When Will We Decide We’ve Had Enough?

/in , , /by

Nearly every day, the news reveals another outrage on the part of President Trump that violates constitutional norms. The most recent is his apparent threat to withhold military aid from Ukraine unless that country produces damaging information on former Vice President Joe Biden. At present Biden is Trump’s most likely opponent in 2020. Trump’s arrogance, corruption and destructiveness are unprecedented. I viscerally feel that he is ruining my country. When will we decide that we’ve had enough?

Trump respects no boundaries. He believes he can do anything he pleases as President, at least until someone stops him. We have never had a President like this and we have no systems capable of dealing with him. Under the Constitution, Congress has oversight authority of the executive branch.  But, as we have seen, Trump refuses to cooperate with requests for information and even subpoenas. He directs his subordinates not to testify before Congressional committees. Congress seems dumbfounded and impotent.

The Constitution provides only one remedy for removing a President – impeachment. This will first require a finding in the House of Representatives that Trump is guilty of treason, bribery, or “high crimes or misdemeanors.” This type of “crime” is not a crime in the usual sense but rather an abuse of power by a person in high office. It is a serious offense against the state, against the way our balanced democracy is supposed to run. Can there be any doubt that Trump has crossed that boundary? His refusal to cooperate with Congress alone should be enough, but the list of other offenses is long.

What seems to be holding us up are blind tribalism on the part of Republicans and careful political calculation on the part of Democrats. The Republican “base” has the President they want. He sticks his thumb in the eye of the elites, protects gun ownership and places arch-conservatives on the Supreme Court. Maybe you can understand how these voters perceive the complaints about Trump as purely partisan. But there will be a special circle in hell reserved for Republican Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who remain silent or worse. It is said that these people fear the political consequences from the “base” if they oppose Trump.

The Democrats in Congress aren’t much better. While a number of Democratic Representatives have called for impeachment, many are reluctant. Some from conservative districts are frozen for the same reason that the Republicans are – fear for their political future. Others like Nancy Pelosi argue the larger risks of attempting to impeach Trump. Unless the American people are lined up in favor of impeachment, Democrats are likely to experience the same blow-back from voters the Republicans got when they impeached Bill Clinton. Trump’s re-election prospects might even be improved by an impeachment effort. But this calculation seems different from the Republicans only in degree, not in kind.

We have been awash in so many affronts to the normal order that we are numb. We have lost our sense of outrage. Or maybe because we have never seen anything like this President, we are confused and don’t know what to do. But the problem with inaction is that each affront to constitutional norms makes the next one easier. If someone had told us on the eve of Trump’s inauguration how bad things would be in September 2019 we would never have believed it.

All this circles back to what kind of country we want. The “we” I’m talking about is you and I, at the granular level. Are we just going to wring our hands over how bad Trump is, or are we willing to risk something to stop Trump from creating further damage? It’s a certainty that Congress isn’t going to do anything without the safety of public opinion behind them.

Each one of has to take responsibility for the preservation of our democracy. The situation cannot go on like this. Talk to your neighbor. Write a letter to the editor of a newspaper. Post on Facebook. Call or write your Representative in Congress, even the Trump sycophant Alex Mooney. It is not someone else’s job. It is our job.

Undermining the Endangered Species Act

/in , , /by

We have just been treated to another example of what happens when conservation voters fail to go to the polls or, worse, when they vote for candidates who are antithetical to sound conservation values. On August 12, 2019, the Trump Administration announced its latest effort to modify the Endangered Species Act (ESA), not in the interest of the imperiled species the Act was designed to protect, but to satisfy the oil, cattle and mining industries who contribute so heavily to the Republican leviathan.

The ESA has been an enormously successful program to save endangered species and is the model for the rest of the world. Among its successes are the restoration of the California condor, the American alligator, the bald eagle and the gray wolf. Nevertheless, the Trump Administration is convinced the ESA is antiquated and needs to be brought “into the 21st Century.” Secretary of Commerce Wilbur Ross, that paragon of official candor whose reason for adding a citizenship question to the 2020 census was found to be a lie, said:

The revisions finalized with this rulemaking fit squarely with the president’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals.

The announcement was accompanied by supportive statements from 15 Republican lawmakers, and officials from the National Association of Homebuilders, the National Cattlemen’s Beef Association, and the Western Energy Alliance. The strong opposition of environmental groups wasn’t mentioned.

The ESA itself has remained untouched. Several attempts to amend the statute have failed, even though Republicans have controlled both houses of Congress. The Trump Administration has simply modified the regulations that control how the Interior and Commerce Departments will interpret and apply the ESA. A regulatory change of this type is easier to achieve — but also easier for the next administration to reverse. And no regulatory interpretation can contradict the actual statutory language.

What exactly are these regulatory modifications and what will they mean? The answers depend on an understanding of the way the ESA works. It creates a two-tiered approach to protecting plants and animals at risk. Species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered “within the foreseeable future.”

Economic Data on Industry Impact

The first Trump modification is to what factors may be considered when listing and delisting a species. The ESA says that such determinations must be made “solely on the basis of the best scientific and commercial data available” on the question of whether the species is in danger of extinction. The current regulation mirrors this language but adds the phrase “without reference to possible economic or other impacts of such determination.” The Trump modification eliminates this additional phrase.

This is a clear invitation to industry to bombard the Interior Department with data on the possible harm to the affected industries, which will certainly be exaggerated, when a listing or delisting issue is considered. But recall the statute says that listing and delisting decisions must be made solely on the basis of the best scientific and commercial data available concerning the extinction question. It does not include the economic impact on industry. Yet what purpose could collecting information on industry impact serve but to influence the ultimate decision? One commentator has likened this to considering cost before treating a patient who is having a heart attack. An obvious legal challenge is set up here because the modified regulation seems to contradict the statute.

Shrinking Critical Habitat

When a species is listed as endangered or threatened, a critical habitat must also be specified. This is the geographical area occupied by the species at the time of listing plus any additional area essential for the conservation of the species. The designation of critical habitat only affects federal agency actions or federally funded or permitted activities. Federal agencies are required to avoid destruction or adverse modification of critical habitat areas. Since the federal government owns enormous swaths of land in the West, a critical habitat designation could restrict the extent of federal land open for oil and gas drilling and mining.

Unlike on the question of potential extinction, the Interior Department must take into consideration the economic impact of a critical habitat decision. But this is not enough for the Trump Administration. The major change to this portion of the regulation relates to areas not occupied by the species at the time of listing, but that are deemed essential for the preservation of the species.  Now there will be a presumption that an unoccupied area is inessential unless there is a showing that without the unoccupied area the critical habitat would be inadequate. Moreover the Secretary will now be required to determine to a reasonable certainty that the area will contribute to the conservation of the species. The result of all this is that critical habitats will be smaller in the future.

