Taking Down Trump

The GOP debate tonight in Houston is the last chance before Super Tuesday for Trump’s rivals to have a national stage to stop his momentum. It’s time to go for the jugular. Nevada entrance polls show that Trump does well because voters believe he “tells it like it is,” he’s an “outsider,” and that he can “bring change.” Rivals have to use that against him — and I think they might just get there by presenting a Trump presidency as Obama’s third term.

Telling it like it is, or Lack of Truthfulness and Flip flopping? They’d do well to point out that Trump is a Democrat in disguise and a vote for him is a vote for Obama’s third term.  For example, his changing positions on abortion, eminent domain, ISIS, Libya, and his support for the Obamacare individual mandate, which is anathema to Republicans.

Outsider, or not ready? Ask Trump what he’d do in the first 100 days, and more importantly, how? Much of Trump’s campaign promises would require support of Congress (like getting funding to build that wall…), yet his promises of action seem to rest on Executive action,which is anathema to Republicans.  Another President like Obama? Force Trump to use those three little letters- “how.”

Bringing Change. Is Make America Great Again just a slogan? Where did Obama’s “hope and change” get Republicans? Demonstrate that running America isn’t like running a business. Present him with lose-lose scenarios that are common in governance and force him to choose solution. Ask him how he’d deal with SCOTUS gridlock. Or a Congress that won’t pay for his campaign promises. Ask him how he’ll govern with a democratic majority in Congress and remain true to Republican principles.

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Liberty v. Security: Why Apple Might Defeat FBI, CA Court Order

The tensions between liberty and security, big and small government, and old law and new reality is playing out in Apple’s fight with the FBI over iPhone encryption.  Tim Cook just called the government’s request a “cancer,” concerned about a slippery slope into less privacy for all Americans.

The Court order telling Apple to cooperate with the FBI is grounded in the “All Writs Act,” an 18th century law granting federal courts the right to issue all orders “necessary or appropriate” to support the exercise of their jurisdiction, including making third parties help the government with an investigation.  Apple is refusing to create software that will turn off the security feature that auto-deletes all data on the phone after ten incorrect passwords are entered, to allow the FBI to “brute force” unlock the phone using software that tries thousands of passwords until it gets it right.

Apple argues that the government is overstepping its authority, and here’s why it might actually be right.  The Supreme Court created a test in 1977 to determine just that question in a case where a public telephone company refused to comply with a court order to put a tracking device on the phones of suspected illegal gamblers. Like many things in law, it’s a balancing test between rights and obligations.  The phone company lost, but the five-part test lives on.  Three parts  of the test clearly run in Apple’s favor:

1. The phone company was a public utility with a duty to serve the public, and it had no substantial interest in not providing assistance.  Apple isn’t a public utility, has no duty to serve the public, and has a substantial interest in not providing assistance – setting bad precedent in other cases, undermining user confidence, aiding hackers, weakening citizens’ privacy rights, the list goes on…

2. The phone company regularly used the device it refused to use under court order to assist the government.  Apple has never agreed to create this kind of software.  There’s a big difference between the government forcing a company to use a device it has used before, and making it create new code.

3. Complying the court order required only minimal effort for the phone company and wouldn’t disrupt its operations.  Apple has indicated that this is a huge undertaking from a technical standpoint.  They could also argue that agreeing to hack its own customer is about as disruptive as it gets when you’re in the data business.

The other two parts of the test are less clear, though a good argument can be made for Apple.

4. The phone company’s facilities were being used to further the crime.  Well, it’s not clear that’s the case yet.  The FBI wants to fill 18 lost minutes in the killers’ movements, and they can’t know what’s on the phone so can’t know it was used in the terrorist attack.

5. Without the phone company’s help, the government could not get the information.  Maybe. The FBI has developed some software in this realm and has had some success unlocking phones. But not with later versions of Apple’s IOS.

What happens next? Expect Apple to continue to fight this in the court of public opinion. Expect other tech executives to weigh in. Expect Apple to appeal to the district court and if necessary, all the way to the Supreme Court.  Given the current political fight over a new nomination, we can’t know whether Justice Scalia’s vacancy will be filled by the time this case is before that court, and therefore whether 8 or 9 Justices will decide whether the court order is “necessary or appropriate” to help the FBI fully investigate the San Bernardino terrorist attacks.

