October 25, 2017


News and Views


IS THE PRESIDENT IN DANGER OF IMPEACHMENT? SEE THE FOLLOWING OPINIONS. EVERYBODY I TALK TO HOPES SO!

https://www.snopes.com/2017/10/11/top-washington-think-tank-trump-likely-obstructed-justice/

OBSTRUCTION OF JUSTICE

On 10 October 2017, the nonpartisan Brookings Institution released a report concluding that evidence already in the public record strongly suggests President Donald Trump’s firing of former FBI Director James Comey was done with “improper intent”:

Our review of the facts and the law leads us to the view that the president likely obstructed justice. Should that conclusion be borne out, we believe he will be held to account under one or another of the vehicles we have outlined, for no one is above the law in our system. Accountability will have significant consequences for the functioning of our democracy. We offer this paper as a framework to evaluate the facts and the investigation as they develop, and to help prepare for the turbulence that may well lie ahead.

Authors Barry Berke, Noah Bookbinder, and Norman Eisen did say that Special Counsel Robert Mueller should be able to complete his current investigation into possible election interference by Russia before they could make any final determination about Trump’s actions thus far in his presidency.

Levin and Berke are currently acting as outside pro bono counsel to another organization, Citizens for Responsibility and Ethics in Washington (CREW), which has sued Trump for allegedly violating the foreign emoluments clause of the United States Constitution. Bookbinder is the group’s executive director, and Eisen is its founder and co-chair.

Trump fired Comey on 9 May 2017, as Comey was leading his own investigation into the possibility of both Russian interference and links between that country and Trump’s presidential campaign. Comey subsequently testified before the Senate Intelligence Committee that the president had asked for a pledge of “loyalty” while having dinner and told him he hoped that Comey would abandon investigating the activities of former national security advisor Michael Flynn:

The true nature of President Trump’s relationship with Flynn remains murky. But even if President Trump was acting to obstruct the investigation into Flynn out of mere friendship, as opposed to something more explicitly nefarious like covering up Flynn’s contact with Russian agents, Trump could still be acting with an improper purpose.

The Brookings team wrote that legal precedent has established that even if Trump wanted to protect his friend in asking Comey not to probe Flynn’s possible ties, that kind of motivation would be sufficient to establish “corrupt intent” The report also said that if Trump fired Mueller for similar reasons, it would mount to a “doubling-down” on the potential pattern that the president was obstructing justice:

The evidence that President Trump has acted with an improper motive and therefore criminal intent would be strengthened by a clear pattern of obstructive behavior similar to his treatment of Director Comey, including pretextual attacks on Mueller’s impartiality, where Mueller appears to be investigating individuals who are close to President Trump. Because it is now publicly known that Mueller has convened a grand jury to assist his investigation, firing Mueller would have a clear nexus to grand jury proceedings and quite foreseeably impact them.


NYT WEIGHS IN ON IT

https://www.nytimes.com/2017/05/29/us/politics/a-constitutional-puzzle-can-the-president-be-indicted.html?_r=0
POLITICS
A Constitutional Puzzle: Can the President Be Indicted?
Sidebar
By ADAM LIPTAK MAY 29, 2017

Photograph -- President Trump boarding Marine One on the South Lawn of the White House this month. Legal experts disagree about whether the Constitution allows for a president to be indicted. Credit Al Drago/The New York Times

WASHINGTON — The Constitution does not answer every question. It includes detailed instructions, for instance, about how Congress may remove a president who has committed serious offenses. But it does not say whether the president may be criminally prosecuted in the meantime.

The Supreme Court has never answered that question, either. It heard arguments on the issue in 1974 in a case in which it ordered President Richard M. Nixon to turn over tape recordings, but it did not resolve it.

Reports that President Trump asked James B. Comey, then the F.B.I. director, to shut down an investigation into his former national security adviser, Michael T. Flynn, prompted accusations that the president may have obstructed justice. Robert S. Mueller III, the former F.B.I. director who has been appointed special counsel to look into ties between the Trump campaign and Russia, will presumably investigate the matter.

But would the Constitution allow Mr. Mueller to indict Mr. Trump if he finds evidence of criminal conduct?

The prevailing view among most legal experts is no. They say the president is immune from prosecution so long as he is in office.

“The framers implicitly immunized a sitting president from ordinary criminal prosecution,” said Akhil Reed Amar, a law professor at Yale.

Note the word “implicitly.” Professor Amar acknowledged that the text of the Constitution did not directly answer the question. “It has to be,” he said, “a structural inference about the uniqueness of the president himself.”

The closest the Constitution comes to addressing the issue is in this passage, from Article I, Section 3: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

This much seems clear: The president and other federal officials may be prosecuted after they leave office, and there is no double jeopardy protection from prosecution if they are removed following impeachment.