Elimination of Climate Change When Determining Foreseeable Future

A species can be listed as threatened when it is likely to become an endangered species in the foreseeable future. Now the term “foreseeable future” will extend only so far into the future as the Secretary can reasonably determine that both the future threats and the species’ responses to those threats are likely. Under this new rule it would have been nearly impossible to designate the polar bear as threatened in 2010 because of the projected loss of sea ice. Officials then relied on climate models to predict the effect of warming on bear habitat 80 years into the future.

Writing in The New York Times, ecologist Carl Safina said

It used to be that animals did not need us. Now they do. Unless we value their existence, the modern tide will engulf and obliterate them. Their survival – like our great-grandchildren’s – is a moral matter. No religion has ever preached that our role on earth is to destroy, or leave less for those who’ll come after us. No wisdom teaches that it’s OK for a generation to drive the world to ruin. We are taught that we must safely pilot the ark.

This reference to the ark caught my attention. It is an apt metaphor, even if one is not inclined toward the scriptural view of the world. Noah carefully put all the animals on Earth into the ark, two by two, in order to preserve them from the deluge. We function as the modern day Noah. Except our current leadership in Washington is at the gangplank shouting “Hey! You two. Get out of line.”

Donald Trump: Guilty of Obstruction of Justice

/in , , /by

Special Counsel Robert Mueller has now delivered his final report on the investigation of Russian meddling in the 2016 election to the Justice Department. This investigation was broadened mid-stream to include potential obstruction of justice by the President through his interference with the Russia investigation. The final report consists of two volumes – the first devoted to Russian meddling and the second to the obstruction issue. The evidence of Russian meddling is stunning. The evidence of obstruction of justice is equally compelling, although the report was careful not to assert directly that the President committed a crime. Instead, it politely concludes that the evidence “does not exonerate” him.

In his May 29 public statement, Mueller referred to the Justice Department policy barring the indictment of a sitting President. Charging the President with a crime, he said, was “not an option we could consider.” It is important to understand that Mueller did not say the evidence was insufficient to make out a case of obstruction, only that Congress must decide this question in an impeachment proceeding. Mueller reiterated what he said earlier in his report — if his office had been confident that the President did not commit obstruction of justice, it would have said so. But “we are unable to reach that judgment.”

The rest of us are not constrained by the Justice Department policy. Anyone reading the Mueller Report with an ounce of objectivity will conclude that Trump actually did violate federal criminal law several times. That is also the conclusion of nearly 1000 former U.S. Attorneys and prosecutors who have signed an online letter concerning the report. They said:

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

What Constitutes Obstruction of Justice?

Several federal statutes prohibit obstruction of justice, but the proof elements necessary for a conviction are the same for each one. First, the defendant must have committed an “obstructive act.” Any act can be obstructive if it has the potential to block, render more difficult or hinder a proceeding.  An effort to influence a proceeding can be an obstructive act, even if done subtly, cleverly, or with “cloaking of purpose.” And an improper motive can render conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority. A conviction for obstruction of justice does not depend on the success of the obstructive act.

Second, there must be a connection between the obstructive act and an official proceeding. One statute requires a connection to judicial or grand jury proceedings. Another requires a connection to a “pending” federal agency proceeding or congressional inquiry. Still another requires a connection to an official proceeding that need not be pending or about to be instituted at the time of the offense. The obstructive act must be objectively likely to obstruct the proceeding and the actor must subjectively contemplate a particular proceeding he hopes to influence.

Finally, the act must be done with corrupt intent, meaning “knowingly and dishonestly” or “with improper motive.” This element is satisfied when the actor had the intent to obtain an improper advantage for himself inconsistent with official duty and the rights of others.

Using this framework, the report analyzes ten categories of conduct by the President. I will focus on two of these.

The Termination of FBI Director James Comey.

Immediately after he took office, President Trump began an effort to influence and control FBI Director James Comey. On January 27, Trump invited Comey to dinner at the White House and asked him repeatedly whether he wanted to remain as Director. At the end of the dinner Trump told Comey “I need loyalty.” Then in February following Michael Flynn’s forced resignation, Trump spoke in private with Comey – but only after clearing the room of everyone else.  Trump said “I hope you can see your way clear to letting this go, to letting Flynn go. He’s a good guy.”

Twice in testimony before Congress – March 20, 2017 and May 3, 2017 – Comey declined to answer questions about whether the FBI investigators had ruled out anyone in the Trump Administration, including the President. Trump was furious.

Over the weekend of May 5, Trump decided to fire Comey and began the draft of a letter doing so. The draft specifically referred to the Russia investigation and that Trump was not a target. On May 8, Trump informed his staff, as well as Attorney General Sessions and Assistant Attorney General Rosenstein, that the decision had been made. Rosenstein offered to write a memo recommending that Comey be removed because of poor handling of the Clinton email issue, but the resulting memo did not mention the Russia investigation. Comey was fired on May 9, 2017.

Firing Comey was an obstructive act. It had the natural and probable effect of impeding the investigation by delay and disruption. It had the natural tendency to chill and discourage other investigators. Trump followed the firing with public statements that heaped scorn on the investigation, calling it a witch hunt, among other things. These actions had the potential to affect a successor director’s conduct. Firing Comey had the necessary connection to the FBI’s investigation of Russian meddling, which could have and did result in indictments. In addition, Trump knew that Flynn was under investigation and asked Comey to “let Flynn go.”

Finally, Trump’s firing of Comey was in response to Comey’s unwillingness to state publicly that Trump was not a target of the investigation. Substantial evidence indicates that the intent behind this was to protect Trump himself and the campaign from investigation. As soon as Flynn became a target, Trump asked for Comey’s loyalty. He was furious when Jeff Sessions recused himself. Trump knew that the investigation could uncover his dealings with the Russians concerning a Trump Tower in Moscow, which continued up until June 2016.

Trump dictated a press release about the firing that falsely said it was in response to a recommendation from Rosenstein. Press Secretary Sarah Sanders then falsely told reporters that Rosenstein “on his own” decided to come to the President about his concerns with Comey. But because of push-back from the Department of Justice that the firing was not Rosenstein’s idea, a new narrative was developed. During an interview with Lester Holt on NBC on May 11, Trump admitted that he had made the decision to fire Comey regardless of the recommendation from Rosenstein, saying “this Russia thing with Trump and Russia is a made up story.” The initial pretextual reason offered by Trump for the firing adds to the intent element because it shows he had concerns about the true reason.

Trump’s Efforts to Remove Mueller

It is hard to overstate the effect that the appointment of Special Counsel Mueller had on Trump. According to notes taken by a person present at the meeting where Trump was told of the appointment, the President said “Oh my God, This is terrible. This is the end of my Presidency. I’m fucked.” Trump berated Attorney General Session for leaving him exposed to a Special Counsel.

