Of Constitutional Concern

Through a vote yesterday, President Trump has been formally impeached by the U.S. House of Representatives.  The matter now moves to the U.S. Senate.

I’ll leave the impeachment proceedings to the talking heads — for now at least.  Today I’d like to focus, instead, on another area of constitutional concern that has been lost in the constant drumbeat of news on impeachment.  I’m speaking of an extraordinary order issued by the FISA Court earlier this week, in the wake of the recent Inspector General’s report on the conduct of the FBI and the Department of Justice in receiving authorization to conduct surveillance.  I’ve linked to the text of the Order above.

fb-seal-headquartersThe FISA court gets its name from the Foreign Intelligence Surveillance Act, the statute which created the Court.  FISA requires the government to apply for, and receive authorization from, the FISA Court before it can engage in electronic surveillance.  The applications are to be made in writing, upon oath or affirmation, by a federal officer from the agency, such as the FBI, that seeks to conduct the surveillance.  The FISA Court — consisting of judges appointed by both Democratic and Republican administrations — is then supposed to review the applications to decide whether they establish probable cause that the proposed surveillance target is a “foreign power” or an “agent of a foreign power” within the meaning of FISA.

This process is critical because — as the FISA Court’s Order issued this week notes — it was designed to allow the FISA Court to provide a check on executive branch power to conduct surveillance and thereby protect the Fourth Amendment rights of American citizens against unlawful search and seizure.  To allow the Court to do that job, FISA imposes a heightened duty of candor upon the federal agents and agencies in their applications to the Court.  The FISA Court considers candor to be “fundamental” to its effective operations.

The Order issued this week makes it clear that the FBI, in seeking the FISA Court’s approval of the surveillance order that was discussed in the Inspector General’s report, did not meet its duty of candor — not by a long shot.  To the contrary, the Court notes that the Inspector General’s report “documents troubling instances” in which FBI personnel provided information that was “unsupported or contradicted by information in their possession” and “withheld . . . information in their possession which was detrimental to their case for believing that [Carter] Page was acting as an agent of a foreign power.”

In addition, the Order notes that an attorney for the FBI engaged in conduct that “apparently was intended to deceive the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency.”  The Court believes that the conduct of the attorney gives rise to “serious concerns about the accuracy and completeness of the information provided to the [FISA Court] in any matter (emphasis added)” in which the attorney was involved.

The Order adds:  “The FBI’s handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty of candor described above. The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court. Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.”

The FISA Court’s Order concludes by ordering the FBI to provide a sworn written submission identifying what it has done, and what it will do, to ensure that the statements of facts in each FBI application accurately and completely set forth the material information in the possession of the FBI.  It will be interesting to see how the FBI responds.

In today’s world, there’s often argument about whether the news that is reported, and the characterization of events that is conveyed, is slanted or biased or accurate.  The FISA Court’s Order — which is only four pages long, and can be read and understood by any educated American — allows us to go to the source and see how a Court that is composed of judges with lifetime tenure who were appointed by both Republicans and Democrats is reacting to a detailed report on serious misconduct by the FBI.

The Fourth Amendment is there to protect all of us — Democrat, Republican, or Independent, liberal or conservative.  If the FBI is willing to distort, deceive, and misrepresent to pursue an agenda, that’s a concern for everyone.  We should all be grateful to the FISA Court for putting aside politics, recognizing that the ends don’t justify the means, and holding the FBI to account.

Branded Brand

I’m in Washington, D.C. for meetings, staying in the old part of town between the Capitol and the White House.  Last night I had dinner with a colleague.

When my friend reached out to me last week to make arrangements for meeting for dinner, he carefully raised two issues:  first, did I like steak, and second, if I did like steak, would I mind going to the steakhouse in the Trump International Hotel, which is located in the Old Post Office building that is very close to my hotel?

I chuckled a bit at the cautious way in which my colleague approached even the  possibility of eating dinner at a restaurant in a Trump property.  Clearly, he was wary that even though the venue was very convenient and the restaurant had a good reputation, just making such a suggestion might bring an explosion and denunciation in response to the very thought of passing under the Trump name.  And his careful approach was entirely justified, because there is no doubt that a significant segment of the American population has sworn off ever doing anything that involves setting foot on the premises of a Trump property or that might be viewed as acceptance or support of the Trump brand.  Me?  I like steak and especially like being able to walk to a convenient dining venue, so I agreed to have dinner at the Trump International steakhouse — which was very good, by the way.

Still, I found the incident pretty remarkable.  I’m not familiar with the value of the Trump brand prior to his run for the presidency, but it seems pretty clear that it has been affected, and not in a good way, by Trump’s behavior on the campaign trail and as President — to the point where even mentioning the possibility of visiting a Trump property for dinner is a subject to be approached with delicacy and trepidation lest sensibilities be bruised and personal relationships be shattered.

