The Daily Parker

Politics, Weather, Photography, and the Dog

"A Constitutional Nobody"

Former Assistant Solicitor General Neal Katyal and George Conway III (yes, Kellyanne's husband) say President Trump's "appointment" of Matthew Whittaker to oversee the Justice Department is flatly unconstitutional:

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation.

Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in such a position of grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.

As Josh Marshall said earlier today, "It’s really, really bad. ... But it was also clear that it was impulsive, poorly thought out and in many ways counterproductive." In other words, as bad as the Whitaker appointment is on the surface, past Administration actions call into question whether it will actually work out the way they hope.

Brian Kemp wants his own election to fail

By now you may have heard that Georgia Secretary of State Brian Kemp, who oversees elections in Georgia, and who is running for governor of Georgia this coming Tuesday, claims the Democratic Party hacked the voter registration database.

No. What happened is, when the state Democratic Party's voter protection director reached out to his office directly after being alerted to a gaping data vulnerability, he turned his own malfeasance into an attack on his opposition:

By the time Democrats reached out to the experts, Kemp’s office and the Federal Bureau of Investigation had already been alerted to the problem on Saturday morning by David Cross of the Morrison Foerster law firm. Cross is an attorney for one of the plaintiffs in a lawsuit against Kemp and other elections officials concerning cyber weaknesses in Georgia’s election system.

A man who claims to be a Georgia resident said he stumbled upon files in his My Voter Page on the secretary of state’s website. He realized the files were accessible. That man then reached out to one of Cross’s clients, who then put the source and Cross in touch on Friday.

The next morning, Cross called John Salter, a lawyer who represents Kemp and the secretary of state’s office. Cross also notified the FBI.

WhoWhatWhy, which exclusively reported on these vulnerabilities Sunday morning, had consulted with five computer security experts on Saturday to verify the seriousness of the situation. They confirmed that these security gaps would allow even a low-skilled hacker to compromise Georgia’s voter registration system and, in turn, the election itself. It is not known how long these vulnerabilities have existed or whether they have been exploited.

In this election and during the primaries, voters have reported not showing up in the poll books, being assigned to the wrong precinct, and being issued the wrong ballot.

All of that could be explained by a bad actor changing voter registration data.

Kemp's incompetence at securing voter registration data should be criminal. If he were a corporate executive, he could personally be sued in the EU and in other parts of the world for his negligence.

But, see, if you're running in a state where the majority of voters want your opponent to win, and you're a Republican, and you have the means and opportunity, you just bollocks up data security so badly that the entire registration process looks suspect. Then you either win, because the opposition can't vote, or you lose, and start bogus investigations to call the election's legitimacy into doubt.

This has been the Jim Crow strategy for a century and a half. That Kemp's opponent is an African-American woman with clear support from a majority of Georgians only makes Kemp's behavior more brazen.

The Republican Party can't win on the merits in most of the country, so they're throwing the game where they can. And the fact that their behavior undermines the legitimacy of elections in general is a feature, not a bug.

I've said this for 30 years: the Republican Party doesn't want to govern; they want to rule. And they are not going to give up their losing battle quietly. Nihilism doesn't care, after all.

Vote on Tuesday, if you haven't already. Enough of this shit. We have real problems to solve, and we need real people to solve them. Don't let the nihilists win.

Blaming the victim isn't new

It seems timely for me to dredge up this PSA I did for Hofstra Television in October 1991:

On later viewing, though, it seems to me like we still had trouble seeing that date rape was exponentially more common than random street rape. That said, I was pretty proud that HTV broadcast the video, from a script that we used in crisis hotline training.

Cast: Heather Maidat (Hofstra '94). Director: Sean Pearson (Hofstra '92).

With friends like these...

Republican David Brock, who worked with Judge Brett Kavanaugh on the Clinton impeachment, urges the Senate to vote "No" on Kavanaugh's nomination:

Twenty years ago, when I was a conservative movement stalwart, I got to know Brett Kavanaugh both professionally and personally.

A detailed analysis of Kavanaugh's own notes from the Starr Investigation reveals he was cherry-picking random bits of information from the Starr investigation — as well as the multiple previous investigations — attempting vainly to legitimize wild right-wing conspiracies. For years he chased down each one of them without regard to the emotional cost to [Vince] Foster’s family and friends, or even common decency.

Kavanaugh was not a dispassionate finder of fact but rather an engineer of a political smear campaign. And after decades of that, he expects people to believe he's changed his stripes.

