Email #248: “adversarial”?

“The American legal system is adversarial and is based on the premise that a real, live dispute involving parties with a genuine interest in its outcome will allow for the most vigorous legal debate of the issues.”

That’s from Toni M. Fine’s reference guid American Legal Systems. I could quote a dozen other similar texts, since the statement is a common fact. As a graduate of Washington and Lee University’s Law School, you know that far better than I do. You also practiced law as a partner in your own firm, so you understand the adversarial nature of the legal system first hand. As a defense lawyer, you argued for your clients’ innocence, while prosecutors argued for their guilt.

You must also then know first hand the difference between factual and legal guilt. Though you must have known that some of your clients were factually guilty, it was still your job to do all that you could to prevent their being found legally guilty. An effective lawyer, whether defending or prosecuting, takes no interest in determining the actual truth or guiding a jury to a moral outcome. While this sounds unethical, it’s the bedrock of our legal system. If you or any other lawyer allowed personal judgements of truth and morality to sway your actions–and so not do everything in your professional power to persuade a jury of a defendant’s innocence regardless of their factual guilt–then you would be a failure as a lawyer.

While I know nothing about your career as a lawyer before you became a Representative in 1993, I assume you were no failure. I assume you took your adversarial duties quite seriously. I assume you set aside matters of truth and trusted in the larger system to produce the best results. You simply argued your position, right or wrong, knowing your opponents would do exactly the same, and then it would be up to the jury to decide. Sadly, what made you an effective lawyer has made you a destructive politician.

You entered Congress at a turning point in American politics, when Speaker Next Gingrich changed the norms of rhetoric to foster greater division between Republicans and Democrats. While party politics was always adversarial, the approach has grown to polarizing extremes in the quarter century that you’ve remained in office. You approach political issues with the intentional blindness of lawyer duty-bound to prosecute one side and one side only. If your side of the aisle holds a morally questionable position–the denial of health care to the poor in order to reduce taxes for the wealthy, for example–you argue with the same vigour as you do when claiming a moral highground. When the facts support your position, you use those facts in your arguments. When the facts don’t support your position, you ignore and obscure them. Both truth and morality then are irrelevant if neither determines your actions.

This paradoxically is the necessary and fully ethical attitude of a lawyer. But politicians are not lawyers. They do not represent sides. They represent their constituents, all of their constituents, regardless of party. Our district does not have two Representatives who go to Washington as adversaries who together create the best outcomes. We only have you. Even looking at the Congress as a whole, Republicans and Democrats should not treat each other as adversarial lawyers battling to win regardless of right and wrong. Your excellence as a lawyer has made you a harmful Representative. 

 

 

Email #134: “division will do nothing to benefit our country”

You said on November 11th:

“After this election, it would be easy to retreat to separate corners and allow the divide between friends, neighbors, and family members with different political beliefs and values to sharpen. However, that kind of division will do nothing to benefit our country. It is not what we need today.”

I strongly agree.

Which is why I’m confused by so many of the statements you’ve made and actions you’ve taken since. Your political strategy seems to be to sharpen differences and exploit divisions that benefit your personal standing but worsen our country overall.

Why do you continue to call the Affordable Care Act “Obamacare,” a name coined solely for the purpose of stoking opposition to it?

Why do you support President Trump’s universally rejected claim that he lost the popular vote due to massive voter fraud?

Why do you downplay the significance of allegations made against the Trump administration while highlighting other, less significant allegations—including the President’s universally rejected claim that Obama wiretapped Trump Tower during the election?

Why do you continue to highlight rapes and murders committed by immigrants in order to condemn the previous administration’s now irrelevant immigration policies?

Why do you reflexively oppose gun regulations of any kind, even in cases where individuals do not have the mental capacity to responsibly own them?

Why do you discredit all grassroots opposition groups as “fronts” for national organizations, even local groups that formed before Indivisible?

Why do you ignore the Trump administration’s conflicts of interest after having so vigorously challenged the Obama administration on all ethics issues?

Why do you applaud President Trump’s military response to the “evil” of Syria when you criticized President Obama on the same issue?

Why do you cite the importance of balancing the budget and reducing the deficit when opposing liberal issues such as the ACA Medicaid expansion but ignore it when you support conservative issues such as increased military spending?

Why did you support the American Health Care Act despite the harm it would cause to your constituents in both the Democratic and Republican parties?

You are not simply retreating to your corner. You are not simply allowing the divide to sharpen. You are actively promoting division by using your safe political corner to engage in constant, hypocritical attacks that do nothing to benefit our country.

You are exactly the opposite of what we need today.

Email #126: “serious concerns”

The House Committee on Ethics announced last Thursday:

“The Committee is aware of public allegations that Representative Devin Nunes may have made unauthorized disclosures of classified information, in violation of House Rules, law, regulations, or other standards of conduct… The Committee has determined to investigate these allegations in order to fulfill its institutional obligation … to investigate certain allegations of unauthorized disclosures of classified information, and to determine if there has been any violation of the Code of Official Conduct…”

House Intelligence Committee Chair Nunes, because he is being investigated for disclosing classified information and because he was involved in the Trump transition team, has also recused himself from leading the Intelligence Committee’s investigation into the Trump campaign’s ties to Russia.

