Protest that Endures

Much protest is naive; it expects quick, visible improvement and despairs and gives up when such improvement does not come. Protesters who hold out longer have perhaps understood that success is not the proper goal. If protest depended on success, there would be little protest of any durability or significance. History simply affords too little evidence that anyone’s individual protest is of any use. Protest that endures, I think, is moved by a hope far more modest than that of public success: namely, the hope of preserving qualities in one’s own heart and spirit that would be destroyed by acquiescence.

Wendell Berry

This week’s featured posts are “Your Sift-Archive Review for the Trump Era” and “White House, Inc.“.

This week everybody was talking about the appeals court ruling

which went against the Trump administration and its prototype Muslim ban, which I discussed in detail last week. This was a 3-0 ruling that included agreement from Bush appointee Richard Clifton. The judges wrote a unified per curiam opinion rather than the usual practice of one judge writing a majority opinion with dissents and concurrences from the other judges. This seemed intended to emphasize that they were of one mind.

This was the state of play going in: Trump had signed an executive order; the states of Washington and Minnesota had sued; a federal judge in Seattle had issued a temporary restraining order (TRO) preventing the most odious parts of the order from taking effect until the his court could have a full hearing and make a definitive ruling. The administration then asked the 9th Circuit Court of Appeals to set aside the TRO. That request is what got turned down Thursday, so the executive order continues to be blocked for the time being.

Despite the occasional flamboyant writer like the late Justice Scalia, judges tend to be circumspect in their language. They usually write in a stone-faced style, so if you catch an occasional frown sneaking into the prose, you can surmise that they’re probably royally pissed off. The appellate court’s 29-page ruling is full of frowns.

Charlie Savage’s summary in the NYT is pretty concise and seems accurate. The biggest frown in the text is the judges’ response to the Trump argument that his order is “unreviewable” by the courts.

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

The most serious problem in the order was its treatment of legal permanent residents. The administration argued that the White House counsel had interpreted the order so that it no longer applied in these cases. The judges weren’t inclined towards trust:

[I]n light of the government’s shifting interpretations of the executive order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.

And finally, the judges seemed put off by the administration’s arrogant assumption that its unreviewability argument would fly, so further support for its position was unnecessary.

Despite the district court’s and our own repeated invitations to explain the urgent need for the executive order to be placed immediately into effect, the government submitted no evidence to rebut the states’ argument

During questioning, Clifton sometimes seemed skeptical that the order was motivated by hostility against Muslims, or that it should be viewed as a watered-down version of the “Muslim ban” Trump campaigned on. The ruling made no judgment on that point, presumably to maintain unanimity.

The next stop is the Supreme Court, which still has only 8 justices. A 4-4 tie would leave the appellate court ruling in place.

Trump could easily improve his legal position by rescinding the order and re-issuing a more carefully constructed one. He’s talking about doing that, but he is also never going to admit that the original order was a mistake. So it will be interesting to see how he squares that.


The ban gets all the headlines, but Trump is cracking down in a lot of other ways. The CBC reports this story about a Canadian citizen from a Montreal suburb, who was attempting to drive to Burlington, Vermont with two of her children and an adult cousin. They all had Canadian passports, but were turned back after a four-hour delay at the border. Her crime? She is a hijab-wearing Muslim born in Morocco (which is not one of the seven countries covered by the ban). The border patrol asked questions about her religion and attitudes towards President Trump and his policies. The two adults were required to  surrender the passwords to their phones, and then denied entry when the phones contained videos of Arabic prayer services.

“I felt humiliated, treated as if I was less than nothing. It’s as if I wasn’t Canadian,” Alaoui told CBC News in an interview Wednesday.

She now has to decide whether she wants to risk a similar experience over spring break, when she had planned to visit her parents in Chicago.

The L.A. Times reports that Trump’s January 25 executive order “Enhancing Public Safety in the Interior of the United States” (which is really about deportation of undocumented immigrants, the vast majority of whom pose little or no threat to public safety) goes way beyond targeting the “bad hombres” he liked to talk about in his rallies.

Up to 8 million people in the country illegally could be considered priorities for deportation, according to calculations by the Los Angeles Times. They were based on interviews with experts who studied the order and two internal documents that signal immigration officials are taking an expansive view of Trump’s directive.

Far from targeting only “bad hombres,” as Trump has said repeatedly, his new order allows immigration agents to detain nearly anyone they come in contact with who has crossed the border illegally. People could be booked into custody for using food stamps or if their child receives free school lunches.

Anyone charged with a crime can be deported, without that charge ever seeing the inside of a courtroom. So local police can deport undocumented people just by arresting them on a bogus charge and notifying ICE. It’s hard to believe that this kind of arbitrary power won’t be abused.

and White House, Inc.

This note got so long that I broke it out into a separate post.


A nostalgic add-on for people my age and older: Remember how scandalous it was when Jimmy Carter’s ne’er-do-well brother used his sudden notoriety as an unreconstructed good-ole-boy to launch Billy Beer?

Simpler times.

and the silencing/spotlighting of Elizabeth Warren

In the Senate debate over Jeff Sessions’ nomination to be Attorney General — he was approved — Majority Leader Mitch McConnell invoked the little-used Rule 19 against Elizabeth Warren. On a party-line vote, the Senate determined that Warren was improperly impugning the character of a fellow senator (which Sessions still was), and so she was banned from speaking for the rest of the Sessions debate.

The immediate result was the reverse of everything McConnell appeared to be trying to accomplish: Warren got a wave of positive publicity, the anti-Sessions Coretta Scott King letter she was reading to the Senate got far more attention than it otherwise would have, and McConnell’s justification has become an iconic example of patriarchal arrogance: “She was warned. She was given an explanation. Nevertheless, she persisted.”

But there’s something strange about this whole incident. It’s odd that McConnell, ordinarily a cautious and canny politician, would make a move that backfired so badly, so quickly. And as many people have noted, McConnell then stayed silent when male Democrats continued reading the King letter. What did he think he was trying to accomplish?

We got a hint from a comment Trump made in a private meeting with Democratic senators: “Pocahontas is now the face of your party.” That presents a weird possibility: Maybe McConnell was intentionally building Warren up:

“It’s to Republicans’ benefit to elevate her as the voice for the Democratic Party, particularly heading into 2018,” said GOP Strategist Brian Walsh, referring to the upcoming midterm elections in which Democrats will be defending seats in 10 states that Trump won. “Her views being taken as the mainstream of current Democratic thought would put her red state colleagues in a difficult situation.”

Trump’s invocation of his Pocahontas smear suggests that he foresees a 2020 repeat of the 2016 strategy, with Warren in the Clinton role: Over a period of years, gin up a bunch of bogus issues about a Democratic woman, then hope for an I-can’t-vote-for-her reaction from otherwise wavering Republicans. So targeting Warren early and often would have a dual purpose: It would build up her negatives among Republican voters, while making Democrats more determined to nominate her.


Amanda Marcotte gives an alternative interpretation of what made the Coretta Scott King letter so threatening:

That letter angers Republicans, because in the years since Martin Luther King Jr. was assassinated in 1968, there’s been a conservative effort to remake King in their own image. Warren’s attempt to read the letter by King’s widow into the record served as an embarrassing reminder that King’s politics had nothing in common with modern conservatism.

Call it the “dead progressive” problem. Conservatives love a dead progressive hero, because they can claim that person as one of their own without any bother about the person fighting back. In some cases, the right has tried to weaponize these dead progressives, claiming that they would simply be appalled at how far the still-breathing have supposedly gone off the rails and become too radical. The Kings are just two prominent victims of this rhetorical gambit.

but we should be paying more attention to the Flynn scandal

Thursday night, The Washington Post opened a new chapter in the Putin/Trump story: After the election, but while Obama was still president, Trump National Security Adviser Michael Flynn appears to have interfered in foreign policy. Apparently he reassured the Russians that the moves Obama was taking to punish Russia for interfering in the U.S. elections would be reconsidered after Trump took office.

Previously, Flynn had denied that his conversations with the Russian ambassador had mentioned any sanctions, and Vice President Pence had backed him up on national TV. Now the WaPo claims to have “nine current and former officials, who were in senior positions at multiple agencies at the time of the calls” who say otherwise.

All of those officials said ­Flynn’s references to the election-related sanctions were explicit. Two of those officials went further, saying that Flynn urged Russia not to overreact to the penalties being imposed by President Barack Obama, making clear that the two sides would be in position to review the matter after Trump was sworn in as president.

Flynn himself is now backing off of his blanket denial, and Trump and Pence are not commenting. If the scandal doesn’t die down, the likely outcome is that Flynn will take the fall: He just went rogue, reassured the Russians on his own authority, and then lied to Pence about it.

But a far more disturbing possibility ought to be investigated: What if Flynn wasn’t going rogue? What if the Trump campaign had an ongoing, long-standing relationship with Russia, and there was always some explicit quid-pro-quo promised in exchange for Russia’s hacking of the Democrats? If true, that starts to sound like an impeachable offense.

and you might also be interested in

Some idiot in the College Republicans club of Central Michigan University thought it would be clever to distribute a Hitler-themed Valentine card, I guess because the Holocaust is so hilarious.

I’m not going to claim that this represents some universal-but-hidden anti-Semitism at the heart of the GOP, or even among CMU Republicans. Probably most Republicans find this card as repulsive as I do. But I think Romney-and-McCain Republicans need to connect this dot with the Heil-Trump Nazi video, the KKK endorsement, Milo Yiannopoulos, and a bunch of similar dots: There’s a certain kind of racist asshole who feels very comfortable in your party these days. Whether they represent the majority or not, shouldn’t that worry you?

BTW, this is the proper context in which to consider Trump’s Holocaust Remembrance Day proclamation, which somehow managed not to mention Jews. It was a wink to Holocaust deniers, Nazis, and other anti-Semites, who have become an important Trump constituency.


Now that Megyn Kelly has left Fox News, it’s good to see that her replacement, Tucker Carlson, is holding the Trump administration to the highest possible standards. Say what you will about Steve Bannon, he’s better than Abu Bakr al-Baghdadi!

I’m bemused by how qualified these categories are: used chemical weapons on Kurds, mass executions of Christians. It’s as if Carlson wants to be covered in case Bannon unleashes chemical weapons on the Dutch or orders mass executions of Rastafarians.


The second SNL appearance of Melissa McCarthy as Sean Spicer is just as funny as the first:

And Alec Baldwin’s imitation of Trump got a rare compliment: A newspaper in the Dominican Republic published Baldwin’s picture, apparently thinking it was Trump.