I can promise you that any pretense of simply being a fair arbiter of the constitutionality of any policy regardless of politics is simply a pretense. He made up his mind nearly a generation ago — and, if he's confirmed, he'll have nearly two generations to impose it upon the rest of us.

Meanwhile, it looks a lot like the Christine Blasey Ford held her own against what Josh Marshall calls "Grassley's Catastrophe."

We're 40 days from the mid-terms.

It's not "he said, she said"

Writing in Forbes, psychologist Todd Essig says it's perfectly plausible that Brett Kavanaugh has no recollection of what to Christine Blasey Ford was a life-changing event:

It is distinctly possible that his lack of memory is not because it never happened but because he really has no recollection of it taking place. He never encoded the event. Therefore, he cannot remember something he never noticed, even though it proved to be life-altering for someone else.

As Dr. Richard Friedman wrote this week, an attack usually triggers intense emotions and stress hormones that facilitate encoding memories. That is why “you can easily forget where you put your smartphone or what you had for dinner last night or last year. But you will almost never forget who raped you, whether it happened yesterday — or 36 years ago.”

Of course, this doesn’t let [Kavanaugh] off the hook for what he did or at all suggest he either has or doesn’t have the qualities one needs in a Supreme Court Justice. It’s just that he may not be lying about what he recalls. It also doesn’t excuse the self-serving way he transformed the absence of memory into the presence of certainty that something didn’t happen. A judge should know better than to rest his career on such a logical incongruity.

For another take on this phenomenon, check out Deborah Copaken's moving essay in The Atlantic, "My Rapist Apologized."

Failing Amber Wyatt

The Washington Post has a must-read feature today about the sexual assault of 16-year-old Amber Wyatt in 2006—and how her Texas high school turned against her:

The rumor — at least initially, and certainly in the soccer player’s initial account to Aven — wasn’t that Wyatt consented to sex with the two boys, but that they never had sex at all. Yet the tone of murmurs around the school indicated that students believed the exact opposite: that Wyatt, perhaps intoxicated, had agreed to sex and then regretted it, and that, in accusing the boys of rape, caused trouble not only for herself but also for her classmates at Martin. Aven, in his statement to police, said he thought, despite the soccer player’s denials, that some consensual sexual encounter took place in the shed that night. Meanwhile, at the school, an internal investigation quickly began into students’ alcohol use, which resulted in athletes from four different sports being removed from their extracurricular activities for six weeks.

Wyatt became the bull’s eye of an angry backlash. As Liz Gebhardt, a close friend of Wyatt’s who remained by her side throughout the tumultuous period that followed, recalled: “Everyone started blaming [Wyatt] because she said something, and if she would have kept her mouth shut then nothing would have ever happened.” With 3,350 students, it was hard to contain the spread of malicious recrimination and even harder to maintain a sense of proportion.

Kids hurled insults at Wyatt in the halls and casually chatted about the news in class. Many of her former friends would no longer associate with her. Wyatt says she received threats and slurs by text messages, people telling her to kill herself, saying she got what was coming to her. Wyatt’s friendships with her former cheerleading pals grew brittle and strained. “Maybe it was me,” she speculated in 2015. “I mean, I totally changed.”

One night in September, text and MySpace messages began circulating among Martin teens who wanted to show support for the accused by writing “FAITH” on their cars. The lurid acronym — “f--- Amber in the head” — began appearing on rear windows the following morning, metastasizing as quickly as the rumors had. Even Arthur Aven wrote “FAITH” on his car.

It's as much an indictment of her town's justice system as much as her classmates. Wyatt has recovered, but it took a decade to get her life on track. The people she alleged had raped her had no consequences.

It pays for itself

President Trump has complained about how much Robert Mueller's investigation has cost the government. After the plea deal reached Friday with Paul Manafort, that should no longer be a problem:

If we assume the same cost-per-day for the investigation that was reported through March of this year, the probe has so far cost the government about $26 million.

[P]art of the plea agreement reached between Mueller and former Trump campaign chairman Paul Manafort includes forfeiture of certain property to the government. While it’s not clear how much value will be extracted from that forfeiture, there’s reason to think that it could more than pay for what Mueller has incurred so far.

The combined value of [Manafort's] properties, according to estimates at Zillow.com and assigning the 2006 sale price to his Trump Tower property, is about $22.2 million. If those were sold at the values identified above and the money returned to the government, that alone nearly covers our estimated costs of the investigation to date.

