The Tax Cut Is Highly Likely To Reduce Revenue

by Ramesh Ponnuru

Many Republicans, including Senate majority leader Mitch McConnell and Senator Susan Collins, have suggested that the tax cut will do so much to expand the economy that the new tax code will raise more revenue than the old one. This result is theoretically possible, but it is highly unlikely.

Several detailed attempts have been made to predict the effects of various versions of the Republican tax bill on revenue, and many of them have incorporated estimates of the effects on the economy. The Joint Committee on Taxation, the Penn Wharton Budget Model, the Tax Policy Center, and the Tax Foundation have all put forward their estimates. The last group, which is the most optimistic, found that the Senate Republican tax bill introduced a few weeks ago would cause revenue to be $516 billion lower over the next ten years. (The Senate passed an amended form of the bill this weekend.)

Collins, on Meet the Press on Sunday, cited several prominent Republican economists to bolster her contention that the tax cut would pay for itself and even lower the federal debt. None of them has said anything in public to that effect–they signed a joint statement saying that tax cuts will promote growth but not denying the conventional view that revenues will be lower as a result of the tax cuts–and two of them deny what she said. They say that the tax cut will raise economic growth and that this growth will soften the revenue hit to the federal government. But they predict that the federal government will take in less revenue if it cuts taxes than if it does not.

Proponents of tax cuts sometimes ignore the distinction between tax cuts that precede rising revenue and tax cuts that produce rising revenue. They see an increase in revenue after a tax cut as evidence that tax cuts have raised revenue. That’s a mistake because revenues might well have risen more without the tax cuts. Revenues usually rise from year to year, even accounting for inflation, because the economy usually grows. If we’re trying to figure out the effect of a tax cut on revenues, we need to know how much extra growth it is likely to generate.

Nobody who has tried to do a detailed estimate of the bill has concluded that it will generate enough extra growth to avoid a reduction in revenues of several hundred billion dollars over the next ten years. Perhaps in the end the Republican leaders who have faith that it will generate that much extra growth will be proven right, but they have provided no reason for anyone to share that faith.

Steven Spielberg: Here’s My Anti-Trump Movie

by Kyle Smith

I had no sooner hit “send”on a piece (to be published tomorrow) in which I argued that Steven Spielberg’s Pentagon Papers movie The Post isn’t about Donald Trump and could have been made 10 or 40 years ago when I came across this interview in which Spielberg says the movie is an attack on Donald Trump and could only have been made in 2017. Well.

Hollywood is at this moment engaged in a kind of kabuki theater known as Awards Season. Neither Spielberg nor anyone else will be heard to say, “I think my movie is really great so please give it awards.” Instead, the trick is to go on a nonstop tour of V.I.P. screenings, panel discussions, parties and media interviews to try to convince Oscar voters (and those who vote on lesser awards, such as those bestowed by the New York Film Critics Circle and the Broadcast Film Critics Association, of both of which I am a member) that the movie is Important or Relevant or Socially Engaged or, if nothing else, Timely. This awards season voters are being nudged to think of a monster love story as a social-justice saga, a horror movie as a “social thriller” about racism and a rom-com as a rebuke to Donald Trump’s proposed immigration restrictions.

The Post, which comes out December 22 and stars Meryl Streep and Tom Hanks as Kay Graham and Ben Bradlee, the publisher and editor of The Washington Post, takes place in 1971, when the paper tries to catch up to the New York Times’ series of scoops on the Pentagon Papers. To Spielberg’s credit, in the film there are no strained Trump references, but in interviews Spielberg is drawing a parallel between how Richard Nixon’s Justice Department attempted to block the Times (and, tangentially) the Post from publishing the Pentagon Papers via an injunction and Trump treats the media. Sure, President Trump heckles these same two news outfits (and many others). But it’s completely daft to imply that Trump has instituted some sort of scary crackdown on the press. As unseemly, immature, self-defeating and odd as it is for Trump to tweet insults at journalists, this isn’t remotely similar to getting injunctions from the Justice Department to stop publication of embarrassing stories. What Trump does to news organizations is unprecedented in its style, but extremely precedented in its substance. It’s called spin. Every president puts out the message that he’s being treated unfairly by the media. It isn’t like an attack on the First Amendment. Trump didn’t even strike CNN from the list of organizations invited to the White House Chrismas party; the news network huffily announced it would snub the president, not the other way around. There is no clause in the Constitution that says White House officials have to talk to reporters they don’t like, or invite them to press briefings, or even to host frequent press briefings. And yet the Trump administration keeps doing all of these things. 

It’s pretty easy to retroactively re-brand a movie depending on whatever’s hot at the moment. The original script for The Post, written by Liz Hannah, was bought by Sony Pictures chief turned producer Amy Pascal in October of 2016, a moment when both women believed the script was about not Trump but…Hillary Clinton’s trailblazing victory, the one they expected to occur the following month. Katherine Graham was a role model who broke into an all-boys club (she was the first female CEO of a Fortune 500 company), Hillary is a role model who broke into an all-boys club. Get it? No doubt if Clinton were president today, that is the spirit in which Spielberg would be plumping for an Oscar.