Thursday, in a phone conversation with Chinese President Xi Jinping, Trump reaffirmed the United States’ “One China policy” which formally recognizes Taiwan as a province of China while simultaneously supporting the island’s practical independence. Prior to his inauguration, Trump had spoken on the phone to Taiwanese President Tsai Ing-wen — something no president or president-elect had done in decades — and later said that the U.S. should insist on concessions from China in exchange for continuing to recognize One China.

In the world of U.S./China diplomacy, every little nod and adjective is interpreted as portentous, so China-watchers have been buzzing about whether Thursday’s “reversal” is a defeat for Trump, or convinces China that he is a “paper tiger”.

My interpretation is that Trump says a lot of crap, and very little of it actually means anything. So if either Xi or Tsai attach any importance to those calls, they’re fooling themselves. This lack of seriousness will come back to bite Trump eventually. Someday he’ll have to blow something up in order to get China’s attention, because by then everyone will be ignoring his words and symbolic actions.

From the beginning of his campaign until this moment, Trump has done his best to surround himself with a fog. (For example, the normal budget process would have him submitting an FY 2018 budget this month, and still no one has the faintest idea what to expect. He has raised expectations about tax cuts, an ObamaCare replacement, a big infrastructure project, increased military spending, protecting Social Security and Medicare, and balancing the budget. What in all that is real, and what is just smoke?) When you’re a slippery businessman hoping to cheat everyone you deal with, a fog like that is useful. But you don’t hold together coalitions and alliances that way, or get the long-term cooperation you sometimes need from rival powers like China.


Speaking of the soon-to-be-unveiled budget, this is a worthwhile graphic to keep in mind. (It seems to come from the CBO by way of Senator Ron Johnson, but I pulled it off Rand Paul’s Facebook page.)

It’s a good snapshot to keep bookmarked, because it points out what people really are proposing when they say they want substantial cuts in government spending. (In other words, you can’t balance the budget by cutting foreign aid and the National Endowment for the Arts.) Most of the things people talk about cutting are down in the All Other category, and probably would be invisible if they were called out separately. The red bars are non-discretionary, i.e., entitlements and other payments mandated by law.


The Atlantic‘s Conor Friedersdorf has always considered liberal political correctness a bigger problem than I do: Most of the examples of “political correctness run wild” that I hear about either didn’t happen exactly the way the complaint claims, or is nothing more than the dominant culture being forced to give respect to people and points of view it used to happily ignore.

But OK, let’s grant for the sake of argument the conservative criticism that political correctness has this chilling effect on the national conversation that makes it much harder to discuss important issues. Is Trump actually undoing such political correctness, or just turning it around to serve conservative purposes?

Friedersdorf makes a good argument for the latter. Trump’s conservative political correctness, for example, makes it impossible to talk about white supremacist terrorism, or right-wing terrorism of any kind. He can’t criticize Vladimir Putin.

Trump displays all the flaws attributed to “Social Justice Warriors”—thin skinned, quick to take offense, a bullying presence on Twitter, aggressively disdainful of comedy that pokes fun at him, delighting in firing people—just without any attachment to social justice. On matters as grave as counterterrorism and as inconsequential as the size of crowds, Trump is more contemptuous of the truth, and as driven by what is politically correct, than any president of recent years. That shouldn’t bother those who only complained about political correctness as a cover for bigotry. But everyone who complained on principle, knowing a country cannot thrive when disconnected from reality, should demand better.

and let’s close with an attempt to learn from failure

Cards Against Humanity analyzes “Why Our Super Bowl Ad Failed“. Strangely, 30 seconds of the camera silently staring at a potato failed to build the brand.

White House, Inc.

How can something be a “conflict of interest” if the people who do it don’t seem conflicted about it? Josh Marshall raises a good point.

[S]top talking about ‘conflicts of interest’. Those are guide rails meant to help ethical people to stay ethical or unethical people put on a show of it. There’s no show here. Trump is openly using the Presidency as the world’s greatest marketing opportunity.

So, for example, his Mar-a-Lago Club (where he has been spending a lot of weekends and recently met with the Japanese Prime Minister) doubled its membership fees after the election, to $200K per year. It’s a direct payment for access to the president (or the appearance of access).

Melania’s defamation lawsuit against The Daily Mail is pretty explicit about the marketing opportunities she sees in being First Lady:

The economic damage to Plaintiff’s brand, and licensing, marketing and endorsement opportunities caused by publication of the Mail Online’s defamatory article is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a professional model and brand spokesman, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world.

In retrospect, wasn’t it silly of Michelle Obama to waste her eight years of fame on unmarketable causes like childhood obesity? Pity poor Lady Bird Johnson, who spent her term as FLOTUS trying to “Make American Beautiful”, or foolish Nancy Reagan, who frittered away her “once-in-a-lifetime opportunity” telling kids to “Just Say No” to drugs. How much cold, hard cash did any of them get for their efforts?

This week, Ivanka Trump’s prospects for plunder were in the spotlight. When Nordstrom’s dropped her brand because of falling sales, the President of the United States called them out. Richard Painter, who was an ethics lawyer in the Bush White House and is now at University of Minnesota, commented:

The president’s tweet — posted on his personal account and then re-sent from his White House account — is an act of intimidation. Nordstrom interacts with many executive branch agencies: the Department of Labor, the Federal Trade Commission, the Securities and Exchange Commission, the Internal Revenue Service and others. Each one of these agencies will be headed by Trump appointees. Most will be staffed with other political appointees as well. The president is telling all of these people that he is very angry with Nordstrom. The message is clear, and it won’t take much for a political appointee in some agency to conceive of an ingenious way of ingratiating himself with the White House by making life difficult for the store chain.

… And now every other department store knows that it had better not make a similar “business decision” that displeases the president. In other words, do business with the Trump family and help the Trump family promote its products, or else.

Kellyanne Conway ingratiated herself with the president by doing some Ivanka marketing from the White House briefing room.

“It’s a wonderful line. I own some of it,” Conway told “Fox & Friends.” “I fully — I’m going to give a free commercial here. Go buy it today, everybody. You can find it online.”

Conway’s remark appears to violate the executive branch’s ban on staff endorsing products or companies. The regulation, from the Office of Government Ethics, also prohibits using public office for private gain of oneself or friends or relatives.

And I’m sure it’s just a coincidence that Heather Nauert from Fox and Friends is looking for a job at the White House and also tweeting about buying Ivanka stuff “in solidarity”. She couldn’t possibly think that Trump family marketing is part of a government job, could she? Wherever would she get such a notion?

What makes this behavior particularly galling to Democrats is the hypocrisy of it: Not so long ago Trump was regularly attacking Hillary Clinton for the apparent (though not particularly real) conflict between her management of the State Department and her connection to the Clinton Foundation, from which the Clintons have never received any direct benefit. Now government employees are openly working to put money into the pockets of the Trumps, and it’s all good.

The Trump defense for this egregious behavior is his usual somebody-else-started-it: Ivanka’s brand was targeted by an social-media boycott campaign #GrabYourWallet. “They’re using her to get to him,” Conway said.

Here’s the point that observation should bring to mind: Trump and his advisors (which formally includes Ivanka’s husband Jared Kushner and in every practical sense includes Ivanka herself) should have divested their business interests and put their assets into blind trust. When public officials are actively involved in business, that opens them not just to bribery, but also to pressure from boycotts. But if the Trumps’ assets were in blind trust where they belong, #GrabYourWallet would be no threat to them.

As far as I can tell, no one in the White House is drawing that conclusion. Nothing I’m hearing from White House, Inc. indicates any sense of conflict over using the presidency to further the Trump family’s business interests. So if you want to talk about “conflicts of interest” talk about governing: It’s Trump’s responsibilities to the American people that he’s conflicted about, not his profiteering.

Your Sift-Archive Review for the Trump Era

Trump’s attempt to roll American history back to some previous era of “greatness” makes a number of old Sift articles relevant again. 


When you blog about current events for more than a decade, sooner or later you look into more or less everything. (I’m sure my friends are sick of hearing me say, “I wrote an article about that once” in response to whatever topic has entered the conversation. People who claim to have read about everything are boorish enough.) So when a world leader tries to reverse history and undo all the progress of the last eight years (or eight decades) — why else would the word again be in his slogan? — you wind up with a perpetual case of deja vu: Didn’t I cover this already?

Good communicators, like good teachers, are shameless about repeating themselves: If it comes up again, they cover it again. It’s foolish (not to mention arrogant) to imagine that your class or your readers have been hanging on your every word and remember perfectly all the points you made months or years ago. The great communicators develop catch-phrases that they keep coming back to, and somehow those phrases never sound old. (How many times, for example, has Paul Krugman satirized the Confidence Fairy, whose magic makes pro-plutocrat policies work out for everybody by raising investors’ and managers’ confidence in the economic future?)

I envy that skill, but I just can’t make myself imitate it. Whenever I start describing the same thing in the same way, I imagine some very smart regular reader saying, “Yeah, yeah, we know all this. Tell us something new.” It’s a weakness. Where, for example, would Donald Trump be if he didn’t hammer home the same false or ignorant points over and over? And his crowds never get bored with the repetition, even when it is so predictable that he can do call-and-response with them. (“Who’s going to pay for the wall?” “Mexico!”)

Anyway, this post is my attempt to start dealing with the inevitable repetition involved in America moving backwards. I’m not going to pretend I’m telling you something new. Instead, I’ll point you at the earlier posts and maybe make some comments about what has changed in the meantime.

Pipelines. Trump has put the Keystone XL and Dakota Access pipelines back on the agenda. I’ve covered DAPL piecemeal (and probably inadequately) in the weekly summaries, but I wrote an article about Keystone in 2013: “A Hotter Planet is in the Pipeline“.

The basic reasoning of that article still holds: Carbon dioxide stays in the atmosphere for a long time, so even if atmospheric CO2 leveled off, we’ve already signed up for a century or so of increasing temperatures. If we burn all the fossil fuels on the planet, that would set off a true ecological catastrophe, putting into serious doubt the Earth’s ability to support a population anything like what we have. So some fossil fuels are going to have to stay in the ground, and the Canadian oil sands are good candidates for that role. So spending money to create infrastructure to make it easier and cheaper to produce Canadian oil-sand energy is a bad idea.

I point I should have hit harder: Pipelines are expensive to build but cheap to operate (compared to other methods of transportation like rail). So the justification for building one involves imagining that the pipeline operates for a long time. In other words, by building a pipeline we’re committing to keep burning large quantities of fossil fuels for decades.

What’s new in the pipeline debate since 2013 is that the pro-pipeline case has gotten worse due to falling oil prices and increased domestic production. The potential profitability of the pipelines has gone down, and the national-security case (i.e., Canadian production lowers our dependence on the volatile Middle East) is less urgent.