However, “whether the Constitution allows indictment of a sitting president is debatable,” Brett M. Kavanaugh, who served on the staff of Kenneth W. Starr, the independent counsel who investigated President Bill Clinton, wrote in a 1998 law review article. Mr. Kavanaugh, who is now a federal appeals court judge, also concluded that impeachment, not prosecution, was the right way to address a sitting president’s crimes.

The most prominent dissenter from the prevailing view is Eric M. Freedman, a law professor at Hofstra University and the author of a 1999 law review article that made the case for allowing criminal prosecution of incumbent presidents.

Professor Freedman demonstrated that the issue had divided the founding generation and argued that granting sitting presidents immunity from prosecution was “inconsistent with the history, structure and underlying philosophy of our government, at odds with precedent and unjustified by practical considerations.”

He pointed out that other federal officials who are subject to impeachment, including judges, have been indicted while in office. Courts have rejected the argument that impeachment is the sole remedy for such officials.

But Professor Amar said that presidents were different.

“If you’re going to undo a national election, the body that does that should have a national mandate,” he said. “Even a federal prosecution would follow only from an indictment from a grand jury sitting in one locality.”

Vice President Spiro T. Agnew, facing a grand jury investigation that would lead to his resignation in 1973, argued that he was immune from prosecution while in office. Impeachment, he said, was the only remedy.

The Justice Department, in a brief signed by Solicitor General Robert H. Bork, disagreed. But, though the question was not before the court, Mr. Bork added that “structural features of the Constitution” barred prosecutions of sitting presidents.

Since the president has the power to control federal prosecutions and to pardon federal offenses, Mr. Bork wrote, it would make no sense to allow the president to be prosecuted until after he is removed from office and forfeits those powers. (Mr. Bork would go on to become a federal appeals court judge and an unsuccessful nominee to the Supreme Court.)

A year later, Leon Jaworski, the Watergate special prosecutor, took a less categorical position.

“It is an open and substantial question whether an incumbent president is subject to indictment,” he told the Supreme Court during his successful quest to obtain the White House recordings that contributed to Nixon’s resignation.

In a series of memorandums, the Justice Department’s Office of Legal Counsel concluded that indicting a sitting president would violate the Constitution by undermining his ability to do his job. Those memos, too, though, said the answer was a matter of structure and inference.

“Neither the text nor the history of the Constitution ultimately provided dispositive guidance in determining whether a president is amenable to indictment or criminal prosecution while in office,” a 2000 memo said, summarizing an earlier one. “It therefore based its analysis on more general considerations of constitutional structure.”

The Justice Department’s regulations require Mr. Mueller, the special counsel, to follow the department’s “rules, regulations, procedures, practices and policies.” If the memos bind Mr. Mueller, it would seem he could not indict Mr. Trump, no matter what he uncovered.

But Andrew Manuel Crespo, a law professor at Harvard, has questioned whether the special-counsel regulations should be read that broadly. The regulations, he wrote on Take Care, a law blog, “focus more on administrative protocols and procedures than on legal analyses, arguments or judgments.”

Even if Mr. Mueller has a measure of discretion, Professor Amar said, the right process for assessing Mr. Trump’s conduct, should it come to that, is the one described in detail in the Constitution: impeachment.

“Much of the recent pontificating about the technical elements of obstruction of justice is quite beside the point,” he said. “Donald Trump is to be judged by the House and the Senate, who are in turn judged on Election Day by the American people more generally.”

Follow Adam Liptak on Twitter @adamliptak.

A version of this article appears in print on May 30, 2017, on Page A15 of the New York edition with the headline: Can a Sitting President Be Indicted?. Order Reprints| Today's Paper|Subscribe



IS IT LEGALLY POSSIBLE TO INDICT A SITTING PRESIDENT? YES/NO/MAYBE. PERHAPS THE REAL ANSWER LIES IN THE SPECIFICS OF WHO DOES IT AND WHO’S IN POWER AT THE TIME. IN OTHER WORDS, IT, LIKE SO MANY OTHER THINGS, NEEDS TO CLARIFIED IN THE WORDING OF THE CONSTITUTION, AND/OR LAWS. I BELIEVE TOO MANY THINGS ARE SENT UP TO THE SUPREME COURT, OR APPEALS COURTS IN GENERAL. WE HAVE OLD THINGS IN THE CONSTITUTION THAT ARE NO LONGER APPLICABLE TO THE PRESENT SITUATION, AND WE NEED NEW THINGS THAT HAVEN’T CAUGHT UP – ESPECIALLY IN AREAS LIKE TECHNOLOGY, THE INTERNET, ETC. HAVING TO CONSTANTLY RELITIGATE AND CLARIFY (ACCORDING TO WHO’S THE BOSS THAT YEAR) WASTES TIME, AND BLOCKS THE ADMINISTRATION OF WHAT I THINK OF AS “JUSTICE.” JUSTICE SHOULDN'T BLOW CONSTANTLY WITH THE WIND, BUT BE REASONED WELL AND UPDATED AS NEEDED AS THE WORLD CHANGES. WE WOULD DO WELL TO FORM A WAY OF REVIEWING LAWS AND THE CONSTITUTION WHEN IT BEGINS TO BECOME OBVIOUS THAT CHANGE IS NEEDED -- THE EMERGENCE FROM OUT OF THEIR FETID CAVE OF MASSES OF WHITE SUPREMACISTS CARRYING THEIR FASCES, FOR INSTANCE.

