Friday, December 28, 2018

Pelosi Should Call Trump's Bluff

In six days, Nancy Pelosi will become the Speaker of the House; the first time she has held that position since the infamous 2010 Tea Party wave that swept Republicans into the majority. And when she officially takes the gavel, she will be presiding over a chamber that is part of a government shutdown that the current occupant of the White House brought about.

So what should Democrats do as their first act as a majority of the "People's" house? Pelosi has, I believe, two possible courses of action: the first is to pass a clean continuing resolution, much like the one Mitch McConnell managed to pass in the Senate 100 - 0. It would have $1.3 billion for border security, but no funding for the wall. The CR would extend till February 8, when Congress would then have to either pass a budget through appropriations or pass another CR.

Such a move would force McConnell's hand. Deep down he knows there's no way he's going to get 60 votes for Trump's wall. Hell, he doesn't even have 50 votes for it. The leverage Trump and his minions think they have - if it exists at all - will vanish with the new year. Whatever else you may think of McConnell - and I've thought 'em all - he has no intention of dying on this beach head, not with a losing hand. My guess is that McConnell will resist but eventually put the House bill to a straight up and down vote and it will get at least 70 votes. 70 is three more than the number required to override a presidential veto. In other words, Trump is up a creek without a MAGA hat to paddle with.

But the other option Pelosi has is far more daring, but potentially rewarding, and if she pulls it off, it will be the coup of the year. She should call Trump's bluff and resurrect the offer Democrats made to him last January. If you recall, Dems put $25 billion on the table for Trump's wall in exchange for letting the 1.7 million dreamers stay legally in the country. It looked like a deal until Stephen Miller, Ann Coulter and the rest of the Third Reich got their swastikas in a bunch and forced Trump to renege on the whole thing. Trump ended up getting bupkis for his wall and the fate of the dreamers is still hanging in the balance.

So why should Pelosi have any reason to believe Trump will sign off on a deal he rejected a year earlier? She doesn't; that's the point. No one by now seriously believes Trump will lift a finger to help the dreamers. He knows the moment he does he's finished with his base. And without his base, Trump could potentially lose all 50 states in 2020. So why go down that rabbit hole again? Because it boxes Trump into a corner that he can't wiggle his way out of.

Think about it. Since shutting down the government, Trump has been trying to paint Democrats as weak on border security simply because they don't think a 19th century solution to a 21st century problem is a practical way of spending billions of dollars of taxpayer money. Even some Republicans agree.

But wait a minute, Peter. Didn't you just say Pelosi should offer $25 billion for that 19th century solution? Well, yes and no. If there were any other Republican in the White House, I'd say don't make the offer. But then, if there were any other Republican in the White House, we wouldn't be having a government shutdown over a fucking wall. Since we know Trump won't and can't accept the offer, there's virtually no downside to it. Yes, I realize progressives will scream bloody murder at the mere suggestion of giving more than a plum nickel for that wall, but all Pelosi has to do is remind them of who they're dealing with, and after the laughter subsides everything will be fine.

With one bold and and daring gesture, Pelosi and House Democrats can not only call this president's bluff, they can effectively steal his thunder and make the case to the electorate that they are the ones who are willing to make America safe, while at the same time make the case for protecting 1.7 million dreamers, who just about every body agrees did nothing wrong and should be allowed to stay here legally. Even Fox News would be forced to concede it was a stroke of genius.

If nothing else, Pelosi will be serving notice to this president that he isn't going to get the better of her. Unlike the last two Republican speakers, who were about as useless as lint on a brush, this speaker has the potential of making Trump's life a living hell. And as we all know the only thing Trump hates more than losing is losing to a woman.

With Democrats prepared to subpoena his administration nine ways to Sunday, if I were him, I'd get used to it.

Friday, December 21, 2018

Lord Fauntleroy Throws A Temper Tantrum

Boy, are the wheels coming off the bus. If you took a nap Thursday afternoon and woke up just in time for your dinner, you missed a week's worth of news. To recap, we are hours away from a government shutdown, a shutdown that was totally unnecessary and completely avoidable; a reckless decision to pull all U.S. troops out of Syria has led to the "resignation" of Defense Secretary James Mattis, one of the few "adults" still left in this White House; and the stock market, which is having its worst December since 1931, dropped another 500 points. Other than that, things are just peachy keen.

First, the shutdown. Barely a day after a truly historic, bipartisan criminal justice reform bill passed with overwhelming majorities in both houses of Congress, this president, rather than sign a continuing resolution that would've funded the government till February 8, bowed to pressure from Fox News and Rush Limbaugh and drew a line in the sand over a border wall that nobody seriously believes will ever get built.

