Archive | The Atlantic

No One Knows If a President Can Be Indicted

By Garrett Epps

Can the president be indicted while in office? Rudolph Giuliani, at this writing one of President Trump’s lawyers, apparently wants the public to believe that there is a clear answer to that question—the one that by coincidence favors his client.

The one thing I am sure of is that there’s no clear answer.

To begin with, no one suggests that a president can never be indicted for crimes committed in office or out of it. Of course he can. The question is whether a president can be indicted while in office.

There’s no caselaw, but we have four interesting government memos dating back half a century. I reviewed them, and asked six prominent legal scholars how we should look for an answer.

Start with the memos—one issued by the Justice Department’s Office of Legal Counsel (OLC) during the waning days of the Nixon presidency; a contemporaneous memo by the late Robert Bork, then solicitor general, advising a district court that a vice president could be indicted; a 2000 opinion by the OLC reaffirming the 1973 opinion; and, finally, a 1998 opinion by a lawyer in Kenneth Starr’s Office of the Independent Counsel investigating President Bill Clinton.

The results are: three “no indictment” opinions, and one “yes indictment” opinion. Perhaps by coincidence, the three “no indictment” opinions were issued by executive-branch lawyers (who work for presidents), while the “yes” opinion came out of the Starr probe, which pursued Clinton with a passion and finally got him impeached.

The first OLC memo was issued on September 26, 1973, not long before the October 20 “Saturday Night Massacre,” in which Nixon directed officials of the Justice Department to fire special prosecutor Archibald Cox, and the top two Justice officials resigned, leaving the dirty work to then-Solicitor General Robert Bork.

That memo considers the Constitution’s text and finds no answer. It …read more

Via:: The Atlantic

      

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Trump Almost Always Folds

By David A. Graham

President Trump’s May 8 announcement that he was withdrawing from the Iran nuclear deal should not have come as a surprise. He’d spent years railing against the plan—“the worst deal ever,” he dubbed it—and had promised to rip it up. And yet up to the moment when the president made the final call, there was still some suspense about what he would say.

This was not merely wishful thinking by the deal’s backers, though it was partly that. It was not only that members of Trump’s team, most notably Defense Secretary James Mattis, had voiced support for the deal. It wasn’t even just that Trump relishes taking the press (and even his own advisers) by surprise.

No, the other big reason that no one could be sure was that Trump almost always folds. Faced with a tough decision, the president has consistently blinked, giving in to his opponents. Trump has mocked former Secretary of State John Kerry for his supposedly poor negotiation powers, argued that multiple past international agreements suffered from weak-kneed diplomacy, and criticized British Prime Minister Theresa May, a close U.S. ally, for her conduct of the discussion on the U.K.’s departure from the European Union.

The president talks a goodor at least aggressivegame, but he doesn’t always walk it. The Iran deal is one of the few caseswhich also include ditching the Paris climate agreement, leaving the Trans Pacific Partnership, and moving the U.S. embassy in Israel to Jerusalemwhere Trump has stuck to the hard-nosed approach he promised during the campaign. But he twice flinched on Iran, too. In October 2017, his first chance to walk away from the deal, he made threatening noises but kicked the deal over to Congress and didn’t withdraw. He passed up another chance in January.

Foreign leaders were …read more

Via:: The Atlantic

      

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The Atlantic Politics & Policy Daily: A Tale of Two Staceys

By Elaine Godfrey

-Written by Elaine Godfrey (@elainejgodfrey)


Today in 5 Lines

  • In a meeting with South Korean President Moon Jae In, President Trump suggested that his historic summit with North Korean leader Kim Jong Un could be delayed: “There’s a very substantial chance that it won’t work out,” he told reporters.

  • The Treasury Department sanctioned five Iranians who allegedly provided military expertise to rebels in Yemen on behalf of the Islamic Revolutionary Guard.

  • During a House Education and the Workforce Committee hearing, Education Secretary Betsy DeVos told lawmakers that the nation must “address the underlying issues that create a culture of violence” and stressed the physical safety of students, but made no mention of guns or gun control.