https://www.washingtonpost.com/posteverything/wp/2017/06/08/sitting-presidents-cant-be-prosecuted-probably/
PostEverything Analysis
Sitting presidents can’t be prosecuted. Probably.
So what would happen if Robert Mueller finds evidence President Trump broke the law?
By John P. Carlin June 8

John P. Carlin is a former assistant attorney general for national security. He is currently chair of law firm Morrison & Foerster’s global risk and crisis management group and also serves as chair of the Aspen Institute’s cybersecurity and technology program.

The question on nearly everyone’s mind during James B. Comey’s testimony Thursday seemed quite straightforward: Did it suggest that the president committed a crime? But as it turns out, whether there’s evidence that President Trump committed a federal crime — regardless of whether it’s obstruction of justice or, as he once joked, shooting someone “in the middle of Fifth Avenue” — it may not resolve what happens next.

Because he’s the president of the United States. And it’s not at all clear that you can prosecute the sitting president of the United States.

Sooner rather than later, this conundrum may land on the desk of special counsel Robert S. Mueller III, who has been appointed to handle the ongoing investigation into Russian efforts to interfere in the 2016 election. Comey himself said as much Thursday, that it wasn’t up to him to decide obstruction of justice: “That’s Bob Mueller’s job to sort that out.” Mueller’s selection has drawn bipartisan praise — an unusual feat in today’s political climate — and, as his former FBI chief of staff, I know that he is a towering law enforcement figure with impeccable credentials and a well-earned reputation for integrity.

Mueller’s stature is important precisely because he will not enjoy the same degree of legal independence from the Justice Department and the executive branch as did Ken Starr and other independent counsels under the now-expired statute that used to authorize such prosecutors. Nonetheless, if Mueller ultimately seeks to bring criminal charges against anyone other than the president, it would be politically and legally difficult for anyone at the White House or the Justice Department to stand in his way. By the same token, if Mueller decides to close the investigation without charges, both parties would recognize that as a sign the investigation did not support bringing a case.

[Trump or Congress could still block Mueller. I know. I wrote the rules.]

But there is an important limitation on Mueller’s activities, no matter how well regarded he is: The Justice Department’s Office of Legal Counsel (OLC), the executive branch’s most authoritative in-house lawyer, has long taken the position that the president cannot be prosecuted or even indicted while still in office.

First in 1973 with President Richard M. Nixon, and then again in 2000 with President Bill Clinton, the OLC determined that the indictment or prosecution of a sitting president “would be unconstitutional because it would impermissibly interfere with the President’s ability to carry out his constitutionally assigned functions.” Despite its Nixon-era origins, the theory is not that the president is above the law, but rather that any criminal case must wait until after he or she leaves office.

The issue is one of separation of powers. Although the Constitution sets out a mechanism by which Congress may remove the president — the impeachment process — any attempt to prosecute the commander in chief before he or she leaves office would, in the OLC’s view, constitute an unworkable intrusion into the president’s core responsibilities. Both in 1973 and 2000, the OLC analysis noted that the presidency is unique because the executive branch is ultimately led by a singular figure on call and on the job 24 hours a day, unlike Congress or the judiciary. If one or more members of the legislative or judicial branches are temporarily distracted, others on the job can step in to keep business going.

Not everyone agrees with the OLC’s view of the law. Hofstra law professor Eric Freedman, for instance, has argued that the office’s interpretation “is inconsistent with the history, structure, and underlying philosophy of our government, at odds with precedent, and unjustified by practical considerations.”

The government’s position has never been tested in court — although it came close during Watergate. Leon Jaworski, the special prosecutor who stood in Mueller’s shoes then, argued before the Supreme Court in 1974 (in contrast with the position of the Justice Department) that “[i]t is an open and substantial question whether an incumbent President is subject to indictment.”

But Mueller, who has spent nearly his entire career working for the Justice Department, seems unlikely to confront the office’s conclusion head-on, given its role as the executive branch’s foremost legal authority.