Dead voters. As part of his denial that he lost the popular vote, Trump made the claim to ABC that “dead people are registered to vote and voting“. Also in 2013, I covered one paradigmic example of that urban legend in “The Myth of the Zombie Voter“. Leaning heavily on an article from Free Times, I look at what happens when somebody seriously investigates one of those dead-people-are-voting stories you hear now and then.

In this one, the South Carolina Attorney General was on Fox News and a bunch of other conservative media with his claim that he had found 953 votes cast by people who had died before the election. He got that number by running a computer search of voter records versus death records over a decade, and then not thinking too hard about how somebody could wind up on both lists.

The State Election Commission — in South Carolina, mind you, so we’re not talking about a liberal bastion trying to cover its butt here — started investigating the 207 “dead voters” from the most recent election in 2010. They found innocent explanations that knocked that 207 down to 10 suspicious ballots. (For example, some living people mailed in legal absentee ballots, but then dropped dead before election day. In other cases, the poll watcher put a mistaken checkmark next to the name of the dead John Smith rather than the living John Smith. In a whole state, you’d be amazed how often stuff like that happens.) So they turned those ten cases over to the state police.

Having more manpower to devote to the task, the staties found innocent explanations for 7 of the 10, expressed doubt that even the other three were intentional fraud, and decided not to prosecute anyone. In sum, this is what the AG’s breathless hype boiled down to: Out of the 1.3 million votes cast in South Carolina in 2010, as many as three votes might have been cast illegally in the names of dead people, but the state police believe that zero dead voters is also a strong possibility.

Since 2013, I keep observing that this outcome is typical of massive-voter-fraud stories: There’s usually just enough evidence to make suspicion seem reasonable, but as soon as somebody gets serious about investigating, the case evaporates.

Terrorism. The possible return of torture, and a variety of other policies that are supposed to “get tough on terrorism” makes one very old post — it goes back to my Daily Kos days before I started the Sift — relevant: “Terrorist Strategy 101: a quiz“, which I updated on its 10th anniversary in “Terrorist Strategy 101: a review” in 2014.

The point of both posts is that terrorists want you to “get tough” on them; that’s often the whole point of what they’re doing.

If you’re a would-be Supreme Leader, it’s a huge challenge: Around the world, people would rather get on with the business of living than give their all to the Great Struggle.

Somehow you have to screw that up.

So your big mission — which, ironically, you share with the extremists on the other side of the spectrum — is to flatten the bell curve. In order to bring your air-castles to Earth, you need to make the center untenable. All those folks who consider themselves moderates — if you let them, they’ll muddle along while you get old and the Great Historical Moment slips away. You need everyone to realize right now that compromise is impossible, the other side can’t be trusted, and we all have to kill or be killed.

Perversely, your best allies in this phase of the struggle are the people you hate most, who also hate you. Of course you’d never actually conspire with them, minions of Satan that they are. But you don’t need to, because the steps in your dance are obvious from either tail of the distribution: rachet up the rhetoric and escalate an attack-and-reprisal cycle until compromise really is impossible and everyone is radicalized. Only after the center is gone do the two extremes meet in the second round of the play-offs. It’s a very basic pattern of history, and it never changes: from Caesar/Pompey to Bin Laden/Cheney, extremists have to come in pairs, because they need each other.

So who is ISIS’ greatest ally in the world right now? Donald Trump.

Religious Freedom. Among other things, the Neil Gorsuch nomination represents the Religious Right’s first return on its investment: It surrendered all its principles by supporting a non-religious confessed pussy-grabber for president, and in exchange Trump has given them a Supreme Court justice.

What makes Gorsuch a hero to the RR is his appellate-level Hobby Lobby decision, which prefigured Justice Alito’s 5-4 majority opinion at the Supreme Court. I discussed what’s wrong with Alito’s decision in “How Threatening is the Hobby Lobby Decision?” But the more general piece I want to call attention to is the earlier “Religious Freedom Means Christian Passive-Aggressive Domination“.

[C]onservative Christians need to divert attention from the people they are mistreating by portraying themselves as the victims. And that requires cultivating a hyper-sensitivity to any form of involvement in activities they disapprove of. So rather than sympathize with the lesbian couple who gets the bakery door slammed in their faces, the public should instead sympathize with the poor wedding-cake baker whose moral purity is besmirched when the labor of his hands is used in a celebration of immorality and perversion.

There’s a name for this tactic: passive aggression.

Obviously, if we all developed such hyper-sensitivity and got the law to cater to us in this way, society would grind to a halt. Why should a Hindu waitress be forced to choose between losing her job and enabling your barbaric cow-eating? Why are atheist cashiers required to distribute pieces of paper that say “In God We Trust”?

So in practice, these are going to be special rights that apply only to Christians from relatively popular sects like the Catholics or the Baptists, or to people from smaller sects who agree with Catholics or Baptists on some particular point of doctrine. Seriously, is a court going to rule that a Christian Scientist nurse can refuse to participate in any healing activity other than prayer? Can a pharmacist who practices Dianic Wicca decide that distributing Viagra to men (who might be rapists, after all) violates her religion? [Full disclosure: The church I belong to is testing whether our religious freedom allows us to defy our local historical commission and put solar panels on our historic building. If more non-Baptist-or-Catholic groups sue for the same rights as popular Christians, these laws will fall of their own weight.]

The law as it was interpreted before Hobby Lobby and before the RFRA gave Americans all the religious freedom we need, as I outlined in 2015 in “Religious Freedom: Colorado’s Sensible Middle Way“:

Let me take this out of the gay-rights arena with a hypothetical example: Suppose I represent an atheist group that is about to celebrate its tenth anniversary. I go to a baker and ask for a cake. Suppose I want him to write “God is Dead” on the cake, and he refuses. If I sue, then I believe he should win the case, because his freedom of speech is violated if he’s forced to write something he doesn’t agree with.

But now suppose we didn’t get that far: As soon as I say why I want a cake, the baker responds, “I’m not going to make a cake for an atheist group.” All I want is a cake with a 10 on top of it, and he says no. Now if I sue, I believe I should win, because the baker is discriminating against atheists as a religious group. In other words, a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

Bigotry and Racism. Wednesday, Ted Cruz called the Democrats “the party of the Ku Klux Klan“, a charge that never seems to die, no matter how out-of-date it is. In 2012, I did the research and spelled out how white racists moved from the Democratic Party to the Republican Party over a period of decades in “A Short History of White Racism in the Two-Party System“.

The Jeff Sessions nomination brought the usual squeals of horror that Democrats wanted to talk about race. One of the constant myths of American politics is that liberals throw around charges of bigotry and racism lightly, as ways to shut conservatives up. The truth is quite the opposite: Conservatives have redefined bigotry and racism so tightly that they become practically useless concepts.

Last summer I spelled this out in “What Should Racism Mean? Part II“:

In today’s Newspeak, as spoken by devotees of AmCon, racism has been stripped of all meanings beyond getting up in the morning and saying “I don’t like Mexicans, I’m going to go out and try to make them look bad.” It applies to active white supremacists like David Duke, and no one else.

Part I was from 2014. It lists a series of incidents where President Obama and his family provoked outrage by doing things that all presidents and their families do, but which had never bothered anybody when the president was white. Admittedly, that’s not KKK-style racism, but it’s something.

If you don’t want to call it racism, fine. But it’s a real phenomenon; it needs a name. What do you call it? … For a lot of whites who don’t harbor any conscious racial malice, things just look different when blacks do them. What do you call that?

And the answer, of course, is that conservatives don’t want to call it anything. They would rather never talk about it.

And finally, combining this category with the religious freedom category above, is the Sift’s third-most-popular post ever “You Don’t Have to Hate Anybody to be a Bigot“. It reviews the long (and mostly forgotten) history of religious and intellectual justifications of bigotry, which were created and believed by generations of people who claimed (probably sincerely, most of them) that they didn’t hate anybody.

With no one left to defend them, our memory of the social conservatives of the past reduces to Simon Legree, KKK lynch mobs, police unleashing dogs and fire hoses against peaceful marchers, and the white rabble screaming obscenities at little black girls on their way to school. The thoughtful, intellectual, devout defenders of an unjust status quo are forgotten, because their memory embarrasses their heirs.

Consequently, in every generation, the well-considered, devout bigotry of nice people is presented to the world as a new thing. They’re nothing like the villains we recall from past social-justice movements. This time they have good reasons to block progress. They have looked deep into their souls and read their Bibles and taken it to the Lord in prayer. They don’t hate anybody, they just believe that the world as it was when they were growing up was endorsed by God, and they want to stop today’s amoral radicals from upsetting God’s appointed order.

In other words, they are just like every generation of social conservatives before them.

So that’s this week’s trip down Memory Lane. As we keep moving backwards, I suspect it won’t be the last.

The Monday Morning Teaser

When President Trump restarted the Keystone XL Pipeline project (stopped by President Obama in 2015), my first thought was “I should explain why this is a bad idea.” My second thought was “Didn’t I already do that already?” Sure enough, in 2013 I had written “A Hotter Planet is in the Pipeline“.

Re-reading that post, I was struck by how little has changed. Yes, oil prices are down and U.S. oil and gas production is up, undercutting the economic and national-security arguments for the pipeline; but the main reason I was against Keystone in 2013 is the main reason I’m against it now: If global warming is not going to become a far worse catastrophe than is baked into the decisions we’ve made already, a lot of the fossil fuels we know about are going to have to stay in the ground. Given that, Canadian oil sand (whose production is supposed to keep Keystone full) is a really good candidate for non-production.

Then Trump started talking about dead people voting, and that took me to another 2013 Sift post “The Myth of the Zombie Voter“, where South Carolina officials looked into a widely distributed claim that 207 dead people had voted in the state in 2010. They found innocent explanations for all but three of the 207 cases, and had so much doubt about those three that the investigation was abandoned with no prosecutions. That continues to be typical of dead-voter stories, and of voter-fraud stories in general: There’s enough evidence to raise suspicion, but whenever people look into it seriously, the sensational headlines evaporate.

Now, somewhere there is probably somebody who has been reading the Sift faithfully every week for years and remembers perfectly everything I’ve posted. (Or maybe I just enjoy imagining such a reader.) I hate to think that I’m boring that person, whoever he or she might be. But at the same time, as Trump tries to reverse all the progress Obama made, we’re going to keep running into issues that we thought got settled years ago, and we’ll need to recall the arguments that got made back then.

So rather than invent catchy new leads for the same stories I’ve been writing for years — I’m not criticizing you, Paul Krugman, I envy your persistence —  I decided to collect a bunch of the suddenly-relevant-again ones in one post: “Your Sift-Archive Review for the Trump Era”. It should be out around 8 EST.

