Saturday, June 20, 2020

The Times They Are

Updated 8:00 PM




I should say that Senator Young (R-ND) has been dead even longer than my friend Dick (he served in the Senate from 1945 to 1981 and died two years after leaving office), so it's hard to evaluate his sources, but it's an interesting thought. What is Geoffrey Berman's office currently investigating? 

Everybody tells us he's looking at Rudy Giuliani's probably illegal conduct in the Ukraine with Lev and Igor and the drug deal, in which Trump is already an unindicted but impeached co-conspirator. He's also reported to have
conducted an investigation into Mr. Trump’s inaugural committee, subpoenaing financial and other records as part of a broad inquiry into possible illegal contributions from foreigners.
I assume that means The Times knows this from looking at the filings, and the same presumably goes for reports of the SDNY continuing its investigations of Deutsche Bank—weirdly, Berman's deputy Robert Kharzumi, and the bizarrely unqualified person Barr wants to replace Berman, SEC chairman Jay Clayton, have both represented Deutsche Bank as attorneys, and, Forbes comments,
Deutsche Bank’s ties to Trump are too extensive to summarize. It is the one bank that stood by him in his pre-politics days, it gave him loans which may have been forgiven, and its Russian money-laundering made it a channel to Moscow that may have been good for Trump. So, Clayton may be understanding and sympathetic about how “unfair” the legal world is for Trump and his allies.
I don't find any evidence that SDNY is investigating Trump's taxes, though; interestingly enough, Berman was widely criticized in late September when his office filed a "statement of interest" backing the administration's attempts to block his accountants at the Mazar firm and Deutsche Bank from letting the Manhattan district attorney examine them:


—that's the case Trump lost at the beginning of November and has appealed to the Supreme Court, and I can't find any evidence Berman's office has played any role in the appeal (which heard arguments 12 May). Did Barr ask for one and did Berman turn him down? Did something happen between October and May that could have changed Berman's mind about the president's immunity from state investigations? The Berman investigation of the Giuliani case was first reported during the buildup to impeachment, 12 October. 

Another thing people aren't discussing is the very funky circumstances in which Berman himself became US attorney, a former partner of Giuliani and somebody who has also had Deutsche Bank as a client, who was hand-picked to replace the fired Preet Bharara, personally interviewed by Trump, which is something that's apparently never happened before, his nomination never sent to the Senate (officially, he wasn't hired by the president at all, but by the district's judges, which is why he can now resist being fired by the president), and recused for reasons never explained from the Michael Cohen case, and
As federal prosecutors in Manhattan gathered evidence late last year about President Trump’s role in silencing women with hush payments during the 2016 campaign, Mr. Trump called Matthew G. Whitaker, his newly installed attorney general, with a question. He asked whether Geoffrey S. Berman, the United States attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several American officials with direct knowledge of the call [even though] Mr. Berman had already recused himself from the investigation.
In short, it really looks as if Trump may have been expecting something from Berman in the way of obstruction all this time, and Berman has mostly been letting him down by being a decent US attorney instead.


Meanwhile, there's the Supreme Court in the last couple of weeks, rejecting Trump's "sanctuary states" petition, rejecting a whole raft of gun rights cases, finding that discrimination against LGTBQ people is covered by Title VII of the Civil Rights Act, and most remarkably finding against Trump's contention that he had a reason to cancel Obama's Deferred Action for Childhood Arrivals (they did not find that Trump can't cancel DACA, only that he has to have a reason for doing it, but I think that takes care of it for the rest of the year, if Trump's DOJ hasn't come up with anything recognizable as a reason yet). Is it possible that Roberts and Gorsuch are going soft?

More specifically, is it possible that the Court is about to rule on the "liberal" side of Louisiana's crazy abortion restrictions and the revelation of Trump's taxes? I think it is, for a couple of plausible reasons: Roberts might just be getting fed up with teh stupid, as represented by young Kavanaugh, as in the case of the recent dismissal of South Bay United Pentecostal Church's demand to override California's social distancing rules:
“The precise question of when restrictions on particular social activities should be lifted during the pandemic,” Roberts declared, “is a dynamic and fact-intensive matter subject to reasonable disagreement.” The Constitution leaves such decisions “to the politically accountable officials of the state,” whose decisions “should not be subject to second-guessing” by judges who lack “background, competence, and expertise to assess public health.”... His opinion ends with a clear swipe at Kavanaugh: “The notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional,” the chief justice wrote, “seems quite improbable.” 
Or Gorsuch on Title VII:
Where Gorsuch did bother to provide a retort, he was remarkably dismissive in the face of Alito’s fury, accusing him of adopting a “conversational” definition of sex and overlooking “the statute’s strict terms.” And he charged Alito and Justice Brett Kavanaugh with refusing to “enforce the plain terms of the law...”
I have this feeling that Roberts and Gorsuch both regard themselves as genuine aristocracy in contrast to parvenus Alito and Kavanaugh, to say nothing of that low-class buffoon Donald Trump, and simply can't stand being associated with this kind of shoddy, downmarket conservatism any more. They're not becoming liberals, but they might be turning into NeverTrumpers, in defense of their own sense of personal dignity.


Yes, Donald, I think that's quite possible. Plus, they think you're wrong all the time.

The other, complementary thought is more cynical, going back to Mr. Dooley:
``No matter whether th’ Constitution follows th’ flag or not, ‘th Supreme Coort follows th’ iliction returns,″ he commented on a 1901 decision.
They know what we know about the presidential polls, and may be preparing to leave the ship. Along with Geoffrey Berman who, if he was bought, apparently wouldn't stay that way.
 
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside and it's ragin’

Update: Berman's out after all. I don't know what's the best way to summarize this, but my favorite part is about Trump's pick
Mr. Clayton is friendly with Mr. Trump and had golfed with the president at his club in Bedminster, N.J., as recently as last weekend, according to two people familiar with the matter.
apparently telling Trump at some point that he'd like to move home to New York and had his eye on this cool gig, and Trump decided to give it to him, "Oh, that thing where you investigate all my friends? I'll fire the guy who's doing it now and give you a call." Only there's an ongoing dispute over who fired whom, Barr having ordered Trump to do it, and Trump denying he was even involved making Barr look like the liar he is, and a victory for Berman after it became clear some Republican senators were not going to vote to confirm Clayton—instead, they're following Berman's request and naming his deputy, Audrey Strauss, to replace him in an acting capacity for now. Which is a pretty good outcome (she's a real professional, without the weird baggage everybody else in this story has.)

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