That’s not exactly a good attribute for a brand.

Orange Man

Kish received Orange Man as a gift from her long-time pal the Beagle Lover.  Orange Man is a plump figure about the size of a large Idaho potato made of light, durable, ever-squishable foam.  With his fierce expression, open mouth, orange skin, and shock of carefully coiffed blond hair, Orange Man is a pretty unflattering caricature of the current occupant of the Oval Office.

The Beagle Lover explained that Orange Man is intended to be a kind of stress-relief device.  If you’re upset with the day’s news or an ill-advised tweet, you can squeeze, punch, or hurl Orange Man to work out the anger and frustration without causing any real damage, and Orange Man will always be ready for more.  In that sense, Orange Man is designed to be a kind of “rage room” in miniature.

During my lifetime we’ve had some pretty unpopular Presidents, among certain segments of the population at least, but I don’t remember the creation and sale of mocking Nixon figures or Carter figures that were made to be thrown around.  President Trump has to win the prize for generating the most tangible ways of expressing opposition — from bumper stickers to internet memes to figures like Orange Man.  In fact, I wonder:  how much of the current strength of the economy is attributable to the production of Orange Man and other anti-Trump items?

How Old Is “Too Old”?

This week former Vice President Joe Biden formally declared his candidacy for the Democratic presidential nomination.  He joins a very crowded field of politicians vying for the chance to square off against President Donald Trump in 2020.

bernie-and-joe-like-donald-trumpJoe Biden is 76 years old.  He was born on November 20, 1942; if he were to be elected, he would be 77 on Election Day, and 78 when he takes office.  Bernie Sanders, who is another candidate for the Democratic nomination, is 77 years old and, being born on September 8, 1941, would be 79 on Election Day in 2020.  If either of those candidates won, they would easily set a new record for the oldest person to be newly elected to the presidency — a record now held by the current occupant of the White House, who was a mere 70 when he was inaugurated.  (The oldest President to be elected, period, was Ronald Reagan, who was 73 when he won reelection in a landslide in 1984 — a record that would be obliterated if the 2020 race turned out to be either Trump-Biden or Trump-Sanders.)

There have been some old Presidents in American history — some good, some not so much — and clearly people’s perceptions of what it means to be old in our current day are changing.  As average life spans increase and medical care, diet, fitness, and general attention to health improve, some people argue that aging is really all about a state of mind, and “60 is the new 40.”  And no doubt Biden and Sanders will produce medical reports that show that they are healthy, active, vibrant, and ready to handle the demands of an incredibly taxing job.

Still, Biden and Sanders are really pushing the presidential age envelope into uncharted territory.  How will people react when, as Election Day nears, they really ponder the prospect of an 80-year-old President?  No doubt people will be looking carefully at all three of the septuagenarians — Trump, Biden, and Sanders — for signs of age-related physical feebleness and mental slippage.  Age is something that can’t be hidden, and one serious memory glitch during a debate could be all she wrote for a candidacy.

I don’t think it is improperly ageist to wonder about how age affects fitness for the Oval Office.  In 2020, we may be answering the question:  “How old is too old?”

Split Decision

The 2018 election results were a split decision.  Democrats won enough seats to take control of the House of Representatives, yet Republicans gained at least three seats in the Senate — with a few close races yet to be determined.  The “Blue Wave” some were forecasting didn’t really materialize, but the Democratic gains mean that we’ll have at least two years of divided government, with Ds in charge of the House of Representatives, the Rs controlling the Senate, and President Trump in the White House.

Voters Across The Country Head To The Polls For The Midterm ElectionsIn Ohio, Republicans held on to the governorship and statewide offices, our Democratic Senator was reelected, and Republicans retained control of Ohio’s House of Representatives delegation.  Despite a lot of spirited contests, the overall makeup didn’t change much.  It’s notable, however, that the voter turnout in this election appears to have been significantly higher than in 2014, the last off-cycle election.  More than 4 million Ohioans cast their ballots in the governor’s race this year, compared to only about 3 million Ohioans voting for governor in 2014.  I don’t know what that works out to as a percentage of registered voters, but the increase in the raw number of voters is very encouraging.  And Ohio voters also overwhelmingly rejected a referendum to amend the state constitution to reduce sentences for drug offenders.

And speaking of constitutions, you could reasonably argue that the federal Constitution had a lot to do with the split decision that we saw from voters yesterday.  The bicameral approach that the Framers reached as a compromise has every member of the House of Representatives up for election every two years, making the House the voice of the people on the current issues of the day, whereas Senators, holding six-year terms that require only one-third of the Senate to stand for election in any two-year cycle, are supposed to be less prone to popular passions.  In short, it’s harder, and takes longer, to change the makeup of the Senate — but things might be different next time around, when more Republican seats are in play.