As always these days, there’s a lot to cover in the weekly summary, and stuff that happened early in the week already seems like ancient history: the appellate court’s refusal to reinstate Trump’s Muslim ban, a bunch of less-publicized stories of crackdowns on Muslims and Hispanics, the Trump family’s ongoing efforts to profit from his presidency (and why their brazenness makes the phrase “conflict of interest” obsolete; they’re not conflicted about it), the method in the madness of Mitch McConnell silencing Elizabeth Warren, why we should all be paying more attention to the Michael Flynn/Russia scandal, One China, and more. That should appear between 10 and 11.

Covering Trump Like Iran

Give up on hand-outs and worry less about official access. They were never all that valuable anyway. Our coverage of Iran has been outstanding, and we have virtually no official access. What we have are sources.

– Reuters memo, “Covering Trump the Reuters Way

This week’s featured posts are “The Ban: Ten Days of Drama” and “What to do with Neil Gorsuch?“.

During my week off from the Sift, I spoke in Billerica, Mass. on “The Hope of a Humanist” and my column “Let’s Get Started, Together” posted at UU World.

This week everybody was talking about immigration and the Supreme Court

The featured posts cover those topics: “The Ban: Ten Days of Drama” and “What to do with Neil Gorsuch?“.

and an alternative-fact massacre

The undisputed master of “alternative facts” is the woman who coined the term on Meet the Press two weeks ago: White House counselor Kellyanne Conway. She produced this week’s gem in an interview with MSNBC’s Chris Matthews:

I bet it’s brand new information to people that President Obama had a six-month ban on the Iraqi refugee program after two Iraqis came here to this country, were radicalized and they were the masterminds behind the Bowling Green massacre. It didn’t get covered.

That’s because there was no Bowling Green massacre. Funny how things that don’t happen don’t get covered.

Conway later claimed that the words just came out wrong, that she meant to say “Bowling Green terrorists”, a reference to two guys arrested in Bowling Green for trying to aid Al Qaeda, but not for doing anything violent themselves. But that was another lie. She had used the same formulation days before in a different interview. “Bowling Green massacre” was a honed sound bite, not a slip of the tongue.

Like her alternative-facts gaffe, Conway’s fake massacre is generating lots of ridicule. Like, why shouldn’t the massacre get its own ballad. This is not exactly going high when they go low, but it’s going somewhere. I’m reminded of the saying, “Don’t get mad, get odd.”

New Yorkers held a fake vigil at the Bowling Green subway station. You can find a large collection of ridicule on Twitter under #NeverRemember.

Build your vocabulary: reverse cargo cult

Build Your Vocabulary was briefly a regular feature of the Sift, but it’s been dormant for a while.

One constant topic on liberal social media is the question: “When will Trump’s voters realize they’re being lied to?” A scary answer I ran across this week is that many of them already know and have known from the beginning. These core Trump supporters are what is known as a reverse cargo cult.

A cargo cult is when people ritualistically build things they associate with success, believing that success will be drawn to them in some magical way. The metaphor is based on an only partly true story about primitive Pacific islanders after World War II, who supposedly built imitation airstrips out of primitive materials in hopes of luring back the cargo planes of the war era. Richard Feynman extended the idea metaphorically to “cargo cult science”, referring to groups that establish institutes and publish journals in order to magically turn their unscientific beliefs into science. It now applies to all sorts of magical thinking.

In a reverse cargo cult, you build the trappings of some kind of success like a cargo cult would, but you don’t believe it will work and aren’t trying to fool anybody into thinking it will. The deception goes in the other direction.

[The builders] don’t lie to the rubes and tell them that an airstrip made of straw will bring them cargo. That’s an easy lie to dismantle. Instead, what they do is make it clear that the airstrip is made of straw, and doesn’t work, but then tell you that the other guy’s airstrip doesn’t work either. They tell you that no airstrips yield cargo. The whole idea of cargo is a lie, and those fools, with their fancy airstrip made out of wood, concrete, and metal is just as wasteful and silly as one made of straw.

The reverse cargo cult idea was invented as a way to explain the propaganda of the late Soviet Union, which didn’t fool anyone any more; everyone knew the government was lying. But now the purpose was to make the people disbelieve everything, including the reports they heard of prosperity and freedom in the West. Russian cynicism became a point of cultural pride: Russians knew they were being lied to, while those foolish Westerners believed what they saw on their TVs.

Something similar is happening among Trump supporters: So what if there was no Bowling Green massacre, no millions of illegal votes, no record-breaking crowd at Trump’s inauguration? Liberals tell their own lies about things like global warming and white male privilege. The difference this batch of Trump supporters sees is that they are in on the joke, while their liberal friends actually believe what they’re told. The in-the-know Trump folks are entertained by Breitbart and InfoWars, while naive liberals take seriously the things they read in The New York Times or The Washington Post.

The point of official lies and alternative facts and fake news isn’t that people should believe in them. It’s that they should come to disbelieve everything politicians say and regard all news as fake. There is no cargo.

and you might also be interested in

The Senate is one vote away from rejecting Betsy DeVos’ nomination. All Democrats oppose her, plus Republicans Susan Collins of Maine and Lisa Murkowski of Alaska. If your state is represented by some other Republican, get on the phone. If you don’t know the number, the Senate web site says: “you may phone the United States Capitol switchboard at (202) 224-3121. A switchboard operator will connect you directly with the Senate office you request.”


So much has happened these last two weeks that I almost forgot those incredible Trump phone calls where he insulted the prime minister of Australia and threatened to invade Mexico. And then there’s his defense of Putin to Bill O’Reilly. After Trump says he respect Putin, O’Reilly says, “But he’s a killer.” And Trump replies: “You think our country’s so innocent?”

That was too much even for Marco Rubio:

When has a Democratic political activist been poisoned by the GOP, or vice versa? We are not the same as .


I don’t feel right reproducing the whole poem here, but if you haven’t already seen it circulating on social media, you should read Danny Bryck’s “If You Could Go Back“. It’s about how the moral crises of the past — the Holocaust, slavery, Jim Crow, etc. — all look so clear in retrospect, but at the time they probably looked just about the way things look now, and there were probably just as many reasons to look the other way and get on with your life. Here’s the moral I take from it: If you’re waiting for the kind of perfect clarity you imagine those historical times had, you’ll probably sit out the moral crisis of your era.


The Trump administration is the best thing that ever happened to Saturday Night Live.


A century ago, Peoria, Illinois was the archetypal Middle-American city. Vaudeville performers asked “Will it play in Peoria?“, meaning “Can you tour this act across the country?” Groucho Marx asked it in A Night at the Opera, and during the Nixon administration, top aide John Ehrlichman once reassured a reporter that a proposal hated by policy elites would “play in Peoria”, meaning that Middle America would like it.

Peoria is a factory town, and the factory is Caterpillar. CAT has 12,000 employees in Peoria, and used to have more. Tuesday, CAT announced that it was moving its headquarters to Chicago, which is about 2 1/2 hours away by car. Immediately, the move affects just 300 jobs. But that includes all the top executives, who are probably among Peoria’s best-paid people. So the city’s overall quality of life is bound to take a big hit. Those 300 will also be deciding what happens to the remaining 12,000 jobs in the coming years, so as they lose their identification with Peoria, I’m not optimistic about the city’s future.

CAT justified the move by claiming that it will be easier to recruit top executive talent to Chicago rather than Peoria. You have to wonder whether CAT’s main American rival (John Deere), which is headquartered in another middle-sized Illinois city (Moline), is thinking the same thing.

Trump won largely by exploiting the plight of America’s hollowing-out countryside. He focused on the manufacturing jobs going to Mexico and China. But executive jobs moving to the big cities is another piece of that problem, and I haven’t heard even a suggestion of what to do about it.


One of the things conservatives often got upset about during the Obama years was the cost of protecting his family when they left the White House. Well, keeping Michelle and the girls safe on vacation cost peanuts compared to what it will cost to protect Trump’s adult children as they criss-cross the world being international businessmen.

The Washington Post reports that just hotel expenses for the Secret Service and embassy staff on a recent Eric Trump trip to Uruguay cost nearly $100K.

Now, I’m not complaining about this expense, because I see the point of not letting a president’s family become hostages, and I don’t want them confined to easily protected areas for the duration of a president’s term. But a lot of people did complain about the expense during Obama’s term, and I wonder where they are now.


At the beginning of the Trump administration, I said I’d be watching for them to take credit for Obama’s accomplishments. Here’s an example: The January jobs report came out, showing that the economy added 227K jobs. Trump didn’t take office until January 20, but press secretary Sean Spicer attributed the jobs to the “confidence” the prospect of a Trump administration had given employers.

All told, about six million jobs were created during the Obama years, or 14 million since the bottom of the recession in January, 2010.

and let’s close with some escapism

Remember those halcyon days of the Bartlet administration?

What to do with Neil Gorsuch?

If these were normal times, if, say, Antonin Scalia had dropped dead yesterday, leaving new Republican President Jeb Bush (elected, as presidents usually are, with more votes than the other major-party candidate) the opportunity to nominate Neil Gorsuch to the Supreme Court, I’d expect Gorsuch to be confirmed without a lot of bother.

I’d be bummed at the prospect of that seat remaining conservative for another 30-40 years. And I’d find a lot to criticize in Gorsuch’s approach to the law — mainly that he’s far too willing to side with the powerful against the powerless, and to invent new constitutional rights for corporations and fundamentalist Christians. But he is within the broad stream of American jurisprudence, and people who understand these things better than I do consider him an outstanding example of a conservative judge.

The Founders intended presidents to pick judges, and for the Senate to use its advise-and-consent power to weed out incompetence and cronyism. Gorsuch isn’t a Trump crony, and he seems competent. So after some hearings and speeches and a good look around for skeletons in his closet, I’d expect him to be confirmed with a large number of Democratic votes.

In normal times. Lawrence Lessig is looking at it pretty much the same way:

In normal times, with a normal (right wing) president, Neil Gorsuch would be a fine nominee for the Supreme Court. One can disagree with his views (I do); one can disagree with the manner in which he understands “originalism” (I do, in part). But if you believe (as I do) that an ordinary President has an ordinary right to choose the political character of his or her Supreme Court nominee, then, in ordinary times, the only question should be whether the nominee is qualified. Gorsuch is at least an order of magnitude better than qualified. He is a great, if very conservative, judge.

But these are not ordinary times.

No, they aren’t. The reason this seat is open is that the Republican Senate blockaded it during the last year of the Obama administration. If they had objected to Merrick Garland for some reason, they could have voted him down and Obama could have nominated someone else. Maybe Obama and McConnell could even have gotten together and agreed on somebody, moving the two parties back from the civil-war path they’ve been on for several years.

