The Office of Special Counsel (OSC) ruled in favor of President Donald Trump’s son-in-law and adviser Jared Kushner on whether he violated the Hatch Act in boasting Trump’s reelection in an interview. The Citizens for Responsibility and Ethics in Washington (CREW) has asked for the complaint to be reopened. There is an interesting twist in the case separate from the merits. The OSC rejected the claim not because it found Kushner’s comments were apolitical but because the interview was apparently not aired on television but was posted online. That seems like a bizarre and facially invalid distinction under the Act.
There has been considerable coverage of a letter from retired Hawaiian judge James Dannenberg who resigned from the Supreme Court Bar in protest over what he views as a court become little more than an “’errand boy’ for an administration that has little respect for the rule of law.” While I appreciate Dannenberg’s deep-seated and good-faith concerns over the direction of the Court’s jurisprudence, this letter is wildly off base. Indeed, the letter appears to denounce the Court for being “results-oriented” because it does not reach the results that he prefers. While the conservative justices as chastised for voting in bloc, he has no such qualms about the liberal justices voting as a bloc in the same cases. One is viewed as ideological while the other is viewed as . . . well . . . right.
For years, I have criticized President Donald Trump for his embrace of nepotism with the use of his son-in-law Jared Kushner and his daughter Ivanka Trump as high-ranking advisers in the White House. I was particularly critical recently when Trump gave Kushner a major role in the pandemic recovery. While I disagreed with some of the more over-wrought statements about Kushner’s role, it was still wrong in my view from both an ethical and political standpoint. Now however the Administration is doubling down by putting Ivanka Trump in a key public spot in the $349 million loan program for small business. The American people have a right to know that the trillions of dollars (and hundreds of thousands of lives) at stake are being managed by people selected on the merits, not familial ties to the President.
I previously criticized former Democratic National Committee (DNC) chair Howard Dean for his view of unprotected speech under the first amendment. He is now taking a different tack than government censorship. He has announced that he will boycott MSNBC until it yields to his demand to stop airing President Donald Trump’s daily briefing. He is calling on other commentators to join his boycott. Dean has curiously not pledged to boycott the other networks, which are also carrying the briefings. The reason is simple: it is news. Moreover, the public in a pandemic has been watching the briefings even though some of us object to some of President Trump’s comments, particularly his attacks on political and media figures. Yet, Dean is only the latest liberal figure or group to try to censor the briefings to prevent public access.
We have previously discussed President Donald Trump’s firing of the intelligence community’s inspector general, Michael Atkinson — a move that many of us criticized (particularly after Trump made it clear that the firing was due to the fact that Atkinson informed Congress of the Ukraine whistleblower complaint). Yesterday, Trump unfairly attacked the Inspector General who authored a critical report on shortages in hospitals dealing with the outbreak. Trump appointed Health and Human Services Inspector General Christi Grimm but attacked her as a deep state hater despite a record of service to both Republican and Democratic Administrations. Now Trump has removed Glenn Fine — the acting Pentagon watchdog — to lead the group charged with monitoring the coronavirus relief effort. Fine is highly respected and appointed by a panel of inspectors general. All of these moves are unwarranted and dangerous attacks on our system of Inspectors General that should be condemned by both parties.
Few per curiam opinions have generated as much heat from both dissenting justices as well as the media. The decision of the Supreme Court to reverse the decision of a district court judge on extending the voting for the Wisconsin election this week has generated breathless headlines and comparisons to the Bush v. Gore decision in the 2000 elections. Such hyperbolic language aside, the decision was actually quite narrow and well-supported. Moreover, the dissent is chastising the majority for denying relief that the Wisconsin Democrats never requested from the District Court in their original preliminary injunction motion.
Below is my column in the Hill on how the calls for a “national quarantine” ignore both the historical and legal foundations for such orders. While the President can reduce travel at transportation hubs and certainly call for a national quarantine as “an aspirational” matter, the legal authority to enforce a national quarantine is far from obvious.
I have to wonder if our state government’s lockdown of the population, curtailment of civil liberties, destruction of job opportunities, and denial of basic medical, education, and cultural needs would have been necessary and legally justified had each of us been equipped with our own supply of masks.
At the beginning of the self-declared State of Emergency, Washington Governor Jay Inslee declared, among many other restrictions, that access to basic medical services, such as routine doctor visits, dental procedures, diagnostic services were to be prohibited, ostensibly on the fact that masks should be diverted from these services and conserved to supply hospitals and critical care centers that were lacking in preparedness and woefully out of stock. He further reiterated that because the public will spread corona virus, we were ordered to self-quaranteen, resulting in tens of thousands of job losses, an upset in daily life and the general loss of liberty.