And that leaves a gray area: If Mueller closes his investigation without bringing charges against Trump, does that mean that evidence might exist of a presidential crime left unprosecuted? And what would happen next? As of now, it is anybody’s guess.

This conundrum — a president who might very well be above the normal legal system while in office — creates a potential set of problems that Congress should anticipate and address on a bipartisan basis before it is known where this investigation (or future investigations of this president or his successors) will lead.

At least where Trump is concerned, if Mueller decides not to bring charges, that might not bring the closure all sides are expecting from his investigation unless it is accompanied by an assurance that any evidence that the president may have broken the law (if such evidence is found) will be turned over to Congress.

At present, we don’t have that assurance. In fact, we don’t even know that Mueller will turn over anything of value to Congress at the end of his investigation. Justice Department regulations require a special counsel at the conclusion of an investigation to provide the attorney general (for Mueller’s purposes, Rod J. Rosenstein, who is acting attorney general for this investigation, given Attorney General Jeff Sessions’s recusal) with a “confidential report” that explains the decision to pursue or decline prosecution. Those regulations also require the attorney general to report to senior members of the House and Senate Judiciary committees when a special counsel concludes an investigation. But although the rules state that these reports should include “an explanation” for the special counsel’s decisions, they do not say that those reasons must be made public — nor that the reports must be detailed enough to allow Congress to take over the investigation. As for the special counsel’s underlying report, the rules suggest it would never see the light of day.

Keeping a special counsel’s report confidential makes sense in many circumstances. When a special counsel pursues criminal charges, then those charges should be proven in front of a jury and not preemptively described in detail to the public. If a special counsel concludes no crime has been committed — or that there is insufficient evidence to prove a crime beyond reasonable doubt — then the Justice Department’s policies generally dictate that prosecutors should say no more. (The breach of that tradition and those policies, of course, was prominently cited by Rosenstein in his memo regarding Comey’s firing as FBI director.)

But what if a special counsel’s report is about the president himself? And what if there is speculation that the investigation found illegal activity but the special counsel didn’t pursue prosecution because of the OLC’s guidance? The natural body to hand off that report to would be Congress, which would have to effectively step into the shoes of a prosecutor — a point the OLC also made clear in its 2000 opinion, when it observed that a president is not rendered “above the law” because “a sitting President who engages in criminal behavior” is “subject to removal from office upon impeachment.”

[Trying to impeach Trump too soon would be the best way to keep him in office]

Congress would do well to let the investigation proceed with minimal interference. But congressional leaders of both parties should also try — in advance — to get the administration to confirm that, in the event Mueller yields potential evidence of criminal conduct by Trump, that evidence will be disclosed in detail to Congress once the investigation is concluded.

Without an agreement now, that decision will presumably be up to Rosenstein, who under the regulations will receive Mueller’s report. If Congress subpoenas the report, Rosenstein could claim that it is privileged — leaving Congress and the executive branch to fight things out in a lengthy court battle. Alternatively, however, Rosenstein could commit to waiving any privileges over the report, at least to the extent that the material concerns potential criminal activity by the president. This way, Congress can be assured that it will be able to take up its own constitutional responsibilities if any evidence of criminal wrongdoing is found. And, conversely, it will know whether the president has broken no law, and members could verify that fact to the broader public.

The special counsel rules are a good, if imperfect, solution to a complicated set of legal, ethical and even constitutional dilemmas — and Mueller is the perfect candidate to fill that role. But it’s a role that is more limited than many understand. Ultimately, only Congress can hold a sitting president accountable and only Congress can fully clear the record if no wrongdoing occurred.

For the one person who cannot be prosecuted in court, we must be sure that there is a clear and agreed-upon way to hand off the investigation, letting Congress follow Mueller’s investigation — wherever it ultimately leads.


I HAVE A NEW EMAIL SUBSCRIPTION, THE BROOKINGS GOVERNANCE WEEKLY -- FOR THOSE OF YOU WHO MAY WANT TO LOOK BENEATH THE SURFACE AND HAVE A HEADS UP ON WHAT IS HAPPENING, YOU MIGHT CONSIDER SUBSCRIBING TO BROOKINGS GOVERNANCE WEEKLY. SO FAR, I HAVEN’T BEEN ASKED FOR MONEY, SO I THINK IT MAY BE FREE – BUT THEN I HAVEN’T HAD IT LONG, EITHER....

AND AS FOR OBSTRUCTING JUSTICE IN THE FIRING OF JAMES COMEY, BROOKINGS SAID THAT IT DEFINITELY LOOKS THAT WAY TO THEM. SO, LET’S MOVE ALONG WITH THIS. DELAY WILL KEEP IN A POSITION TO DO EVEN MORE DAMAGE TO OUR SYSTEM OF GOVERNMENT.