  • House Speaker Paul Ryan, trying to tamper down an uprising on immigration among his conference, promised to bring up immigration legislation next month.

  • The Environmental Protection Agency blocked the Associated Press and CNN from attending a summit on water contaminants, and reportedly shoved a reporter out of the building.


The Races We’re Watching

Voters in Georgia, Texas, Arkansas, and Kentucky will select nominees for House, Senate, and gubernatorial races in their states’ primary elections.

The Georgia gubernatorial primary could say a lot about the coalitions Democrats will try to build in 2018 and 2020. Two progressive, Democratic women—Stacey Abrams and Stacey Evans—are running to secure the party’s nomination. Abrams has structured her campaign around minority outreach and empowerment, while Evans is targeting moderates and persuadable Trump voters. Whoever wins will go up against one of five Republican candidates—Georgia Lieutenant Governor Casey Cagle is currently leading the pack.

And in Texas, all eyes are on the primary runoff in the state’s 7th congressional district, where Democrats Lizzie Fletcher, the establishment favorite, and Laura Moser, a progressive, Bernie Sanders-type, are angling for the chance to unseat Republican Representative …read more

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John McCain’s Greatest Fear

By Jeffrey Goldberg

Let me stipulate at the outset that I am like many journalists in my fondness for Senator John McCain; let me also stipulate that this fondness derives in part from happy memories trailing McCain through Hungary and Germany and Ohio and the Middle East; and I will further note that this fondness also derives from a belief that McCain represents, at his best, something larger than partisanship and mercantilism and cynicism and the advancement of narrow self-interest. (Suggested reading: Dana Milbank and Anne Applebaum on McCain’s meaning and legacy.)

I am also aware that McCain is a flawed man, a flawed thinker, and a flawed politician, though I am not so interested in enumerating these flaws, in part because they are, generally speaking, either minor, or borne of good intentions, or both, and in part, of course, because he is slipping away from us, and now is the time to focus on the useful things he has done, and the things that he won’t get to do. This latter category is the troublesome category, because McCain’s cancer comes at a particularly inopportune moment in the life of this country.

All of this is to say that the following conversation with McCain’s amanuensis, his longtime Senate aide Mark Salter, is not an interview conducted by an unbiased observer. Today is the official publication day of what stands to be McCain’s final book, The Restless Wave, co-written, as all of his previous books have been, with Salter. McCain is not granting interviews; he is home in Arizona, fighting. Salter is speaking on his behalf, except, as you will see, where he is not.

The Restless Wave was not supposed to be McCain’s last book; it was meant, Salter told me, to focus mainly on foreign policy; more specifically, it was meant to …read more

Via:: The Atlantic

      

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An Epic Supreme Court Decision on Employment

By Garrett Epps

False dichotomy, meretricious piety, and pay-no-attention-to-that-man-behind-the-curtain misdirection are vital arrows in the quiver of any lawyer or judge, no matter of what persuasion. These tricks were on particularly egregious display in Epic Systems Corp. v. Lewis, a 5-4 decision announced Monday in which the Supreme Court’s conservative majority continued its drive to narrow protection for employee rights. (The opinion, written by Justice Neil Gorsuch, was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito; the dissent, by Justice Ruth Bader Ginsburg, was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.)

The issue in Epic Systems was this: Can an employer require its employees, as a condition of keeping their jobs, to submit to individual arbitration of wage-and-hour and other workplace-condition claims—not only without an option to go to court, but without an option to pursue even private arbitration in common with other employees making the same claim? Employees’ objection to a “no group arbitration” clause is that individual arbitration may concern amounts too small to make pursuing them worthwhile. Thus, these clauses make it easier for employers to maintain unfair or even unlawful employment structures and salary systems.

