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May 14, 2020

CAFE Insider Newsletter #73

Dear Reader,

In the world of medicine, it is typically the doctor who both makes the diagnosis and prescribes the treatment. There are exceptions of course, as when your general practitioner says you’ve broken a bone and sends you to an orthopedist to handle the treatment. But generally speaking, the competence in diagnosis and in treatment resides in the same person. Your eye hurts, you go to the ophthalmologist, she concludes you have a scratched cornea, she treats you with some eye drops, and warns you away from contact lenses for a week. Same drill usually for a cardiologist, a urologist, or an oncologist. And this all makes good sense.

I’ve been thinking lately that this expectation, which is sensible in medicine, is quite foolish and even dangerous in politics. The rhetorically adept politician who can well articulate what ails the body politic is often woefully inadequate to the task of healing it. And yet voters are often taken in by the resonance of the diagnosis and sweep such people into office.

Donald Trump is the latest and most awful example. Whatever else you may think of him, he presented, in 2016, a powerful and resonant diagnosis of what was sick and wrong about American politics and government. I acknowledged as much in the first speech I gave after being fired more than three years ago, at Cooper Union: “[Y]ou know what? There is a swamp. A lot of the system is rigged. And lots of your fellow Americans have been forgotten and left behind. Those are not alternative facts. That is not fake news.”

But Donald Trump is not a doctor. He has no earthly idea how to lead, govern, or make America great. As I also said in that speech:

To drain a swamp, you need an Army Corps of Engineers – experts schooled in service and serious purpose – not do-nothing, say-anything neophyte opportunists who know a lot about how to bully and bluster, but not so much about truth, fairness, and justice. Draining a swamp takes genuine commitment to justice and fairness, not just attention to what benefits one group over another, or divides one group against another.

No, Donald Trump is not a doctor. He is a critic.

Unlike a highly trained medical specialist, a professional critic can, if capable, handle only the first part of the problem: the diagnosis. She may be able to artfully explain what is imperfect in the book or the play or the movie, but not necessarily how to fix it. And rarely is she able to produce a fine book, play, or movie of her own. Most critics can only dissect, not create.

Again, I know there are exceptions and I think critics serve a necessary role, but most always even the best critic is a shabby creator. Take, for example, perhaps the most influential and prominent film critic of the past half century: Roger Ebert. He began writing movie reviews for the Chicago Sun-Times in 1967; the television review show in which he starred as one half of Siskel and Ebert was a hit. I remember watching it religiously when I was young. Ebert was so well respected as a critic that in 1975 he won the Pulitzer Prize for Criticism, the first film critic in history to receive the award. So whatever you thought of his taste in movies, Roger Ebert was an acknowledged great in the field.

So, did he ever try his hand at making a film, rather than just diagnosing their ills? He sure did. He wrote the screenplay for the campy Russ Meyer film, Beyond the Valley of the Dolls, which was released in 1970. How did the critics react to this critic’s work? Not well. His future television co-host, Gene Siskel, gave it zero stars out of four. Zero. Siskel wrote that the picture “unfolds with all of the humor and excitement of a padded bra.” The Washington Post’s critic called it “a mess, a disaster, a stinkeroo, the most wretched of wretched movies.” In recent years, the movie has gained something of a cult following, but it was soundly panned by Ebert’s own peer group.

I realize the oddity of even indirectly comparing Donald Trump to Roger Ebert, but I hope you take my point. Trump exposes spectacularly the fallacy of believing that the critic is endowed with the skill to fix that which is ably criticized. Trump doesn’t know the first thing. He can spot flaws in the system, shout about them, exploit the resentments about them, and get elected doing so. But fix them? Not a chance. Like a movie critic who has no idea how to make an Oscar-winning film, Trump has no idea how to govern a country well.

The lesson here is that all voters should ask themselves not just who best articulates what ails America, but who best shows the capability and competence to heal the country. Those are two separate questions and often yield quite different answers, and while this sounds painfully obvious, millions and millions of Americans fail to make the distinction.

There’s a scene from the movie Birdman that sticks in my mind. Michael Keaton plays Riggan Thomson, a washed-up former box office star attempting a comeback with an ambitious Broadway play. Thomson is in a bar and confronts a drama critic who is going to sink his play with a devastating review. Thomson rages against the critic, getting up in her face, lashing out with expletives, saying of her expected critique: “It’s just a bunch of crappy opinions backed up by even crappier comparisons. . . .” Then he makes the real point: “None of this costs you f-ing anything. You risk nothing. Nothing. Nothing. Nothing. I’m a f-ing actor. And this play cost me everything.”

As we continue to suffer the risks and costs of this pandemic, voters’ failure to distinguish between the doctor and the critic could cost our country everything.

Be kind and be well.

My best,

Preet

 

Justices Take On Trump Taxes and Absolute Immunity

By Sam Ozer-Staton

The US Supreme Court is seen following oral arguments in Trump v. Mazars and Trump v. Deutsche Bank AG, dealing with the subpoenas from the US Congress to obtain US President Donald Trumps financial records, which was heard via a teleconference due to COVID-19, known as coronavirus, in Washington, DC, May 12, 2020. (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)

The Supreme Court is gearing up to decide the most significant case on presidential immunity since the Nixon years.

On Tuesday, the Court heard oral arguments in a set of cases that will determine whether the House of Representatives and the Manhattan District Attorney have the constitutional authority to subpoena President Trump’s financial records from a third party. The cases before the Court are not just the latest chapter in the long-running political battle over Trump’s tax returns; they also have wide-ranging implications for the future of executive branch oversight.