If Trump was actually interested in negotiating a deal on border security that would've funded his wall, he would've taken Democrats up on their offer earlier in the year of $25 billion in exchange for a DACA fix that would've allowed roughly 1.7 million dreamers to stay in this country legally. But he didn't. The fact is, Trump doesn't want to negotiate or be seen negotiating; what he wants is conflict. Conflict is how he got elected, and it's how he thinks he will win reelection. He believes his base would abandon him like rats on a sinking ship if he ever struck a deal with Pelosi and Schumer. Sadly, this is what we can expect for the next two years, six if Trump wins another term.

But the most troublesome thing that occurred Thursday had nothing to do with a shutdown. For almost two years we've heard about the so-called adults in this White House who were keeping this president from acting on his worst impulses. Well one of those adults, James Mattis, has apparently had enough of playing the role of both parent and guidance counselor. His resignation letter - it read more like an emancipation proclamation - was the closest thing to a "fuck you, I'm outta here" statement as anything we've yet seen from one of Trump's officials.

In one pertinent part of the letter, Mattis writes,

My views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues. We must do everything possible to advance an international order that is most conducive to our security, prosperity and values, and we are strengthened in this effort by the solidarity of our alliances.

If, like me, you've been worried about the stability of this president since he was sworn into office, you now have even greater cause for concern, because the next Secretary of Defense, far from being a check on this president's child-like whims, will likely be nothing more than a rubber stamp for them. Enabling a toddler is bad enough; enabling a president who behaves like a toddler is a tragedy waiting to happen.

Already Trump is talking about pulling all troops out of Afghanistan. What's next, South Korea? We already know he's questioned why we're there in the first place. All he has to do is issue an executive order and an alliance that has stood for over 70 years will come to an end. You want reunification of the Korean peninsula? If Trump pulls out of South Korea, Kim Jong-un will be in Seoul within days of the last U.S. soldier departing. You can count on that.

Let's put aside, for the moment, the issue of whether America has overextended itself on the world stage. I agree that playing the role of beat cop hasn't served us well over the last few decades. The decision to invade Iraq and topple Saddam Hussein stands as this country's worst foreign policy blunder. But unilaterally pulling troops out of a foreign country that we know is home to known terrorists who have made their intentions towards us quite clear isn't just reckless, it's insane. If 9/11 should've taught us anything it's that an ocean can no longer protect us the way it used to. This is one of the few times I agree with conservatives. It's better to fight the bad guys over there instead of over here.

Like it or not, we have an obligation to the world to lead and not retreat. Whether you think Mattis is a good defense secretary or not, his letter of resignation should set off alarm bells in every nation's capital. We have a president who wants to take this country back to the 1920s, both economically and militarily. The last time that happened we had a world-wide depression followed by a world war that destroyed dozens of cities and cost millions of lives

The stock market is in virtual free fall and economists are already conceding that a recession is coming. With most of Europe facing internal turmoil, and an overly aggressive China and Russia filling the vacuum left by the United States, it wouldn't take much to provoke an altercation that could lead to an outcome only a fool would want.

We have such a fool in the White House.

Merry Christmas!

Wednesday, December 19, 2018

Why Democrats Shouldn't Be Afraid To Impeach Trump

I know what many of you are probably thinking. Isn’t this the same Peter Fegan who, politically speaking, looks both ways – FOUR TIMES! - before he crosses the street? Isn’t this the same Peter Fegan who calls himself a progressive, yet consistently sides with the more moderate elements within the Democratic Party, and actually had some nice things to say about Mitt Romney once? Yes to both. But in fairness, I’m also the driver who thinks the speed limit signs on the expressway are just advisories. Truth be told, I leap far more than I should.

Now don’t get me wrong. I’m not suggesting that the Democratic-controlled House should move to impeach Trump right out of the gate. The base may want it, but the facts at this time do not warrant such a bold move. As an old law professor once told me, it’s not what you think happened, it’s what you can prove happened that determines your success in a courtroom. And while impeachment is primarily a political move, it’s also a legal one.

James Carville’s warning to Democrats not to impeach Trump, on the surface sounds like good advice. After all, when Republicans went after then President Bill Clinton for the Monica Lewinski affair, they paid for it in the ’98 midterms, while Clinton’s popularity soared to 73 percent. And as we know all too well, those who don’t learn from history are bound to repeat it.