To make sure he’s covered on the other topic that obsesses Hollywood these days, Spielberg is also promoting The Post as an implicit rebuke to the cultural of male sexual abuse in Hollywood, posing for a Hollywood Reporter glamour shoot with four women who worked on the film and agreeing to a joint interview with this quartet: Hannah, Pascal, Streep and one of the film’s producers Kristie Macosko Kriege. This is a transparent attempt to curry favor with Oscar voters: a lot of people work on any given film. Spielberg could just as easily have posed with, and been interviewed with, such important figures from the movie as its other costar Tom Hanks, the other credited screenwriter Josh Singer, composer John Williams and cinematographer Janusz Kaminski, all of them men. As it happens, The Post is a very good film. But what makes it good is not that it says, “Boo Trump; yay women.” If anything, Spielberg is doing it a disservice by making it sound more schematic than it is,

 

 

 

 

 

The Two Intolerables

by Rich Lowry

Outside evidence of real collusion, there are two obvious ways that the Mueller investigation could go thermonuclear. One is if Jared or Don Jr. made the same mistake as Michael Flynn and didn’t tell the truth to FBI agents. The other is if Mueller begins probing Trump’s finances in earnest. Trump would likely not stand for either. 

If Jared or Don Jr. ends up in Mueller’s clutches, there is a relatively easy solution for Trump — pardons. Having to pardon his son-in-law or son would be very awkward to say the least, but you can see how Trump would make the case for it, “This is a good kid who was just trying to protect my interests and got in over his head,” etc., etc. There might be enough sympathy for this argument out there that Trump wouldn’t necessarily pay a major political price.

But if Mueller starts going after Trump’s finances, it’s hard to see any solution from Trump’s perspective other than firing Mueller — and that would be an enormously consequential act that would probably rock his presidency to its foundations. The latest news, by the way, is that Mueller has subpoenaed Deutsche bank records.

UPDATE

 

‘No, Michael Flynn Didn’t Violate the Logan Act’

by Rich Lowry

I wrote about Flynn’s conduct during the transition today:

Usually, everyone realizes that the incoming administration has its own prerogatives that deserve respect. When the outgoing administration of George H. W. Bush embarked on the humanitarian intervention in Somalia in December 1992, it coordinated with the incoming Bill Clinton team, which supported and continued the mission.

Obama’s sanctions weren’t undertaken in a cooperative spirit — in fact, the opposite. As the New York Times reported at the time, it appeared Obama “intended to box in President-elect Trump, who will now have to decide whether to lift the sanctions on Russian intelligence agencies when he takes office next month.”

Flynn’s resulting communications with the Russian ambassador, Sergey Kislyak, wouldn’t be considered an outrage in a less poisonous political environment.

One, Flynn had no power to vitiate the Obama sanctions in late December 2016. All he could do was urge the Russians, in the words of Robert Mueller’s statement of offense, “not to escalate the situation and only respond to the U.S. in a reciprocal manner.” It’s hard to see how asking for a reciprocal response from the Russians undermined Obama policy, unless the entire point was to create a spiraling blowup with the Kremlin at the outset of the new administration.

Conyers Quits

The Newest Round of Anti-Trumpism

by Conrad Black

From my most recent NRO article, about the Flynn indictment and the current state of the Mueller investigation: “To anyone with legal insight, the Flynn indictment was the barefaced admission by Special Counsel Robert Mueller that, after nine months in charge of an investigation that had already been underway for eight months, he has absolutely nothing to justify continuing this charade within its original mandate to explore a Trump-Russian connection.”

Whether you agree or disagree, your comments are, as always, most welcome.
 

The New York Times Defends the FBI

by Heather Mac Donald

The New York Times is upset that President Trump has attacked the FBI for alleged partisanship. Its lead story yesterday began: “As the F.B.I.’s Russia investigation draws closer to him, President Trump on Sunday unleashed an extraordinary assault on the nation’s premier law enforcement agency, calling it a biased institution whose reputation for fairness was ‘in tatters.’”

According to the Times, Trump is betraying his office. Presidents usually “enter the Oval Office with an instinct to defend and promote the integrity and capabilities of the nation’s law enforcement agencies,” the Times observes.

The Times quotes other Democratic worthies who are shocked by Trump’s Twitter attacks, including former Attorney General Eric Holder. Holder “responded to the president’s tweets with one of his own defending the bureau. ‘You’ll find integrity and honesty at FBI headquarters and not at 1600 Penn Ave right now,’” the Times reports Holder as broadcasting.

Trump’s attacks on the agency are in fact unseemly, arising from personal animus, rather than a systematic analysis. There is no reason to believe that the FBI is corrupted by political partisanship. The credibility of the nation’s justice apparatus should be carefully guarded, absent sound reasons to undermine it. But it is hilarious to hear this shocked rectitude coming from the New York Times, which has spent the last ten years accusing the nation’s law-enforcement agencies of lethal racial bias, without a shred of evidence backing up that charge. When President Obama packed all federal law-enforcement officers off to costly and unnecessary implicit-bias training, on the theory that bias was infecting federal law enforcement, the Times raised no objection. When President Obama accused the nation’s law-enforcement officers of widespread racism, the Times seconded the indictment. When Eric Holder’s Justice Department slapped gratuitous consent decrees on police departments based on a specious methodology for identifying racial bias, the Times applauded and called for more such investigations. Trump will have to do a lot more tweeting to match the Times’ record in defaming honorable law-enforcement agents.

