Easy Comey Easy Goey

What’s really going to seriously tangle up the opposition is that the stated reason for firing Comey is a perfectly good reason to fire Comey, except that it happens not to be why they’re firing Comey.  He praised the damn letter to high heaven at the time.  It would strain even the credulity of the estimable Dr Pangloss to believe that he has suddenly done a 180 and come round to believe that the violations of due process that contributed so much to his victory are in fact violations of due process.  This is the platonic ideal of tail wags dog: he wanted to fire Comey, and so they found the only remotely plausible justification.  As in the case of all of the intemperate CIA hyperventilation about Assange, however, many Democrats agree that Comey deserves the boot– it may not be not nearly so unpopular as it looks from here in the Tidal Marsh.

Do not delude yourself: there won’t be a special prosecutor.  The commentariat has got to quit pretending that there might be.  There won’t be a special prosecutor because the AG (or deputy AG) has to appoint one, and those two ratfuckers recommended Comey’s dismissal in the first place.  Failing the AG’s office, Congress could technically have one appointed by passing a law that moved the appointment process out of the AG’s office, but it would have to get past a veto.  The story is not that Ben Sasse got out there like a real person and threw a fit.  The story is that aside from those few people who have not had their spines surgically removed, Republicans are circling the wagons, no doubt a difficult feat for the boneless.  Mitch McConnell is already whoring himself out to the White House.  He started in first thing this morning.  That 2/3rds vote doesn’t exist.

The firing of Jimmy is a constitutional crisis only in the most important sense: it’s an existential threat to the separation of powers and the rule of law.  The regime will survive it.  Jack Shafer is funny and also right: Trump is the Teflon Man, and this can get off the front pages fast if he does something sufficiently spectacular elsewhere as a chaser.  I dare not speculate what that might be.  In Congress, this is going to degenerate into partisan warfare that will make the Benghazi hearings look like the Year of Jubilee.  Elsewhere, the Beltway Buzz, or rather the Beltway My-Phone-Is-On-Vibrate-Because-I’m-In-Class-Stop-Texting-Me-Oh-My-God, informs me that the rank-and-file FBI are not amused.  There may be leaks on the scale of a major hull breach impending.  Not that that helps: it’ll just degrade the rule of law faster.

And fuck you, Lavrov.

Leave Assange Alone

Listen.  I, too, think Julian Assange is a self-righteous posturing phony, a rapist, an abetter of tyrants, and a witting KGB cutout.  He’s a sniveling manchild who only publishes on countries with laws preventing them from pursuing him or without the resources to spike his coffee with polonium.  As a private citizen, I would love nothing more than to throw him out the embassy window into the waiting arms of the British constabulary.  I hate his stunted, vestigial guts; I hate the gut flora that inhabit them; and if I should be so lucky as to outlive him I fully intend to dance the hopak on his grave.  But that’s not what this is about.  As usual, this is about liberal democracy.

According to the Washington Post, it is not yet clear what charges DoJ wants to bring.  There may be evidence that Wikileaks was involved in more than receipt and publication of classified documents, or they may want to go for him under the Espionage Act of 1917.  The relevant clause seems to be this:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it…  shall be fined under this title or imprisoned not more than ten years, or both.

Hitherto the US government, aware of the bad precedent it would set and the SCOTUS smackdown that would likely follow, has not prosecuted anyone under the Espionage Act for publishing leaked material.  The Obama administration, otherwise godawful on transparency and press freedom, was at least in this one case well aware of the ancient principle according to which What Is Good For The Goose Is Good For The Gander.  Assange’s lawyer, while no doubt an even bigger human trash midden than his client, is right: Wikileaks is a publisher, and journalistic activities are protected even when the journalists in question are unethical dickweasels.  Especially when the journalists in question are unethical dickweasels.

A prosecution of Assange is the foot in the door.  There is classified information in every national newspaper every day, especially lately.  If DoJ succeeds in prosecuting him under the Espionage Act, it will be open season for the White House on all of our national outlets.  They’ll send Junior out there with an elephant gun.  Marty Baron’s head will end up stuffed on a wall.