However, there are several problems with Carville’s logic. For starters, the impeachment of Clinton - twenty years ago today - came after the midterms, not before, as some people seem to think. This is not hair-splitting. It means that even after suffering losses that November, Republicans still found sufficient evidence to proceed with articles of impeachment. Secondly, the total number of seats Republicans lost in the House that year was 5; they didn't lose a single Senate seat. More to the point, Republicans received almost a million more votes than Democrats. If the voters were sending a message, it must’ve gotten lost somewhere in the mail.

But here’s the real problem as I see it: what Clinton did on a scale of 1 to 10 doesn’t come remotely close to what Trump appears to have done. Lest we forget, Kenneth Starr, the special prosecutor appointed to investigate the Whitewater matter, after four years of dragging everyone and everything but the kitchen sink in front of a grand jury, finally nailed Clinton for lying about getting a blow job. So far in eighteen months, Robert Mueller has handed down more than 30 indictments, secured convictions on several high-ranking Trump officials and is getting dangerously close to making a case against this president for obstruction of justice and collusion. If that isn’t an impeachable offense, I seriously don’t know what would be.

To reiterate, Democrats should definitely bide their time and let Mueller finish his investigation. But once the report is released – and Dems must make damn sure it IS released and not suppressed – if they find cause to proceed with articles of impeachment, they should not hesitate to move forward. The Congress has a responsibility to be a check on the Executive branch. One of the reasons Democrats did so well last November was because they promised the voters they would hold this administration accountable. If they abdicate that responsibility, they will be no better than Republicans in the eyes of the electorate and they can kiss goodbye any hope of winning back the White House in 2020.

Are there risks associated with impeachment? I’d be lying if I said there weren’t. But, properly done, there’s more upside than not. Yes, the Senate won’t vote to convict, but that’s not important. If prosecutors only tried the cases they knew were slam dunks, the crime rate would be considerably higher than it currently is. The American public deserves not only a full accounting of what this president has done, but the reassurance that this government is still a functioning democracy and not a banana republic. Committee hearings are important, but can only go so far. At some point, Dems will have to shit or get off the pot.

Yes, Trump will gin up his base, but let’s face it: he's been doing that ever since he announced he was running for president. No matter what happens in 2019, Trump will try to spin it to his advantage. If Dems impeach him, he will be in full bore witch hunt conspiracy mode; if they don’t, he’ll say he was vindicated. If you know you’re going to catch hell, it might as well be for doing something.

As every baseball player knows all too well: no one ever hit a home run with the bat on his shoulder. To paraphrase Teddy Roosevelt: it is time for Democrats to spend themselves in a worthy cause. And there can be no more worthy a cause than standing up to the tyranny of a would-be dictator. The alternative is too ghastly to contemplate. 

Monday, December 17, 2018

Why the ACA Might Be In Trouble

There's no doubt that the ruling by a Texas judge that the Affordable Care Act is unconstitutional is judicial activism at its worst. There's also no doubt the ruling will be appealed to a Circuit Court and that it will likely be reversed, thus setting the stage for round three in front of the Supreme Court, where the conventional wisdom is that Chief Justice John Roberts will once again save the day and rescue the beleaguered law from the clutches of its adversaries.

There's just one problem with that logic, and it has to do with the opinion Roberts authored and the manner in which the law was written. First, let's look at the ruling handed down by U.S. District Judge Reed O’Connor. In a nutshell, O'Connor wrote that since the Supreme Court ruled that the individual mandate was constitutional because Congress has the power to enact taxes, now that Congress has rescinded that tax, the mandate is unenforceable and therefore the entire law is unconstitutional.

Here's where we get to the dicey part. Because the Affordable Care Act was written without a severability clause, he may be right. What is a severability clause, you ask? Basically it's a provision that allows for part of a law to be tossed out without affecting the rest of it. Like it or not, the mandate is joined at the hip to the ACA; you can't legally separate it from the statute. The Obama Administration was prepared to argue that it could be "severed" but Roberts beat them to the punch by allowing the mandate to stand in his rather "unique" decision.

The minority opinion authored by Antonin Scalia argued that the lack of a severability clause meant that the law must be scrapped in its entirety. And since Roberts himself never addressed the severability issue in his ruling, if and when this thing winds up in front of the Court - probably sometime in 2020 - he might have no choice but to uphold the Texas decision. To do otherwise would  mean that his original opinion wasn't worth the paper it was written on. And whatever else you may think of Roberts, he is aware of his role as chief justice. He will not diminish that role merely to keep alive a statute that was poorly written and just as poorly passed by Congress.

