Street. On the campaign trail, though, Trump has presented himself as the same kind of populist that Jackson was, and he’s engaged in the same kind of battles with Congress, the media, and the Courts that Jackson did. The only difference between the two seems to be that Trump at least appears to recognize that he has to comply with Court orders no matter how much he disagrees with them, but one could argue that his continued efforts to undermine the Russia investigation are akin to Jackson’s defiance of the Supreme Court. Additionally, his open contempt for the media mimics the attitude that Jackson took toward his own critics of the day, right down to the name calling and the accusations of disloyalty. Indeed, it’s fair to say that Trump is the most Jacksonian President we’ve had since Jackson himself, and that’s not a good thing. In any case, given the fact that we’ve got a President who not only admires Jackson but openly emulates him, the odds that he’ll allow his hero to be removed from the $20 bill are pretty slim.

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Most Americans Do Not Want Roe v. Wade Overturned

Thanks to new laws in Alabama, Ohio, and Georgia that purport to drastically restrict access to abortion, and similar legislation pending in Louisiana and Missouri, the topic of abortion rights is back in the news and seems likely to play a big role in the upcoming Presidential race given that the next President would likely make Supreme Court appointments that could prove decisive in determining the fate of the precedent established in Roe v. Wade and Planned Parenthood v. Casey. In that regard, CBS News is out with a new poll showing yet again that most Americans do not want Roe overturned:

Two-thirds of Americans want Roe v. Wade left in place, and most who hold that view would be disappointed or angry if the ruling were to be overturned someday, a new CBS News poll finds. Recent state laws restricting abortions have prompted speculation over whether the Supreme Court might one day revisit the decision.

If Roe v. Wade were overturned, almost twice as many Americans say they would be dissatisfied or angry than happy or satisfied. A quarter say it wouldn’t matter much. 

Most who want the Supreme Court to overturn Roe v. Wade would be happy (35%) or satisfied (31%) if that were to happen. Among those who want Roe v. Wade kept as it is, a majority would be dissatisfied or angry if the ruling were to be overturned, including 44% who said they would be angry.

Views on abortion divide along partisan lines as they have for years, but Republicans split over whether Roe v. Wade, specifically, ought to be overturned.

A plurality of Republicans would have stricter limits on abortion, rather than have it not permitted, and they are more likely to want Roe left in place. The Republicans who say abortion shouldn’t be permitted (one third of the party) also want Roe overturned. 

Party is more strongly related to views on abortion than is gender. And men and women overall hold similar views on what should happen with Roe v. Wade. 

Looking at the numbers in detail we find this:

  • On the question of whether the Roe precedent should be kept as it is or overturned, 67% of respondents say it should stay as its, while 28% say it should be overturned;
  • Breaking the above numbers down by party, we find that Republicans favor overturning Roe (48%) more than they keeping it as it is (45%). Among Democrats, 87% favor keeping it as it is, while 11% support overturning it; and,
  • A majority of both men (66%) and women (69%) support keeping the Roe precedent as it is.

These numbers are consistent with other recent polling over the course of the past year on the fate of Roe v. Wade, all of which show that most Americans would prefer the precedent stay in place. A poll from the Kaiser Family Foundation, for example, found that 67% of Americans opposed overturning Roe while only 29% supported overturning it. Similarly, a Quinnipiac University poll found that 63% of those surveyed opposed overturning the decision while only 31% supporting overturning it. Finally, and most recently prior to this poll, a Gallup poll found that 64% of those surveyed said that they opposed overturning the decision, while just 28% said they supported overturning it. Finally, a poll from NBC News and The Wall Street Journal found that 71% of those surveyed favored keeping the precedent in place while only 23% favor overturning it.]

A cynical person might ask why polls about the fate of a Supreme Court decision should matter. After all, the question of whether or not Roe and Casey are popular doesn’t really matter, and the fact that Justices have life tenure means that they don’t really need to take public opinion into account in making their decisions. At the same time, though, I think Jennifer Rubin is right that polls like this are important for several reasons:

First, Republicans never thought Roe was in any real danger. It was politically convenient to go along with the far right, pretending as if there was no downside politically or for women, when overturning Roe was a fantasy. Now, even socially conservative Republicans who would favor more restrictions on abortion don’t really want to take away the judicial guardrails. Perhaps antiabortion advocates never meant what they said, or perhaps the political reality of getting rid of Roe never really hit home. There is nothing like the threat of losing something (a benefit, a right), as we saw in Obamacare, to increase appreciation for the value of what would be lost.

Second, the evangelical right has for decades been very loud, very well organized and very convincing in their argument that the GOP could not survive without them. The price for their loyalty was an absolutist stand on abortion. (Opposition to same-sex marriage used to be as well, but — given that same-sex marriage is so widely accepted and without a shred of data showing harm to children, an old bugaboo on the right —that’s gotten cut out from their list of demands.) Trump’s ability to mesmerize the evangelical right and their utter subservience to him have made evident to anyone paying the least bit of attention to politics that principle matters a whole lot less than power to these people. And as with guns, creating one-issue voters increases their political leverage.

Third, national, “respectable” Republicans who favor a few restrictions never thought they’d be at the mercy of the radical fringe that seeks to force rape and incest victims to complete their pregnancies. If Roe was overturned and the issue went back to the states, there would be some civilized compromise “more toward the center” as Sen. Mitt Romney (R-Utah) put it. Now they see that giving states control over the issue will result in legislation that shocks the conscience and loses votes.

These points are important because of the implications they have for the 2020 elections. While Republican opposition to abortion exists largely to please the religious groups that are part of the GOP coalition, most specifically the Evangelical Christians, the poll numbers showing that even a large segment of the group of people that consider themselves Republican don’t want to see Roe overturned. Additionally, it’s worth noting that opposition to overturning Roe is very high among women, among younger voters, and among those not aligned with any political party but who sometimes lean Republican is fairly high. These are groups among whom the GOP is already in trouble electorally. Seeing the party tied to these new highly restrictive laws and a strategy that seems aimed not at adopting a law that will actually go into effect but in plotting a strategy to overturn Roe could cause them to abandon the GOP at an even faster rate than they already are This is why you’ve seen many top Republicans distancing themselves from this new slate of anti-abortion laws; because they are afraid of the political implications of being tied to an effort to restrict abortion rights.

In addition to these political consequences, Rubin also notes that these poll numbers could have an impact on how the Supreme Court handles any challenge to Roe and Casey that may come before them:

Public opinion also figures in the Supreme Court’s willingness to overturn 45-year-old precedent. But, you say, the courts are immune from public opinion! Not really. For starters, Chief Justice John G. Roberts Jr., as we saw with the Affordable Care Act cases, is loath to put the court in the position of making controversial political decisions that cast the court as a partisan body. There is even more reason for concern when a supermajority of Americans would oppose the outcome and the outcome would be unduly harsh (e.g., forcing rape and incest victims to finish their full pregnancy). The court is right to worry that a dramatic, tectonic shift in the law in the direction of a hugely unpopular outcome would raise fundamental questions about the legitimacy of the court and its role in a democracy.