Voting down Garland would have been unprecedented in itself, because he is exactly the kind of experienced, respected, well-within-the-mainstream judge who usually sails through the Senate. But at least formally it would have fit the constitutional model. Instead, by simply refusing to hold hearings and announcing explicitly that they would similarly refuse any other Obama nominee, regardless of qualifications, Senate Republicans moved completely out of the previous course of American history.

That’s why it’s ironic that Gorsuch bills himself as an originalist, a judge who tries to find the lawmakers’ original intent and rule according to it — because the only reason this seat is open at all is that Republicans decided to let the Founders’ original intent be damned.

But their guy is in the White House now, so they want to turn the normal rules back on again, like the kid on the playground who calls time-out just before you tag him, and time-in when he’s safe on base. The question is whether Democrats should let them get away with it, and, if not, what the other options are.

This isn’t a stand-alone circumstance; it’s  part of the long-term decline of America’s democratic norms, which I’ve been writing about for several years (most recently when the Republicans blocked Garland). The model I always cite is the decline of the Roman Republic, where the norms were repeatedly whittled down for about a century until they were ultimately swept away by Augustus, who established the Empire.

Moments like this underline just how difficult it is to escape that downward spiral: Giving in won’t get you out of it, and there is usually not a reprisal option of just the right size to make your point without pushing further down the spiral.

For example, suppose Senate Democrats decided that they wanted to set a good example for future opposition parties and consider Gorsuch on his merits, independent of the history of this vacancy. In other words, they would accept getting rooked out of a liberal Supreme Court majority, in exchange for ending the cycle of attack-and-reprisal. They would sacrifice their partisan interests for the greater good of democracy in the United States.

The problem: This gracious move wouldn’t end the cycle of attack-and-reprisal. Quite the opposite, it would establish the precedent that Republicans can suspend democratic norms whenever it works to their advantage, and pay no price for it. It’s like when some guy sucker-punches you and then wants to declare peace. Agreeing to that deal won’t get you peace, it will just get you sucker-punched again somewhere down the line.

But what’s the alternative? Democrats are at a 48-52 disadvantage, so they can only block Gorsuch by filibustering. Republicans might then decide to escalate further by eliminating the filibuster on Supreme Court nominations (the only kind of nomination that was exempted when the Democrats limited the filibuster after Republicans came up with the unprecedented tactic of blockading positions entirely rather than just blocking particular nominees for cause). And if they don’t nuke the filibuster, and Gorsuch gets blocked, then what? Do the same thing with the next nominee, on and on for four years? That would also be an escalation. (Some Republicans threatened to do this if Hillary Clinton got elected, but it’s not clear whether they would have held together on that point.)

There is no reprisal of precisely the right size, and so we’re left with bad choices. Ideally, the process would go like this: Democrats would block Gorsuch, and Republicans would then negotiate in good faith, resulting in a nominee who moved the Court closer to consensus than to polarization. In other words, a new swing vote — someone ideologically between the most liberal conservative justice (Kennedy) and the most conservative liberal justice (Breyer). In other words, somebody in the mold of Sandra Day O’Connor. (It’s worth pointing out that Justice Garland would have fit that description as well. Obama was trying to do the right thing, and was spurned by Republicans.)

Do I expect that to happen? No. But I think we need to start down that road and let the Republicans be the ones to step off of it. So I support filibustering Gorsuch, while wishing somebody would offer me another viable option.


The argument Republicans made last year was that the American people should decide whether the Court flips from a conservative majority to a liberal majority. That’s explicitly not what the Founders wanted — they intentionally insulated the Court from politics — but even on those terms Gorsuch should be rejected, because the American people did not vote for Trump. As I said two weeks ago, Trump winning in the Electoral College makes him president; but losing the popular vote by such a wide margin wipes out any claim he might have to a mandate from the people. He certainly received no mandate to move the Court to the right.


If we ever do get back to a sane judicial appointment process, one piece of it should be that presidents stop appointing such young justices. Gorsuch is 49. If he lives as long as Ruth Bader Ginsberg already has, he’ll still be on the Court in 2051. This is a bipartisan thing, as presidents attempt to extend their influence as far into the future as possible: John Roberts was 50 when he joined the Court, Sonia Sotomayor 45.

This is another way that Merrick Garland would have been a step in the right direction, since he is 64. The Supreme Court ought to be the capstone of a long, distinguished career, not an attempt to claim an advantage 30 years in the future. It used to be that way: Oliver Wendell Holmes was 61 when Teddy Roosevelt appointed him in 1902. Thurgood Marshall was 59.

Another way to achieve the same result would be to term-limit Supreme Court justices at, say, 20 years. But that would take a constitutional amendment. Lifetime appointments were supposed to shield the Court from outside influences: It would be your final job, so you couldn’t be threatened with firing or bribed with the offer of a position after you left the Court. We’d have to address that problem some other way, but it doesn’t seem unsolvable.


Lawrence Lessig makes an alternative proposal: Gorsuch gets a hearing after McConnell resigns as majority leader. He calls it a “hypocrisy tax”. I think that’s about as likely to happen as getting an O’Connor-like replacement for Gorsuch.


Richard Primus expresses a somewhat nuanced approach on Balkinization: Yes, the Senate did wrong by Garland, but we can’t lose sight of the fact that the Republic survived Scalia and it will survive Gorsuch as well; the real threat is Trump. So the opposition to Gorsuch should always have its eye on Trump.

the Democrats need to see the confirmation process as an opportunity for shaping public discussion about Trump rather than as an occasion for attacking Gorsuch. Time spent attacking Gorsuch in particular (whether about qualifications or about substantive views or pretty much anything else) might not be time well spent: he is going to be confirmed. But what Democrats can do, I’d think, is keep saying that we are only here because the Republicans stonewalled a nominee at least as qualified as Gorsuch for no justifiable reason, and that the plurality of American voters voted to authorize Hillary Clinton, not Donald Trump, to fill the seat. They can ask Gorsuch himself to stand by his earlier written statements that Garland was a highly qualified nominee (for the DC Circuit) and to ask him whether the stonewall was appropriate. And they can ask him what he thinks about all sorts of Trump’s actions and statements. Is it appropriate for a public official to attack a federal judge as biased on the grounds of the judge’s ethnicity? What is the point of the Emoluments Clause? Do you think that this or that statement (quoted from Trump) is consistent with our constitutional values? And so on. Gorsuch might or might not answer, but the Democrats should find good ways to keep asking and to make those questions a big part of what people hear and talk about when they hear and talk about this process.

I don’t see why we can’t oppose both Gorsuch and Trump, but I agree this far: Personal attacks on Gorsuch, beyond his legal record, distract from the main narrative — unless somebody discovers something so damning that it will turn Republicans against him.

The Ban: Ten Days of Drama

It’s hard to believe how much drama has played out in the last ten days. Even the Advise and Consent style political novels I loved in high school didn’t move this fast.

It all started a week ago Friday, when President Trump signed Executive Order 13769 (a.k.a “the Muslim ban” and “it’s not a Muslim ban“) which Wikipedia summarizes like this:

The order limited refugee arrivals to 50,000 and suspended the U.S. Refugee Admissions Program (USRAP) for 120 days, after which the program would be conditionally resumed for individual countries while prioritizing refugee claims from persecuted minority religions. The order also indefinitely suspended the entry of Syrian refugees. Further, the order suspended the entry of alien nationals from seven Muslim-majority countries — Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen — for 90 days, after which an updated list will be made. The order allows exceptions to these suspensions on a case-by-case basis. The Department of Homeland Security later exempted U.S. lawful permanent residents (green card holders).

The immediate result was chaos. The order had been reviewed by the Justice Department’s Office of Legal Counsel for “form and legality”, but beyond that was pretty much unvetted, parts of it apparently leaping straight into the world from Steve Bannon’s brain like a malformed Athena from a not-very-godlike Zeus-wannabee. Congressional leaders were not consulted. (Though Trump apparently was helped by Republican congressional staffers who were obliged by a non-disclosure agreement not to tell their bosses; so far history does not record what the out-in-the-cold Republican congressmen think of that.) The border-control officials who were supposed to implement the ban in America’s airports were not briefed in advance. (NYT: “customs and border control officials got instructions at 3 a.m. Saturday and some arrived at their posts later that morning still not knowing how to carry out the president’s orders.”)

People already in the air, including permanent legal residents (i.e. green-card holders) who were returning to their jobs or students with valid visas coming back to their universities, were sent back or detained in airports. City University of New York claims it has 100 students from the affected countries. Two Iraqis who had helped the American military and feared for their lives if they had to return to Iraq were detained at JFK airport.

The public response was immediate. On Saturday, crowds of protesters spontaneously formed at JFK and other airports. By 9 p.m., a federal judge had issued an order preventing the administration from sending the detainees back where they came from. Sunday, the administration backed off of the restrictions on green-card holders.

Internal dissent. On Monday, acting Attorney General Sally Yates (an Obama appointee held over until Trump can get his own AG approved) ordered the Justice Department not to defend Trump’s order in court.

I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.

Also on Monday, an internal State Department dissent-channel memo — reportedly with over 1000 signatures — leaked to the press. It called the Trump order “counter-productive” and said

Looking beyond its effectiveness, this ban stands in opposition to the core American and constitutional values that we, as federal employees, took an oath to uphold.

Rejecting the whole concept of internal dissent from experienced professionals, Press Secretary Sean Spicer called the signers “career bureaucrats” and responded that “they should either get with the program or they can go”. Yates was fired Monday night in typical Trump fashion; the White House statement descended from policy disagreement into personal insult: Yates had “betrayed the Justice Department” and was “weak on borders and very weak on illegal immigration”. (One of Trump’s most disturbing traits is his apparent belief that it’s not enough simply to overcome opposition; the people who oppose him must be shamed and punished. This authoritarian impulse alone should have disqualified him from the presidency.)

Also Monday night, Samantha Bee weighed in.

Defiance. Throughout the week, court orders piled up from judges around the country, and multiple reports indicated that the Trump administration was at best slow-rolling its compliance and at worst simply defying the orders. Friday Politico reported:

Hours after a federal judge ordered customs officers to provide lawyers to travelers detained at Dulles airport last Saturday, senior Trump administration officials instructed the guards to give the travelers phone numbers of legal services organizations, ignoring a mass of lawyers who had gathered at the airport. Most of the legal services offices were closed for the weekend, effectively preventing travelers with green cards from obtaining legal advice.

The move was part of what lawyers contend was a series of foot-dragging actions by the administration that appeared to violate court orders against the Trump’s controversial travel ban. … The [Customs and Border Protection] officers at airports were not rogue individual actors, according to the documents obtained and people interviewed by POLITICO. Rather, the agents on the ground were following orders from high in their chain of command.