Tuesday links

by debbywitt

The precursor to the war on drugs: on December 5th, 1933, prohibition in the United States of America came to an end.

Prohibition will work great injury to the cause of temperance. It is a species of intemperance within itself, for it goes beyond the bounds of reason in that it attempts to control a man’s appetite by legislation, and makes a crime out of things that are not crimes. A Prohibition law strikes a blow at the very principles upon which our government was founded. 

~ Abraham Lincoln (speech, 18 December 1840 to the U.S. House of Representatives) 

What could go wrong? Spider drinks graphene, spins web that can hold the weight of a human.

Grapefruit, Animal Economics, and Big Drunk Guys. Some peculiar sociology research.

T’was the Overnight Before Christmas: The Merry Tale of How Air Cargo Deregulation Led To Amazon

The Science Behind Why Dark Winter Days Bum People Out.

Pop-Tarts alerts police about Illinois man who spreads mustard on his breakfast pastry.

ICYMI, Thursday’s links are here, and include carbon paper history, people who still use iron lungs to breathe, a slingshot that launches swords, Congressmen behaving badly in 1856, and, for Winston Churchill’s birthday (and related to the first link, above), the doctor’s note allowing him to drink “unlimited” alcohol in prohibition-era America.

Conyers, Franken, Moore and the Psychological ‘Permission Slip’

by Jim Geraghty

From the Tuesday edition of the Morning Jolt:

John Conyers, Al Franken, Roy Moore and the Psychological ‘Permission Slip’

The Republican National Committee, like President Trump, is formally supporting Roy Moore again.

Are Democratic Congressman John Conyers and Senator Al Franken giving Alabama Republican voters psychological “permission” to vote for Roy Moore? Is there a similar effect for other Republican party leaders?

The allegations against Roy Moore are as serious as they can get. There’s a decent amount of circumstantial evidence, and Moore’s initial denials were contradictory and unpersuasive. His current insistence that he never knew or met any of these women, and that anything he signed for them is a forgery, is similarly unconvincing. But there’s that nagging sense that his defeat would mean voters would be signing off on a new standard, that accusations of impropriety are sufficient to end a person’s career. Maybe Moore’s guilty as sin, but what about the next guy? If mere accusation becomes the new, universal standard for removal or disqualification, voters will keep some bad men out of office, but they say see some good men’s reputations and career’s destroyed by false accusations.

And if we argue that Moore’s alleged behavior is worse than Conyers… well, Conyers is still pretty darn bad:  

Another former staff employee of U.S. Rep. John Conyers, D-Detroit, came forward late Monday to publicly accuse the congressman of sexual harassment, saying he once slid his hand up her skirt in church.

Attorney Lisa Bloom, who is representing Marion Brown, the former staffer who first accused Conyers, 88, of sexual harassment, on Monday night made public on Twitter an affidavit from Elisa Grubbs making many of the same accusations.

She said in the affidavit she saw Conyers groping and stroking Brown’s legs and the legs of other women in the office and that she saw Brown shortly after an alleged event in Chicago in 2005 where Brown said Conyers’ propositioned her in a hotel room. In the affidavit, Grubbs said Brown told her, “That SOB just wanted me to have sex with him.”

She also said she was sitting next to him at church on another occasion when he ran his hand under her skirt and said other people saw him do it.

Conyers’ attorney, Arnold Reed of Southfield, dismissed the new claims, noting that Grubbs is a relative of Brown’s and calling them “another instance of tomfoolery from the mouth of Harvey Weinstein’s attorney.” Bloom previously represented Weinstein, a movie mogul accused of sexual harassment by several women, before resigning in recent months.

Reed added that Grubb’s claims were “unworthy of any further response.”

Conyers has already been accused by at least six women of sexual harassment or other improper behavior, including showing up in his underwear for meetings. In her statement, Grubbs said she was at his home on one occasion when he came out of the bathroom naked.

The allegation is that he groped her in church.

This morning, Conyers is scheduled to hold a press conference discussing his future. Apparently he will refuse to resign:

Mr. Conyers, 88, who last week stepped aside as the top Democrat on the Judiciary Committee, planned to announce on Tuesday that he would not seek re-election, according to a family member who wants to run for the congressman’s seat.

“He is not resigning,” Ian Conyers, a Michigan state senator, said of his great-uncle. “He is going to retire.”

Apparently John Conyers’ behavior had been an open secret for years; as Cokie Roberts said on This Week a few weeks ago, “every female in the press corps knew, don’t get in elevator with him.” We’re left wondering how this could be such an open secret, and why Conyers’ creepy, predatory behavior was never reflected in the coverage of him.

(Conyers was the ranking member of the Judiciary Committee back during Bill Clinton’s impeachment, and pulled out all the stops to insist that Clinton’s actions were a private mistake and that Republicans were the true villains in the story. Before the committee vote on impeachment, he declared, “if the American people ever wanted strong evidence that the extremists are still in control of this process, then that is it. It is time to give the American people a holiday gift, to end this sordid tale.” Nobody thought it was relevant that he was harassing his own staff and reporters all along? Of course Conyers wouldn’t give Clinton any grief for seeing his own workforce as a personal harem, he was doing the same thing! And once Bill Clinton escaped any serious consequence… what lessons do you think Conyers took from the whole experience?)