Rubin raises a good point here. While it’s true that public opinion in and of itself is not relevant to the legal issues that may come before the Supreme Court, it does play something of a role in the evaluation that Justices generally consider when deciding whether or not a precedent should be overturned. Specifically, even though it may not directly acknowledge this in an opinion, it’s clear from past decisions it is clear that, when presented with an argument that requires them to look back on the validity of a precedent, the Supreme Court isn’t completely ignorant of where public opinion is on a specific issue. This is particularly true when it comes to a long-standing precedent that has had a significant impact on law and culture as opposed to one that, while long-lasting, only deals with some minor technical area of the law. Just as they were aware of the fact that their decision in Obergefell v. Hodges would have an impact on the lives of millions of Americans, they cannot help but be aware of the fact that a precedent that has been in place for more than 40 years has had a real impact on national culture.

Under at least some schools of jurisprudence, the reliance that a decision like Roe has created is something that Courts ought to take into account in deciding whether or not to overturning long-standing precedent. While this is no guarantee that Roe won’t be overturned, it does give pro-Roe forces some hope that at least some of the more conservative Justices, and most specifically Chief Justice Roberts that Roe has become a decision as sacrosanct as Marburg v. Madison and Brown v. Board of Education and that, while there may be some legitimate debate about the fringes of the Roe precedent and what acceptable limits states may act on might be, the precedent itself should not be disturbed.

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Trump to Democrats: Investigate Me or Govern

President Trump has emerged from a meeting with the Democratic leadership with a defiant message:

President Donald Trump said in impromptu remarks Wednesday that he told Democrats at the White House he couldn’t work with them while they were pursuing investigations into him and his administration.

The Rose Garden speech came after an abbreviated meeting with House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer who were there to discuss a bipartisan infrastructure spending package.

“I’ve said from the beginning — right from the beginning — you probably can’t go down two tracks. You can go down the investigation track or you can go down the investment track,” Trump said.

He said during the meeting with Democrats that he couldn’t work with them until their investigations are over.

“I walked into the room, and I told Sen. Schumer, Speaker Pelosi, I want to do infrastructure,” he said. “But you can’t do it under these circumstances.”

He said he message to the lawmakers was “get these phony investigations over with.”

Earlier Wednesday, Pelosi had told reporters Trump was engaged in a “cover-up.”

Trump said: “Instead of walking in happily into a meeting, I walk into, look at people that have just said that I was doing a cover-up. I don’t do cover-ups.”

-CNN “Trump says he refuses to work with Democrats until investigations halt

Of course he does cover-ups. He just doesn’t do them well.

Beyond that, the notion that the governing of a superpower must grind to a halt whenever the President is embroiled in a scandal is ludicrous. Congress has conducted one or more serious investigations of every President in my lifetime. We managed to pass legislation even while Richard Nixon and Bill Clinton were under investigations that led to their resignation and impeachment.

Dan Drezner has curated an epic Twitter thread, 744 long as of this morning, chronicling how Trump’s staff and other allies are treating him like a toddler. It gained so much popularity that he’s turned the series into a forthcoming book for the University of Chicago Press, an early draft of which I’ve had the privilege of reading and commenting on. This incident will surely make it in if it hasn’t already gone in for final edits.

For Trump, everything is personal. There is no nation that must be governed. The Presidency is a toy and mean old Nancy Pelosi and Chuck Schumer aren’t letting him play by his rules. So the Toddler-in-Chief is throwing a temper tantrum.

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Trump Not Pleased With Fox News Reaching Out To Democratic Candidates

On Sunday, Fox News hosted another one of its Presidential candidate town halls, this one featuring South Bend, Indiana Mayor Pete Buttigieg, who at one point spoke out against some of the hosts at the news channel even while appearing on it. This clearly didn’t please President Trump or his acolytes at Fox & Friends

The night began with a campaign-style biographical video and ended with a standing ovation. The candidate called President Trump’s behavior “grotesque” and lamented the “media noise machine on the right wing.” He attacked Tucker Carlson and Laura Ingraham by name.

Viewers of Mayor Pete Buttigieg’s town hall event on Sunday could be forgiven for thinking they had stumbled onto an hour of prime-time MSNBC.

Nope. This was Fox News.

The network that liberals love to hate wants to be a required pit stop for Democrats running in the 2020 presidential primary. And despite a snub last week from Senator Elizabeth Warren of Massachusetts, who denounced the channel as a “hate-for-profit racket,” Fox News is finding some success.

Mr. Buttigieg’s hourlong appearance spawned headlines, solid ratings, and kudos from liberals pleased to see the South Bend, Ind., mayor calling out Fox News pundits on their own network.

The reaction was chillier among some of the network’s core conservative viewers — including one miffed resident of the White House. “Hard to believe that @FoxNews is wasting airtime on Mayor Pete,” President Trump wrote on Twitter before the town hall event began. “Fox is moving more and more to the losing (wrong) side in covering the Dems.”

At a rally in Pennsylvania on Monday night, the president kept up his criticism. “What’s going on with Fox, by the way? What’s going on there?” Mr. Trump asked the crowd, which responded with boos. “They’re putting more Democrats on than Republicans. Something strange is going on at Fox, folks.”

He added, “Someone’s going to have to explain the whole Fox deal to me.”
As the 2020 campaign starts in earnest, this is the tightrope that Fox News has chosen to walk. Barred by Democratic leadership from hosting a primary debate — the party chairman, Tom Perez, called its coverage biased — the network is intent on proving that its news anchors can conduct fair interviews with Democratic candidates, even if it irks loyal viewers.

“It’s clear their audience is split on whether it was a good idea to offer Buttigieg airtime,” said Eric Bolling, a former Fox News star who now hosts “America This Week” for the Sinclair Broadcast Group.

Fox News has stayed uncharacteristically quiet about the reception to its Democratic town hall events. The network refrained from hitting back at Ms. Warren’s attack last week, and it declined to comment on Monday about Mr. Trump’s taunts.

But the Buttigieg appearance did not sit well with some Trump cheerleaders at the network. On Monday’s “Fox & Friends,” the host Brian Kilmeade scolded Mr. Buttigieg for criticizing his fellow commentators Mr. Carlson and Ms. Ingraham.

“Don’t hop on our channel and continue to put down the other hosts on the channel,” Mr. Kilmeade said. “If you feel that negative about it, don’t come. For him to go out there and take shots on our prime-time lineup, without going on our prime-time lineup, shows to me absolutely no courage.”

Those comments hinted at a larger context: continuing tensions between

Fox News’s reporting ranks and its star pro-Trump commentators.
Intramural squabbles at Fox News are not new, and the network has long insisted that its news and opinion sides operate separately. But the full-throated embrace of Mr. Trump by pundits like Sean Hannity, who has parroted the president’s “fake news” rhetoric, has roiled some Fox News reporters.