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SCOTUS Obstructionism Imperils GOP

There’s no question that the fight over Justice Scalia’s replacement is going to reverberate not only in the Presidential election, but all the way down into the 34 senate races this year.

Polls consistently show that the majority of Americans hold moderately approving views on gun control, abortion, environmental regulation, gay rights and the need for campaign finance reform. Republican stonewalling of an Obama nomination, particularly an experienced and “moderate” candidate (such as Sri Srinivasan who was unanimously confirmed to the DC Circuit Appeals Court by this Senate last year) is going to chiefly harm moderate presidential candidates and Republican senators up for reelection in blue states and in close races (like Florida, New Hampshire, Pennsylvania), because the rhetoric from the far right about Obama’s nominee eviscerating the Second Amendment and religious freedom won’t resonate with those voters so deeply that they will overlook the pure gamesmanship occurring in the Senate.

The claim that Obama is  “packing the courts”  with liberals (and will do so again) that Cruz, McConnell, Rubio and others are complaining of actually started during  Reagan’s presidency (FDR threatened it in a radical way by changing the tenure and number of Justices on the Court, but never followed through).  Reagan was the first President to understand that appointing conservatives not just to the Supreme Court, but to lower federal courts opposed to newly discovered “individual freedoms” would stop the liberalization of American law.  It’s said that all federal judges even considered by Reagan were first interviewed to ensure they were firmly opposed to overturning Roe v. Wade.

As to Rand Paul’s claim that Obama appointing a Supreme Court justice being a “conflict of interest” because some of his executive actions are before the court (climate change, immigration) — well, this has no basis in the Constitution and is partisanship cloaked in constitutionalism.  Like the power to nominate ambassadors, the Constitution gives the President complete discretion in nominating federal judges, including Supreme Court Justices.

There’s no time limit in the constitution for the giving of “advice and consent” – but refusing to even vote? The GOP take this path at their peril.

 

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#DemDebate Download

I’m calling a victory for Hillary Clinton in the PBS Democratic Debate held last night.  She was pitch perfect for 80 of the 90 minutes  – before a petty criticism of Sanders not siding with Obama 100% of the time took her off the rails.  Here are my top five takeaways.

  1. The contrast between Sanders and Clinton campaigns, despite the fact that they agree on many issues, came sharply into focus last night.  Clinton was able to articulate actual solutions to problems she has identified.  Sanders spent much of the debate railing against the status quo, with little detail on how he’d achieve anything he suggests.
  2. The biggest experience gap showed up (as we expected it to)  in foreign policy.  Clinton was so articulate she sounded a bit too wonkish in her answers about the middle east and Putin.  Sanders’ lack of experience was in clear relief.
  3. Despite the huge margin in their values and positions, Sanders sounds a lot like Trump.  His overwhelming message, while more positive, focuses on the things America needs to fix.  He’s “make America great again” for different reasons, to different voters.  At some point that’s going to get old.  And voters are going to want more.
  4. Clinton’s strategic move to not attack Sanders directly but portray his promises as impossible to deliver on fared well for 80 of the 90 minutes.  To end on a petty criticism, accusing Sanders of criticizing Obama and inferring that it made him unfit to run for the nomination not only fell flat, but gave Sanders an opportunity to again paint himself as an anti-establishment candidate, and turned Clinton’s criticism on him into an incredible attack on the right and responsibility to disagree within the democratic process.
  5. Clinton needs to learn to apologize.  Years of attacks and unprecedented negative focus on her from every candidate in this race, democrat and republican, seems to have left her unable or unwilling to show any weakness.  Her glossing over the Steinem/Albright comments last night – that went over so badly with women voters – was a mistake.  She should have explained, not only that Albright has been saying the “special place in hell” statement for years, but that in other contexts, particularly business, it works.  But that in politics, more factors come into play, and it was a disservice to suggest that women voters would only vote based on gender.  Clinton’s inability to show any weakness at all is at the heart of the inauthenticity claim against her.  And it’s why it continues to stick.
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Five Steps to a Clinton Debate Victory

Hillary Clinton has an opportunity tonight to make a major pivot in her campaign.  She needs to get real, get inspiring, and get persuasive — in some surprising ways.