Before the next virus crises hits, I propose we adopt a new symbol of American Freedom and Liberty–The N95 Mask–and shield ourselves from the next outbreak of panic legislation and overreach by executive and administrative power
The Washington State Department of Fish and Wildlife has once again submitted to absurdity, this time by declaring that the hunting of bear and turkey presents a threat to public safety.
No, it is not that bears and their natural allies–the gobblers of Washington–have formed an alliance and threatened retaliation against suburbia if hunters invaded their lands. It is more insidious. Hunting outdoors spreads COVID-19 among the human population.
President Donald Trump has fired the CIA Inspector General who was responsible for informing Congress of the whistleblower complaint on the Ukraine scandal. Intelligence Community Inspector General Michael Atkinson will leave his job in 30 days and, in the interim, will be on interim leave. No successor has been named. I previously stated that I believe Atkinson was wrong in his interpretation of the law (as later found by the Justice Department). However, I believe that this is a mistake and undermines the system of whistleblower protections as well as the Inspector General system. Without a specific basis for the action, it appears retaliatory and it is certainly unnecessary. As noted below, there could be a legitimate concern over the interpretation of this law in the future if Atkinson was defying the Justice Department’s conclusions. Yet, that was not cited as the basis for the termination.
The New York Times ran a column this morning with the sensational headline “Jared Kushner Is Going To Get Us All Killed.” The sudden appearance of Kushner as a main player in the task force on the Covid-19 was highlighted with his appearance at yesterday’s press conference. He was preceded by a formal thank you to Ivanka Trump for her efforts. While many have criticized statements made by Kushner in the press conference, I thought his points were well taken like noting that some mayors and governors have failed in this crisis while others have excelled. Nevertheless, I have been a critic of the inclusion of Kushner and Ivanka Trump on the White House staff since it was announced because it is a form of raw nepotism. (See here, here, and here and here) I have also been a long critic of such nepotism by members of Congress. The sudden thrusting of the two to the forefront of this crisis is remarkably harmful to the Administration and its efforts. I have been highly impressed, and relieved, by the superb team assembled by the task force. I believe that they have been doing an outstanding job.
For that reason, I have no idea why it was necessary to suddenly put the President’s family into the mix and rekindle the long controversy over nepotism. With some polls showing the majority of the public opposed to the White House response, this was a critical press conference where impressive data was to be disclosed on the federal distribution of essential materials. Rather than ride that possible news, Trump threw Kushner into the mix and his role promptly washed out the coverage on the success of the task force.
The FBI has reportedly begun an investigation into the stock sales of Sen. Richard Burr before the crisis over the coronavirus. As I discussed in my recent column, such prosecutions are exceptionally difficult to bring by design. Like ethics investigations, these investigations often serve to simply “clear” a politician who is allowed under lax ethical rules to trade in areas of their legislative and committee work. The only real reform is not investigations but either a ban on stock ownership or, more appropriately, a requirement of a blind trust (with criminal penalties for steering trades). Moreover, if he were to be charged, I would likely be the first to object to a prosecution for trades that Congress has kept lawful for decades despite some of our calls for reform. [This article was updated]
The Council of Chief Diversity Officers at the University of California has issued a “guidance document” to reject racism, sexism, xenophobia and all hateful or intolerant speech, both in person and online” during this crisis. Specifically, it tells students to stop others from referring to the “Chinese virus” or “Wuhan virus.” The guideline raises renewed questions over the use of diversity rules to restrict or regulate free speech, particularly terms that have strong political or social meaning for students.
Below is my column in The Hill newspaper on the continued calls for federal takeovers and nationalization of industries. The past commentary often reflects a fundamental misunderstanding of both our constitutional and statutory laws. What is also striking is that a significant number of governors appeared on Sunday shows but not one was asked about the failure of his or her state to prepare for such a public health emergency. Governors are referring to this crisis as if it were a previously unknown meteor from space. In fact, we have been discussing the utter lack of preparation for a pandemic for over two decades and states like New York were warned that they would be dangerously short such items as ventilators. I was part of that debate back in 2002 and 2003 when the model law for pandemic was being adopted by states — reaffirming the primary responsibility of the states to address pandemics.
New York Gov. Andrew Cuomo is threatening to sue Rhode Island for its effort to stop cars with New York license plates to be sure that New Yorkers quarantine for two weeks. This includes police going door-to-door. Apparently, the image of some guy with a bell crying “bring out your New Yorkers” in the streets is not appealing to Cuomo. Yet, this could present a knotty legal issue.