Earlier this month, Ms. Ingraham criticized Chris Wallace, the veteran news anchor and host of “Fox News Sunday,” for saying that the Department of Justice may have misled the public about the contents of the Mueller report. Later that day, Mr. Wallace called out “some opinion people who appear on this network who may be pushing a political agenda.”

As Philip Bump notes, the reaction to Buttigieg’s appearance, and Fox’s apparent effort to reach out to Democratic candidates for President for similar town hall appearances reveals that the President views the network as his personal propaganda network:

Trump was seemingly irritated that the network was airing a town hall event with Pete Buttigieg, the mayor of South Bend, Ind., and a candidate for the Democratic presidential nomination in 2020 — and, therefore, potentially an opponent of Trump’s reelection bid.

“Fox is moving more and more to the losing (wrong) side in covering the Dems,” Trump wrote on Twitter Sunday evening. “They got dumped from the Democrats[‘] boring debates, and they just want in. They forgot the people who got them there.”

This is a remarkable comment generally, much less from the president of the United States. It’s an explicit expression of his expectation that Fox News will at least play down coverage of Democratic issues and candidates, if not shut them out entirely.

Trump recognizes the symbiosis that the network offers to his political career. A third of the words he’d said in sit-down interviews as of earlier this month went to people from Fox News or the Fox Business Network. Fans of the network have been consistently more likely to support

Trump’s view of what’s happening in Washington, including about the report released by special counsel Robert S. Mueller III. Fox viewers were much more likely than viewers of CNN or MSNBC to say that they had a very good understanding of the report — and also were much more likely to say that Trump didn’t try to obstruct Mueller’s investigation.

It’s obvious why Trump would be wary of Fox News creating any daylight for Democratic candidates or ideas. But he should be somewhat reassured by how quickly the network’s stars rallied to isolate the remarks made by Sen. Bernie Sanders (I-Vt.) after his appearance at a Fox News town hall event. After that aired, the network quickly transitioned into an interview with Trump’s daughter-in-law about Trump’s tax returns. Host Sean Hannity later described the event as an opportunity to “hear every Communist idea we possibly can.”

Buttigieg mentioned Fox News’s prime-time lineup in his event on Sunday.

“Even though some of those hosts are not there in good faith, I think a lot of people tune into this network who do it in good faith,” he said.

Contrast that assessment of Fox News viewers with Trump’s: Republicans are “the people who got them there.”

That’s not incorrect, really; it’s certainly the case that Fox News became a juggernaut because it appeals directly to Republican and conservative viewers. As we noted in March, the viewership is perhaps less densely Republican than you might think and, according to a Post Fact Checker poll conducted last year, those identifying Fox News as one of their two most trusted news sources are less densely Republican than those identifying CNN are Democratic.

The Trump-Fox symbiosis is so robust that his administration has been home to any number of Fox News alums, and the network and its affiliated entities have welcomed numerous administration alumni. Groman’s transition is simply a less direct reflection of that relationship between the network and the broader political world.

What’s important, though, is that the president expects that symbiosis to continue through 2020. He expects Fox News to box out anti-Trump voices in the name of staying true to a group he views as their shared base. It’s not even masked, any more than his criticism of mainstream outlets that offer critical coverage of him is masked when he rails against them as “fake news,” as he did Monday morning.

“The Mainstream Media has never been as corrupt and deranged as it is today. FAKE NEWS is actually the biggest story of all and is the true ENEMY OF THE PEOPLE!” he wrote in an apparent response to a New York Times article about his relationship with Deutsche Bank. “That’s why they refuse to cover the REAL Russia Hoax” — unlike Fox News, where viewers came away with the impression that the president had been cleared of wrongdoing.

On some level, of course, it’s not surprising that the President would view Fox News Channel as his own personal propaganda network and be skeptical of any sign that the network might even be interested in presenting alternate points of view (other than the token Democrats that sometimes appear on Fox shows.) As Bump notes, virtually from the moment he got into the campaign until now, Fox has been a sympathetic outlet for Trump and his agenda. Even before he was a candidate for President, Trump was a frequent guest on the network’s prime time lineup and he also appeared regularly on Fox & Friends to comment on political matters.

Since he has become President, the network, especially its prime time lineup and the mind-numbed trio that hosts Fox & Friends during the week and on the weekend have been little more than Trump sycophants who praise the President on a daily basis. These hosts have also helped Trump push his agenda as well as propaganda and conspiracy theories that seem more well-placed on a show hosted by Alex Jones than they do on a news network owned by a major publicly-traded corporation, They have also provided the President with the inspiration for many of his late night and early morning Twitter rants to the point where one can often draw a direct line between something that was covered on FNC and the subject matter of a Trump tweet.

Given the fact that Fox News Channel is immensely popular among the same group of people that make up Trump’s base, this is all very helpful to the President. The fact that they are largely being exposed to programming that is supportive of the Administration means that there is something of a symbiotic relationship between the Trump Administration and Fox News that works to both of their advantages. At least on the opinion side, Fox News is little more than a propaganda network for Trump and his administration. The fact that the network is reaching out to Democrats is probably causing the President to worry that he could be losing his most important ally and propagandist.

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I.R.S. Contradicts Mnuchin On Providing Trump Tax Returns To Congress

Among the many ongoing disputes between Congress and the White House is one dealing with the President’s income tax returns, which he has consistently refused to make public as both a candidate for President and after being sworn into office. Back in April, Congressman Richard Neal sent a request to Treasury Secretary Steve Mnuchin and I.R.S. Commissioner Charles Rettig requesting those returns. That request was made pursuant to 26 U.S.C. 6103 which, among other things, allows the Ways And Means Committee to request copies of the tax returns of any individual American. Despite that statute, Treasury Secretary Steve Mnuchin has refused to comply with both a written request and a subpoena for these documents. In refusing these requests, Mnuchin argued that the request, and subsequent subpoena, lack a “legitimate legislative purpose,” an argument that the Administration has made in a number of other situations where it is refusing to comply with seemingly legitimate document requests. At this point, that means the committee is left with two options. One option they have is to hold Mnuchin in contempt, which seems like a fruitless pursuit since the Justice Department is unlikely to pursue enforcement of any Congressional contempt citation. The other option would be to file a lawsuit seeking a Court order compelling him to turn over the requested documents.

It’s in that context that we get an interesting report from The Wahington Post that a previously confidential memo from the Internal Revenue Service memorandum contradicts the basis for the Administration’s refusal to provide Congress with copies of the President’s tax returns, providing Congress with yet another argument to be used against the Administration in the ongoing court battles over document production:

A confidential Internal Revenue Service legal memo says tax returns must be given to Congress unless the president takes the rare step of asserting executive privilege, according to a copy of the memo obtained by The Washington Post.

The memo contradicts the Trump administration’s justification for denying lawmakers’ request for President Trump’s tax returns, exposing fissures in the executive branch.

Trump has refused to turn over his tax returns but has not invoked executive privilege. Treasury Secretary Steven Mnuchin has instead denied the returns by arguing there is no legislative purpose for demanding them.

But according to the IRS memo, which has not been previously reported, the disclosure of tax returns to the committee “is mandatory, requiring the Secretary to disclose returns, and return information, requested by the tax-writing Chairs.”