  1. Make the case for a woman in office.  Yes, you heard that right. Use stories and research, like Jay Newton-Small’s Broad Influence, that explains that positive change in an organization, including better communication, more cooperation, and less risky behavior (so – less partisanship, shutdowns, deadlock…), happens when a critical mass of women are present in leadership roles.  Explain that she will change the face of our political system to reflect the demographics of our country, which will better serve all Americans.
  2. Own her mistakes.  Talk honestly – and not defensively – about her emails, about Wall Street speech honorariums, about sexist comments by supporters Steinem and Albright.
  3. Make her case to women and young people, not by talking about herself and her achievements, but by presenting her vision of America to them that incorporates their concerns – student loans, college access, owning a home, reproductive rights, economic stability, jobs.
  4. Talk about foreign policy and immigration in a way that Bernie Sanders cannot.  She has the experience and knowledge, immigration and foreign policy are important issues in this cycle, and she has an advantage over Sanders in this realm.  She needs to drive that home.
  5. Contrast the vision of her presidency against the GOP candidates’, and not Sanders.  Attacking Sanders is not working for her.  He’s beloved, he’s inspiring people, and he’s running a very clean campaign. She’s better to attack her potential opponents in the General Election, not least by explaining that they will roll back advances that Democrats have made with respect to environmental protections, women’s reproductive rights, equal pay for equal work, access to higher education, health care coverage, and increasing the minimum wage.
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Here’s How to Win, Hillary Clinton

The margin by which Hillary Clinton lost New Hampshire to Bernie Sanders, a state that has always been a bastion of Clinton success and loyalty, was a devastating loss. Here are five changes the Clinton campaign needs to make in the road ahead.  My message here is based in realism, not idealism, and it’s unfortunately cynical.  You’re a woman, Hillary Clinton, and as in the rest of life, the same rules don’t apply to you. I hate it too.  But, it’s time to act accordingly.

  1. Stop attacking Sanders.  He’s running a positive campaign, he’s inspiring people – it just looks bad.  Also, stop getting Bill and Chelsea to attack him. Understand that you are never going to get away with Trump’s bombast, vile words, or cruel criticisms.  Understand that having your husband or daughter spin an ugly message just doesn’t work for you. Also understand that you poll way ahead of Sanders in the upcoming States, and denigrating him or his message will only hurt that lead.
  2. Start apologizing.  And I mean, really apologizing.  We all think you got a private server because you didn’t want the GOP finding a way to leak personal emails to embarrass you during your run for the nomination.  But guess what – it’s worse than you ever thought. Tell us why you did it, accept responsibility for a bad decision, reiterate that you believed you were following the law and that you did not send or receive classified information, and be done with it.  Also, disavow the sexist statements of Steinem and Albright.  Tell us you are grateful for their support, that you – and we – stand on the shoulders of their activism and their success – but that you want women – and men – to vote for you because they believe you are our greatest hope for this nation.
  3. Stop treating this like a job interview.  Like Obama before him, Sanders is presenting a vision of this country that people can believe in.  Trump and Cruz are doing the same. We know you’re the most qualified person for the job.  It’s obvious. Stop talking about you, and start talking about “we.”
  4. Be real.  Get up close and personal with us. Share your stories and your struggles.  We have watched your life unfold.  We know you have struggled. We know you have been attacked.  Tell us how you rose above it.  Inspire us.
  5. Be more.  It’s unfair, but it’s true. As a woman in a competition constructed, and dominated, by men, you have to be more presidential, more articulate, more knowledgeable, more poised, more inspirational, more …. everything.  You have to be better than every other candidate, in every way (and then some) to beat them at this –their – game.