And the Constitution also will have something to say about what happens in the next two years, too.  With Republicans controlling the Senate, they’ll be able to provide advice and consent and confirm judicial nominees and other nominees, but since all bills for raising revenue must originate in the House of Representatives, Democrats will have the ability to thwart any tax or spending initiatives they don’t find palatable.  Each House will have the ability to conduct any investigations they deem necessary, and legislation will be approved only if the House and Senate leaders, and President Trump, can find common ground — a compromise approach that both parties can swallow.

“Common ground”?  It sounds like an almost mystical place in these days of incredibly sharp and heated political differences.  One of the more interesting things to look for over the next few years is just how much “common ground” can be found.

Our Ever-Ignored Deficit

The Trump Administration has announced that, in fiscal year 2018, the federal budget deficit was a staggering $779 billion.  That’s a 17 percent increase over fiscal year 2017, and the largest budget deficit in six years.

In short, we’re running enormous, historically disproportionate budget deficits — even though the economy is humming, jobs are being created, unemployment has reached the lowest levels in years, and the federal government is collecting record amounts of income tax revenue.  At a time when we should be balancing our budget, or even running a surplus, we’re farther underwater than ever.

vault

Nobody seems to really care about this — except a handful of old deficit hawks like me.  The Republicans who used to claim to be the party of fiscal discipline cut tax rates, but they just haven’t gotten around to making the necessary cuts to federal spending that are needed to bring the budget into balance.  No surprise there — cutting taxes and raising defense spending is the easy, champagne-cork-popping part of their agenda; actually digging into the details and deciding which federal programs to cut, and by how much, is the harder, painful part that every Republican running for reelection will happily defer.  And the Democrats, who have never cared too much about balanced budgets anyway, are too busy reacting with outrage to everything President Trump does or says to focus on the deficit.

Some people argue that times are good right now, so what’s the big deal?  Maybe the deficit really doesn’t make that much of a difference, they suggest.  But if the U.S. government can’t live within its means when the economy is strong and record tax revenues are rolling in to the federal treasury, what is the deficit going to look like when the economy turns sour, payrolls get cut, and tax revenues fall?  Just how big is this deficit going to get, anyway?

It all seems pretty ironic to me.  President Trump boasts of being tough with foreign governments on trade and international relations, and putting America’s interests first in all things — but the need to sell bonds to finance the growing deficit does exactly the opposite.  The Chinese, the Saudis, and everybody else who is buying the U.S. bonds we are selling are thereby acquiring enormous leverage, and if they start demanding higher interest payments before they make their purchases we’re in a world of hurt.

So pay no attention, folks!  It’s all boring numbers, anyway!  Let’s forget about the serious, long-term aspects of running a government, and go back to talking about the latest outrages that will dominate the news cycle for a day or two until some new and exciting outrage comes along.

Presidential Debates, Just Around The Corner

In case you haven’t had your fill of politics already, with an important election only a few weeks away and political stories of one kind or another dominating every newscast, here’s some encouraging news — the first Democratic presidential candidate debates for the 2020 election are just around the corner.

t1larg-debate-stage-empty-t1largPolitico is reporting that the first debates will probably occur in the spring of 2019, months before the first primaries and caucuses, and a full year and a half before the 2020 election.  And even though that seems ridiculously early to non-political types like me, it’s apparently causing all of the would-be candidates to ramp up their activities now.  It’s expected that there will be a lot of people who will be vying for the chance to square off against President Trump in 2020 — more people, in fact, that can reasonably fit on one debate stage.  And if sheet numbers mean there will be two debate stages and two sets of debaters, all of the candidates want to be sure that they appear on the stage that includes all of the perceived “real contenders,” and are not relegated to the “everybody else” stage.  So everybody who is contemplating throwing their hat in the ring is out there raising money, hiring staff, visiting Iowa and New Hampshire, and trying to make news and start showing up in the polls.

Who are the “real contenders” for the Democrats?  According to the Politico article, only one person — a Congressman named John Delaney, who I’ve never even heard of — has formally declared his candidacy at this point.  Among the people who reportedly are considering a bid are Joe Biden, Bernie Sanders, and Elizabeth Warren, as well as Cory Booker and Kamala Harris.  Some people think Hillary Clinton might run, or Michael Bloomberg, and no doubt there are mayors, governors, other senators and representatives, and corporate figures who may launch campaigns.  If only a few of these folks actually run, you’ve already got a pretty crowded stage.

It’s hard to believe that we’re at the point of gearing up for another presidential election already, but politics being what it is, I am sure that there are a lot of Democrats out there thinking very seriously about running for President.  Why not?  After all, if Donald Trump can win the Republican nomination and actually get elected, just about anything is possible.  So why not take a shot — and do whatever you can to make sure that you get onto the coveted “contenders” stage?