If Al Franken stays… does Texas Republican Rep. Blake Farenthold, who used $84,000 in taxpayer funds to settle a sexual harassment claim, get to stay? He says he’s going to pay back the government.

If Fahrenthold stays, does Nevada Democratic Rep. Ruben Kihuen stay?

A woman who worked as the finance director for a promising Nevada Democrat is alleging that he repeatedly harassed and made sexual advances toward her during his 2016 congressional campaign — and like many young people on campaigns all over the country, she did not know what to do with her complaint and didn’t feel comfortable bringing it to the campaign’s leadership.

So she quit her job. And he’s now in Congress.

Samantha, whose last name BuzzFeed News is withholding at her request, began working for Rep. Ruben Kihuen early in his campaign to unseat Republican Rep. Cresent Hardy in December 2015 and quit by April 2016. Starting in February of that year, Samantha, who was 25 at the time, said Kihuen, who was then 35 and still competing in the primary race, propositioned her for dates and sex despite her repeated rejections. On two occasions, she says he touched her thighs without consent.

For what it’s worth, House Minority Leader Nancy Pelosi called for Kihuen to resign. Notice this is, so far, one accuser who remains unnamed. Is this really the standard Pelosi wants?

Should all the creeps go? Absolutely, Congress would be a better place without them. But once a party decides that one of their guys should be allowed to stay, the other party is not going to enforce its own zero tolerance.

The voters, in Alabama and elsewhere, see this cynical game, where standards of conduct are used as a partisan tool to knock out the other side’s officeholders. And they shrug and refuse to play, and decide they’re not going to worry about any of the allegations.

UPDATE: This morning, John Conyers announced that he is retiring and that he endorsed his son to replace him.

‘Do You Think I Could Ever Be One?’

by Jay Nordlinger

When I was in college, I’m not sure we had the phrase “identity politics.” But we certainly had the politics. Race, ethnicity, class, sex (or “gender,” as we were by then saying) — it was all there. I didn’t like this kind of politics, at all. I preferred the old Americanism, encapsulated in the motto E pluribus unum.

The identity stuff was pushed by the Left. They were tribal before tribal was cool. (Well, it has always been cool, unfortunately.) Conservatives were very different. Paradoxically, they were far more liberal. Tides shift, of course — and I’m not sure who’s more tribalist today, the Left or the Right. Our national motto might as well be “Tribes ’r’ us.”

I thought of this when reading a stunning passage — one of many — in Mark Helprin’s new novel, Paris in the Present Tense. And I highlight this passage in my column today, which concludes a two-part series of notes on Helprin’s novel.

A man says to the main character, Jules, “What do you think of the Arabs?” Jules says, “I don’t.” The man says, “What do you mean, you ‘don’t’?” Jules says, “I don’t think about Arabs, per se.”

The man presses on. And Jules says this:

“I’m a Jew. My parents were murdered by the Germans because they were Jews. The gravest, most persistent sin of mankind lies in not treating everyone as an individual. So, in short, I take Arabs as they come, just like everyone else.”

The man presses, “But as a group?”

Jules repeats, “As a group?” Then he says, “They have a very high incidence of killing innocents with whom they disagree. It’s part of the culture, part of Islam, part of their nomadic origins. But no individual is merely a reflection of a group. That’s the injustice that ruins the world. So, my answer is that for me an Arab is the same as a Jew, a Frenchman, a Norwegian, anything you’d like. If I were to judge people by their identity, I’d be like the people who killed my parents. Those were called Nazis. Do you think I could ever be one?”

My impression is, this kind of thinking is out of vogue now. But the thing about vogues — they come and go. And I look forward to the return, and wide acceptance, of this one.

Keep the 20 Percent Corporate Tax Rate

by Veronique de Rugy

During the entire tax debate, President Trump insisted that there were three aspects of the tax reform that weren’t negotiable: a 20 percent corporate tax rate, a middle-class cut, and simplification. House speaker Paul Ryan, Ways and Means chairman Kevin Brady, and Trump’s Council of Economic Advisers, all at one point or another repeated that these were three red lines.

So imagine my surprise when this weekend Trump said that a 22 percent corporate rate may do. From CNBC:

Trump told reporters at the White House before a trip to New York City that he would consider setting the corporate tax rate at 22 percent, compared to a 20 percent rate that he has pushed for with House and Senate Republicans during the fall.

Pointing to expected talks between House and Senate negotiators this month, Trump predicted “something beautiful is going to come out of that mixer” and the business tax would come “all the way down from 35 to 20. It could be 22 when it comes out, but it could also be 20. We’ll see what ultimately comes out.”

For a president who claims to be such a great negotiator, this move is surprising. It is especially surprising since he has managed to get both the House and the Senate to comply with his demand to produce and pass a version that would cut the rate to 20 percent. Trump’s sudden reversal on this issue means that, while he promises that “something beautiful will come out of that mixer,” he is actually making it much harder to get something out of that mixer at all.

Make no mistake: The 20 percent rate for the corporate tax is not only a line that neither the House nor the Senate was willing to cross because they had committed to it in the Big Six Framework, but it has also been the glue that has been holding the tax-reform movement together. The truth is that every side of the coalition has been willing to swallow some aspect of the bills they didn’t like because ultimately we each had our eyes on the 20 percent corporate tax rate. Start back-pedaling on that number and you may find it hard to get the whole thing to the finish line.