The 10-page document says the law “does not allow the Secretary to exercise discretion in disclosing the information provided the statutory conditions are met” and directly rejects the reason Mnuchin has cited for withholding the information.

“[T]he Secretary’s obligation to disclose return and return information would not be affected by the failure of a tax writing committee . . . to state a reason for the request,” it says. It adds that the “only basis the agency’s refusal to comply with a committee’s subpoena would be the invocation of the doctrine of executive privilege.”

The memo is the first sign of potential dissent within the administration over its approach to the tax returns issue. The IRS said the memo, titled “Congressional Access to Returns and Return Information,” was a draft document written by a lawyer in the Office of Chief Counsel and did not represent the agency’s “official position.” The memo is stamped “DRAFT,” it is not signed, and it does not reference Trump.

The agency says the memo was prepared in the fall. At the time, Democrats were making clear they probably would seek copies of Trump’s tax returns under a 1924 law that states that the treasury secretary “shall furnish” tax returns to Congress.

Precisely who wrote the memo and reviewed it could not be learned. The agency says IRS Commissioner Charles Rettig and current chief counsel Michael Desmond, who was confirmed by the Senate in February, were not familiar with it until a Post inquiry this week. The IRS says it was never forwarded to Treasury.

(…)

Some legal experts said the memo provides further evidence that the Trump administration is using shaky legal foundations to withhold the tax returns.

“The memo is clear in its interpretation of the law that the IRS shall furnish this information,” said William Lowrance, who served for about two decades as an attorney in the IRS chief counsel’s office and reviewed the memo at the request of The Post.

Daniel Hemel, a professor at the University of Chicago Law School who also reviewed the memo for The Post, said the document suggests a split over Trump’s returns between career staffers at the IRS and political appointees at that agency and the Treasury Department.

“The memo writer’s interpretation is that the IRS has no wiggle room on this,” Hemel said. “Mnuchin is saying the House Ways and Means Committee has not asserted a legitimate legislative purpose. The memo says they don’t have to assert a legitimate legislative purpose — or any purpose at all.”

The administration has resisted a range of House inquiries, although a federal judge on Monday ruled the president’s accounting firm must turn over his financial records to Congress.

Treasury Department officials said there had been extensive discussions about the tax return issue, with one official saying the issue put the agency in a difficult spot because Trump has predetermined the outcome — and because Mnuchin is a Trump ally who was the finance chair of his 2016 campaign. 

“The decision has been made,” this official said, who spoke on the condition of anonymity to discuss private conversations. “Now it’s up to us to try to justify it.”

Trump has told advisers he will battle the issue to the Supreme Court, according to people familiar with the matter. Trump recently has argued that the tax returns were an issue in the 2016 election but that because he won they should no longer be of concern. 

(…)

Some legal experts have held that the law is clear in giving Congress the power to compel the provision of the returns. But other former government lawyers, including two who served in the Reagan and George H.W. Bush administrations, have argued that the law is unconstitutional and could lead to widespread abuses of taxpayer privacy for political aims.

The IRS memo describes how and why Congress has the authority to access tax returns, explaining the origin of the provision and how it has been interpreted over the decades.

It highlights the special powers given to three committees for compelling the release of tax returns: the House Ways and Means Committee, the Senate Finance Committee, and the Joint Committee on Taxation. Other congressional committees, the memo emphasizes, do not have the same authority.

When it comes to the Ways and Means Committee, the obligation to divulge the returns “would not be affected by the failure” to give a reason for the request. By contrast, other committees “must include a purpose for their request for returns and return information when seeking access,” the memo states.

“One potential basis” for refusing the returns, the memo states, would be if the administration invoked the doctrine of executive privilege.

But the IRS memo notes that executive privilege is most often invoked to protect information, such as opinions and recommendations, submitted as part of formulating policies and decisions. It even says the law “might be read to preclude a claim of executive privilege,” meaning the law could be interpreted as saying executive privilege cannot be invoked to deny a subpoena. 

In addition to the newly-revealed I.R.S. memorandum, the Post also makes note of a review conducted by the Congressional Research Service, an independent non-partisan part of Congress that exists to provide legal and other research to Members of the House and Senate and to committees regarding the matters before them. In that review, the C.R.S. reached largely the same conclusion that the I.R.S. did, with the exception that Congressional authority may arguably be limited by the proviso, established in a series of Supreme Court cases, that the request must have a “legitimate legislative purpose.”

By contrast, the I.R.S. memo seemingly argues that Congressional authority under Section 6103 is unlimited and that the agency has no option but to comply with any request that the Ways & Means Committee, or any of the other bodies authorized to make a request for taxpayer returns, makes under the law. Even if the C.R.S. is correct, though, it seems clear that the Ways & Means Committee has a sufficient “legitimate legislative purpose” to justify this request. This is especially true in light of the ruling in another document request case by Federal District Court Judge Amit Mehta, which gives Congress wide discretion in its document requests in the context of otherwise legitimate Congressional inquiries.

Secretary Mnuchin, meanwhile, is dismissing the memo:

The Treasury secretary, Steven Mnuchin, said Wednesday he was trying to determine who in the Internal Revenue Service wrote a draft legal memo concluding that he must release President Trump’s tax returns to Congress, and he insisted that he disagreed with its findings.

Speaking at a House Financial Services Committee hearing, Mr. Mnuchin said that he became aware of the memo this week after the Treasury Department received inquiries from reporters about a leaked copy of it. He said that he had not reviewed the memo, but that he believed it did not contradict his reasoning for denying the request from the House Ways and Means Committee for six years’ worth of Mr. Trump’s personal and business tax returns.

“The memo is marked draft, it is not a final memo,” Mr. Mnuchin said.

The draft memo, which was written by unnamed agency staff members, determined that the I.R.S. had no choice but to honor congressional requests for Mr. Trump’s tax returns unless he invoked executive privilege to protect them. The memo’s existence was first reported by The Washington Post.

Mr. Mnuchin said he believed the memo does not address the concerns that his legal team expressed when it decided to defy the request. Mr. Mnuchin has refused to comply with the Democrats’ requests because he said they lacked a “legitimate legislative purpose.”

Mr. Mnuchin reiterated that he had followed the guidance of lawyers from his department and the Department of Justice who determined that the Treasury should not release the returns.

Mr. Mnuchin said that it would be “unlawful” for him to fulfill the congressional request and he rejected the suggestion that he was breaking the law not turning over the tax returns.

“I’ve been advised I am not violating the law,” Mr. Mnuchin said.

Whichever interpretation you accept, though, both of these reviews of the relevant law stand in stark contrast that Secretary of Mnuchin and the Administration have taken in this matter. In his letters to Chairman Neal, Mnuchin has stated that he is acting pursuant to legal advice from the Department of Justice, but we have not seen any memo from the department’s Office of Legal Counsel, which would ordinarily prepare such a document, or anywhere else presenting a legal basis for Mnuchin’s position.