Trump immediately claimed that Mueller had conflicts of interest but Steve Bannon and others told him the alleged conflicts were “ridiculous and petty.” On June 14, 2017, The Washington Post reported that the Special Counsel was investigating whether the President had attempted to obstruct justice. The following morning Trump issues a tweet storm criticizing this new development, calling the investigation “the single greatest WITCH HUNT in American history – led by some very bad and conflicted people.”

On Saturday, June 17, 2017, Trump called White House Counsel at home Don McGahn and directed him to have Mueller removed. McGahn failed to carry out this instruction, so Trump called a second time.  In this call he said “Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be Special Counsel. Mueller has to go. Call me back when you do it.”  Instead of carrying out these instructions, McGahn was prepared to resign. Through the intervention of other White House staff, McGahn was convinced to stay and Mueller was not fired.

The Mueller Report makes quite clear that the attempt to remove the Special Counsel would be an obstructive act. Removal would delay further activity and chill the actions of any replacement Special Counsel. And, since Trump knew his actions were now under investigation by the Special Counsel, there is a connection to a potential judicial proceeding. Intent is shown by the sequence of events. On June 13, Rosenstein testified before Congress that there was no cause to remove Mueller and Trump dictated a press release that he had no intention of firing Mueller. The next day the media reported Trump was under investigation. Trump immediately began calling McGahn for the purpose of having Mueller removed.

Implications for an Impeachment Inquiry

Robert Mueller handed the issue of President Trump’s potential criminal liability to Congress for the only proceeding available to try a sitting President – impeachment. Impeachment is not a criminal trial, rather it is a political one. The Constitution says that a President may be impeached for “treason, bribery or other high crimes and misdemeanors.” To remove Trump, his conduct need not actually constitute a chargeable crime. Some acts, say a gross violation of the Emoluments Clause, are impeachable even though they are not crimes. And not every crime is a “high crime or misdemeanor” as we saw in the impeachment of Bill Clinton.

Scholars and constitutional lawyers agree that a “high crime or misdemeanor” is an abuse of power by a high official that constitutes an offense against the state or a violation of the public trust. In an impeachment proceeding, it should not matter whether we agree with Trump’s policies and decisions. The sole question should be whether he has inflicted a serious political injury to the country through an abuse of power enabled by his high office. Does removing one chief investigator inquiring into Trump’s own conduct, and threatening the removal of another, rise to that level? We may soon find out.

Lying in Politics

/in /by

From time to time the Washington Post publishes a tally of the “false or misleading” claims President Trump has made since he has been in office.  The tally is up to 8,718 as of February 12, 2019. I am no fan of Trump, but the large majority of these are assertions that contain some grain of truth and are then exaggerated and embellished by him for effect. Trump seems to have a need to be always right, always the best, always superior to his opponents.  But I wonder how different his assertions are from the puffery one expects from any salesman who has a second-rate product.  Are Trump’s exaggerations and misstatements lies?  Do we even expect politicians to tell us the truth?

Admittedly, we can probably never know the whole truth about anything.  Plus our means of receiving and evaluating information is subjective and biased. But whether something is a lie does not start or end with whether the information conveyed is truthful.

A lie is an intentionally deceptive message in the form of a statement.  The liar communicates something he does not believe in order to make the other believe it.  That means that whether Trump is telling lies depends upon what he intends by his statements.  If Trump truly believes that climate change is a hoax, then he is not lying by stating as much to get us to support his environmental policies.  That would simply be advocacy.

Moral philosophers are generally in agreement that any lie – even white lies – are culpable and to be avoided.  Those who disagree make distinctions on the basis of the seriousness of the lie’s consequences or the circumstances producing the lie.  But the best way of thinking about lies is that they all have some corrosive consequences.  We may excuse some lies because of the circumstances but they are still lies if they are statements meant to deceive.

What are the corrosive consequences of a lie?  Obviously the person lied to will experience some adverse consequences.  The lie is designed to convince her of something the liar himself doesn’t believe.  Lies are usually told to produce or avoid some behavior on the part of the person lied to.  A lie gives power to the deceiver through eliminating a choice of action that might have been made by the deceived.  When she realizes the lie, her relationship with the liar is changed and she becomes wary and mistrustful of others who may lie to her.  When politicians lie to us, we become mistrustful of politicians in general, even those who do tell us the truth and are sincerely interested in helping us.

A lie also harms the liar.  Telling the first lie makes it easier, and sometimes necessary, to tell the second lie, and then the next.  At some point a liar will be exposed, leading to damage to his reputation for integrity and the trust others place in him.  When the trust of the community is removed from the liar, he ends up having less, not more, power to influence events around him.

Lies, particularly when told by politicians, have serious consequences for the health of society.  As Sissela Bok noted in her 1971 book Lying: Moral Choice in Public and Private Life, a society unable to distinguish truthful statements from lies would collapse.  The general level of trust in government would be eroded.  People would become unwilling to work together for the common good out of reluctance to be deceived about the bona fides of government’s goals or means.

Trust in our leaders was damaged by Eisenhower’s plain lie that we did not have U-2 spy planes flying over the Soviet Union.  Next the explanations given by Lyndon Johnson and his cohort about the objectives and success of our war effort in Vietnam were exposed in the Pentagon Papers as a long series of stupendous lies.  In The Imperial Presidency, Arthur Schlesinger noted

Up until the year 1965 most Americans most of the time had believed the word of their government. Within a decade thereafter, the proportion of Americans who assumed as a matter of course that their government was lying was greater than it had ever before been in the nation’s history.

Now we should be especially wary of the drumbeat for war — even one necessary for our own security.

If by some magic Trump would admit that many of his statements are lies — statements intended to deceive – I can imagine that he would attempt to excuse them in one of two ways.  He would argue first that the rules of politics anticipate lying, that Democrats and others in politics lie, and that the public expects politicians to lie.  He would suggest that political speech is akin to going into the souk in Cairo to buy a rug.  Do you expect the rug merchant to tell you the truth?  Does he expect you to tell him the truth?  No on both counts.  So Trump would seek to excuse himself by relying on the Latin phrase caveat emptor – buyer beware.

Of course, this exercise of shifting fault to the victims of the lie (“they should have known I would lie to them”) requires the liar to undervalue the harm caused by the lie.  Liars quite often argue that their lies really didn’t harm anyone.  But the consequences of a lie look entirely different when you take the perspective of the ones deceived.

In some ways, we do invite being lied to.  Our press begins dismantling the skill, competence and motivation of any politician the moment she is elected.  Incompetence, misbehavior and scandal make news.  For politicians, admitting fault or mistake is perilous.  If we could simply realize that politicians are human beings, which means they have faults and make mistakes, we wouldn’t contribute to the environment that leads to many political lies.  I don’t suggest this is a valid excuse for the lie, but it does make some lying more understandable.