There is no law of unintended consequences at work here.  From a White House that’s been frothing constantly at the mouth about all non-wiki leaks, the message is quite clear: it stops printing classified material, or it gets the Espionage Act.  After a successful Assange prosecution, journalists would be catching hell from all sides.  Besides having to worry about ending up in the camps for talking to whistleblowers, those bold enough to carry on regardless would find themselves dealing with lily-livered editors reluctant to have the Feebs in rummaging through the archives and making off with valuable computing equipment.

Of course much as it may seem like a contradiction, it was inevitable that the regime would turn on Assange sooner or later.  After 8 November, he became a threat, and he is the ideal vector for getting at the press.  Now that at long bloody last Assange is widely hated on the center-left, the political fallout from a prosecution under the Espionage Act would unfortunately not be particularly bad.  Critics on the left are already more likely to focus on the hypocrisy angle, and on the right, a prosecution of Assange might actually bring surveillance hawks, neocons, and Manning-haters round to il Douche’s side.  It might even be popular.

Why do we even HAVE that lever?

We are six state legislatures away from triggering an Article V constitutional convention, and hardly anybody is paying attention.

For anyone who needs a refresher, Article V is as follows:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Congress must call a convention if the threshhold is met.  Once the convention is assembled, the delegates themselves have to establish procedures.  The convention is not constitutionally required to stay on topic and there is no higher authority than can intervene to mediate disputes.  The proponents of the convention, a rogues’ gallery of omnicidally insane budget hawks lead by ALEC and The Convention Of States, are currently trying to introduce legislation in Congress that will bring the proposals out of congressional records and into Archives’ jurisdiction where they can be catalogued, so that the convention will be triggered promptly if or perhaps when they pass the threshhold.

The convention provision has so far never been triggered because legal scholars agree that there’s no way to control an Article V convention.  This may well be what Gödel saw.  The constitution is the highest authority right up until a convention is called: after that, the Framers did not see fit to give us instructions, no precedent exists, and nothing can be assumed.  The last one turned out happily in the end, but we must remember that in 1787 the delegates ignored both their instructions from the state legislatures and the ratification procedures laid out in the Articles of Confederation, and we ended up with a totally new system of government.  This time Hamilton, Madison, and Jay are not coming to save us.

And, of course, our present situation doesn’t resemble 1787: the early republic was only six years out from complete regime change, and the convention was called to reform an ad-hoc system that everyone knew wasn’t working, even when they didn’t agree on what should be done about it.  We, on the other hand, have enjoyed a hundred and fifty-two years of a continuously functioning constitutional system, the only amendment in the national discourse is the abolition of the electoral college, and the last thing standing between us and the authoritarian populist maniac in the White House is those four pieces of parchment in a glass case down the street.  The state legislatures won’t send judges and political scientists and constitutional scholars: they will send politicians.  There are no rules to rein in the influence of moneyed interests.  This will not go well for us.

The lack of national news coverage is troubling.  It is a general truth of the internet that when people demand to know why the media aren’t talking about Thing, the media are, in fact, talking about Thing, which is why the morons demanding discussion of Thing know about Thing in the first place.  That isn’t the case here.  I consume a frankly unhealthy amount of news.  I found out about this while following up on a debate going on at Balkinization, and went looking for reporting afterward.  There’s some coverage in state-capital papers, and a single Washington Post editorial from a few weeks ago.  That’s all.  This advance has been going on unnoticed since 2010.  If the initiative reaches the threshhold, it will blindside the American people.

Between the regime and growing polarization, I don’t think we would survive this.

Generalized Anxiety

Apropos of Not Talking About Coups, there is a second, related category of Pentagon-White House relations article that needs to cease immediately.  This specimen at Politico by Patrick Granfield is textbook.  To write one of these articles, one looks at the generals who infest il Presidente’s cabinet, thinks to oneself “These men are not criminally insane/are against torture/know that the State Department performs a number of necessary functions” according to one’s inclinations, decides that the military is one’s best hope for a check on the Annoying Orange’s worst impulses, and finally one winds it all up with a vague invocation of the clause in the oath about defending the constitution from enemies foreign and domestic.

Now correct me if I’m wrong, but I believe Mustafa Kemal Atatürk is not in fact one of the Framers.