One argument that some have suggested that the Administration may try to make to justify the Secretary’s action is that the tax returns are somehow covered by Executive Privilege. However, it is hard to conceive how that doctrine, which I’ve explained in more detail in other posts, could possibly apply to tax returns, especially with regard to returns for years before Trump was even a candidate never mind President of the United States. Beyond Executive Privilege, though, it is hard to see what legal argument the Administration can make barring the committee from getting copies of the returns at some point in the future.

No doubt, this agency memorandum will be cited by Congressional lawyers in what is likely to be the inevitable court battle over the request for the President’s returns. The same will be true of Judge Mehta’s opinion in the case I wrote about yesterday. While neither is controlling authority, they are persuasive on the subjects that they speak to. Assuming that future Judges follow the same line of thought, the Administration is not going to have very good days in Court in its future.

Here’s a copy of the Congressional Research Service Memorandum:

Congressional Research Serv… by on Scribd

And here’s a copy of the I.R.S. Memorandum:

IRS Memo on Trump Tax Returns by on Scribd

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Is San Francisco’s Gentrification Such a Bad Thing?

Image in CC0 Public Domain

Karen Heller chronicles “How San Francisco broke America’s heart,” a development I must admit to having missed. The tale is in some ways familiar, albeit on a grand scale.

After a long anecdote to set us up, we get to the meat:

For decades, this coruscating city of hills, bordered by water on three sides, was a beloved haven for reinvention, a refuge for immigrants, bohemians, artists and outcasts. It was the great American romantic city, the Paris of the West.

No longer. In a time of scarce consensus, everyone agrees that something has rotted in San Francisco.

Conservatives have long loathed it as the axis of liberal politics and political correctness, but now progressives are carping, too. They mourn it for what has been lost, a city that long welcomed everyone and has been altered by an earthquake of wealth. It is a place that people disparage constantly, especially residents.

Real estate is the nation’s costliest. Listings read like typos, a median $1.6 million for a single-family home and $3,700 monthly rent for a one-bedroom apartment.

“This is unregulated capitalism, unbridled capitalism, capitalism run amok. There are no guardrails,” says Salesforce founder and chairman Marc Benioff, a fourth-generation San Franciscan who in a TV interview branded his city “a train wreck.”

You no longer leave your heart in San Francisco. The city breaks it.

The nature of extremely attractive places to live is that the demand for things, most notably scarce land, exceeds the supply, thus driving up prices. It’s exceedingly expensive to live in Manhattan, Boston, DC, Los Angeles, and other great American cities. Ditto Paris, London, and Tokyo. And this is especially true in the more desirable neighborhoods.

So, what’s the problem?

The city is filthy rich in what other regions crave: growth, start-ups, high-paying jobs, educated young people, soaring property values, commercial and residential construction, a vibrant street life, and so much disposable revenue. ButSan Francisco, a city of 883,305 residents, 100,000 more than two decades ago, is the Patient Zero of issues affecting urban areas. The sole constant is its staggering beauty.

Downtown is a theme park of seismic start-ups — Uber, Airbnb, Slack and Lyft, with Twitter in the nearby Tenderloin, every app a skyscraper.

That . . . doesn’t sound like a problem.

In the shadow of such wealth, San Francisco grapples with a very visible homeless crisis of 7,500 residents, some shooting up in the parks and defecating on the sidewalks, which a 2018 United Nations report deemed “a violation of multiple human rights.” Last year, new Mayor London Breed assigned a five-person crew, dubbed the “poop patrol,” to clean streets and alleys of human feces.

Okay, that’s a problem. Eww.

The small downtown’s streets are choked with Google and Apple employee buses, and 45,000 daily Uber and Lyft drivers, some commuting from hours away and unfamiliar with the city. By comparison, there are 25,000 ride-sharing drivers in Philadelphia, a much larger and more populous city.

There’s an ongoing battle between the NIMBYs and YIMBYs over development in one of the nation’s densest cities. Tech companies here are the beneficiaries of gilded carrots, tax breaks. Longtime residents worry that tech workers are drawn here for the jobs, not the city, and may never become stakeholders in San Francisco’s future.

“Our rich are richer. Our homeless are more desperate. Our hipsters are more pretentious,” says Solnit, who once wrote that “San Francisco is now a cruel place and a divided one.”

For the most part, this is a good problem to have. And, again, I can’t think of a large city whose traffic infrastructure can keep up with demand. Even cities famous for their great subway systems, like London and New York, are nightmares to drive in. DC and its suburbs have rush hours that last three and four hours.

Obviously, an increasing homeless population is a problem. Presumably, taxing those who benefit from the growth that’s creating the displacement is part of the solution.

And, unless the people who come to the city for tech jobs are planning to work there for a short time and then move back to whence they came, they’re naturally going to become invested in the community. The community is the people who live there.

The Bay Area is home to more billionaires per capita than anywhere on Earth, one out of every 11,600 residents, according to Vox. The entire region, as far as two hours away, has been affected by spiraling real estate prices. Venture capitalist John Doerr has claimed that the area’s economic growth is “the greatest legal accumulation of wealth in history.”

And it’s only likely to keep growing. Several San Francisco tech companies, such as Slack and Postmates, are scheduled to go public this year — Uber did on May 10. This IPO fever could mint thousands more messenger bag-toting millionaires and, denizens fear, more absurd prices.

“The city is losing the very things that people moved to the city for,” Beatts says. “People think that the best thing to happen is to get a lot of people to move here. But what happens when you get everything you want?”

One is reminded of the old Yogi Bera line, “Nobody goes there anymore. It’s too crowded.”

Obviously, this is bad for longtime residents. For them, it’s almost all downside—more traffic, higher taxes, higher prices, and so forth. But, almost by definition, this growth represents people living and working in a place they prefer to wherever they were living and working before.

And, indeed, the chief lament seems to be over what has been lost to those who’ve been there awhile:

Tech isn’t what everyone talks about in San Francisco. It’s money.
Real estate, income inequality, $20 salads, the homeless, adult children unable to move out, non-tech workers unable to move in.

San Francisco has experienced plenty of change through its rich history: the Gold Rush, corruption, earthquakes, fire, reconstruction, strikes, multiple waves of immigration, the rise of gay culture, the Summer of Love, the dot-com bubble and the dot-com bust.

What residents resent now is the shift to one industry, a monoculture.
“What I wanted was this flow of humanity and culture,” says editor and former nonprofit executive Julie Levak-Madding, who manages the VanishingSF page on Facebook, documenting the “hyper-gentrifiction” of her city. “It’s so devastating to a huge amount of the population.”

To many inhabitants, San Francisco has become unrecognizable in a decade, as though it had gone on a cosmetic surgery bender.

“I can’t tell you the number of friends who tell me how much they hate San Francisco,” says former city supervisor Jane Kim. Which is something given that she ran for mayor in the 2018 special election. (Kim came in third.) “They say it’s too homogenous.”

Too homogeneous. Too expensive. Too tech. Too millennial. Too white. Too elite. Too bro.