In addition to sending the signal that whatever the president says is his last word really isn’t, changing course now is incredibly self-defeating to the economic-growth process. As I explained last week, that provision is one of the most pro-growth aspects in the tax plans. And whatever liberals and Senator Marco Rubio are saying, there is a difference in terms of growth between 20 and 22 percent.

The rate wasn’t picked randomly. It is a compromise between what is economically important and politically doable. Even though many people wish it could be much lower, 20 percent isn’t so low that people are rejecting it totally yet it still puts us on par with our main trading partners.

Chris Edwards also notes:

Policymakers need to remember that in America state taxes pile on top of federal. So while in Britain the federal rate of 19 percent is also the overall rate, our overall rate in California would still be 27 percent even as we cut our federal rate to 20.

A Council of Economic Advisors Report on corporate taxes noted that international investment flows are “highly responsive to cross-border differences in tax rates.” And further that “an additional margin along which changes in corporate tax rates are likely to affect growth is through profit shifting by U.S. firms to foreign subsidiaries … This profit-shifting has increased substantially since the 1990s.”

So for more investment flowing in, and less paper profits flowing out, we should cut our corporate tax rate as low as we can. Most other countries have figured this out, as the chart below shows.

According to KPMG, the average corporate tax rate across 171 countries today is just 24 percent. The United States with a federal-state rate of 40 percent is the outlier at the top of the chart. Rates have fallen in Africa, Asia, Europe, and Latin America. American businesses generally face their biggest competition from businesses in Asia and Europe, and those are the regions with the lowest rates.

Thankfully, it isn’t too late to reaffirm that a 20 percent corporate tax rate isn’t negotiable.

Trump Wins Another Travel Ban Victory at the Supreme Court

by David French

This afternoon, in a pair of short orders, the Supreme Court ruled that the latest version of the so-called “travel ban” can go into effect. Its ruling effectively lifted nationwide injunctions put in place in October by federal district court judges in Hawaii and Maryland. Both of those lower court decisions were seriously flawed. Here’s what I wrote when the rulings were issued: 

One gets the feeling that at least some federal judges are in the grips of the belief that Trump is a unique threat and that existing law simply doesn’t check him enough. So they stretch. They reach beyond the maximum limits of their existing power and create new precedents that not only exceed their authority but will almost certainly exacerbate the ongoing problem of judicial supremacy, of viewing the judicial branch as the arbiters of what’s prudent and wise, not what’s lawful and constitutional.

The governing statute granted President Trump immense power

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

In previous cases, the lower courts effectively added to the statute, essentially holding that the president had to prove that his finding met the judge’s arbitrary standards of policy prudence. Other courts held that the presidential finding could in essence be invalidated by Trump’s “anti-Muslim” rhetoric, regardless of the text of the order. Both lines of reasoning represented dangerous expansions of judicial authority over Congress, which wrote the governing statute, and the President charged with enforcing it. 

The current Supreme Court ruling deals a blow to judicial efforts to stop Trump’s travel ban, but it doesn’t end the case. The Court is simply allowing the ban to be enforced while the courts of appeal in the Ninth and Fourth Circuits issue their rulings on the legality of the bans. The Supreme Court is waiting to render its final judgment until appeals from either circuit are properly presented to the court. 

So this Trump victory is temporary, but it’s hardly meaningless. Not only does it allow the Trump administration to enforce its order, it also provides a hint as to the Court’s leanings in the case. After all, to obtain an injunction, a plaintiff has to demonstrate, among other things, a likelihood of success on the merits of their underlying claim. The Court’s decision to stay the Hawaii and Maryland injunctions may well indicate that the Court has a decisively different view of the merits. Time will tell, but for now Trump wins a round. 

Supreme Court Permits Trump’s Travel Restrictions to Take Effect

by Andrew C. McCarthy

The Supreme Court has stayed a Hawaii federal district judge’s preliminary injunction that blocked enforcement of President Trump’s revised travel restriction directive. This means the president’s directive will go into effect. The stay was announced in a brief order this afternoon.

The Justice Department is currently appealing the ruling by District Judge Derrick K. Watson, who found the new guidance, like the preceding versions of the so-called travel ban, to be constitutionally infirm. The Ninth Circuit is scheduled to hear arguments on Wednesday. A district judge in Maryland, Theodore D. Chuang, has partially blocked Trump’s directive, creating an exemption for aliens who can show they have “bona fide” relationships with U.S. persons or entities – the same exemption the Supreme Court judicially legislated when it allowed a prior version of the travel restrictions to go into effect in June. (See my column on that, here.)

The Supreme Court’s short order allows the president’s travel guidance to go into effect without restrictions. The justices encouraged the Ninth Circuit to follow through on its agreement to consider the appeal on an expedited basis and to “render its decision with appropriate dispatch.”

Two of the Court’s most left-leaning justices, Ruth Bader Ginsburg and Sonia Sotomayor, dissented from the order and would have left the preliminary injunction in effect while the case makes its way through the appellate process.

How Nonpartisan and Independent Was the FBI’s Leadership in 2016?

by Jim Geraghty

Yes, President Trump doesn’t help himself when he Tweets, “After years of Comey, with the phony and dishonest Clinton investigation (and more), running the FBI, its reputation is in Tatters – worst in History!”