The question required the court to interpret two federal statutes—the Federal Arbitration Act (1925) and the National Labor Relations Act (1935). The FAA says that “a written provision in … a contract evidencing a transaction involving commerce” requiring the parties to arbitrate instead of litigate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities …read more

Via:: <a href=http://feedproxy.google.com/~r/AtlanticPoliticsChannel/~3/mhXMxcRlJPQ/ class="colorbox" title="An Epic Supreme Court Decision on Employment” rel=nofollow>The Atlantic

      

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Arne Duncan Is Serious: Americans Should Boycott School

By Adam Harris

The former education secretary says it’s time for American families to boycott school to fight for stricter gun laws.

Over the weekend, Arne Duncan, who served in the Obama administration, replied approvingly to a radical suggestion from a former colleague. “Maybe it’s time for America’s 50 million school parents to simply pull their kids out of school until we have better gun laws,” tweeted Peter Cunningham, another Obama-era education official. Duncan’s reply: “This is brilliant, and tragically necessary. What if no children went to school until gun laws changed to keep them safe? My family is all in if we can do this at scale. Parents, will you please join us?”

After Duncan tweeted, Wendy Kopp, the founder of Teach for America, said she was on board. So did Jim Manly, the superintendent of KIPP public charter schools in New York City.

Duncan has been pushing for tougher gun laws since leaving the Obama administration. I spoke with him on Monday about school shootings and why he believes in a boycott. (Duncan is a managing partner at Emerson Collective, which owns a majority stake in The Atlantic.) The conversation that follows has been condensed for length and clarity.


Adam Harris: Can you expand on the idea behind this boycott, beyond what you said on Twitter?

Arne Duncan: This gun issue has been one that has been the source of tremendous personal pain for me most of my life. I’ve talked about it extensively. It’s actually what I’m working full-time on now in Chicago. I’ve said very publicly that I thought my greatest failure when I ran Chicago Public Schools was the number of our students who died under my watch—who were killed. So, this is not a new issue, by any stretch. Sandy Hook—I talked about it, the president talked …read more

Via:: The Atlantic

      

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Trump’s Business Schemes Warrant Their Own Investigation

By Conor Friedersdorf

Roughly one year ago, special counsel Robert Mueller was charged with  investigating any links or coordination “between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as any “matters” or “federal crimes” that “may arise directly from the investigation.”

That probe now divides the right.

Conservatives like David French believe that the facts continue to justify its existence. As he noted last week in National Review, Republicans on the Senate Intelligence Committee have now confirmed that Russia attempted to aid Trump in the 2016 election, that Donald Trump Jr. “received a direct and unambiguous invitation to collude with Russia,” and that “he took the meeting.” What’s more, members of his campaign team including Paul Manafort, George Papadopolous, Carter Page, and Michael Flynn all interacted with Russia in ways that, at the very least, cry out for further inquiry. That demands a thorough probe that sets all relevant facts before the public.

In contrast, populist-right entertainers like Tucker Carlson, who hold themselves to lesser standards of intellectual honesty, say that the special counsel investigation is a “witch hunt” created by a deep-state cabal of usurpers. And when the U.S. Attorney’s office in the Southern District of New York raided Michael Cohen’s office, talk show host Sean Hannity complained, “Mueller basically back-doored his way into every single Trump business deal.”

That last talking point is striking.

Lots of Republicans repeat it. They insist an investigation into Russian links or coordination has no business delving into the business deals of Trump and his associates. To their narrow concern one must remain agnostic. So far, the public lacks sufficient information to judge whether Mueller has pursued only matters arising directly from his investigation or somehow exceeded that mandate. If he’s exceeded it, that will indeed warrant criticism.

Still, it is striking how …read more

Via:: The Atlantic

      

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Impeachment Is Not the Answer

By David Frum

The title and timing of To End a Presidency: The Power of Impeachment might lead the unwary reader to expect a polemic. But no. Inside these covers is a learned, judicious, and surprisingly cautious study of the impeachment power by Laurence Tribe, who ranks high among America’s leading constitutional scholars, and his former student, Joshua Matz. Their message: Impeachment is a very, very dangerous thing. Proceed with caution.

Worse: “Well-justified calls to impeach the president can simultaneously empower him, harm his political opponents, and make his removal from office less likely … Because removing a truly determined tyrant may unleash havoc, the risks of impeaching a president are apt to be most extreme precisely when ending his tenure is most necessary.”