The other excuse that Trump would offer for his lies is that he tells them for our own good.  We are too uninformed or limited in capacity really to understand what policies are necessary, while he is not.  This is often referred to as “the noble lie.”  An example would be Franklin Roosevelt’s promise that “your boys will not be sent off to fight in any foreign wars,” all the while making preparations to enter World War II.  I have some sympathy for Roosevelt’s lies, but none for the lie Lyndon Johnson told about a fictitious attack on a U.S. warship in the Tonkin Gulf that he used to justify entering the conflict in Vietnam.

Many public servants maintain that government cannot be properly run without the freedom to create illusion, which necessarily involves deceiving its own people as well as foreign adversaries. Take, for example, what we say publicly about our intentions in hard bargaining with the North Koreans, or the whereabouts of U.S. troops in the field.  But the noble lie concept can’t be stretched to cover domestic matters, where such a practice is noble only in the eyes of the liar.  It is certainly undemocratic and dangerous because it arrogates power to the lying government official that bypasses the consent of the governed.  And it certainly undermines trust in our leaders.

All this brings me back around to whether Trump is lying to us.  Since a lie necessarily involves the intent to deceive, which is a state of mind, we cannot know for an absolute certainty.  But we can reach a conclusion about Trump’s intent in the same way that questions of intent are determined in a court of law – by evaluating the circumstances.

If Trump is not lying to us, he is at the very least being tremendously reckless with the factual accuracy of his statements.  Continually popping off with factually incorrect statements can’t be just carelessness or incompetence.  And when publicly shown to be wrong, Trump repeats the same false statement many times over.  For example, Trump has asserted 127 times the falsehood that the recent tax cuts are the largest in U.S. history, even though Treasury Department data shows it would rank eighth.  There are many other similar examples.  It is hard to escape the conclusion that Trump intends to mislead others into believing statements that he himself does not and cannot believe.  That means he is lying.

Kavanaugh’s Disqualifying Flaw

/in , , /by

Yesterday, much of the country was riveted to their televisions, or other devices, watching the testimony of Christine Blasey Ford and Brett Kavanaugh before the Senate Judiciary Committee. I went a number of places last evening and this was all anyone could talk about. The ostensible issue is whether Kavanaugh, President Trump’s Supreme Court nominee, committed a sexual assault on Ford in 1982 as she claims. The larger and more important issue is what kind of person should serve on the Supreme Court.

Unfortunately, the way the inquiry was set up we are really unable to determine whether Kavanaugh did it. The Senate Judiciary Committee is not a court of law. The devices we have honed over centuries for finding the truth, notably compelling witnesses to testify and then cross-examining them, were not used. Ford and Kavanaugh each got an opening statement and then were subject to questions from Senators. Republican Senators ceded their opportunity to question Ford to a prosecutor specially retained for this purpose. Ford answered whatever questions were asked of her and seemed to be genuinely trying to help the process. Kavanaugh was combative, answering the questions from “friendly” interrogators but arguing with Democratic Senators and frequently interrupting them. Committee Chairman Charles Grassley ran the proceeding as a political spectacle not a trial.

Republican Senators were upset that Kavanaugh has been put in this position. They repeatedly questioned the motivation of Ranking Member Diane Feinstein for holding onto Ford’s letter, in which she initially raised the allegation, until after Kavanaugh’s vetting process had nearly gotten to its end. They might have a legitimate point about this, but that point doesn’t go to whether Kavanaugh is actually guilty of sexual assault or whether he is appropriate for the Supreme Court. Instead it simply complains about the partisan behavior that pervades everything these days, of which the Republicans are equally guilty.

To be fair about this, I confess I don’t know whether Kavanaugh did it. Each witness was 100% certain that his or her own story was correct and the other’s was wrong. Ford’s testimony was compelling.  She did not say or behave in any way that suggests she is making the story up or that she has a political axe to grind. After all, the letter in which she raised the allegation against Kavanaugh was written at the point when Kavanaugh was one of several on Trump’s list for consideration and before he was actually nominated. She had nothing to do with the manner in which the allegations were brought forward by Feinstein and the Democrats. In fact, she asked for confidentiality and is as much a victim of the circus as Kavanaugh. There are holes in her recollection but she didn’t try to fill them in to make the story better or more complete.

Kavanaugh’s anger and emotion were also genuine, which perhaps suggests that he is telling the truth as he believes it. He repeatedly pointed out that the three other people whom Ford says were present at the party cannot confirm it took place. He presented a calendar from high school in which he listed the places he planned to be and showed how after these events he wrote in who had been present. There is no meeting or party listed of the sort that Ford alleges. He also pointed to a lot of women who would attest to his character, although this kind of evidence is rarely allowed in court because how one behaves in other circumstances is not proof that he acted in the same way in the circumstance in question.

There are a number of other things that could be said for and against the stories of Ford and Kavanaugh. But we are not going to get any other facts or testimony because the Republicans are resisting the call of the Democrats for an FBI investigation of the allegations. They feel this is just a ploy on the part of the Democrats to delay the vote on the nomination until after the mid-term elections in November. Perhaps they can now understand the Democrat’s fury at the refusal of Mitch McConnell to bring forward President Obama’s nominee Merrick Garland until after the 2016 election.

In any event, if the objective is to find the truth then more information rather than less is appropriate. Kavanaugh, who has been a federal judge for twelve years, repeatedly dodged the question of whether he wanted an FBI investigation. Clearly, if such an investigation provided no corroboration for Ford, then Kavanaugh would sail through the nomination vote. Instead, it almost looks like he and the Republicans are afraid of what would be learned if the FBI interviewed Mark Judge and others. So I don’t think the Republicans are interested in the truth so much as getting their nominee across the line. And maybe Democrats really don’t care as much about the truth as preventing this.

Even Chairman Grassley conceded that if Ford’s allegations are true it would be disqualifying for Kavanaugh. Nobody disputed this. Yet after yesterday’s hearing any honest broker would have to say that it is possible they are true – that Kavanaugh actually committed the sexual assault. I think the real question the full Senate will confront is whether we are prepared to put someone onto the Supreme Court for life about whom there is this much doubt. Do we care about the integrity of the Supreme Court or not?

For me there is an easier way out of this quagmire. In my view Kavanaugh disqualified himself yesterday when he forcefully claimed that he is the victim of unjust character assassination by the Democrats on the Judiciary Committee who only want revenge “for the Clintons.” This is a glimpse into the way Kavanaugh views the world and it is not pretty. The Democrats did not concoct the allegations against him. The Democrats were not the ones seated in front of the Committee telling a believable story of sexual abuse by laughing frat boys. Yet Kavanaugh filters this as something insidiously partisan. Keep in mind that this is a man who evaluates disputes for a living, but when the dispute involves him he sees nothing but a nefarious plot by his political foes. His mode of thinking and his combative way of presenting it speak volumes about how fair and even handed he could be on the Supreme Court. You can bet that as a Justice he would scorch Democrats and their concerns as his own revenge. The Senate proceeding was not perfect as a truth finding process, but the stress it created exposed Kavanaugh’s disqualifying flaw.