But criticism of a particular FBI decision, or a series of decisions by the bureau’s leadership, does not mean one is attacking the entire institution as a whole. (Otherwise, every critic of J. Edgar Hoover is “attacking the FBI.”) But while the FBI’s reputation might be overall in good shape, the public faith in the decision-making of former director James Comey during the 2016 campaign isn’t in good shape. Many Hillary Clinton fans thought the investigation into her e-mails was a witch hunt; many Republicans thought Comey’s press conference lamenting her “extremely careless” handling of classified information amounted to a slap on the wrist. Hillary herself blames Comey for her defeat; that’s obviously overwrought, but there’s no getting around the fact that the FBI ended up making enormously consequential decisions that no doubt helped shape the outcome of the presidential election.

And now there’s some evidence that some voices at the top of the FBI weren’t so nonpartisan and independent after all:

A former top counterintelligence expert at the FBI, now at the center of a political uproar for exchanging private messages that appeared to mock President Donald Trump, changed a key phrase in former FBI Director James Comey’s description of how former secretary of state Hillary Clinton handled classified information, according to US officials familiar with the matter.

Electronic records show Peter Strzok, who led the investigation of Hillary Clinton’s private email server as the No. 2 official in the counterintelligence division, changed Comey’s earlier draft language describing Clinton’s actions as “grossly negligent” to “extremely careless,” the source said.

The drafting process was a team effort, CNN is told, with a handful of people reviewing the language as edits were made, according to another US official familiar with the matter.

The shift from “grossly negligent” to “extremely careless,” which may appear pedestrian at first glance, reflected a decision by the FBI that could have had potentially significant legal implications, as the federal law governing the mishandling of classified material establishes criminal penalties for “gross negligence.”

Is Peter Strzok a partisan hack? His friends and colleagues will probably say “no,” and the Trump administration will say “yes.” But the fact that he was sending around ”politically charged texts disparaging President Trump and supporting Hillary Clinton” is not encouraging. By doing that, he’s given Trump and his defenders all the ammunition they need to argue that Clinton’s non-criminal consequences amounted to a whitewash, and that the Bureau’s continuing investigation into the administration is, at least in part, driven by a partisan vendetta.

And just how good is this guy’s judgment if he’s sending pro-Hillary text messages while he’s investigating her?

Apparently, the Tax Reform Bill Is Killing and Raping Americans

by Philip H. DeVoe

At first, critics of the Tax Cuts and Jobs Act attacked the bill as “harmful” to the middle class and “beneficial” to the top earners. Ever since its passage, however, the arguments have become far more extreme and far less relevant to tax reform. Now, if the bill’s detractors are to be believed, those who support the bill are guilty of:

Raping the middle class

Yes, that’s former Reagan and George W. Bush adviser Bruce Bartlett.

Murdering the poor

Economist Larry Summers managed to calculate the exact number of Americans the bill would murder:

The ComPost, a semi-satirical Washington Post blog, alleged the Senate would come to regret passing a bill “providing for an asteroid hitting the middle class.”

Some kept it personal:

While others took a much more general route:

Murdering America and her values

Grand theft

A mortal sin

Being a cinematic villain

 

All things considered, this over-reaction is good for one thing: It’s quite easy to mock.

Stick to Your . . .

by Jay Nordlinger

At a concert the other night, Ignat Solzhenitsyn walked out and played a little waltz on the piano — just a simple thing. It is known as The Tolstoy Waltz. At one time, Tolstoy claimed to have written it. He had not, though. And when conscience struck him, he was too embarrassed to correct the record.

That’s okay: Tolstoy wrote some other things that do him credit.

In Jaywalking — the third episode of my new podcast — I begin with The Tolstoy Waltz and some other music, for good measure. Then I get into the music of taxes and government and the like. I end with a little story about an orchestra member who found herself with little to do — and so knitted. Yes, knitted, throughout the evening.

By the way, I was working once at a golf course and we were out of carts, on account of a big outing. An irate customer insisted that we somehow produce a cart. A crusty old pro-shop worker — a friend of mine — said, “What would you have me do, sir? Knit you one?”

I’ll never forget it (obviously). Such an odd thing to have said, and perfect.

P.S. That orchestra member — the knitter — was playing (and knitting) in a performance of Il ritorno d’Ulisse in patria, the Monteverdi opera. I mention this opera in a review of Mitchell Cohen’s new book, The Politics of Opera. The review appears in the new Weekly Standard, here. I end it like this:

A book such as Cohen’s may not be for everyone — whose is? — but it is certainly for some. I was thinking of the ideal reader of this book. He ought to be a political scientist, an opera maven, a man alive to the myriad machinations of the world.

The answer came to me as I was reading passages on Machiavelli, that (literal) Renaissance man. Ladies and gentlemen, Bill Kristol.

WFB would have been a ready audience for that book, too. When talking to Schuyler Chapin (who once ran the Metropolitan Opera), he could go back between politics and opera as he liked. (Chapin had excellent stories — including about Heifetz, whom he once managed.)

In CREW v. Trump, Plaintiffs Change Their Tune

by Theodore Kupfer

Citizens for Responsibility and Washington (CREW) is suing President Trump for violating the foreign-emoluments clause of the Constitution. The viability of their case depends upon the standing claims of the three plaintiffs that have joined CREW in the suit. The additional plaintiffs — Jill Phaneuf, Eric Goode, and Restaurant Opportunities Center United — say they work in the hospitality industry and compete with Trump’s hotels in New York and Washington, D.C. Competition between their businesses and Trump’s, the theory goes, gives these plaintiffs standing to bring the case (which litigates whether Trump is illegally doing business with foreign governments).