The government’s seizures from Manafort could be worth about $42 million, including the upper estimates of just the properties, Federal Savings Bank loan and insurance policies. And that doesn’t include the other accounts, which might contain some portion of the $30 million that Wheeler points to as having been identified by the government as ill-gotten gains. That’s enough to pay for the Mueller probe for some time to come.

Somehow, though, I don't thing Trump is as much concerned about the money as he is about what Manafort has told Mueller's team. That, I suspect, is his real concern.

The President's no-good, very bad day

Yesterday, President Trump's longtime fixer Michael Cohen plead guilty to 8 crimes at almost the exact moment a jury convicted his former campaign manager of another 8. The Atlantic explains what the first part means:

The most important takeaway Tuesday is that the president’s own former personal attorney pleaded guilty to breaking campaign-finance laws at his alleged direction.

While the bank- and tax-fraud charges do not involve the president, the campaign-finance charges indisputably do. Cohen made the payments—$130,000 to Daniels and $150,000 to McDougal—through shell companies. He said Tuesday that the payments were intended to influence the election, making them a violation of campaign-finance laws, and that he had done so at the direction of the candidate.

That exposes several lies that the president made about the hush money. The White House initially denied that Trump had any knowledge of the payments. “You’ll have to ask Michael Cohen,” the president said in April.

David Frum just comes out and says "the president is a crook."

Over at WaPo, Paul Waldman decries the institutions that failed to get us to this point, while Isaac Stanley-Baker reports that right-wing media carried on like every other day.

For his part, the president Tweeted how proudly he felt about Manafort "not break[ing]," which, when you think about it, means that Manafort really does have the goods and the president just admitted it.

I'm happy some of these criminals are facing justice. But just imagine how quickly we'd be rid of this guy if we had a functioning Congress.

Fallows on the Seattle plane crash

Friday evening, a baggage worker at SEATAC airport outside Seattle stole an empty commuter plane and crashed it into an uninhabited part of an island in Puget Sound. Pilot and journalist Jim Fallows has an analysis:

Bizarre, frightening, and tragic this certainly was. Was it a sign of an alarming failure in security practices, and some press accounts immediately asserted? (For instance, from the UK’s Telegraph, soon after the event: “It has raised fundamental questions about airline security at America’s major airports after the mechanic was able to board the plane, taxi onto the runway and take off without being stopped. Aviation experts questioned what the authorities would have been able to do if the pilot was determined to fly the plane into a city rather than do loop-the-loops.”

Maybe this will be the appropriate response when more facts are known. For the moment, as is usually the case with aviation disasters, many of the most important questions about what happened are impossible to answer right away.

I hope that, when the facts are in, the response to this odd, sad incident will resemble what the aviation system usually does with its failures, rather than the way the political system often behaves. That is, I hope it serves as a source of guidance for further threat reduction, rather than as fuel for panic and finger-pointing about the modern realities that some “What if?” will always remain.

What a strange story.

Why all the optimism?

Washington Post columnist Anne Applebaum, watching the Manafort trial unfold, wonders why anyone thinks our institutions are up to the challenge of stopping the Trump organization:

America’s federal institutions are not the only ones designed to prevent someone like Trump from undermining the Constitution. We have other kinds of institutions, too — legal organs, regulatory bodies, banks — that are supposed to prevent men like Trump from staying in business, let alone acquiring political power. The truth is that many of these equally important American institutions failed a long time ago. Trump is not the cause of their failure. He is the result.

Nearly 40 years ago, in 1980, Trump employed 200 illegal Polish workers to destroy the Bonwit Teller department store, a historic building on Fifth Avenue, to make way for what would become Trump Tower. The men earned half the union wage and worked 12-hour shifts without hard hats; at one point, their contractor stopped paying them. Eventually they sued. In 1998, Trump paid $1.375 million to settle the case.

Trump broke immigration law and employment law, and he violated union rules, too. Yet neither immigration authorities nor employment regulators nor union bosses put him out of business. Why not? Why were the terms of that settlement kept confidential? Why, with his track record, was he allowed to get a casino license? Building permits? Wall Street banks did, it is true, stop lending to him. But when he began looking abroad for cash — doing extremely dodgy deals in Georgia and Azerbaijan, for example — no one stopped him.

She's right. A country with functioning legal institutions would have stopped this guy long ago. The Russian government has had so much success undermining our faith in democracy because we'd already eroded it ourselves.