The Environmental Disaster of Mountaintop Removal Mining

/in , , /by

Coal has contributed substantially to the development of civilization over the last 250 years. The steam engine was designed and first used to pump out flooded coal mines.  The railroad was first commercially used to move coal from mines to towns and river transportation. Coal powered the industrial revolution in England and the United States.  But burning coal produces the greenhouse gasses chiefly responsible for global warming. It also produces noxious particles that cause heart and lung disease and many deaths. And in West Virginia the search for cheap coal has led to mountaintop removal mining, a practice with an entire catalog of harmful environmental effects.

Only by flying over Southern West Virginia can one completely grasp the scale on which mountaintop removal mining has been used. Aesthetically we will never be the same despite all the promises of restoration by mining companies. But lost beauty is a relatively minor issue with mountaintop removal mining.

mountaintop removalMountaintop removal involves clearcutting the extant forest, burning it and then pushing the debris into the adjacent stream valleys. Following this the top layer of rock is blasted away and this rubble too is pushed into the stream valley along with the topsoil. The coal being harvested is typically thin seam, which means that it is quickly exhausted and a new round of blasting is conducted until the next seam down is reached. Sometimes this process removes 800 feet of mountain.

The scientific evidence of the harm done to human health by mountaintop removal with valley fills is plentiful. The website of the Ohio Valley Environmental Coalition contains a bibliography of studies on the topic (ohvec.org/mountaintop-removal-articles/health/). Additional research documents extensive environmental damage.

For example, in January 2010 Science Magazine published an article detailing that environmental damage, written and researched by twelve scientists including one from WVU. They found that forests are destroyed and headwater streams are lost. Downstream biodiversity and water quality suffer. As mountain streams emerge from valley fills, they are saturated with sulfate, calcium, magnesium and other harmful ions. This effect persists even after mine-site reclamation.

During the last ice age the central and southern Appalachians became a refuge for northern plant and animal species. When the ice retreated many stayed, rendering these mountains richly biodiverse. The World Wildlife Fund says this area is a “biodiversity hotspot.” Mountaintop removal mining often wipes out wide swaths of temperate mesophytic forests in central Appalachia. These have an unusually diverse tree flora with as many as 30 tree species at a single site. Underneath the forest there is a rich growth of ferns, fungi, herbaceous plants and small trees as well as areas of glade and cranberry bog.

Wildlife also suffers. Whole habitats for bears to birds to crayfish are destroyed. The effect on birds is dramatic. There is a decrease in forest interior bird populations, such as the Wood Thrush, and stream dependent species, such as the Louisiana Waterthrush. In their place grassland and edge-tolerant species increase.

The Endangered Species Act normally requires the Fish and Wildlife Service to review any federally authorized, funded or administered action that could adversely affect endangered or threatened species. But in 1996 FWS issued an opinion waiving this review for coal mining because the effects of mining are already regulated under the Surface Mine Control and Reclamation Act. However, in practice under the SMCRA mine operators hire government-approved consultants to produce surveys of wildlife that are far less rigorous than desirable.

One environmentalist from the Center for Biological Diversity in Portland, Oregon remarked that this special review process for coal mining results in environmental destruction that would simply not occur elsewhere.

I’ve read longer biological opinions for road repairs on the Mount Hood National Forest than for the [1996 FWS biological opinion] that proclaims to address all species impacts from all coal mining activities. In Oregon, you would never get permission to blow up the top third of a mountain — it just wouldn’t happen.

Big Sandy CrayfishEnvironmental groups have resorted to lawsuits to force the FWS to do its job under the Endangered Species Act. In the last five years, these groups have sued to protect the northern long-eared bat, a species already under pressure from a disease called the white nose syndrome. They also sued FWS to protect the Big Sandy crayfish, which has been lost from up to 70 percent of its range because of water pollution from mountaintop removal mining. It is nearly gone from West Virginia and has lost close to half of its range in Kentucky and Virginia.

As with most things these days, this struggle is all about money. Regulation of the mining industry raises its costs and reduces its profits. The question is whether we will have the political will to shift the costs of mountaintop removal mining onto those who profit from it. Will mining companies be required to include in their profit and loss analysis the costs of environmental degradation and clean-up that they have previously externalized?  Or will poor communities around the mining sites, and ultimately the entire state of West Virginia, be forced bear these costs?

In a 2011 study published in the Annals of the New York Academy of Science, the authors investigated cost accounting for the full life cycle of coal, including coal mined by mountaintop removal:

We estimate that the life cycle effects of coal and the waste stream generated are costing the U.S. public a third to over one-half of a trillion dollars annually. Many of these so-called externalities are, moreover, cumulative. Accounting for the damages conservatively doubles to triples the price of electricity from coal per kWh generated, making wind, solar, and other forms of non-fossil fuel power generation, along with investments in efficiency and electricity conservation methods, economically competitive.

If mining companies had to pay even a fraction of these additional costs, it is most likely that mountaintop removal mining would become uneconomical and would cease. This is perhaps what fuels the fierce opposition to regulation of this practice by the mining industry.

That opposition played out recently in connection with a modest regulation of the industry by the Obama Administration called the Stream Protection Rule. This Rule did not prohibit mountaintop removal mining, but rather would have required a buffer zone between mountain streams and mine sites and would have protected drinking water in accordance with modern technology. But predictably the mining industry unleashed a barrage of false and exaggerated claims of harm to the industry.

The National Mining Association estimated that over 52,000 miners in central Appalachia could lose their jobs, and Congressman Alex Mooney (WV 2nd) repeated these wildly exaggerated claims. Congress required the Office of Surface Mining Reclamation and Enforcement to estimate the proposed Rule’s impact on all employment, not just on coal jobs. It concluded that there would be a net annual increase in overall employment when new jobs related to compliance with the Rule were taken into account.

Nevertheless, the Stream Protection Rule was killed early in the Trump Administration, one of the first casualties of its effort to undo anything the Obama Administration had done. But the Trump Administration and their coal industry supporters have grasped the fundamental truth about the regulation of mountaintop removal mining. Trees and birds and streams don’t vote. Only people do.

Trump Administration Abruptly Changes Migratory Bird Enforcement Policy

/in , , /by

For 100 years, the Migratory Bird Treaty Act (MBTA) has protected nearly 1000 bird species in the United States against being “taken” or killed except under prescribed circumstances. This statute prohibits hunters from intentionally killing birds without a permit, but has also been interpreted by courts and the Interior Department to prohibit incidental taking – the unintentional destruction of birds or nests through some instrumentality or activity like spraying pesticides or the erection of wind turbines. The MBTA is a strict liability statute. If a covered bird dies then misdemeanor liability is established despite the efforts or good will of the defendant.