To take a midday tour downtown is to be enveloped by a jeaned and athleisured army of young workers, mostly white and Asian, and predominantly male. The presence of a boomer or toddler is akin to spotting an endangered species.

San Francisco has less of what makes a city dynamic. It has the lowest percentage of children, 13.4 percent, of any major American city, and is home to about as many dogs as humans under the age of 18.

The city was once a center of black culture, and Breed is its first black woman mayor. But the African American population has withered to 5.5 percent compared to 13.4 percent a half century ago. Director Joe Talbot’s “The Last Black Man in San Francisco,” a Sundance winner scheduled to open in June, is an elegy to earlier times and a tribute to his long friendship with the film’s star and co-writer, Jimmie Fails.

“You’re constantly trying to justify why you stay. There’s this blanket of anxiety and frustration that lives on top of everything,” says Talbot, a white fifth-generation San Franciscan. “You’re heartbroken because it’s changed so much and so quickly. This nostalgia is baked into everything, of missing what was here.”

The city has become less eccentric, less of a home to artists and musicians, because they can’t afford studios or practice spaces — if they can find them. How will the city create its next Grateful Dead or generation of beat writers?

The city has produced exactly one Grateful Dead and one generation of beat writers. The former launched more than fifty years ago. The latter, more than sixty. And it’s not obvious that either were more valuable than Silicon Valley.

Still, it’s not obvious that the art and music scene has to disappear because there’s a lot of tech money. Or even bros. The Bay area has produced a lot of bands over the years and there’s no indication that it’s stopping.

As a Southerner with conservative instincts, I’m quite sympathetic to the desire to preserve the culture of a place and the resistance to too much change, too fast. Still, change is inevitable and it certainly appears that much good has come with the bad in this case.

Additionally, the population growth of the city itself has been modest and steady:

Historical population
Year Pop. ±% p.a.
1848 1,000 —    
1849 25,000 +2400.00%
1852 34,776 +11.63%
1860 56,802 +6.33%
1870 149,473 +10.16%
1880 233,959 +4.58%
1890 298,997 +2.48%
1900 342,782 +1.38%
1910 416,912 +1.98%
1920 506,676 +1.97%
1930 634,394 +2.27%
1940 634,536 +0.00%
1950 775,357 +2.02%
1960 740,316 −0.46%
1970 715,674 −0.34%
1980 678,974 −0.53%
1990 723,959 +0.64%
2000 776,733 +0.71%
2010 805,235 +0.36%
2016 870,887 +1.31%

Indeed, we see from the data that the city was in decline from the 1950 Census until a slow rebound by the 1990 Census. So, the tech boom would seem to have saved the city in the process of killing it and breaking our collective hearts.

The lament that gentrification is bad for poor residents, particularly the elderly, blacks, and Hispanics is a common and reasonable one. In this case, the displacement seems not to be coming from an influx of whites but rather of Asians:

According to the 2015 census estimates, the ethnic makeup of San Francisco was:

-White: 47.2% (non-Hispanic: 41%)
-Asian: 34.3%
-African Americans: 5.3%
-Native Americans: 0.4%
-Pacific Islanders: 0.4%
-Other: 6.6%
-Two or more: 5.1%
-Hispanic or Latino of any race: 15.3%

The Chinese population of San Francisco represents the single largest ethnic minority group with 21.4% of the population. Other major Asian groups include: Filipinos (4.5%), Vietnamese (1.6%), Japanese (1.3%), Asian Indians (1.2%), Koreans (1.2%), Thais (0.3%), Burmese (0.2%) and Cambodians (0.2%).

Those of Chinese ancestry are concentrated mostly in Chinatown, Sunset District, and Richmond district. Filipinos are concentrated heavily in Crocker-Amazon and SoMa, and the city has one of the largest Filipino communities outside of the Philippines.

San Francisco’s age distribution shows that 13.4% of its population is under 18, 9.6% are 18 to 24, 37.5% are 25 to 44, 25.9% are 45 to 64 and 13.6% are 65 or older. The average age is 38.5 years, and San Francisco has a smaller percentage of children than any other major metropolitan area in the United States.

Interestingly, native-born Californians make up a relatively small percentage of San Francisco’s population, as only 37.7% of its people were born in the state, while 25.2% were born in another state in the country. Over one-third of San Francisco’s population were born outside the country.

Again, I understand why native San Franciscans would feel displaced by this rapid change. But it’s hard to argue that this wildly diverse demographic makeup somehow constitutes homogeneity.

The data isn’t sufficiently granular to identify toddlers and Boomers but we have nearly equal parts—roughly 13.5% each—under 18 and over 64. That seems quite healthy to me.

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Trump’s Stonewalling Increases Pressure On Democrats To Pursue Impeachment

As expected, former White House Counsel Don McGahn failed to appear for his scheduled testimony before the House Judiciary Committee yesterday, and that is leading some Democrats to start to talk more seriously about opening an impeachment inquiry against the President:

A growing number of House Democrats are publicly calling for a formal inquiry into President Trump’s impeachment amid continued stonewalling from his administration, applying new pressure to Speaker Nancy Pelosi and other party leaders who have been determined to stick to a methodical course of investigation and litigation.

While a handful of lawmakers have agitated for impeachment for months, Tuesday’s no-show of former White House counsel Donald McGahn at a House hearing and the uncertain prospects for public testimony from special counsel Robert S. Mueller III have prompted a larger number of Democrats to speak out. On Monday and Tuesday, 25 House Democrats publicly called for an impeachment inquiry.

Leading the charge are members of the House Judiciary Committee who have been increasingly frustrated with the Trump administration’s blanket refusal to cooperate with congressional requests for documents and testimony. Some confronted Pelosi at a private meeting of the House leadership Monday, seeking to convince her that an impeachment probe would be the most effective way to hold Trump to account, even if he is never formally impeached.

“This effort by the president and the White House to impede and undermine our ability to collect the evidence necessary to do our work is something that can’t be tolerated,” said Rep. David N. Cicilline (D-R.I.), who sits on the Judiciary Committee and is a member of the party leadership team. Democrats, he said, need to “demonstrate that you cannot just trash the Constitution, undermine the rule of law, and expect the Congress of the United States to accept that.”

Pelosi has so far carefully managed the pressure, refusing to rule out an impeachment of Trump while also emphasizing the need to pursue a prudent course to defend congressional prerogatives against presidential resistance. That view was bolstered Monday when a federal judge rejected an attempt by Trump’s lawyers to assert a sweeping claim of executive authority to block a House request for Trump’s financial records.

The newly vocal Democrats say they are seeking only an impeachment inquiry — a formal investigation that may or may not lead to the actual drafting and passage of articles of impeachment to be tried by the Senate.

But for a broader group of lawmakers — some of them moderate freshmen who unseated Republicans last year to deliver the House majority to Democrats — that is a distinction without a difference. They fear that any rush into impeachment proceedings would betray campaign promises to focus on policy issues more directly affecting their constituents, a potentially perilous political move ahead of the 2020 elections.