Legislating Against White Supremacy, Searching for a Center in US Politics, and More
Brookings Governance Weekly

Oct 11 at 11:28 AM



OBSTRUCT JUSTICE? CONGRESSIONAL CONSEQUENCES?

October 11, 2017
Brookings on Twitter Brookings on Facebook
Did President Trump obstruct justice?
Barry H. Berke, Noah Bookbinder, and Norman Eisen

"Our review of the facts and the law leads us to the view that the president likely obstructed justice," write three legal experts in a new Brookings paper. Their rigorous legal analysis examines whether President Trump may have obstructed justice since taking office and explains the potential criminal and congressional consequences that could result.

Photograph -- A group of counter-protesters rally against members of white nationalists in Charlottesville, Virginia, U.S., August 12, 2017. REUTERS/Joshua Roberts - RTS1BIBL


RACE RELATIONS

https://www.brookings.edu/blog/fixgov/2017/10/04/can-white-supremacy-be-legislated-under-trump/
FIXGOV
Can white supremacy be legislated under Trump?
Nicol Turner-Lee Wednesday, October 4, 2017

Recently, the House and the Senate unanimously passed a resolution to reject white supremacy that was later signed by President Trump. In its condemnation of the overtly racist demonstrations in Charlottesville, Virginia, and the resulting deaths of counter-protestor Heather Heyer and two Virginia State police officers patrolling the protests by helicopter, the resolution calls upon the president and administration to denounce “…hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy.” The resolution also urges federal agencies, including the Departments of Justice and Homeland Security, to improve upon their data collection and investigation of hate crimes, and “address the growing prevalence of hate groups in the United States.”

In principle, this rare demonstration of bipartisanship sends a strong message repudiating the racist acts that occurred in August, especially amid the president’s lackluster and ambivalent response to the violence. The resolution also surfaces a more complicated question as to whether or not Congress can effectively legislate against white supremacy and racism in the 21st century.

Given the current administration’s steady reversals of civil rights and social justice policies, a resolution attempting to structure this president’s response to hate will most likely not be effective. It also remains to be seen if the racism observed in Charlottesville will trigger a national dialogue among starkly divided Americans.

Where legislation has attempted to right a wrong

Historically, white supremacist beliefs have influenced a myriad of mass efforts to perpetuate racial and ethnic oppression. The mid-Atlantic slave trade imported millions of Africans to the U.S. for forced and involuntary labor, leading to multi-generational servitude and wrongful deaths. Southern Jim Crow laws mandated the legal segregation of public facilities for whites and African Americans, supporting the belief in black inferiority. The disenfranchisement of African Americans at the ballot box was exercised through unfair political gerrymandering, physical intimidation, and deceptive financial penalties, from the Reconstruction period to the modern civil rights movement.

Immediately following the bombing in Pearl Harbor in 1941, more than 120,000 Japanese Americans were forced into relocation and incarceration in internment camps during World War II. During and after this time, Asian Americans were also openly victimized and ridiculed as a race amid the fear of another Asian invasion.

Why Hillary Clinton lost

Hispanic Americans have long been the target of rigid immigration policies, subjecting them to unfair deportations, targeted bias and discrimination, and the denial of public services. According to a 2016 Pew study, more than half of Hispanic Americans reported experiencing discrimination or unfair treatment because of their race or ethnicity.

At various periods of time, federal legislation has attempted to exercise agency over these inequalities. The Emancipation Proclamation was signed by President Lincoln to free the slaves and indentured servants during the Civil War. In 1954, the Supreme Court struck down the constitutionality of “separate but equal” laws, ultimately initiating the dismantling of Jim Crow. President Johnson signed the Civil Rights Act of 1964, and later the Voting Rights Act of 1965 to ensure the equal access and opportunity for African Americans and other disenfranchised groups. Under the Civil Liberties Act of 1988 signed by President Reagan, more than 100,000 people of Japanese descent were compensated for their time spent incarcerated during World War II.

However, these and other federal remedies still return to the same premise shared in the early writings of sociologist W.E.B. DuBois that the “problem of the twentieth century is the color line.” And, this still is the case.


While the congressional resolution forcefully rejects hate groups and their vitriolic speech, these are symptoms—not causes—for the dilemma in which America finds herself. Unfortunately, the white supremacist beliefs exhibited in Charlottesville cannot be divorced from the general privilege historically afforded to white people more generally in this country.

Under Trump, white supremacists have also become even more insidious as they find a comfortable ally within an administration whose last nine months has included a steady roll back of civil rights policies and promises.

THE LACK OF ACCOUNTABILITY IN THE CURRENT ADMINISTRATION

There is a reason that Trump did not assert firm culpability after Charlottesville. Since his second day in office, racial and ethnic minorities have been intentionally dismissed, along with other Obama-era civil rights initiatives from the White House’s agenda. Trump’s DOJ rapidly began roll backs on criminal justice reform and mass incarceration by militarizing the police in underserved communities, re-privatizing prisons, and dismantling local consent decrees to combat police misconduct.