For example, a federal judge in Boston ordered the administration to admit travelers with valid visas. The travelers did not get into the country, though, because the administration claimed it had the power to revoke those visas. Slate‘s Jeremy Stahl interviewed an immigration lawyer, who concluded:

When you have an executive that is acting the way that Donald Trump is acting and not controlling what his officers are doing in noncomplying, that’s a constitutional—that’s leading to a constitutional crisis.

Yonatan Zunger put a dark spin on it:

[T]he administration is testing the extent to which the DHS (and other executive agencies) can act and ignore orders from the other branches of government. This is as serious as it can possibly get: all of the arguments about whether order X or Y is unconstitutional mean nothing if elements of the government are executing them and the courts are being ignored.

Yesterday was the trial balloon for a coup d’état against the United States. It gave them useful information.

Writing on the Lawfare blog, Ben Wittes put a dark spin on the whole enterprise: He thinks the ban’s whole purpose is to appeal to the anti-Muslim bigots in Trump’s base, and has nothing to do with keeping Americans safe.

Put simply, I don’t believe that the stated purpose is the real purpose. This is the first policy the United States has adopted in the post-9/11 era about which I have ever said this. It’s a grave charge, I know, and I’m not making it lightly. But in the rational pursuit of security objectives, you don’t marginalize your expert security agencies and fail to vet your ideas through a normal interagency process. You don’t target the wrong people in nutty ways when you’re rationally pursuing real security objectives.

When do you do these things? You do these things when you’re elevating the symbolic politics of bashing Islam over any actual security interest. You do them when you’ve made a deliberate decision to burden human lives to make a public point. In other words, this is not a document that will cause hardship and misery because of regrettable incidental impacts on people injured in the pursuit of a public good. It will cause hardship and misery for tens or hundreds of thousands of people because that is precisely what it is intended to do.

Where it stands. Friday, a federal court ruling came down from Judge James Robart in Seattle, applying nationally and stated in as sweeping terms as possible, clearly intending to allow no wiggle room. Saturday, the Trump administration said it would comply, pending appeal.

Meanwhile, a State Department spokesperson tells NPR that officials with the department are also adhering to the decision. The department has provisionally revoked somewhere between 60,000 and 100,000 individuals’ visas, according to different accounts; under Saturday’s announcement, the State Department says that move has been reversed — and that “individuals with visas that were not physically cancelled may now travel if the visa is otherwise valid.”

Trump again personalized the conflict, tweeting:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

(Lots of people pointed out that Robart’s claim to be a judge is at least as good, if not better, than Trump’s claim to be a president.) Late Saturday night, the 9th Circuit Court of Appeals denied the Justice Department’s motion to reverse the suspension of Trump’s executive order. The order will remain suspended until the court can make a ruling on the merits of the case. That could happen as early as today, or not.

Over the weekend, congressional Republicans gave strong indications that they don’t want this conflict to escalate to a constitutional crisis. Sunday, Mitch McConnell, who (like Paul Ryan) has been stepping very carefully to avoid the President’s sensitive toes, told CNN’s Jake Tapper:

The courts are going to decide whether the executive order the President issued is valid or not, and we all follow court orders.

The unstated implication is: “You’d better follow them too.”

What will the courts decide? Deborah Pearlstein posted a good summary of the arguments both ways on Jack Balkin’s legal blog Balkinization. And the answer is: It’s a close call.

On the one hand, the Constitution gives the President a lot of power to manage our dealings with other countries, and Congress has supplemented that power in various ways over the years. So the administration has a lot of possible arguments it might make to defend its actions.

On the other hand, courts often look beyond simple questions of authority to rule on intent: If your clear intent is to achieve an unconstitutional result, then a court might block your actions even if they fall within the letter of your legal powers. A good example of this came last summer, when a federal appeals court struck down North Carolina’s voter-suppression law. Everything in the law — changing the dates and hours of early voting, requiring IDs, etc. — was within the legislature’s power. But the fact that legislators researched how and when black North Carolinians vote, and then systematically restricted their favorite options, pushed the law beyond the pale.

Here, there is a clear record of intent to create a religious test for entering the United States, which would be unconstitutional. Trump promised a Muslim ban during his campaign. Advisors like Rudy Giuliani have spoken in public about coaching Trump on how to “do it legally” by focusing on the threat of terrorism from particular countries rather than on religion. The order’s provisions to prioritize religious minorities for exceptions to the ban seems intended to make sure Christians aren’t caught in a ban intended for Muslims. (If the administration is serious about offering refuge to persecuted religious minorities, that provision should apply to a lot of Muslims as well: Shia in Sunni-majority countries, Sunni in Shia-majority countries, and Sufis and other smaller Muslim sects everywhere. Will it? Or is it just a Christian loophole?)

Will that be enough to convince an appeals court, and to split the 4-4 Supreme Court so that it doesn’t overrule? Maybe. But even if it does, that ruling is likely to illuminate a path that would allow some future objectionable executive order to pass legal muster.

Then what? Pearlstein says it’s not enough to count on the courts: Protesters need to focus their attention on Congress as well:

There is, however, one foolproof way to ensure the President’s order in its current form does not stand. And it lies with the body that gave the President the authority to issue it in the first place. A growing, bipartisan group of congressional representatives have expressed concern about the order’s scope and effect. And while Senator McConnell has proposed the matter be left to the courts to decide, it is not wise – and should not be easy – for Congress to avoid responsibility here. At a minimum, it would be a serious strategic mistake for the many groups sprung up post-election to push back against the new administration not to focus some of their energies on demanding Congress act.

So far, McConnell, Ryan, and other congressional Republicans have had it both ways: They can tut-tut about executive overreach and incompetent implementation, while remaining uncommitted about the order’s overall intent. As much as possible, the public needs to pin them down. If a Muslim ban (or something like it) is a good thing, then Congress should authorize it. If not, it should establish specific boundaries on the President’s power.

The Monday Morning Teaser

For the last two weeks I’ve kept being reminded of the Lloyd Bridges character in Airplane!, the air traffic controller who (as the tension ratchets up) says he picked the wrong week to stop smoking, drinking, taking amphetamines, sniffing glue.

I picked the wrong week not to put out a Sift. The last two weeks have been an incredible series of events; either week would have been impossible to summarize in the usual length of this blog. Considering the two together, well, important stuff is just going to fall through the cracks.

I’ve decided to focus on two things: the immigration/travel ban against seven Muslim-majority countries and Neil Gorsuch’s nomination to the Supreme Court. Each one gets a featured article, and stuff that would rise to the top in any other week — the fight over the DeVos nomination, the media’s continuing struggle to figure out how to cover this administration, and so on — will get entries in the weekly summary, maybe with a link to somebody else’s fuller treatment. I’d really like to step back and take a broader view of where I believe the Trump administration is headed, but not this week. My thinking on that will show through occasionally in how I cover immigration and Gorsuch, but a fuller treatment will have to wait until I can process the more immediate stuff.

Everything is going run late today, a result of both the bulk of stuff to cover and the cold I’ve had this week. The immigration article should come out first. I’m calling it “The Ban: 10 Days of Drama”, and I should get it posted before 10 EST. “What to do with Neil Gorsuch?” should appear between 11 and noon, and the weekly summary by 1 or so.

Presidential Enemies

No Sift next week. The next new articles will appear on February 6.

We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union when again touched, as surely they will be, by the better angels of our nature.

– President Abraham Lincoln, First Inaugural Address (1861)

Should I keep tweeting or not? I think so. You know, the enemies keep saying “Oh, that’s terrible.” But it’s a way of bypassing dishonest media.

– President Donald Trump (1-21-2017)

If juxtaposing the two quotes isn’t clear enough, let me spell it out: Presidents aren’t supposed to cast other Americans as their enemies. They may think of people that way in their own minds, as President Nixon did when he compiled his enemies list. In public, a president may portray loyal American citizens as critics, political opponents, and even (as re-election approaches) rivals. But not enemies. This is one of the many things Trump seems not to grasp about being presidential.

This week’s featured post is “The legitimacy and illegitimacy of Donald Trump“. Next Sunday I’ll be speaking at First Parish Church of Billerica, MA on “The Hope of a Humanist”.

This week everybody was talking about the Inauguration

Donald Trump became President Friday at around noon. His first act as president was to give a short, dark, and very strange inaugural address that at times seemed to be channeling the speech the supervillain Bane gives in The Dark Knight Rises.

I found it weird and ironic that Trump framed his election as “the People” taking government back, when the actual people voted for his opponent by a 2.1% margin. (As I explained two weeks ago, inside Trump’s movement “the People” is not everybody. I’m sure that among “real Americans”, i.e., white straight native-born Christians, Trump won a landslide.)

Typical inaugural addresses feature a new president retiring his divisive campaign rhetoric and reaching out to those who didn’t vote for him. Trump did nothing of the kind, delivering what was essentially a shorter version of his speech from the Republican Convention, where he painted a picture of a dangerous dystopian America that he would fix by decree. He raised the specter of “crime and gangs and drugs” and pledged “This American carnage stops right here and stops right now.” (I was reminded of George Lakoff’s theory that conservatism is based on a strict-father metaphor of government: “This stops right now, kids.”)

The big policy theme of the speech was nationalism: America First. But he added this bizarre, ahistorical twist, aimed at those who accuse him of bigotry:

At the bedrock of our politics will be a total allegiance to the United States of America, and through our loyalty to our country, we will rediscover our loyalty to each other. When you open your heart to patriotism, there is no room for prejudice.

But of course, nationalistic movements are famously bigoted against racial and religious minorities, and bigoted movements often cloak themselves in nationalism: The targeted group is a cancer on the nation, and must be eradicated if the rest of us are to survive and thrive. “Total allegiance” can become a rigged test: Once the government begins systematically oppressing a group, any profession of “total allegiance” rings false.

Ominously, Trump used the word eradicate:

We will … unite the civilized world against radical Islamic terrorism, which we will eradicate completely from the face of the Earth.

If I were a loyal American who is a devout Muslim, knowing how sloppy Trump is with words and facts, and understanding just how vague and flexible terms like radical and terrorist can be, I would be wondering how safe I will be these next four years. Under authoritarian regimes, there can be a very short gap between “You’re paranoid. How can anyone misinterpret us so badly?” and “We’ve been warning you for a long time.”

Trump also invoked the image of war as a nationalizing influence.

A new national pride will stir our souls, lift our sights, and heal our divisions. It is time to remember that old wisdom our soldiers will never forget: that whether we are black or brown or white, we all bleed the same red blood of patriots, we all enjoy the same glorious freedoms, and we all salute the same great American Flag.