 

 

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Why Democrats Are Going to Miss Rand Paul

We learned today that Rand Paul has bowed out of the GOP Race.  I’d be remiss if I didn’t say that there are a few other *ahem* GOP candidates we’d rather see doing something else with their time. Here are five reasons why Democrats are going to miss Rand Paul.
  1. His fiscal conservatism.  No other candidate hammered spending restraint quite like him.  It was his main platform plank, likely to his detriment.  Despite what Republicans say, Democrats are against pork barrel spending and inefficient government too.
  2. His constitutional understanding and intellect.  Even if we’re not strict constructionists like Paul, Democrats respect his understanding of the Constitution and his dedication to its underlying values of liberty.  We’re not sure Donald Trump could name the Third Amendment or explain the Fifth.  And we think that matters, because we’re a constitutional republic, and that document has to underpin every law and every government action.
  3. His support for criminal justice reform.  We’ve seen Rand Paul reach across the aisle on a number of issues, few more important that slowing our incarceration rate for non-violent offenders and putting processes in place so that after you’ve “done your time,” you can go out and be an effective and functioning member of our society and, importantly, our economy.
  4. His support for term limits.  We too, want a government for, of and by the people. We, too, want politicians to be accountable to their electorate and not special interests.  This is exemplified by the energy we’re seeing in this cycle around the outsider candidates, and why even insider candidates (like Ted Cruz, who has worked in presidential elections, the federal judiciary, in state government and in Congress) are working hard to be seen as anything but part of the establishment.
  5. His twitter hilarity.  OK, so that won’t disappear entirely. We like politicians that don’t take themselves too seriously.  We like it when you make jokes about your hair …  and Festivus. These are serious times, and the presidency is a serious job.  But, people elect people they like.  That came easy to Rand Paul.
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Top 3 Takeaways from Trump-Free GOP Debate

We came, we saw, we…wondered how it would go sans Trump. Last night’s GOP Debate was a policy-heavy and substantive debate.  There was less chest beating about polls, fewer personal attacks, and I attribute squarely that to the absence of Trump.  Here are my three main takeaways:

1. Rand Paul had the best debate yet. His intellect, working knowledge of foreign policy, fiscal policy, and certainly the positions of other candidates, meant he came off as authentic and not over-prepared (and hewing too close to talking points). His closing statement said it all, though. Balancing the budget and getting rid of US debt isn’t a wide enough platform for even the GOP nomination, let alone the General election.

2. Carson had his worst debate yet , which isn’t saying much, unfortunately.  The absence of Trump shone an even brighter light on his weaknesses - his under-developed knowledge and “learned by rote” policies and talking points. He seemed surprised when asked a foreign policy question about Estonia, didn’t appear to understand article 5 of NATO, he simply seemed out of his league. And I understand the reason for his closing statement – the idea that we should never forget our founding principles – but his rendition of the Constitution’s preamble looked like just one more thing he had carefully memorized specifically for the debate, only to awkwardly deliver it from the podium.

3. Cruz and Rubio were pretty much even compared to past debates; they always perform well on balance, but last night I think Rubio had the edge.  Rubio got the better of Cruz on a number of occasions, but his tone was consistently, and needlessly aggressive.  I am convinced I heard a number of talking points, verbatim, from the last debate, and the new focus on his faith (on the debate stage, at least) came off like obvious pandering to Iowa evangelicals.  As the front-runner and number one target in Trump’s absence, Cruz was Trump’s proxy, unfortunately for him. He had to defend a lot of attacks, got mired down in arguments with Rubio, so his message was more frustrated than in other debates.  His low (and most Trump-like) point, drawing boos, was his threat to leave the stage if more “mean” questions were asked.

What does this mean for Iowa? (remembering that Iowa rarely correctly chooses the party nominee, let alone the President..).  Rubio will be hoping he can land a surprise second place, but at this stage I think we’ll see it shake out  Cruz – Trump – Rubio.  This may have the biggest effect on fourth place.  Ben Carson’s running in fourth currently on the back of strong evangelical support.  His debate performance may convince caucus-goers that while he’s clearly a dignified man of faith, he’s not cut out to be President.  Rand Paul and Jeb Bush have the most to gain if Carson falters.