The DOJ is currently challenging affirmative action for “intentional race-based discrimination” in university admissions, despite being settled by the Supreme Court decision in the Fisher vs. University of Texas case.

An executive order establishing the Voter Elections Integrity Commission, led by a Secretary of State whose record of voter suppression is well documented, may be on the path toward tougher voter ID laws and other stringent requirements—further disenfranchising people of color.

Former Arizona Sheriff Joe Arpaio, who the federal courts found to racially profile and detain Hispanic immigrants, was pardoned by the president last month. A week later (prior to the signing of the congressional resolution), Trump and his administration called for the repeal of the Deferred Action for Childhood Arrivals (DACA) Act, which would allow the deportation of 800,000 individuals that Attorney General Jeff Sessions referred to as “illegal aliens” in a press conference.

And just recently, the president questioned the patriotism of black athletes as they exercise civil disobedience against racial inequality during the singing of the national anthem.

In hindsight, Congress would have better served the citizens through a wholesale rejection of leaders whose obvious indifference toward historically vulnerable groups runs counter to democratic values.

Do we need another Kerner Commission? [SEE: https://definitions.uslegal.com/k/kerner-commission/]

A new poll found that seven in 10 Americans view U.S. race relations as poor, especially in the aftermath of Charlottesville. Expressing the same disapproval, the chairman of the Congressional Black Caucus penned a letter stating his “utter disgust” for Trump’s “complete lack of understanding of or empathy for the very painful history and substantive policy concerns” affecting the African American community.

When President Johnson found himself in a similar situation in the 1960s, he commissioned the Kerner Report. Prior to the summer of 1967, 163 protests had erupted across the country over the mistreatment of African Americans by the police. The most pivotal ones taking place that year in Newark, New Jersey, and Detroit, Michigan. In response to the violent death of protestors and the excessive property damage in those communities, he established the 11-member National Advisory Commission on Civil Disorders (or, Kerner Commission), led by Illinois Governor Otto Kerner, Jr., to delve into the root causes for such dissension.

Some hailed the final report as a landmark moment in race relations, while others felt it did very little to effect change. Nonetheless, it facilitated a constructive discussion on race relations and the systemic variables contributing to inequality, most notably around the wealth gap, predatory lending and policing, disparate housing conditions, and unequal workforce and educational opportunities. The Kerner Report also gave some indication for how white supremacy and racism were playing out in the everyday lives of African Americans.

President Trump will probably never be as brave as Johnson. But, Congress can. Contemporary events should move them to establish a new bipartisan, federal commission that reasonably identifies the causes and related problems of 21st century race relations and racism, taking on hate speech as one of the many symptoms.

Author and poet James Baldwin wrote, “to accept one’s past—one’s history—is not the same thing as drowning in it. An invented past can never be used; it cracks and crumbles under the pressures of life like clay in a season of drought.” If Congress is interested in making real progress, perhaps they should start by acknowledging who and what America has become and expose those who desire to keep it that way.



I HAVE BEEN DISAPPOINTED AND DISILLUSIONED IN THE LAST FEW YEARS AT THE ACLU DECISIONS TO AID ANTI-DEMOCRATIC EFFORTS. THEY HAVE DONE A GREAT DEAL OF GOOD, BUT SOME EVIL, ALSO. MY OPINION IS THAT SPLC IS A MUCH BETTER GROUP. I NOT ONLY “FEEL,” BUT BELIEVE THAT THERE IS RIGHT AND WRONG, GOOD AND EVIL, RATHER THAN “JUST WINNERS AND LOSERS,” AS ONE OF MY EX-HUSBANDS ONCE SAID TO ME. AND THAT THEY ARE LESS INVOLVED WITH SEX THAN WITH POWER.

THERE IS A FALSE LINE DRAWN, FOR INSTANCE, BETWEEN HATE SPEECH AND HATE CRIME. SPEECH COMES FIRST IN ALMOST ALL CASES FOLLOWED SOON BY PHYSICAL ASSAULT, BUT HATE FILLED SPEECH IS NOT A CRIME. HATE SPEECH IS THE EPITOME OF “FIGHTING WORDS,” OR SHOULD BE, BUT THE WAY THE SECTION ON IT IS WRITTEN, IT ONLY REFERS TO SPEECH WHICH DIRECTLY “INCITES” “IMMINENT” VIOLENCE. THAT’S WHY TRUMP’S VERBAL HARANGUING ABOUT GROUPS AND PEOPLE IN A WAY THAT MAKES HIS FOLLOWERS VIOLENT. THE HARANGUING ITSELF, THOUGH IT POISONS THE HUMAN RELATIONSHIPS, IS NOT A CRIME.