The MBTA itself is silent about whether intent is a necessary element of the misdemeanor, but Congress has amended the statute several times without correcting the prevailing judicial interpretation that intent to harm birds is not required. In fact, the amendments carved out special areas where intent was necessary, strongly implying that in all other areas intent was unnecessary.

This interpretation was formally adopted by the Interior Department in a legal memo issued in the waning days of the Obama Administration. However, a new interpretive memo was issued in December 2017 by the Trump Interior Department reversing the Obama approach and essentially eliminating the enforcement of the MBTA against incidental taking.

This is an historic and meaningful about-face. Incidental taking cases are largely against the oil industry – the two largest prosecutions came after the Exxon Valdez spill and the Deepwater Horizon oil well disaster. Oil production activity is obviously not intentionally designed to kill birds, so without enforcement against incidental taking the overwhelming majority of large scale bird kills will have no legal consequences. Since private citizens have no right to file lawsuits to enforce the MBTA, the Trump Interior Department’s direction to Fish and Wildlife enforcement officials to lay off incidental taking cases is hugely significant.

The author of the new Trump enforcement memo is Dan Jorjani, a long-time advisor to billionaire oil man Charles Koch. The Obama interpretation also angered Harold Hamm, a billionaire backer of Donald Trump whose Continental Resources company was prosecuted for repeatedly failing to erect nets over waste oil pits. But seventeen former Interior officials, including Fish and Wildlife directors under Presidents Nixon, Bush I, Clinton, Bush II and Obama have repudiated Jorjani’s interpretation. And it is easy to pick apart Jorjani’s rationale. It is clear that in the Trump Administration good conservation policy and quality legal analysis has given way to rewarding small-government, libertarian political contributors.

The Trump memo justifies the enforcement change in two ways. First, three U.S. Courts of Appeals have ruled that prosecution of a corporation that unintentionally kills birds in the course of a business activity is inconsistent with the meaning of the word “take” as used in the statute. Two of these cases dealt with habitat destruction from cutting trees. The rationale in these cases was that when the statute was passed 100 years ago taking referred to hunting or capturing birds, clearly intentional conduct directed at birds. These courts were concerned with the unfairness of extending criminal liability to otherwise innocent business activity.

Several other Courts of Appeals have supported the Obama approach, but the Trump Administration has chosen to ignore those cases. The MBTA is an historic conservation statute with broad scope. It is the responsibility of the Interior Department to interpret the statute to give it broad effect. This is exactly what the Department has done for 100 years by considering as prohibited incidental taking without actual intent to harm birds. If Congress intended to exclude incidental taking from the scope of the statute, it could have said so on many occasions. But this issue seems beside the point. Since the statute also prohibits killing birds “by any means or in any manner” it is simply not necessary to resolve what the word “take” meant 100 years ago. Incidental, unintentional killing is clearly covered.

The second justification for the enforcement change is that the Obama interpretation was open-ended and could potentially have criminalized millions of Americans who merely have a large picture window into which a bird commits suicide, or whose cat behaves like a cat. This issue has been raised in many of the litigated cases but has never gotten judicial traction. One court explained that to get a conviction for incidental taking, the prosecution would still have to prove that the killing of birds should have been reasonably anticipated or foreseen from the nature of the defendant’s activity. This is not intent to cause a bird kill, but rather awareness that it could happen. The court said “[b]ecause the death of a protected bird is generally not a probable consequence of driving an automobile, piloting an airplane, maintaining an office building, or living in a residential dwelling with a picture window, such activities would not normally result in liability.”

Some commentators have remarked that the public has been whipsawed between an Obama enforcement approach that went too far and a Trump enforcement approach that doesn’t go nearly far enough. Clearly the Trump interpretation of the MBTA guts the statute and is unacceptable. But it is hard to escape the sense that interpreting a statute broadly to create potential (and actual) business liability without considering the intent of the business, or the efforts of the business to comply, is asking for trouble. Businesses caught up in MBTA enforcement have been frustrated and believe they have been treated unfairly. This has led them to seek political help, which they have now found.

Perhaps the best way through this mess is for Congress to amend the MBTA to confirm clearly that the statute reaches incidental taking, while requiring Fish and Wildlife inspectors to first warn a business with a structure or practice likely to harm birds, and allowing a substantial penalty reduction for good faith efforts to comply. Without this kind of balance the MBTA will simply be unstable, lurching from one enforcement interpretation to the next.

Government by the Rich, for the Rich

/in , , , , , , , , /by

The much maligned Tax Cuts and Jobs Act (TCJA) is regarded by most Americans as a naked effort by the Republican Party to reward its key donors, among them the wealthiest of Americans. Public polling has consistently been negative for this “reform” legislation. The law’s modest temporary tax relief for the middle class is just window dressing. The public has simply disregarded this window dressing and correctly assessed the stink from what has been served up to them.

The TCJA is an enormously complex law, with poorly understood provisions the effect of which won’t be known until well after the law takes effect. Since the tax code has a profound effect on the behavior of individuals and businesses, and hasn’t been revised since 1986, a major revision should be thoroughly debated in the light of day. But to do that would have permitted the TCJA’s ugly flaws to be exposed and for opposition to solidify. So in adopting the TCJA Republicans jettisoned any pretense of democracy.

There were no public hearings. Some of the law’s provisions were added at the very last minute. The Congressional Budget Office had no time to evaluate the Republicans’ flimsy claim that increased business activity spurred by the tax cuts would raise substantial new tax revenues. The Bill was available for review roughly three days before the final Senate vote. The Democrats, who were not opposed to revisions to the corporate tax structure and might have made reasonable suggestions, were shut out of the process. This is how the Republicans govern.

One wonders why a massive tax cut was so important for Republicans in the first place, particularly in the face of negative public polling. The Trump Administration is riding the wave of economic recovery that began well before Trump took office. National unemployment is hovering around 4%, generally regarded as full employment. Corporations are already sitting on $2.3 trillion in cash reserves. They do not need massive tax cuts to free up cash for investment. The answer is that big donors are furious about not receiving the big tax cuts that were promised when the Republicans repealed Obamacare, which they failed to do.

Nobel-prize winning economist Paul Krugman has argued in the New York Times:

A large part of the answer [for why a huge tax cut was so important] is that many Republicans now see themselves and/or their party in such dire straits that they’re no longer even trying to improve their future electoral position; instead, it’s all about grabbing as much for their big donors while they still can. Freedom’s just another word for nothing left to lose; in the GOP’s case, that means the freedom to be the party of, by, and for oligarchs they always wanted to be.

Krugman can be intemperate at times, but he seems to be on to something. At all the key forks in the policy road, the Republicans have rewarded themselves and their rich friends. The TCJA represents a huge redistribution of wealth from the poor and middle class to those in the upper income brackets who hardly need it.