Deep down we always knew this day would come. A law that was despised by progressives and conservatives alike - though for entirely different reasons - appears to be fresh out of mulligans. I think it's fair to say that in retrospect Obama bit off more than he could chew. Despite the fact that key provisions within it remain popular, the law itself has placed an undue burden on many middle-class families and small businesses. A far less ambitious law that could have addressed some of the more pressing concerns that many people had would've been a much more prudent course for the Administration, and might very well have mitigated the slaughter Democrats endured at the ballot box in the 2010 midterms.

For the time being, nothing has changed. The law, despite the ruling, is still intact, though without a functioning mandate to enforce compliance. Donald Trump has ostensibly thrown this clusterfuck onto the plates of Nancy Pelosi and Mitch McConnell to fix. If anybody truly thinks that these two people, who represent very divergent constituencies, are going to come up with a workable solution that will survive legal challenges, I've got a bridge in Brooklyn to sell you.

Face it: unless Congress restores the tax BEFORE the Supreme Court hears the case - I wouldn't hold my breath - the signature legislative achievement of the Obama Administration will cease to exist. Granted, Democrats will have the issue of the decade to run on, courtesy of some very overzealous ideologues. But that will be small comfort to the millions of people who will once again be at the mercy of an insurance industry that will now gleefully return to the "good old days" when it routinely denied reimbursement for vital medications and treatments because of a pre-existing condition.

Looks like the pundits were wrong: you can take away an entitlement once it's been granted.

Saturday, December 8, 2018

Mueller Is Moving In for the Kill

Contrary to what many - myself included - have been speculating, Robert Mueller, far from winding down his investigation, appears to be ramping it up. The court filings against Michael Flynn, Michael Cohen and Paul Manafort paint a picture of a campaign that was deeply imbedded with the Russians and was doing everything possible to cover their tracks. And for the first time, Donald Trump, aka Individual 1, has been identified by the Southern District of New York as the one who directed Cohen to make hush payments to Stormy Daniels and Karen McDougal in violation of campaign finance law.

Let me repeat that: the Southern District of New York, an arm of the Justice Department, is accusing the President of the United States of committing a crime. When you combine that with the recent revelation that Trump was negotiating the building of a tower in Moscow while he was then a candidate and the meeting his son and son-in-law had with Russian officials at Trump Tower to get dirt on Hillary Clinton, it's clear that Mueller is building a case for collusion and obstruction of justice, and his target is Trump.

If this were a Hitchcock movie, we'd be at the part where Janet Leigh turns on the water in the shower. At the rate this investigation is going, I would be surprised if more indictments aren't handed down before Christmas. If I were Donald Jr. or Jared Kushner, I'd pack a toothbrush and a change of underwear now. Want to know why Trump has been more unhinged than usual in his tweets this week? It's because he knows what's coming and where this will ultimately wind up. Mueller undoubtedly has his tax returns, so he knows where his money comes from. Flynn and Cohen have dotted the i's and crossed the t's, and Manafort, by discussing his plea deal with Trump's lawyers, has provided the noose that will ultimately end up around this president's neck.

And here's the best part of all. For those who were worried that Matthew Whitaker would end this investigation, Mueller appears to have preempted such a move through these filings with the courts. This is now clearly in the hands of the judiciary. Even if Trump ordered Whitaker to pull the plug, the filings would still be in place; the redacted portions have been fully disclosed to each presiding judge, and only those judges can dismiss any grand juries that might still be impanelled. Indeed, the case in the Southern District of New York would go on with or without Mueller. Whitaker would have to fire all the attorneys in the case, one of whom was a Trump appointee. And both Manafort and Cohen, in the event of a presidential pardon, could still be prosecuted for crimes committed at the state level.

Long story short, there is no way Donald Trump is going to stop this train from arriving at its destination. He knows that, his attorneys know that, and most of all, Robert Mueller knows that. With each passing day he gets closer and closer to his objective. While it is true that, per DOJ rules, Trump may never be indicted for his crimes, at least not while in office, the report that Mueller's team is in the process of writing will paint a damning picture of a corrupt business man who thought he could piss all over the Constitution on his way to becoming president.

I'm more optimistic now than I was a month ago that the truth is eventually going to come out. Sadly, 40 percent of the country will not believe Mueller's report, and a vast majority of both House and Senate Republicans will take no action regarding it; just the opposite, in fact. Trump's surrogates have been actively engaged in crafting an alternative narrative in an attempt to smear Mueller and neuter his findings. But in the end I believe the wheels of justice will have their way with Trump and his whole crime family.

And Robert Mueller knows how to deal with crime families. Let's not forget that this is the prosecutor who brought down John Gotti by flipping Sammy the Bull, a man who murdered 19 people, so he knows how to work his way up a food chain.