“I believe in checks and balances and the constitutional division of powers, but I also know that I get stopped in the grocery store constantly and what people are asking about is the price of health care and the price of prescription drugs,” said freshman Rep. Elissa Slotkin (D-Mich.).

“I think the perception is that Washington is more focused on the checks and balances than they are on actually helping people’s pocketbooks and their kids. And that’s a real problem.”

Democrats have in recent months passed bills meant to shore up the Affordable Care Act, reauthorize the Violence Against Women Act and, last week, provide new LGBT civil rights protections. But party leaders have been forced to take heed of the frustration with Trump’s no-cooperation stance.

Pelosi scheduled a Democratic caucus meeting for Wednesday morning, billing it as an opportunity for members to receive updates on oversight and investigations. But many lawmakers said Tuesday that they expect it will become a robust discussion of whether to pursue an impeachment inquiry as Trump remains defiant, arguing in a tweet Tuesday evening that Democrats were “unhappy with the outcome” of the Mueller report ”so now they want a do-over.”

More from The New York Times:

WASHINGTON — A bloc of liberal Democrats began pressing on Tuesday for an impeachment inquiry of President Trump, underscoring party divisions and the growing difficulties that Speaker Nancy Pelosi faces as she tries to chart a more methodical course.

Mr. Trump’s latest defiance of congressional oversight demands precipitated the break among Democrats. The former White House counsel Donald F. McGahn II, who had been called to testify on Tuesday before the House Judiciary Committee about the president’s attempts to obstruct the Russia investigation, skipped the scheduled hearing after Mr. Trump ordered him to ignore lawmakers’ subpoena.

Representative Jerrold Nadler of New York, the committee chairman, promised to hold Mr. McGahn in contempt of Congress and warned other potential witnesses to expect new hardball tactics — like changing House rules to allow fines for people held in contempt — but he stopped short of publicly endorsing impeachment. He later issued subpoenas for testimony to Mr. McGahn’s former chief of staff, Annie Donaldson, and Hope Hicks, the former White House communications director, both key figures in the special counsel investigation.

House Democrats also continued to negotiate this week with the staff of the special counsel, Robert S. Mueller III, over his own potential testimony, according to two people familiar with the conversations.

“We will not allow the president to stop this investigation, and nothing in these unjustified and unjustifiable legal attacks will stop us from pressing forward with our work on behalf of the American people,” Mr. Nadler said during a brief hearing of an emotionally raw Judiciary Committee. “We will hold this president accountable, one way or the other.”

The Democrats’ divisions over how to get the administration to cede to their oversight demands grew out of their fears that Mr. Trump is succeeding not only in evading accountability himself but also in permanently rewriting the rules of engagement between the legislative and executive branches. He could set a precedent that frees future presidents from one of the Constitution’s most potent checks on their power.

“We can focus on McGahn. We can focus on Barr. We can focus on Michael Cohen. We can call the roll,” Representative Val B. Demings, a Florida Democrat on the Judiciary Committee who supports impeachment, said in an interview. “But the problem here is the president of the United States.”

Their concerns that Mr. Trump might be permanently weakening Congress’s powers prompted prominent liberal Democrats to declare privately and publicly in the past day and a half that they saw no choice but to initiate an impeachment inquiry.

The supporters of impeachment now number roughly two dozen. The new advocates included Representative Joaquin Castro of Texas, the chairman of the Congressional Hispanic Caucus; Representative Mark Pocan of Wisconsin, a chairman of the influential Congressional Progressive Caucus; Representative Mary Gay Scanlon of Pennsylvania, the vice chairwoman of the Judiciary Committee; and Representative Donald S. Beyer Jr. of Virginia.

They argued that an impeachment inquiry would streamline disparate House inquiries and empower the chamber’s committees as they conduct oversight of the executive branch. And they expressed hope that it would show the public that the fight over documents and witnesses is not just another partisan Washington squabble, but a showdown with historic implications.

Obviously, other than Justin Amash, these calls for impeachment are getting the expected reception from the Republican side of the aisle:

Democrats are not getting help from House Republicans, who remain opposed to any additional investigation — despite the abdication of Representative Justin Amash of Michigan, who came out in favor of impeachment over the weekend.

“Here we go again — the theater is open,” Representative Doug Collins of Georgia, the top Republican on the Judiciary Committee, said at the outset of Tuesday’s hearing. He accused Mr. Nadler of abusing his subpoena power to make unreasonable demands of the White House and witnesses to “get a headline.” Mr. Trump has made similar arguments, posting Tuesday on Twitter that Democrats are merely trying for a “do-over” after Mr. Mueller did not accuse him of committing a crime.

The increased pressure on Pelosi and the Democratic leadership is understandable given the fact that the Administration appears intent on stonewalling every request for documents or witnesses that may come from Congressional committees trying to fulfill their oversight duties under the Constitution. All of this is rooted, of course, in the President’s vow to resist “all” subpoenas by House Democrats,  Because of this strategy, Congress has been impeded in fulfilling its proper Constitutional and statutory duty to oversee the operation

This strategy began, of course, shortly after Special Counsel Robert Mueller sent his report to Attorney General William Barr. Instead of releasing the report, in either a full or redacted form, to Congress, Barr sent Congress a written summary that purported to summarize the findings of the report. With members of both the House and Senate complaining at the time that Barr’s letter was insufficient. Additionally, later reports showed that Mueller himself had sent a letter to Barr complaining that the summary did not accurately reflect either the contents of the report or the conclusions that he and his investigators had reached. The Justice Department ultimately provided Congress with a redacted copy of the report. When that happened, it became clear that Barr had substantially misrepresented the contents and conclusions of the report, something that became a focus of his appearance before the House Judiciary Committee in April. The Administration has yet to make a full unredacted copy of the Special Counsel’s report available to Congress, claiming that it is covered by Executive Privilege. Barr, meanwhile, has been held in contempt by the House Judiciary Committee, although there has yet to be any formal action regarding this contempt citation.

At the same time that it continues to play “hide the ball” regarding a complete copy of the Mueller report, the Administration has been refusing to comply with nearly all document requests from Congress, even in situations where it seems clear that they have a duty to comply with the request. Most notably, Treasury Secretary Steve Mnuchin has refused to comply with both a written request and a subpoena seeking copies of the President’s tax returns. This refusal, which seemingly flies in the face of a specific Federal law that argues that the committee’s request is legitimate, is based on Mnuchin’s contention that the request, and subsequent subpoena, lack a “legitimate legislative purpose,” an argument that the Administration has made in a number of other situations where it is refusing to comply with seemingly legitimate document requests. The committee has yet to take any steps in response to Mnuchin’s refusal, but its options include holding Mnuchin in contempt and/or filing a lawsuit seeking a Court order compelling him to turn over the requested documents.