By far the largest impact of the TCJA will be the reduction of corporate tax rates. These reductions will themselves be responsible for nearly $1.5 trillion in reduced tax revenues. The Republican argument is that corporations will use this new cash to increase business capital investment, hire new workers and raise wages. But there is nothing in the TCJA that requires a business to use the tax cuts in this way. Many businesses have said they will use the money for non-productive uses like increased dividends and share repurchases. These uses only serve to increase the value of the corporation’s stock in the hands of those who own it.

Who benefits when the value of corporate stock goes up? Only 52% of the American public owns any stock whatever, even in retirement accounts, and those owners surely won’t be found in the bottom half in wealth and income. President Trump is fond of bragging about how the stock market is breaking records. Can’t you just hear the Champagne corks popping in all the nation’s homeless shelters?

In my next post, I will detail how the rich will directly benefit from the TCJA at the expense of the rest of us. Certainly, this statute ought to be one of the first things on the agenda of any new Democratic majority in Congress to reverse. In fact, instead of just undoing this bad law, the TCRA may unleash the Democrats to make substantial changes to the tax code to benefit affirmatively those whom the Republicans have, for now, shut out.

High Crimes and Misdemeanors

/in , , , /by

Impeachment of the President has occurred twice in American history and was preempted in a third case by the resignation of the President. This little-used mechanism of republican government has recently been on the lips of many, fueled by an unpopular President and a special counsel investigation into the conduct of his subordinates. If a President is impeached by the House of Representatives and convicted by the Senate, he or she is removed from office, but may be subject to later criminal prosecution. The constitutional grounds for impeachment are “Treason, Bribery or other high Crimes and Misdemeanors.” Treason is defined in the Constitution itself and bribery has a clear legal meaning. But what are high crimes and misdemeanors?

I am certainly not a constitutional scholar, but the answer to this question and much more can be found in several sources. Most useful were Raoul Berger’s Impeachment: The Constitutional Problems (1974) and Impeachment: A Citizen’s Guide (2017), by Cass Sunstein. Understanding the history of the language is important.

At the 1787 Constitutional Convention, delegates agreed on a unitary executive – the President — who would not share executive power with other officers. But how prevent this President from becoming as oppressive as the king just overthrown? The preliminary solution was that the President would be elected for a term of four years. An abusive or incompetent President would not be re-elected. This did not satisfy skeptics, who argued that much mischief could be accomplished within four years. The final solution was to add the remedy of impeachment, a tool used from time to time by the British Parliament and American colonial legislatures to control abusive royal ministers.

Checks and balances on the potential misuse of power are everywhere built into the Constitution. The idea that Congress could remove the President through impeachment worried James Madison and others who feared the legislative branch would have too much power and that the President would end up serving at the pleasure of Congress. This concern was driven by initial drafts of the impeachment clause that included “maladministration” as a ground.

But through Madison’s arguments, the convention moved from this broad language toward the notion that the President should be impeachable only for a narrow and specified category of abuses of the public trust. Madison proposed treason and bribery as the sole grounds for impeachment. The terms “high crimes and misdemeanors” were added near the end of the debate to satisfy George Mason, who argued that treason would not reach many great and dangerous offenses. There was no discussion on what the terms meant.

There was no discussion because “high crimes and misdemeanors” had an accepted meaning at the time with which these delegates were familiar. The terms had been in use in English political life since 1642. Here in a nutshell is what these terms mean.

  • The terms high crimes and misdemeanors do not refer to criminal conduct in the ordinary sense. Criminal conduct on the part of the President is neither necessary nor sufficient for impeachment. There was no such crime as a misdemeanor when the terms were first in use – petty crimes were called trespasses. High crimes and misdemeanors may be also be criminal, such as bribery, but lots more is covered.
  • The non-criminal nature of impeachment is confirmed by other parts of the Constitution. The Fifth Amendment guarantees that no person shall be subject to double jeopardy for the same offense. Because the impeachment provision declares that a convicted President can be subject to later criminal prosecution, impeachment was clearly meant as a non-criminal proceeding. Furthermore, while a criminal defendant is guaranteed the right to a trial by jury by the Sixth Amendment, a President is tried by the Senate.
  • High crimes and misdemeanors are political offenses against the state, and impeachment is designed to secure the state not punish the offender. Impeachment has been reserved for gross abuses of power or violations of the public trust. Remember that impeachment was used mainly to rid the state of the king’s corrupt ministers, who were not subject to the normal criminal process.
  • The modifier “high” refers both to the position of the offender and the seriousness of the offense. Impeachment is reserved for especially serious offenses. Only officers in high positions of trust can commit these egregious political offenses.
  • Intense political opposition and a general sense that the President is a failure are not sufficient grounds for impeachment. Nor is a sense that the President’s policies are wrong and harmful to the nation. If these points were not true, both Jimmy Carter and George W. Bush would have been impeached.
  • Because high crimes and misdemeanors are political crimes that cannot be committed by someone who does not hold high political office, they do not include reprehensible conduct committed before a President is elected, unless the conduct procured his or her election. An example might be some fraud or misconduct by the candidate that improperly influenced the election, like the Watergate bugging cover-up by President Nixon.

Arguing for the impeachment of Justice William O. Douglas in 1970, then-Congressman Gerald Ford famously asserted that “an impeachable offense” is whatever the House, with the concurrence of the Senate, “considers it to be at a given moment in history.” But this view is wrong. The terms high crimes and misdemeanors have a relatively precise meaning that was intended, in part, to limit the availability of impeachment. When considering this limit, the two actual impeachments of sitting Presidents were probably unconstitutional.

President Andrew Johnson was a Southerner who oversaw Reconstruction with a galling sympathy for the South. He was hugely unpopular for this. But his impeachment in 1868 was specifically for firing Secretary of War Stanton in violation of a statute passed by Congress to prevent him from firing Stanton. Johnson in good faith believed he had the right to fire officials who worked for him and that the statute was unconstitutional. This position was later vindicated by the Supreme Court. Johnson avoided conviction in the Senate by a single vote. This is an example of an intense disagreement between Congress and the President over matters of policy and law, which are rather frequent and are not egregious abuses of power simply because a majority of Congressmen might say they are.

When President Bill Clinton was impeached, he was a relatively popular President who had implacable opposition among Republicans. They believed him to be a liar and relentlessly sought grounds to impeach him. Recall that Kenneth Starr produced an investigatory report that focused on Clinton’s relationship with Monica Lewinsky and his efforts to cover it up by lying to his wife, his staff, the Cabinet and the American people. But Cass Sunstein remarks that

the impeachment of Bill Clinton is almost incomprehensible, at least if it is explored in the light of the debates in the late eighteenth century. You would have to work really hard to make a minimally plausible argument that Clinton committed an impeachable offense.