THAT SORT OF THING IS KEEPING THIS CURRENT UPRISING OF WHITE SUPREMACY GOING AND GROWING. IT ISN’T JUST THE ACLU THAT NEEDS TO RETHINK THE FREE SPEECH RIGHT, BUT CONGRESS. WE NEED TO “GET SERIOUS” ABOUT SETTING UP A FRAMEWORK OUTSIDE CHURCH DOORS IN WHICH GOOD CAN FLOURISH AND EVIL WILL DIMINISH. WE COULD START BY SCRUPULOUSLY TEACHING OUR CHILDREN HOW TO “PLAY NICE” WHILE THEY’RE LITTLE, AND ENFORCE THAT RULE BOTH IN THE HOUSE AND OUTSIDE. NOT DOING THAT IS TO REWARD THEIR BAD BEHAVIOR.

https://www.nytimes.com/2017/08/17/opinion/aclu-first-amendment-trump-charlottesville.html
Opinion | OP-ED CONTRIBUTOR
The A.C.L.U. Needs to Rethink Free Speech
By K-SUE PARK AUG. 17, 2017

Photograph -- White supremacists at a rally in Charlottesville, Va., on Saturday. Credit Joshua Roberts/Reuters

The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.

After the A.C.L.U. was excoriated for its stance, it responded that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” Of course that’s true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.

While admirable in theory, this approach implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression.

I volunteered with the A.C.L.U. as a law student in 2011, and I respect much of its work. But it should rethink how it understands free speech. By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes. More troubling, the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all.

For marginalized communities, the power of expression is impoverished for reasons that have little to do with the First Amendment. Numerous other factors in the public sphere chill their voices but amplify others.

Most obviously, the power of speech remains proportional to wealth in this country, despite the growth of social media. When the Supreme Court did consider the impact of money on speech in Citizens United, it enabled corporations to translate wealth into direct political power. The A.C.L.U. wrongly supported this devastating ruling on First Amendment grounds.

Other forms of structural discrimination and violence also restrict the exercise of speech, such as police intimidation of African-Americans and Latinos. These communities know that most of the systematic harassment and threats that stifle their ability to speak have always occurred privately and diffusely, and in ways that will never end in a lawsuit.

A black kid who gets thrown in jail for possessing a small amount of marijuana will face consequences that will directly affect his ability to have a voice in public life. How does the A.C.L.U.’s conception of free speech address that?

The A.C.L.U. has demonstrated that it knows how to think about other rights in a broader context. It vigorously defends the consideration of race in university admissions, for example, even as conservative challengers insist on a colorblind notion of the right to equal protection. When it wants to approach an issue with sensitivity toward context, the A.C.L.U. can distinguish between actual racism and spurious claims of “reverse racism.”

The government’s power is not the only thing that can degrade freedom of expression, which Justice Benjamin Cardozo once described as “the matrix, the indispensable condition, of nearly every other form of freedom.” The question the organization should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?

This is a vital question because a well-funded machinery ready to harass journalists and academics has arisen in the space beyond First Amendment litigation. If you challenge hateful speech, gird yourself for death threats and for your family to be harassed.

Left-wing academics across the country face this kind of speech suppression, yet they do not benefit from a strong, uniform legal response. Several black professors have been threatened with lynching, shooting or rape for denouncing white supremacy.

Government suppression takes more subtle forms, too. Some of the protesters at President Trump’s inauguration are facing felony riot charges and decades in prison. (The A.C.L.U. is defending only a handful of those 200-plus protesters.) States are considering laws that forgive motorists who drive into protesters. And police arrive with tanks and full weaponry at anti-racist protests but not at white supremacist rallies.

The danger that communities face because of their speech isn’t equal. The A.C.L.U.’s decision to offer legal support to a right-wing cause, then a left-wing cause, won’t make it so. Rather, it perpetuates a misguided theory that all radical views are equal. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.

Sometimes standing on the wrong side of history in defense of a cause you think is right is still just standing on the wrong side of history.

K-Sue Park is a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law.

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A version of this op-ed appears in print on August 17, 2017, on Page A23 of the New York edition with the headline: The A.C.L.U. Needs to Rethink Free Speech. Today's Paper|Subscribe


SPINTHARUS BERNIESANDERSI

https://www.washingtonpost.com/news/speaking-of-science/wp/2017/09/26/meet-bernie-sanderss-new-namesake-a-spider-from-cuba/
Speaking of Science
Meet Bernie Sanders’s new namesake: A spider from Cuba
By Ben Guarino September 26, 2017

Photograph -- Sen. Bernie Sanders (I-Vt.) at a rally in August in Ohio. (Maddie McGarvey/Getty Images)

A perk of being very famous is that people love to put your name on things, like airports and sandwiches. Organisms are no exception. By December 2016, nine newly discovered species bore Barack Obama's name. So far, President Trump has one, a tiny moth whose head is capped by a sweep of whitish scales. The moth, Neopalpa donaldtrumpi, is found only along the California-Mexico border.