This is not to say that the Pentagon doesn’t have a responsibility to refuse or otherwise push back on illegal and unconstitutional orders.  They do.  But all that means practically speaking is that if il Presidente orders you to invade California in blatant violation of Posse Comitatus or to blow up al-Baghdadi’s grandma’s house just to show we mean business, you tell him with all due respect to shove it up his ass.  If he tries to take some sort of military action that’s insane but technically legal, you can resign.  If he Caligulates around solely in the domestic sphere, you are up a certain creek.  The oath says nothing whatever about “democracy,” thank god: it’s much more concrete.

Admittedly one expects this sort of thing from the neocon-infested right wing of the opposition— they’re prone to Pentagon-worship at the best of times, which these are certainly not— but as is clear from the above Mr Granfield, it is rapidly creeping across the aisle.  Quit it.  As has been observed elsewhere and at length, if some bastard is chipping away at the customs underpinning liberal democracy, do not help him.

As the most pessimistic person in any given room, I’m still expecting either scrambled-egg-encrusted MAGA hats, or, if this goes doubleplus verybad, a bizarre push to change the blue ground of the flag’s canton to a slightly darker shade.  In the meantime, stop writing these damn fool articles.  It might not help, but it at least won’t hurt.

Coup Coup Kachoup

In the last week or so there has been a lot of loose— if mostly somewhat deniable— talk about coups flying around in both the blogosphere and parts of the mainstream press.  Some of it has been Kremlinological divination of the worst sort, as in the case of this post from Yonatan Zunger on Medium, which later was justly mocked by Politico.  The rest of it has been apparently neutral speculation: for example, the textbook example of apophasis at the end of this piece by David A. Graham at the Atlantic, a throat-clearing Morsi analogy from Ross Douthat (who should certainly know better), and this here bit of pseudonymous blatancy at the Daily Kos.  There are certainly other examples out there for the finding.

First off, not only is this sort of talk almost cartoonishly antidemocratic, but a coup is invariably at least as bad as the disease, and a failed coup is always worse.  However, I’m not particularly interested in the chances of actual tanks rolling any time soon when no one should even be talking about this in the first place.

Not that it hasn’t been making the rounds: in fact I’ve been waiting for coup talk to jump the air gap between the infrasonic Beltway buzz and the press for about two months now.  Up until this point it’s mostly been confined to the realm of whispered conversations between panicking political scientists in the darker corners of the more dimly-lit U Street bars on Thursday nights, where it tends to be brought up in the course of a worst case risk-assessment exercise, alongside the much more plausible horrors of il Douche and Bannon with technically-constitutional emergency powers (the only person I’ve heard speak of the idea favorably was my Uber driver on New Years Eve, who suggested it as a solution to the emergency powers problem, clearly under the impression that I was much drunker than I actually was).

But troubled wonks may say things in private that no responsible citizen committed to the Constitution or even, at bare minimum, representative democracy should ever release into the national discourse.  If we’re worried about the regime’s erosion of the rule of law, we shouldn’t indulge anti-democratic fantasies about throwing the bums out at helicopterpoint.  This sort of preposterous chatter serves nothing but democratic deconsolidation.  Knock it off.

An Opinion on the Opinion

It’s apparently a great temptation to the opposition to view the 9th Circuit ruling on the immigration EO as a great victory, a sign that everything is going to be normal: a judge blocked an order, the block was challenged, it’s moving up the courts, and eventually the Supremes will rule, all as one would expect.  In fact last night, in a piece then headlined “Rule of Law: 1, Trump: 0”, the Daily Beast made this very argument, while breaking the ruling down into the White House’s four major arguments, which were as follows:

  1. National security trumps judicial review (it doesn’t).
  2. We don’t need no stinkin’ evidence (they do).
  3. Aliens have no due process rights (depends on the alien).
  4. Washington lacks standing (they don’t).

The Daily Beast correspondent finds reassurance in the ruling’s unassuming, regrettably un-Scalia-ish affirmation of the separation of powers.  We are supposed, he says, to be cheered by the mildness and boring reasonableness of the court’s opinion.

No.

That’s backwards.

Even the authoritarian crank John Yoo.