But as I reported last month, the plaintiffs appear to be overstating their involvements in the hospitality industry in order to secure standing. Attorney Deepak Gupta said in oral arguments that Phaneuf’s “only job is booking events at hotels in Embassy Row,” but she told National Review she works full-time for a private-equity firm. That could imperil her claim of injury. Goode, meanwhile, was said to “own” the Bowery Hotel in New York in filings by CREW and statements during oral arguments by Gupta. Goode is really a managing partner at the hotel, not the sole owner — an important distinction: Legal experts say that individual members of corporate entities cannot bring suit on behalf of the entity unless they are explicitly authorized to do so.

Now, the plaintiffs are changing their tune. Gupta’s law firm filed a document on December 1 that says Goode “has an ownership interest” in the Bowery and refers to “multiple hotels, restaurants, and event and meeting spaces in which the hospitality plaintiffs have a financial interest.” Before, Goode owned several hotels and Phaneuf’s only job was to book diplomatic events. Now, Goode and Phaneuf have “financial interests” in these ventures. It’s a shift in position, however subtle, that should lead the court to ask questions about the plaintiffs’ standing claims. Has Goode been authorized by his business partners to bring suit? And is Phaneuf’s interest in D.C. event planning (which she now characterizes as a “book of business of events in a longer-term hold of an illiquid asset”) sufficient for standing?

Transitioning from Soldier to Scholar

by George Leef

Members of the military learn a lot of useful skills. The problem is that their knowledge often doesn’t transfer well into college credits — which are (alas) far too important in our credential-mad country.

Today’s Martin Center article by Jay Schalin, “Easing the Transition from Soldier to Scholar,” looks at this problem and points to some beneficial developments.

Schalin writes, “One Defense Department program created to address the problem is known as the Military Micro-Credentials (MIL-CRED) project. According to its website, MIL-CRED aims at ‘designing, developing, and testing a standardized micro-credential model that facilitates the transition of military personnel to civilian careers and educational opportunities.’” This system, he continues, “mirrors the competency-based education model adopted by some innovative civilian institutions, such as the online Western Governors University.”

Another approach entails “providing veterans with college credit that is gaining popularity is to treat military service as ‘experiential learning,’ or ‘prior learning experience,’ in which college credits are given for knowledge gained outside of the classroom.” Most vets who enroll at the University of North Carolina receive at least six credits for their learning while in service.

Schalin foresees increasing cooperation between the military and higher education (well, not all of it of course, but generally). He concludes, “The increasing focus on making them more compatible, such as turning military training into Carnegie credit hours acceptable to academia (when applicable), is indeed a welcome strategy.”

Donald Trump Is Not Constitutionally Immune from an Obstruction of Justice Charge

by David French

Earlier today one of Donald Trump’s lawyers, John Dowd, made a rather remarkable assertion. He declared that the “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case.”

This statement is wrong.

To be clear, the president’s power under the Constitution limits the president’s vulnerability to obstruction of justice charges, but it does not end it. For example, our own Andrew McCarthy wrote about some of those limits today:

The FBI and the Justice Department are not a separate branch of government; they are subordinates of the president delegated to exercise his power, not their own. Even on Comey’s account, Trump did not order him to shut down the Flynn investigation, even though he could have. Trump could have ordered an end of the Russia counterintelligence investigation, but he did not. He could have pardoned Flynn, which would effectively have ended the FBI’s criminal investigation — beyond any possibility of review. We can stipulate that these would have been sleazy things to do, potentially damaging to national security, and still grasp that the president had the undeniable power to do them.

Similarly, the president had undeniable power to fire the FBI director. You can argue that his reason was corrupt, but the truth is that he didn’t need a reason at all — he could have done it because it was Tuesday and he felt like firing someone; he could have done it because he figured that the Justice Department’s criticism of Comey’s handling of the Clinton emails investigation gave him the political cover he needed to dispense with a subordinate he found nettlesome. The point is that even if the president hoped that cashiering Comey would derail an investigation he was addled by, it was wholly in Trump’s discretion to fire the director. Moreover, firing the director did not derail the Russia investigation; it has proceeded apace under the director whom Trump appointed to replace Comey.

Let’s assume for the sake of argument that the president cannot violate a federal statute by exercising powers guaranteed the president by the Constitution. He is not, however, above the law when acting outside of his Constitutional authority. With that in mind, read the key language of the most relevant federal statute, 18 U.S.C. Section 1505:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. (Emphasis added.)

As the head of the executive branch of government, Trump has the power to fire an FBI director. He has the power to exercise the prosecutorial discretion to order federal law enforcement agencies to drop an investigation. He possesses an immense pardon power. He does not, however, possess the power to order any federal agency to reach a specific conclusion in its investigation. In other words, he does not have the constitutional authority to “corruptly” put his thumb on the scales of an investigation to dictate that the investigation vindicate him or his associates.