By perverse contrast: “An impeachment may be most likely to succeed in Congress when other, less extreme measures are also most viable.”

We live in a time of what the authors call “impeachment talk.” They note that only five presidents faced credible impeachment threats up until the year 1992: Andrew Jackson, John Tyler, Andrew Johnson, Richard Nixon, and Ronald Reagan. By contrast, every president since 1992 has faced a credible impeachment threat—and, of course, Bill Clinton actually was impeached.

The authors make a cynical but shrewd observation about post-1992 impeachment talk: It is often stirred not by the president’s opponents, but by the president’s supporters, as a way to sustain political engagement between elections.

Many conservatives were thrilled in March 2006 when Democratic Senator Russell Feingold proposed censuring [George W.] Bush for warrantless domestic surveillance. At that point, the president’s public approval ratings had collapsed. With midterm elections on the horizon, Republicans feared losing control of Congress. What better way to fire up the base than to warn that Democrats would impeach Bush if they prevailed? “This is such a gift,” Rush …read more

Via:: The Atlantic

      

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The Atlantic Politics & Policy Daily: Obama Pivots to Video

By Elaine Godfrey

-Written by Elaine Godfrey (@elainejgodfrey)


Today in 5 Lines

  • Following a meeting between President Trump and top law-enforcement and intelligence officials, the White House announced that Chief of Staff John Kelly will convene a meeting with the FBI, DOJ, and DNI along with GOP congressional leaders to “review highly classified and other information” related to the FBI’s use of a confidential source to help investigate Russia’s interference in the 2016 election.

  • Secretary of State Mike Pompeo warned that Washington will apply “unprecedented financial pressure in the form of the strongest sanctions in history” if Iran doesn’t change its behavior in the Middle East.

  • In a 5–4 decision, the Supreme Court ruled that businesses can prohibit their workers from filing class-action lawsuits against their employers.

  • Democratic leaders rolled out a new initiative, dubbed “A Better Deal for Our Democracy,” which will focus on corruption in Washington by specifically targeting lobbying laws and campaign-finance rules.

  • Netflix announced that former President Barack Obama and First Lady Michelle Obama signed a multi-year deal with the company to produce “a diverse mix of content, including the potential for scripted series, unscripted series, docu-series, documentaries, and features.”


Today on The Atlantic

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The President Who Cried Wolf

By David A. Graham

Stop me if you’ve heard this one. The president of the United States is seizing on vague news reports to allege a vast political conspiracy against him, demanding an investigation, and searching for vindication.

Of course you’ve heard this—it’s a trope nearly as old as the Trump administration. The latest recurrence concerns a reported informant who fed information to the FBI about possible Russian interference in the presidential campaign. Wall Street Journal columnist Kim Strassel led the way on the story two weeks ago, and over the weekend The New York Times and The Washington Post added a great deal more detail.

The informant is a retired academic who reportedly spoke to three Trump advisers—Carter Page, George Papadopoulos, and Sam Clovis—because of federal government concerns about contacts between Russians and Trump advisers. All three have proven to have had curious links to Russia. Papadopoulos met with Joseph Mifsud, a mysterious Russia-linked professor, and also told the Australian ambassador to Britain that the Russians had dirt on the Clinton campaign, launching the FBI’s probe into Russian interference; Papadopoulos has since pleaded guilty to lying to federal agents and is cooperating with special counsel Robert Mueller. Page delivered testimony to the House Intelligence Committee revealing a web of contacts in Russia, including apparent mischaracterizations and strange gaps in his memory. Clovis was Papadopoulos’s superviser.

There’s a lot still unknown about the informant, as The Washington Post explains: “It is unclear how he first became involved in the case, the extent of the information he provided and the actions he took to obtain intelligence for the FBI. It is also unknown whether his July 2016 interaction with Page was brokered by the FBI or another intelligence agency.”

That lack of detail has not stopped the president from leaping on the story—indeed, …read more

Via:: The Atlantic

      

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