 

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Indictment in TX over Planned Parenthood Sting Shows Strength of Evidence

Texas is the state of Roe v Wade and the next major abortion case before the Supreme Court, Whole Women’s Health v. Cole.  NO question, it’s a pro-life state. Yesterday’s grand jury indictment of Daleidan and Merrit of the Center for Medical Progress – in the middle of an investigation into Planned Parenthood – speaks to the strength of the evidence against them. They weren’t actually the targets of the probe, after all, and a prosecutor controls a grand jury in a way she doesn’t control a “petit” jury (the one that sits in a trial).  There is no defense in a grand jury, just the prosecutor and evidence.

Daleidan has been indicted for violating Texas’s Prohibition of the Purchase and Sale of Human Organs which makes criminal a person’s actions if he ”knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or transfers any human organ for valuable consideration.  It appears that either on camera and/or in an email to Planned Parenthood, Daleidan offered over $1000 for tissue, which Planned Parenthood ignored.

Daleidan and Merrit have both been indicted for violating tampering with a governmental record which makes criminal a person’s actions if he “makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record.” The “government record”  is most likely the California drivers licenses they used as part of their false identities, and the maximum sentence is 20 years in federal prison, but only if a prosecutor can prove their intent was to defraud or harm. While their defense lawyers will argue that their “citizen journalism” means they harbored neither of these intentions, if two records are altered, under Texas law there is a presumption that this intent was present. That’s bad news if the two defendants both participated in altering the drivers licenses – because their motives don’t matter anymore, and this intent will be automatically imputed to them

Prosecutors have a lot of discretion in the grand jury process, and an indictment for Planned Parenthood would have been politically popular. And yet the opposite (and almost unthinkable) happened. I’m expecting we’ll see First Amendment defenses for the “journalism” the Center for Medical Progress calls its undercover operations. In his defense, Daleidan has alreadyput out a statement that “buying  fetal tissue requires a seller as well.”  He’s wrong. The law he’s charged under, just buying, or even offering to buy the tissue is criminal conduct in and of itself.

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Roe v. Wade Comes Full Circle, 43 Years On

Friday January 22 marks the 43rd anniversary of the landmark decision for women’s reproductive rights, Roe v. Wade. On March 2, the Supreme Court will hear oral argument on Whole Woman’s Health v. Cole, where abortion rights advocates are challenging regulatory restrictions on abortion clinics and doctors that would leave just ten clinics available for the 5.4 million Texas women of reproductive age.  The question in the case is whether the restrictions place an “undue burden” on the constitutional right of women to have an abortion.  What shocks me and other liberals is that this case is being heard over four decades after a decision that changed the lives and prospects of many women.  And sadly, we have come full circle – The Texas regulations at issue here essentially operate as a complete ban on abortion in that state.  Norma McCorvey (aka “Jane Roe”) brought her case to the Supreme Court  because she couldn’t get an abortion in Texas in 1969.  If this case goes the wrong way, Norma McCorvey’s fate will befall many Texas women in 2016.

This is the latest set of rules and regulations in the anti-abortion “incrementalist” strategy that arose in the ‘80s and ‘90s after conservatives spent over a decade unsuccessfully trying to reverse Roe. Incrementalists have been chipping away at the right for years.  First it was waiting periods and permissions, then it was the requirement that certain information about the pregnancy be given to the woman.  The latest wave has been restrictions on doctors and clinics in the name of “women’s health.” An irony if there ever was one, particularly from small-government Republicans, who, in any other sphere, would be fighting to have regulations lifted, not imposed.

A “friend of the court” brief filed in Cole by 113 attorneys who have shared their personal stories with the court explain that their decision, as difficult and terrible as it was, allowed them to control their reproductive lives, and fully participate in the “economic and social life of the nation” – words lifted from Justice Kennedy’s opinion in Planned Parenthood v. Casey, from which the “undue burden” standard arose.

In light of Cole, this Friday is a depressing anniversary of a decision that changed the lives and economic prospects of many women.  I’m hopeful that the Court will halt incrementalism in its tracks and strike down the Texas law as an undue burden on an important and fundamental constitutional right, and not return us to Norma McCorvey’s bleak summer of 1969.

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