He also referred to Americans as “God’s people” and announced that “we are protected by God”, a theological claim I don’t remember hearing from a president before. Presidents typically hope or pray that God will favor our nation, or call on us to be worthy of God’s favor. But I don’t recall any previous president expressing such religious entitlement. In JFK’s inaugural, he told us that “God’s work must truly be our own”, not that our work must necessarily be God’s. Lincoln’s second inaugural warned us that “The Almighty has his own purposes.” But Trump apparently knows God’s mind better than Kennedy or Lincoln did.


Trump’s inauguration drew a much smaller crowd than Obama’s eight years ago, as you can clearly see in these side-by-side photos.

Trump seems sensitive about his relative unpopularity, as he is whenever reality punctures his over-aggrandized self-image. He claimed — apparently based on nothing more than his own view from the podium — that his crowd broke all records. He went on a rant about the “dishonest” media correctly reporting his crowd size (while talking at the CIA, of all places), and sent Press Secretary Sean Spicer out to harangue the press about it without allowing them any questions, as if they were disobedient children.

What I find more interesting than Trump’s claims or anger is the way the Washington Post covered it. Throughout the campaign, newspapers fretted over how to cover Trump saying something clearly false, which he did so often and so shamelessly that the old methods of coverage became obsolete. (You couldn’t call the falsehoods out in fact-check articles, because there were just too many of them, and Trump couldn’t be shamed out of repeating them.) But The Post seems to have come to terms with that issue: It reports what Trump says, and simultaneously reports the contradictory facts as contradictory facts. Like this:

Trump claimed falsely that the crowd for his swearing-in stretched down the National Mall to the Washington Monument and totaled more than 1 million people. It did not. Trump accused television networks of showing “an empty field” and reporting that he drew just 250,000 people to witness Friday’s ceremony.

“It looked like a million, a million and a half people,” Trump said, falsely claiming that his crowd “went all the way back to the Washington Monument.”

CNN did something similar in its article “White House press secretary attacks media for accurately reporting inauguration crowds“. So did The New York Times in “With False Claims, Trump Attacks Media on Turnout and Intelligence Rift“. Chris Cillizza’s The Fix column, which is commentary rather than straight news, annotated Press Secretary Sean Spicer’s rant at the press.

These all demonstrate a similar philosophy on covering Trump, and I hope it catches on.


Sunday on Meet the Press Kellyanne Conway gave us the meme to ridicule the administration’s lying, characterizing Sean Spicer’s false rant as “alternative facts”. Chuck Todd wasn’t buying it:

Wait a minute. Alternative facts? … Look, alternative facts are not facts. They’re falsehoods.

In response, Conway launched into a filibuster of facts she’d like the press to cover, never addressing Todd’s point. But #alternativefacts is going viral. Here’s one typical tweet:

Me: Hi, SAT Board, I need you to change my test scores. I didn’t get the questions wrong. I provided

And another one:

Don’t worry Wisconsin. I just spoke with Sean Spicer and he said the Packers are actually up by 3 touchdowns.


On paper, Trump’s visit to the CIA looked like a good bridge-building move, after he had compared our intelligence services to Nazis. But Trump never bothers to learn the culture of the people he’s talking to — they’re supposed to adjust to him, not him to them — so he committed a major sacrilege: He gave a rambling, self-aggrandizing, partisan speech in front of the wall devoted to agents killed in the line of duty.


At Slate, Nora Caplan-Bricker points out something I hadn’t noticed: Only Democratic presidents have inaugural poets. JFK started the tradition when Robert Frost recited a poem at his inauguration, and every Democrat but LBJ has continued it. No Republican has.


And they plagiarized Obama’s cake.

and the Marches

I’m pretty good at estimating crowds in the hundreds, but when they get into the tens of thousands their sizes are impossible to know with any accuracy unless there is a gate with turnstiles. (JFK used to joke about it. When asked how his campaign got their crowd estimates, he quipped: “Salinger counts the nuns and multiplies by a thousand.”) Saturday, I was at the Women’s March on the Boston Common, variously estimated at 100-175K. I have no idea. It was a whole bunch of people.

Estimates are also all over the map for the other large sister marches: I’ve heard numbers as high as a quarter million in Chicago, three-quarters in Los Angeles, and another quarter million or so in New York. Nobody really knows. They were big, and there were hundreds of them all over the country. Here was a view of Austin, which as far as I know got no national coverage at all.

The total number of marchers nationwide has been estimated at between 3.3 and 4.6 million, or about 1% of the population. The NYT had “crowd scientists” analyze crowds for both Trump’s inauguration and the D.C. Women’s March. In both cases they came up with numbers somewhat smaller than most, for what that’s worth: 160K for Trump and 470K for the Women’s March.

So let’s just stick with “a whole bunch of people” and reflect on what that means. Nobody really thinks this will make Trump himself change his ways, or that lots of Trump supporters will look at the crowds and say, “If so many people disagree with me, I must be wrong.” So what’s the significance?

There’s both an inner and an outer significance. The people who attended got energized and confirmed in their identities as resisters. Some percentage of them will progress to activism as a serious commitment, and the rest will be more likely to challenge Trump propaganda as they run into it. If we’re talking about millions of people, that makes for a definite change in the national conversation.

The outer significance has to do with what I’ve been thinking of as the Nightmare Scenario, where Trump’s election takes us down a path towards an authoritarian government. I don’t believe that Republicans in general want such a thing, but authoritarian leaders gain power by intimidating people into going along, and then into going much farther than they ever thought they would. If Trump were surrounded by a winning aura and seen to be wildly popular, other powerful politicians (like Paul Ryan) might think that they had no choice but to support him in whatever he does. Democrats might be intimidated into providing only token opposition. Even judges get swayed by what they imagine public opinion to be.

In the Nightmare Scenario, a Trump-is-the-voice-of-the-People frame becomes the subliminal basis of his press coverage. Rather than the blunt this-is-false coverage I described above, the press would shade into calling his falsehoods “controversial” or simply quoting them side-by-side with other people saying something different, as if there were no way to know the underlying facts. Little-by-little, the authoritarian government would capture the supposedly free press.

Raising big crowds against Trump the day after his inauguration interrupts that dynamic. It makes visible what the polls tell us, and what Trump’s defeat in the popular vote should tell us: He is not popular. Politically, there is no reason to be intimidated by him, and tying your future to his is a risky strategy for any politician. For now, Ryan and McConnell and the rest of the Republicans in Congress will continue to explore what they can get out of a Republican president, but Saturday reminded them that they need to keep their eyes on the exits.

Democrats, meanwhile, heard the opposite message: If you become known as the voice of resistance to Trump, that could work out well for you in the future. (Someday we may look back on Elizabeth Warren’s speech on the Boston Common as the beginning of her 2020 campaign. And one of the most impressive speakers in Boston Saturday was state attorney general Maura Healey, who I had not previously noticed. Her message for the Trump administration: “We’ll see you in court.”)

and other protests

Two weeks ago, I pointed you at Indivisible, a guide for influencing your congressperson, written by former congressional staff people. It’s largely based on the effective protests the newly organized Tea Party launched against ObamaCare in the summer of 2010. The underlying point is that congresspeople, whatever their party or ideology, live in fear of organized groups of their constituents, even fairly small groups. They especially fear groups that know how to get media attention, who can make them look out-of-touch with the voters of their districts. You can use that.

Indivisible-like protest actions are starting to happen. In this Aurora, Colorado event, covered by Channel 9 in Denver, people afraid of losing their health insurance overwhelmed Republican Congressman Mike Coffman. He intended to have short one-on-one meetings with voters in a room at the Aurora Library. But hundred of constituents showed up to ask about his plan for helping them after he succeeds in repealing ObamaCare. He didn’t adjust his format and left early, with many people still in line to see him. The Channel 9 piece looks pretty bad for him.

Josh Marshall collects similar recent examples:

Rep. Cathy McMorris Rodgers (R-WA) was drowned out with chants of “save our healthcare” as she spoke at a Martin Luther King, Jr. Day rally in Spokane. More than 250 people turned out to the Gerald R. Ford Library in Grand Rapids on Tuesday to question Rep. Justin Amash (R-MI) about Medicaid cuts and the details of an ACA replacement plan, prompting security to turn dozens away. Rep. Kevin Brady (R-TX) was surprised to find himself facing angry questions from a group of 50 at a Houston Chamber of Commerce session billed as an opportunity for locals “affected by Obamacare” to share stories about “rising costs and loss of coverage.”

If it becomes widely known that Republican congressmen don’t dare meet their voters for fear of similar incidents, the idea that ObamaCare repeal is popular will go down the drain.

and the cabinet nominees

Mattis at Defense and Kelly at Homeland Security have been approved. The Republican opposition to Tillerson at State seems to be evaporating. But the hearings have revealed a lot of problems, which Paul Waldman summarizes. Under the standards that applied to all previous administrations, I think Mnuchin at Treasury and Price at HHS would have been withdrawn already.

and you might also be interested in

President Obama under-used his pardon power for eight years, but he did commute the sentence of Chelsea Manning, who will be released in May.


The first change of a new administration is to take over the White House web site. Many have focused on what vanished: pages about climate change and LGBT rights, for example. More ominous to me, though, is what has appeared. The page “Standing Up for Our Law Enforcement Community” says:

The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

I interpret this to mean that the Justice Department will no longer pay much attention to police killings. In the long run, this will be really unfortunate, not just for the public, but for many police as well.

During the controversy over the Michael Brown shooting in Ferguson, it was hard to know who was telling the real story. The behavior of local police made it clear that their priority was to get their guy off, not to find the truth. The only thing that convinced me that Darren Wilson should not have been charged with murder was when the Justice Department’s investigation came out. Otherwise, there would never have been any trustworthy report.

That’s what will happen going forward. Police will continue to kill young black men, including some who are unarmed or unthreatening. Local investigations will declare those killings justified, whether they are or not. And that will be the end of the story. Citizens who dislike or distrust the police will assume they got away with murder, whether they did or not.


Online records of the Obama administration have not gone away completely. An archive of the Obama White House site is here, though it is not being maintained or updated any more.

and let’s close with something to change the mood

This week had a lot of wintry seriousness in it. So let’s imagine that it’s June in New York City. You’re cruising through the theater district on a sunny afternoon. Who might you give a ride to?

The legitimacy and illegitimacy of Donald Trump

Is Donald Trump a legitimate president? Yes and no.