What has actually happened is that il Presidente has for the last two weeks kept up a sustained attack on the very notion of judicial review and on the ideal of an independent court. The White House’s case here was “We do what we want.” We will not know the full extent of their determination to do what they want until SCOTUS has ruled. The Breitbartian commentariat has been busily producing justifications for the Jacksonian you-and-whose-army option, but even if the White House doesn’t take this nuclear, we should find the content of their argument alarming of itself. In better times a court would be handing down a ruling on the substance of a law or an EO, not on the once-established fact of separation of powers or judicial review. Not rolling over is the least we could expect from the 9th Circuit, and they should at least have tried to out-Scalia Scalia.

Furthermore, the regime (can I call it a regime yet?) is likely to succeed in framing the ruling as entirely political, even though the court very conspicuously declined to address the question of a Muslim ban and the implied religious tests. Of course, this has little to do with either the content of the court order or public opinion: the regime clearly does not believe in the ideal of an independent judiciary, as is evident from the immediate insistence than any legal pushback was either partisan or outright disloyal. Only sad wonks like you, dear reader, look at these things anyway, so it will probably be enough to politicize any rulings retroactively by sending out the clowns to loudly announce that the rulings were political. The climate of division is such that the press and the public will do the rest of the work themselves. The cumulative effect of this debate will play nicely into his tiny, tiny hands: support for judicial review may, in the next months, become a partisan matter.

Lastly, there has been a troubling attempt to push the courts over into the public enemy category along with the press. The White House has insisted repeatedly both on Twitter and at press conferences that they will consider the courts responsible for terrorist attacks, for instance:

It remains unclear whether the equation of the institutional dissent with malicious disloyalty to our glorious leader and, by Louis Quatorzish extension, the republic is meant as a matter of calculated policy or if it’s simply a necessary consequence of the way his mind works. It makes little practical difference. Even if he himself is not smart enough to do it on purpose, Steve Bannon is certainly smart enough to put it to use.

If he does decide to try the nuclear option, we the people are left to the tender mercies of the bureaucrats and to whatever we can accomplish with demonstrations and other forms of targeted Congress-bothering.  This isn’t over.

Staying a step ahead of Korematsu

Or, In Which Auntie Weasels Channels Her Inner FEMA Camp Conspiracist

The ongoing centrist wrangling over whether or not we need to worry about the Muslim registry and a slippery slope to Japanese Internment Redux strikes me as painfully naïve.  The idea is thoroughly implanted in the national discourse now: it is unwise to dismiss it out of hand on the grounds of norms or institutions or whatever the latest it-can’t-happen-here talking point is.  It has happened here, and it may happen again.  If we continue to remain head-in-sand about this, we’ll be ill-prepared should another major Islamist terror attack provide the bastards an opportunity.

This is particularly irritating because the question of Muslims being required to register with the government is the wrong question.  With the rise of big data, that cat is out of the bag.  America’s Muslims are registered with Facebook, Google, and other mass aggregators of data.  Thanks to poor security hygiene, much of that information is publicly discoverable.  Furthermore, most data companies have already participated in dubiously-legal electronic mass surveillance programs in the past and may participate again in the future.  Likely the NSA and the rest of our SIGINT apparatus still has access to most of that data, and with that access it would be trivial to assemble a comprehensive list of Muslims in the US.  Such a list may already exist.  Some might slip through the cracks, but not enough.

With personal data more accessible than ever before and with Muslims already receiving disproportionate attention from law enforcement, the important question then is not “Will there be a registry?”: it is “What would such a registry be for?”  A registry is never an end in itself: a neutral example is the census, which exists for the purpose of congressional districting and demographic research.  Since Muslims are singled out with distressing efficiency for surveillance both electronic and physical, it must be for something beyond that.  But what?  This is why Muslims and civil liberties advocates are talking about Korematsu v. United States, and why the Beltway buzz is full of dark rumors about a purge of Muslims from the civil service.

If this should end somewhere as dark as an attempt at internment, it will be important to understand the bureaucratic measures and infrastructure needed for mass internment in the US, so as to frustrate them more efficiently.  The National Archives has a database of primary-source documents related to Japanese internment (to which they insist on giving the rather Orwellian label “relocation”).  The testimony in Korematsu v. United States itself will also offer some research hooks.  We can also imagine that pre-existing infrastructure related to immigration enforcement might be repurposed, and that census data may be abused.  Meanwhile, if this looks like it’s going to go all unconstitutional, tech companies should deep-six all personally-identifiable data before it can be used for evil, however contrary to the business model it might be.