On Tuesday, a second figure from the 2016 presidential campaign got a species. Spintharus berniesandersi, named after Sen. Bernie Sanders (I-Vt.), lives in Cuba. It is small and lemon-yellow and barely a millimeter wide. On the spider's back is an ornate pattern halfway between a distorted smiley face and grimace.

A cartoon of the Bernie Sanders spider. (Glynnis Fawkes)

Four University of Vermont undergraduates, with the guidance of biologist Ingi Agnarsson, identified Spintharus berniesandersi. The students also found 14 other new spider species, which they named after political figures (Obama got his 10th species; Michelle Obama her first), artists (singer David Bowie's second spider) and celebrities (naturalist David Attenborough, his umpteenth).

“We don't mean this to be a political paper. We decided to honor the people who we think are doing the right thing,” Agnarsson, a spider expert at the University of Vermont, told The Washington Post. In picking taxonomic names, Agnarsson said, it was the job of scientists to recognize leaders who drew attention to environmental and social issues.

For more than a century, biologists believed the genus Spintharus was just two species of American spider. One species was confined to Brazil. The other was thought to have the run of the Americas, sprinkled along the Eastern Seaboard, across the Caribbean islands and into the southern continent.

No longer. In a paper published in the Zoological Journal of the Linnean Society, the team of undergraduates and scientists fractured the single intercontinental species into 15 new ones.

“My lab is running a huge biodiversity discovery project in the Caribbean,” Agnarsson said. DNA analysis revealed that the Spintharus spiders in the Caribbean could not possibly be one species — they were too genetically different to be breeding with one another. Agnarsson said that the genetic split was probably 30 million years in the making, stemming from the islands' geologic separation.

A few identifying traits arose as the islands drifted apart. Some of the spiders had complete smiles on their backs, one with “a very distinct clown-like smiley face with a white nose,” Agnarsson said. Also, their genital structure had evolved rapidly, probably another barrier against interbreeding. (Why spider genitals change so quickly is a matter of “long and deep scientific debate,” Agnarsson said, but could reflect an evolutionary arms race between male and female spiders.)

A female Bernie Sanders spider in profile. (Agnarsson Lab)

For agreeing to a year's worth of lab work, Agnarsson gave his students naming rights. Working in Vermont in the midst of the 2016 campaign, lab discussions inevitably veered toward Sanders, he said.

The students' decision to name a spider after Sanders was unanimous.

“We all have tremendous respect for Bernie. He presents a feeling of hope,” said Lily Sargeant, one of the undergraduates who worked on the project, in a news release.

Sanders is not the only former presidential hopeful to have a species named after him. Texas billionaire Ross Perot has a dinosaur, Pachyrhinosaurus perotorum. Hillary Clinton almost had an extinct lizard named after her — except “Clintondon” didn't sound right, discoverer Nick Longrich told Reuters in 2012. (Longrich went with the name Obamadon.) Dutch horticulturalists named a strain of tulips after Clinton in 1994, when she was first lady.

Though spiders might not be the most metaphorically flattering animals, most scientists insist that giving a species your name is a compliment. In fact, the ethical guidelines of the International Commission on Zoological Nomenclature state, “No author should propose a name that, to his or her knowledge or reasonable belief, would be likely to give offence on any ground.”

The planet is rife with animals that need names. The catch is that the overwhelming majority lack backbones. Which is why both George W. Bush and Bill Clinton have beetles. (Bush called to thank the entomologist who named the slime-mold beetle Agathidium bushi.) Nelson Mandela and Angelina Jolie have spiders, too. Scaptia beyonceae is a horsefly with a gold-hued posterior.

Last September, biologists named a parasite found only in the lungs of certain Malaysian freshwater turtles after Obama. Retired biology professor and parasite discoverer Thomas Platt defended the choice as an honor: Parasites “are amazing, beautiful and cool as hell,” he wrote in a Washington Post op-ed last year.

Leonardo DiCaprio got a spider Tuesday, too. Chloe Van Patten, a University of Vermont student and author of the study, lobbied for the actor. Spintharus leonardodicaprioi also happens to reflect a childhood crush.

“I'm over my crush, but now that he's involved in environmental issues, I love him even more,” she said in a news release. “So I named a spider after him hoping that if he read our study he might go out to dinner with me and talk about climate change.”

Read more:
Scientists name new fish species in Hawaii’s Papahanaumokuakea after Obama
Scientists like Barack Obama so much that they named a parasite after him