Most recently, the stonewalling by the White House has succeeded in purporting to block former White House Counsel Don McGahn from testifying before the House Judiciary Committee. In doing so, the White House did not rely on Executive Privilege but instead asserted that Congress lacked the authority to compel the testimony of any White House staffer or adviser to the President. This is a position that has no basis in the law and no precedent supporting it given the fact that Executive Privilege, which has not been invoked with regard to these matters, only applies in certain specific situations. Additionally, there is no basis to support the invocation of the Attorney/Client privilege because Donald Trump was not McGhan’s client during his time at the White House. Finally, it’s unclear that any privilege can be applied given the fact that McGahn spent more than 30 hours talking to Special Counsel Mueller and his investigators.

Trump’s strategy did suffer a setback this week, though, in the form of a ruling by a District Court Judge in Washington, D.C. who was presented with a Congressional request for certain financial documents from the accounting firm that works for the President and his businesses. Rejecting the Administration’s argument, the Judge ordered the accounting firm to comply with the request, ruling that while there must be a “legitimate legislative purpose” behind a request from Congress the Court ruled that such a purpose is essentially something within the discretion of Congress and that as long as Congress can articulate a purpose for the request no further review should be conducted by the Court. Obviously, this interpretation of “legitimate legislative purpose” does not bode well for the Administration’s stonewalling strategy.

Given all of this stonewalling, it’s understandable that some Democrats are beginning to argue that Congress has no option but to open a formal impeachment inquiry. In some cases, such as Republican Justin Amash and others, are arguing that the Mueller report itself provides sufficient grounds to begin the process. Since that report has not been made public in even an unredacted form, it’s impossible for me to make a judgment on that front but the arguments that they have made are quite compelling.

Other Democrats argue that opening an impeachment inquiry will give Congress the authority it needs to push back against Administration efforts to block document requests or witness testimony. While it’s true that a formal impeachment inquiry would provide Congress with what would clearly be a “legitimate legislative purpose” for nearly any conceivable request for documents or witness testimony, that would not preclude the Administration from continuing its stonewalling effort. Even in the face of formal impeachment hearings, the Administration would likely still do its best to delay the Congressional inquiry. This means that with or without an impeachment inquiry House Democrats would still find themselves in the same boat, with a recalcitrant and uncooperative Administration that would need to be taken to Court to enforce requests that Congress clearly has the authority to make.

So far, Speaker of the House Nancy Pelosi has resisted calls for moving forward on impeachment and has declined to discuss the matter publicly. Behind closed doors, it is reported that the Speaker is still trying to rein in her increasingly restless caucus even as the Administration continues to block Congress from doing its job. That is becoming harder and harder for her to do, though, and that’s only likely to get harder as the Administration continues to refuse to comply with document and testimony request that Congress clearly has a right to make. In any case, the Democratic Caucus will be meeting this morning to discuss this matter, and while I tend to doubt that this will lead to the immediate opening of an impeachment inquiry, it seems clear that is where we’re headed if the Administration continues on its current course of action.

Obviously, the Administration’s stonewalling effort will face a difficult road ahead if other courts agree with the opinion issued by Judge Amit Mehta regarding the meaning and scope of “legitimate legislative purpose,” but that does not mean they won’t be able to delay the process significantly. While these document disputes will move through the District Court relatively quickly, the inevitable appeal will take several months at least. The Administration’s appeal of Judge Mehta’s ruling, for example, will likely not see a final ruling from the Court of Appeals until sometime late in the year at the earliest. After that, the Administration could seek en banc review before the full D.C. Circuit, or appeal the matter to the Supreme Court, which would delay the matter even further. Therefore, this stonewalling strategy, whether it comes in the context of an impeachment request or not, will slow the process down. Which, ultimately, is exactly what the Administration wants.

Outside of this, there are the obvious political risks associated with impeachment that I have touched on before. Recent polls have shown that the American public is skeptical about the idea of impeaching President Trump, with only self-identified Democrats saying by a large majority that Congress should move forward with impeachment. Other polling has shown the same result, with at least a plurality of Americans saying that they did not think Congress should pursue impeachment at this time. Additionally, House Democrats, who were out of Washington for much of April due to the regularly scheduled Easter break found that even Democratic voters back home aren’t enthusiastic about the idea.

Because of this, and given the fact that we know that there would not be enough votes in the Senate to convict and remove the President, I have taken the position that Congress should not pursue impeachment at this time but should instead continue to investigate the President, his campaign, his Administration, and, where appropriate, his businesses and other financial matters. As the Administration continues stonewalling, though, we seem to be getting closer and closer to the point where Congress will have no other option.

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Democratic Primary Rules and Proportionality

What does “proportional” mean in the context of elections? A perfectly proportional system would be one in which the number of whatever is being allocated (seats or, in the case of presidential primaries, delegates) is equal to the percentage of the votes the party (or candidate) received.

In simple terms, a perfectly proportional outcome would look like this:

%votes = %seats

or

%votes=%delegates

For a counter example, in winner-take-all systems, the winner gets everything being allocated, regardless of the percentage of the vote received.

So, Trump won 31.5% of the popular vote in California in 2016 (a reminder that there are a lot of Republicans, ~4.5 million by this metric, in California) but he won 0% of the electors. This is a disproportional result.

To hammer on language that I am fond of using around here, the states are essentially multi-seat districts with plurality winners.* In other words: we elect the electors the same way we elect members of congress,** by plurality, except those are single seat districts.***

Of course, presidential primaries are different, because the candidates are competing for delegates, not office. Both parties use somewhat different rules to award delegates (and those rules sometimes vary from cycle to cycle to some degree).

It is frequently stated that the Democrats have rules that are more proportional that the Republicans in terms of awarding delegates to their candidates. This is true, but it would be a mistake to assume that this means that the rules are perfectly proportional–there are not, not even close. It is not the case that delegates are awarded in a way anywhere near to %votes =% of delegates.

Instead, it should be noted that some delegates are awarded on a district basis and some at-large. This matters for proportionality because the more you divvy up the delegates into units (i.e., districts) the less proportional the awarding of delegates can be, mathematically.

Second, the Democratic Party’s rules impose a 15% electoral threshold, which means that to win delegates, a candidate has to win at least 15% of the vote. This matters for the huge Democratic field because most of the current candidates aren’t breaking into double digits of support, let alone 15%.

With the obvious caveat that it is waaaaay too early to be taking the polls seriously, note that of the the exactly 14.7 quintillion candidates, only two (Biden and Sanders) have 15% or more of support in the latest Monmouth poll in New Hampshire. Buttigieg is in third with 9%. So, if the primaries were held today, they would likely be the only delegate winners (barring some odd district-level outcome).

So while, yes, the Democratic rules may allow for a more competitive process than the Republicans’ process (which is not pure winner-take-all, by the way), it is not so proportional that it is going to allow a huge number of candidates to be competitive.

The current number of candidates are simply not viable, as I keep saying. And the rules are not going to help a list of competitors in the low single digits remain competitors for very long.

(This is one of the reason I think a brokered convention to be highly unlikely).


*With some variation in Maine and Nebraska

**Save, again, in the few states that have variations like Georgia and Louisiana’s requirement for an absolute majority.

***Indeed, image electing Congress in multi-seat districts with plurality winners and perhaps those who still don’t understand why I dislike the Electoral College will better see why.

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