Not since Abraham Lincoln had to sneak into Washington has a president entered office facing so much organized opposition. Saturday, the day after his inauguration, marches explicitly for women’s rights (and implicitly against Donald Trump) were held all over the country, drawing (by some estimates) more than 3 million participants, and perhaps more than 4 million. The picture above is from much earlier demonstrations in the days following the election, but on the Boston Common Saturday I did see “Not My President” signs. During the boisterous moments before the official speakers took the stage, a “not my president” chant started in my section of the crowd, but quickly fizzled. [1]

It’s not just demonstrators. Last weekend, Congressman John Lewis told NBC’s Chuck Todd “I don’t see Trump as a legitimate president“, citing Russian interference in the election as a reason. Other observers — mostly Democrats, but not entirely — have given other reasons to regard Trump’s victory as shaky or suspicious: Hillary Clinton got nearly three million more votes than he did, winning the national vote 48%-46%. Trump was also assisted by the apparently improper interference of FBI Director James Comey. [2]

Trump has tried to bluster over such talk by tweeting about his “landslide” in the Electoral College, and making baseless charges about “the millions of people who voted illegally” for Clinton. The word legitimate came into the discussion from Trump’s supporters’ accusation that critics were trying to “delegitimatize”  his presidency. [3] By using that word, Lewis was swinging at the pitch thrown by Trump spokespeople like Kellyanne Conway.

So is he legitimate or not? On both sides, I think we’re getting lost in the vagueness of a word. What does it mean to be a “legitimate” president? I can’t speak for all the people who can’t bring themselves to call him “Mr. President”, but I thought I’d lay out exactly how legit I think Trump is, and what difference it makes.

Legal authority and moral authority. What confuses the issue, in my opinion, is that the presidency is really two things: on the one hand a legal office defined by the Constitution, but also a title evoking a much larger and fuzzier penumbra of traditional respect and moral authority. The President of the United States is not just the one who signs or vetoes laws, or gives orders to the Joint Chiefs. He is also the heir of Washington and Lincoln, the symbol and spokesman for the American people, the leader of the free world, and the recipient of the voters’ national mandate. Americans look to their president to express our collective sorrow in moments tragedy, and our resilience in the face of disaster. In our name, he recognizes outstanding achievements, and honors champions of sport and culture. We look to the president for direction in times of trouble. The Constitution says nothing about any of that.

In my mind, the legal office is really not in doubt. Congress counted the electoral votes and verified that Trump had a majority of them. So in the technical, legal sense spelled out in the Constitution, he is the President of the United States. All the powers the Constitution assigns to the President, or that Congress has delegated to him by law, are his to wield. [4]

As for the rest of it, though, Trump at this point deserves nothing, as far as I’m concerned. He is not my leader, and I do not respect him. He has no moral authority, because he deserves none. He carries no mandate, because the voters chose someone else. Our allies view him with suspicion, as they should. So he has the powers spelled out in the Constitution, period.

To a large extent, Trump has created this situation himself: When tradition would put burdens on him beyond those imposed by law, he sloughs those burdens off. [5] It is, after all, only tradition that insists that candidates reveal their tax returns or presidents put their assets in blind trust. Nothing in the Constitution requires that a president act presidential, rather than respond to even the most respectful criticism like a third-grader in a playground argument. [6] No law requires the winner of an election to be gracious, or to reach out to those who voted for other candidates, rather than gratuitously gloat over “my many enemies and those who have fought me and lost so badly“. [7]

On top of his vote deficiency and his unworthy behavior since the election, his entire life shows him to be a genuinely reprehensible person. He assaulted those women. He defrauded those Trump U students. He stiffed those contractors. This is the heir of Washington and Lincoln?

The significance of moral authority. If you think it is toothless to deny Trump the intangible, extra-constitutional benefits of the presidency, consider how often he and his supporters ask for them.

Trump has repeatedly claimed that the election settled all the issues that were raised about him during the campaign. He shouldn’t have to account for his conflicts of interest, for example, because the American people knew that when they voted for him. There is no point in continuing to discuss the pussy-grabbing or the defrauding or the stiffing. Or his bigoted attacks on Mexicans or Muslims, or his mimicry of a reporter’s disability. The election washed all that away, as if the electorate were a 130-million-member jury that voted for acquittal.

If Republicans genuinely believed such a clean-slate theory of elections, then President Obama’s clear victory in 2012 would have washed away Benghazi, making all further hearings and rhetoric irrelevant and immaterial. But in Trump’s case even the internal logic of the theory doesn’t work, because the American people did not vote for him. The Electoral College may provide a legal loophole that allows him to take office, but it doesn’t grant absolution. The American people endorsed the case against Donald Trump; he still needs to answer it.

A related claim is that the millions of protesters are misguided, because we need to “give the guy a chance“. Similarly, the Senate should give his cabinet picks the benefit of the doubt, even those who are manifestly unqualified, don’t understand the laws they’re supposed to enforce, have a suspect history on racial issues, or appear to be corrupt.

But none of that is in the Constitution. Constitutionally, nobody has to give Trump or his people a chance, or any benefit of the doubt. He needs to earn all that, and he hasn’t.

Much of Trump’s power over Republicans in Congress, or his hope of intimidating red-state Democrats, comes from an intangible aura of popularity: If elected officials oppose him, his voters will rise up and smite them. That’s why it’s not just legitimate, it’s vitally important to focus public attention on the fact that he is not popular and he has never been popular. Mass demonstrations do that, and so do polls that show Trump’s approval at unprecedented lows for an incoming president. [8]

And finally, I sincerely doubt that the constitutional powers of the presidency are what Trump was aiming for when he ran. He has never shown much interest in governing or in public policy of any sort. I suspect it was the splendor of the presidency that appealed to him, and that is precisely what President Forty-six Percent must be denied unless or until he earns it.

How could he gain legitimacy? To say that Trump can’t be my president unless he agrees with me would deny the whole basis of republican government. We all lose elections from time to time, and we need to learn how to live with that. What keeps Trump from being a fully legitimate president has nothing to do with his beliefs or policies, and everything to do with how he behaves. He could gain legitimacy if he worked at it.

How? To be blunt, he could start by not acting like such an asshole all the time. [Look at note 5 again. I’m using asshole not as an insult, but as a well-defined descriptive term.] A good beginning would be to stop using the word enemies to refer to law-abiding Americans who wish we had a different president, or to journalists who report true things he’d rather people didn’t notice. It was bad enough when Nixon maintained an enemies list in secret. For the President of the United States to use that word in public to refer to anyone short of an ISIS leader is way beyond the pale.

To put that more personally: I will never recognize any man as my leader who uses the word enemy to refer to people like me, or one who takes visible pleasure in insulting me.

He could recognize and carry out the obligations that tradition puts on him, rather than simply claim the benefits. He could release his tax returns and stop setting his business up to profit from his presidency. He could apply the same moral standards to his appointees that all previous presidents have applied to theirs. [9]

He could approach his job with seriousness, and not speak unless he knows what he’s talking about. He could stop telling lies so obvious that they insult our intelligence, like the ones this weekend about the size of his inaugural crowd.

That’s what most of us mean when we say presidential. But if he won’t even attempt to become presidential, then to me he will continue to be president only in a technical legal sense.


[1] “Not my president” didn’t start with Trump protesters. It was also said about Obama and Bush.

[2] Lewis’ statement, as well as expressions of outrage by many other Democratic congresspeople, followed a classified briefing from Comey about the FBI’s investigation of the ties between the Trump campaign and the Putin government. We don’t know exactly what was said in this briefing, but a reasonable guess is that Democrats were angered by Comey’s blatant double standard: When Trump was the target, Comey upheld the FBI policies of not discussing investigations. But he repeatedly made damaging public comments based on investigations of Clinton.

[3] This charge was somewhere between ironic and hypocritical, since Trump himself had literally tried to delegitimize Obama’s presidency by promoting the belief that he isn’t a native-born American, as the Constitution requires. And after Obama’s re-election in 2012, he tweeted: “We can’t let this happen. We should march on Washington and stop this travesty. Our nation is totally divided!”

[4] Trump enters office under an ethical cloud that some think should lead to his impeachment, but that’s a different issue. There are legal methods for removing a president from office, and none of them have been carried out yet. So he is president under the law.

[5] In his insistence that he should receive the intangible benefits of the presidency, but shoulder none of the intangible responsibilities all other presidents have taken on, Trump is fulfilling the definition of asshole that Aaron James laid out in 2012 in his book Assholes: a theory.

A person counts as an asshole when, and only when, he systematically allows himself to enjoy special advantages in interpersonal relationships out of an entrenched sense of entitlement that immunizes him against the complaints of other people. … His circumstances are special in each case, in his view, because he is in them. If one is special on one’s birthday, the asshole’s birthday comes every day.

The asshole, in one paradigmic example, is the guy who cuts to the front of the line while believing firmly in the importance of lines

[6] I found his denunciation of the cast of Hamilton particularly noteworthy. If you watch the video of the event, the cast’s message for Vice President-Elect Mike Pence was entirely respectful, expressing no hostility. (“There’s nothing to boo here,” spokesman Brandon Dixon said to silence the audience.) Instead, they confessed to being “alarmed and anxious that your new administration will not protect us” and encouraged Pence “to uphold our American values and to work on behalf of all of us”.

Trump’s response (via Twitter) was not just to punch down, but to answer a respectful request for reassurance with personal insult:

The cast and producers of Hamilton, which I hear is highly overrated, should immediately apologize to Mike Pence for their terrible behavior

[7] Contrast this with how Lincoln, another president elected with less than a majority, closed his first inaugural address:

We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearth-stone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

[8] Since Trump must denounce any mirror that doesn’t show him to be the fairest of them all, he claims these polls are rigged.

The same people who did the phony election polls, and were so wrong, are now doing approval rating polls. They are rigged just like before.

The flaw in this point of view is that although a few state polls (like Michigan) were badly wrong, the national polls were pretty close. The final RCP polling average had Clinton winning nationally by 3.2%. She actually won by 2.1%. There was a much bigger error in the opposite direction in 2012: the RCP final average was that Obama would win by less than 1%, and he actually won by nearly 4%.

Errors of that magnitude wouldn’t salvage Trump’s approval/disapproval spread, which is currently at -8.1% and dropping. Traditionally, pre-inauguration is when Americans are most optimistic about their new presidents. Gallup had Obama at +71% going into his inauguration in 2009. Even popular-vote-loser George W. Bush came in at +36%.

[9] HHS nominee Tom Price profited by trading healthcare stocks while he had inside knowledge of the industry through his position in Congress, and supported legislation that benefited his companies. Treasury nominee Steven Mnuchin “failed to disclose nearly $100 million of his assets on Senate Finance Committee disclosure documents and forgot to mention his role as a director of an investment fund located in a tax haven.”  The Senate should not have to vote on these men; their nominations should be withdrawn. These are not close calls.