Does the president have sweeping legal immunity? Or is the presidency subject to probing oversight?

The first two consolidated cases, Trump v. Mazars and Trump v. Deutsche Bank, stem from a series of congressional subpoenas issued in mid-2019. In Mazars, the House Oversight Committee subpoenaed Trump’s accounting firm, Mazars USA, following a committee hearing in which Trump’s then-personal attorney Michael Cohen testified that Trump had misrepresented his assets in financial statements prepared by the firm. The other case, Deutsche Bank, involves investigations by multiple congressional committees into potential foreign money laundering by the Trump Organization and the banks that loaned it money, Deutsche Bank and Capital One.

The third case, Trump v. Vance, asks whether Mazars must comply with a New York state grand jury subpoena for Trump’s tax returns, which Manhattan District Attorney Cy Vance issued as part of a criminal investigation into possible campaign finance violations.

The Supreme Court has historically been quite deferential to Congress’s power to issue subpoenas when they aid in its legislative function. In their brief, the House’s lawyers argue, ”[The Supreme Court] has held that Congress has constitutional power to issue a subpoena if the subpoena is related to a valid legislative purpose. A subpoena relates to such a purpose if it seeks information that will inform Congress on a subject on which legislation could be had.” The House claims that the subpoenas “inform a wide range of legislation and appropriation decisions” around preventing money laundering, monitoring foreign interference in our elections, and strengthening federal ethics laws.

President Trump’s lawyers argue that the House’s true objective in subpoenaing the financial records is not to inform the legislative process but to expose the president. In their brief, Trump’s legal team writes:

These Committees are not legislating; they are avowedly engaging in law enforcement. All of them—to one degree or another—have acknowledged that the purpose of the investigations is to determine whether the President engaged in wrongdoing…It is difficult to imagine a more blatant effort to expose for the sake of exposure than misusing the President and his family as a congressional “case study.”

The Department of Justice, which filed a “friend of the court” brief on Trump’s behalf, argues that the “legitimate legislative purpose” standard should be heightened when it concerns the president. According to the DOJ’s brief:

Those limitations should be even stricter when a committee aims its investigatory power at the President…The Constitution vests the entirety of the Executive Power in the President, and it entrusts him with vast and vital public responsibilities. This Court has long understood that to enable the President to discharge those critical constitutional duties, Article II provides an immunity from any process that would risk impairing the independence of his office or interfering with the performance of its functions.

In Tuesday’s oral arguments, the Court seemed skeptical of the broad argument around presidential immunity. The justices honed in on the Court’s relevant precedents in United States v. Nixon (1974) and Clinton v. Jones (1997) where the Court forced the president to comply with subpoenas, effectively limiting presidential immunity and strengthening oversight.

Referring to the Clinton case, in which the Court compelled the president to be deposed in a sexual harassment lawsuit, Justice Neil Gorsuch, a Trump appointee, asked, “How do we avoid the conclusion there that the president wasn’t subject to some special immunity but here is?”

But while several justices appeared to reject the broad immunity argument, many seemed sympathetic to the notion that the House’s subpoenas did not advance a legitimate legislative purpose. Justice Stephen Breyer, a reliable member of the Court’s liberal wing, said, “[The subpoenas] ask for all documents related to opening of accounts, due diligence, closing, requests for information by other parties, et cetera. Now that’s a lot of information, and some of it’s pretty vague.”

Court watchers are anticipating a possible split decision which would reject the House’s subpoena while allowing state prosecutors to subpoena the president’s records as part of a criminal investigation.

The short-term effect of a ruling against Trump would be the public release of years of the president’s tax returns in the middle of an election year. But, as Justice Breyer said on Tuesday, the impact of the ruling on presidential immunity will extend far beyond that. Reminding his colleagues of the dark legacy of Senator Joseph McCarthy’s investigations of communist infiltration in the 1950’s, Breyer said, “What I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman.”

Should the Supreme Court allow Congress to obtain the president’s financial records for purposes of oversight, even if it does not directly further any legislative purpose? Or is oversight of potential wrongdoing best handled by prosecutorial offices? Let us know your thoughts by writing to us at [email protected], or reply to this email.

FOLLOW

As the Supreme Court considers multiple landmark cases during the time of COVID-19, it is live streaming oral arguments for the first time in history. You can listen to the oral arguments live on C-SPAN. And for thoughtful analysis of the Court’s deliberations, follow @AdamLiptak, the New York Times’ Supreme Court reporter.

 

*To listen to Insider content on your favorite podcast app, follow these  instructions*

Listen to this week’s episode of Stay Tuned, “Our Chronic Ills,” featuring The Atlantic staff writer George Packer, at CAFE.com or the podcast player of your choice. And don’t forget to listen to the bonus for Insiders, where Packer talks about the novelist Robert Stone.
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This week’s episode of CAFE Insider, “Water Under the Bridgegate,” breaks down the fallout from the DOJ’s decision to dismiss the Michael Flynn case, the Supreme Court’s decision to overturn the convictions stemming from the “Bridgegate” scandal, and the horrific murder of 25-year-old Ahmaud Arbery in Georgia.

As always, write to us with your thoughts and questions at [email protected].

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Sam Ozer-Staton, David Kurlander, Noa Azulai, Calvin Lord, David Tatasciore, and Matthew Billy.

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