Thus, if Trump isn’t just seeking the end of the investigation but rather the total vindication of his campaign, he is barred from “corruptly” influencing the relevant proceeding (or Congressional investigation.) For example – and to hearken back to both the Nixon and Clinton impeachment counts – he can’t manipulate witnesses into giving false testimony (Clinton allegedly provided grand jury witnesses with false information knowing that they’d transmit that false information to the grand jury). There are limits to his ability to conceal evidence. He obviously can’t direct subordinates to lie to the FBI.

But what about his decision to terminate Comey? Clearly, if he terminated Comey because Comey failed to follow a lawful presidential directive – even if that directive was foolish or self-serving – then it’s specious to argue that a federal statute can criminalize the exercise of a constitutional power for a constitutionally-acceptable purpose. For example, if Trump truly fired Comey for refusing to publicly declare the fact that Trump wasn’t personally under investigation, then that action may be unwise, but it is lawful.

If, however, Trump fired Comey for not clearing Flynn because Trump wanted the FBI to vindicate his senior team, then Trump would have used his constitutional power as part of an effort to deceive the American people. Given the scope of the president’s constitutional authority over Comey, I still do not believe the firing alone can meet the legal definition of obstruction of justice. However, since impeachment is a political process – not a legal adjudication of violations of federal statutes – evidence of malign intent could certainly transform the termination into an abuse of power sufficient to support an article of impeachment. In fact, given the various legal and constitutional complications involved in prosecuting president, I agree with Andy. The likely course of action even if Mueller believes Trump violated criminal law isn’t a criminal indictment but rather a report articulating the grounds for impeachment. In such a case, however, the legal argument over an alleged statutory violation would be just as important as the political, historic, and constitutional arguments over the definition of high crimes or misdemeanors. 

My own view is that there is yet insufficient evidence to bring an obstruction claim against Trump – either as an article of impeachment or as a count in a federal indictment. The Comey firing, however, should not be viewed in isolation. It may represent one key component of a comprehensive effort to corruptly influence relevant proceedings or investigations.

Let’s not forget, Trump didn’t just fire Comey, he misled the American people about his reason for firing the FBI director. Judging from his tweet this weekend, he also misled the American people about his reasons for forcing out Flynn. He also was reportedly directly involved in drafting a misleading statement about his son’s meeting with purported Russian operatives during the campaign. His administration has time and again made false public statements about its Russian contacts. 

As the Flynn guilty plea demonstrates, it’s one thing to mislead the American people, it’s another thing to lie to the FBI. As we’ve watched the administration get caught in falsehood after falsehood over the Trump campaign and transition team’s numerous contacts with Russian officials or purported operatives, it’s premature for any person to definitively declare that there exists insufficient evidence that Trump violated the law. Any person making that declaration now is, at best, offering an educated guess. But there is one thing that we can definitively declare. Trump is not above the law, and that law includes statutes prohibiting obstruction of justice.

Tax Cuts, Entitlements, and Lousy Journalism

by Ramesh Ponnuru

According to a Newsweek headline, “REPUBLICANS WILL CUT SOCIAL SECURITY AND MEDICARE AFTER TAX PLAN PASSES, SAYS MARCO RUBIO.” Previously the headline had “IF” in place of “AFTER.” Nicole Goodkind’s lead: “Florida Senator Marco Rubio admits that the Republican tax cut plan to aid corporations and the wealthy will require cuts to Social Security and Medicare to pay for it.”

You can see what Rubio actually said at the 22-minute mark here. He says that entitlements need to be reformed. He does not say that entitlements need to be reformed only, primarily, or significantly because taxes are being cut. He does not link the two topics. He does not say anything close to Goodkind’s paraphrase. He does not say anything close to either version of Newsweek’s headline.

The New York Times followed up with a front-page story in its Sunday edition: “Next Objective: Cutting the Safety Net.” Kate Zernike and Alan Rappeport report,

As the tax cut legislation passed by the Senate early Saturday hurtles toward final approval, Republicans are preparing to use the swelling deficits made worse by the package as a rationale to pursue their long-held vision: undoing the entitlements of the New Deal and Great Society, leaving government leaner and the safety net skimpier for millions of Americans.

Speaker Paul D. Ryan and other Republicans are beginning to express their big dreams publicly, vowing that next year they will move on to changes in Medicare and Social Security.

The language is loaded, of course: The tax cut is “hurtling” like a runaway train, reform of entitlements would involve “undoing” them, etc. But there’s a bigger problem: Ryan has not been “vowing that next year they will move on to changes in Medicare and Social Security,” and neither have other Republicans.

The article provides no quote from Ryan in which he makes any such public vow, and his office confirmed to me that he has not said anything like that.

The article quotes Ryan saying that cutting spending is unfinished work, but saying nothing about “next year.” It also quotes Rubio’s remarks: the same ones Newsweek put at the center of its false story. “Senator Marco Rubio of Florida was more specific on Wednesday, telling business leaders that the tax cuts were just the first step; the next is to reshape Social Security and Medicare for future retirees.” Note that Rubio did not present entitlement reform as the “next step” in a Republican agenda, or suggest it would happen in 2018, or even use the words “next step.”

I wish Republicans were taking up entitlement reform, restructuring Social Security and Medicare to rein in their future growth while leaving the safety net in place for those who truly need it. Ryan and Rubio have both contributed worthwhile ideas in that effort. But neither of them is saying that we should expect rapid action or that passage of the tax cut is going to speed up the process. Reporters shouldn’t put words in their mouths.