Clinton did lie under oath about his affair and this is unlawful, but it wasn’t an impeachable offense because it was not an abuse of his Presidential authority. It was a tawdry offense that practically anyone could commit.

One thing common to these two impeachments was the extreme factionalism in Congress at the time. In Federalist No. 65, Hamilton noted

the prosecution of [political offenses] will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.

Factionalism and passion will always be present in the midst of supercharged political issues, but in our present situation it will do nothing but get in the way of sound judgment.

Some commentators have argued that we have been too timid in the use of the impeachment mechanism. In an excellent opinion piece in the online journal Vox, published on November 30, 2017, Ezra Klein observes

There are plenty of people who simply should not be president of a nuclear hyperpower, and Trump is one of them . . . . We have grown too afraid of the consequences of impeachment and too complacent about the consequences of leaving an unfit president in office. If the worst happens, and Trump’s presidency results in calamity, we will have no excuse, no answer to give. This is an emergency. We should break the glass.

The piece concludes with a proposition at odds with the original meaning of the impeachment clause: “being extremely bad at the job of president of the United States should be enough to get you fired.”

However, events are moving quickly and there may be more to consider than bad job performance. Two days after this post was originally written, Trump’s former national security advisor, General Michael Flynn, pled guilty to lying to the FBI about his contacts with the Russian ambassador, and according to the Washington Post “court records indicate he was acting under instructions from senior Trump transition officials in his dealings with the diplomat.” Working in tandem with a foreign power to defeat a political adversary in a contest for the Presidency, and then attempting to obstruct an investigation into it, or to cover it up, is a “high crime and misdemeanor” in the true, original sense.

The best approach may be to consider only the actions said to be the basis of the potential impeachment behind an imaginary veil of ignorance about the President and his policies. It should not matter whether we agree with his policies and decisions. The sole question should be whether he has inflicted a serious political injury to the country, an abuse of power, enabled by his high office. Put another way, would we consider Trump’s actions to be a gross abuse of Presidential power if committed by a President whose policies we supported? If the answer is yes, then he should be removed.

Jeff Flake’s Conservative Conscience

/in , , /by

Jeff Flake is the junior United States Senator from Arizona. He graduated from Brigham Young University with a degree in International Relations and spent time as a missionary in South Africa. Later he served as the Executive Director of the Goldwater Institute, a conservative think tank, and was elected to the House of Representatives six times beginning in 2000 before his run for the Senate. Flake is very conservative, believing that government’s involvement in the lives of individual citizens should be minimized and that strangling tax revenues and spending is the best way to ensure this. He is pro-life, opposed to gun control and voted against disaster relief spending for victims of Hurricanes Katrina and Sandy. So one would not expect Jeff Flake to be openly critical of a Republican President whose election in 2016 made this conservative nirvana more likely. But Jeff Flake is a man of principle and he has unloaded on Donald Trump.

Flake’s opposition to Trump began during the 2016 Presidential campaign. Although he does not acknowledge a vote for Hilary Clinton, Flake openly admits he did not vote for Trump. He then opposed Trump’s travel ban, declaring that it was unacceptable when even lawful permanent residents could be stopped at the border.

Flake is up for reelection in 2018, so he has recognized that his maverick positions require some explaining. He has attempted to do this in a book recently published entitled Conscience of a Conservative, a title he borrowed from Barry Goldwater’s famous manifesto.

Flake’s opening salvo in the book is a description of the “madman” strategy employed by Richard Nixon to make Ho Chi Minh believe that we might actually drop a nuclear bomb on North Vietnam. In a breathtaking observation about Trump, Flake says “there is a significant difference between appearing to have problems with impulse control and actually having impulse-control problems.” Flake does not let up from there.

Perhaps most destructive of all, we haven’t ever had an occupant of the White House who so routinely calls true reports that irk him “fake news” while giving his seal of approval to fake reports that happen to support his position. This is tremendously damaging . . . Only in anti-democratic propaganda states do we see “alternative facts” successfully compete with the truth for primacy.

Flake not only takes aim at Trump, he is also critical of the partisan gridlock in Congress and the behavior of his own party. He says that the “impulse to dehumanize, to ascribe the worst possible motives to people who in normal times would be regarded not as ‘the enemy’ but merely as political opponents, is a signal that something is terribly wrong.” This applies, of course, not only to Republicans but to all of us these days. In a chapter entitled “Country Before Party” he speculates that Lincoln, Teddy Roosevelt and Ronald Reagan might not be welcome in the Republican Party of today because they were pragmatic and willing to compromise to achieve important national goals. In a particularly powerful passage he argues that

populist resentments may feel good in the moment, but indulging them is destructive, and self-destructive, and offers no solutions to the very real problems that gave rise to the resentments in the first place. Manipulating populist resentments is the oldest trick in the book, and it is shameful. When we allow ourselves to prioritize winning at all costs over what is best for our country . . . then we have chosen our political interests over the public interest and in so doing we inflict great harm on the country.

This is certainly refreshing and welcome. But it will not endear Flake to the harder right elements in his own Party. He now has a challenger in the upcoming Arizona Republican primary, who called his refusal to support Trump “treacherous” and describes Flake’s policies as “America Last.” Trump won in Arizona over Clinton by only 49% to 45% — a far smaller margin than in West Virginia and the narrowest win for a Republican since 1996. So Flake will have both a vigorous Democratic opponent and his hard right challenger to consider. On top of this, his popularity rating in Arizona last fall was only 35%. All this has led The Atlantic magazine to wonder whether Jeff Flake is “too nice” for the Senate, noting that he sometimes seems as if “he has just crash-landed here in a time machine from some bygone era of seersucker suits and polite disagreements.”

It is hard for a progressive to wish a man like Flake political success. His views on most things are somewhat extreme, as befits his libertarian outlook. But on closer inspection he can’t be so easily dismissed. Indeed, he may be an example of a middle course like the one Joe Manchin has attempted to take. For example, Flake is a globalist, believing that we all prosper through international trade agreements and calling for a renegotiation of NAFTA instead of a complete rejection of the treaty. He also flatly rejects Trump’s populist anti-immigrant stance and supported an end to the Cuban Trade Embargo.

Whatever can be said about Jeff Flake’s political views, it is plain he is driven by principle. It is hard to say the same about Joe Manchin. The best that can be said about Manchin’s behavior in the Senate is that he consistently votes in a way he thinks will help West Virginians. But his judgments on this are sometimes debatable, such as with his unflagging support for the coal industry. On matters affecting the nation more than the state, Manchin’s only “principle” is political survival. One can’t help wish for a West Virginia Senator who is willing openly to stand for country over party, for respect of the opponent even during disagreement, and for basic decency despite the political risk. Maybe this is the true middle course that, in the end, will be rewarded by voters.