Like Speaker Ryan, “I fully support his decision.” I assume you also support Rep. Nune’s decision—especially since the unauthorized disclosure of classified information is a federal crime, one that you recently wrote to the Justice Department about. Your letter of February 15 expressed “serious concerns” over news reports about former National Security Advisor Michael Flynn that “may come from classified intelligence products.”

You must then have equally serious concerns regarding Rep. Nunes. In the case of Flynn, the news reports resulted in his resigning after the public became aware of his lying to Vice-President Pence about his communications with Russia—the same investigation issue that Rep. Nunes has recused himself, and which General Attorney Sessions has also recused himself. You spoke flatteringly of Sessions’ decision:

“Attorney General Sessions did the right thing by recusing himself. Attorney General Sessions is an honorable man who believes in preserving the integrity of the justice system. I applaud his decision to avoid even the appearance of impropriety in order to ensure the American people have confidence in our justice system.”

Although you then took it as yet another opportunity draw a negative contrast to score a cheap and contextually meaningless political point:

“Attorney General Sessions’ admirable decision stands in stark contrast to his predecessor, who met with former President Bill Clinton, the husband of the target of an FBI investigation, while the investigation was ongoing. Attorney General Sessions should be commended for his commitment to ensuring the Justice Department is above reproach.”

Although the Trump campaign attempted to make much of Attorney General Lynch’s meeting with Bill Clinton during the election, your allusion to it now seems gratuitous if not desperate. It also pales in comparison to Attorney General Sessions’ apparent perjury during his Senate confirmation hearing regarding his communications with Russia during the election–an issue you have not pursued despite your dogged oversight of the executive branch during Obama’s second term.

I very much look forward to your next press release expressing your opinion of Rep. Nunes’ decision to recuse himself and the Ethics Committee’s investigation into his criminal disclosure of classified information.

Email #125: “regulate the economy”?

A new poll shows that Americans view the economy not through verifiable facts but through the lens of their political parties. “We’ve never recorded this before,” said the director of the University of Michigan’s consumer poll: “the partisan divide has never had as large an impact on consumers’ economic expectations.”

While the polarizing effects of the last election and Trump’s continuingly divisive presidency may be the biggest factor, you’ve done your part too. You wrote in one of your past newsletters:

“The Obama Administration’s attempt over the last eight years to regulate the economy back to prosperity was the wrong approach.”

The verb “regulate” is a rhetorical device to imply that President Obama’s only method for tackling the economy was creating new regulations. This is obviously not true, and so it is disturbing to see you so casually imply a false statement. Worse, you directly state that President Obama’s economic policies overall were “wrong.” This is verifiably false. As you know, the GDP growth was up for 25 of the last 27 quarters of his presidency, with 76 consecutive months of jobs growth.

There’s plenty to criticize too, since the percent of growth was low. Still, Obama entered office at the onset of the Great Recession, and a Republican Congress, yourself included, halted his economic growth policies two years later. So why didn’t your newsletter column “The Price Tag of Federal Regulation” acknowledge the Republican role in the economic condition of the country, especially the policies of the Bush Administration that triggered the recession that Obama inherited?

Your treatment of facts is disturbing. We have a President who routinely lies. I say that objectively. According to multiple fact-checking sources, President Trump regularly makes false statements, calling them “truthful hyperboles” or “euphemisms” or “alternate facts.” Whatever you call them, they destroy public trust. And rather than addressing that problem, your own statements are adding to it, further dividing the country–even on issues as factually verifiable as the state of the economy.

You told me elected officials should be held to the highest standards. Please apply that principle to your own rhetoric. There’s far more at stake than partisan squabbling. You can either help to heal America’s blinding political divide, or you can keep widening that gap to score meaningless partisan points at a deepening cost to our nation.

 

Email #98, Subject: “restore our civilization”?

In 2013, Iowa Rep. Steve King claimed that children of illegal immigrants were often drug mules. Speaker Boehner condemned his remark, and, to your credit, you did too. You said: “It is inappropriate, it does not help the discussion, it’s not accurate, and there are ways to have a discussion about the legitimate policy issues without saying things that are unkind.”

Since King never corrected his statement or apologized for it, I am confused why you then appointed him to chair the Subcommittee on the Constitution and Civil Justice. I would question his appointment to chair any House Judiciary subcommittee, but given his remark—one you personally called inappropriate, inaccurate, and unkind—he seems self-evidently unfit to oversee Civil Justice.

King’s recent statements confirm that.

Last year while supporting the Trump campaign, King asked an interviewer “where are these contributions that have been made by these other categories of people … where did any other subgroup of people contribute more to civilization?” Western civilization, he said, is “rooted in Western Europe, Eastern Europe and the United States of America and every place where the footprint of Christianity settled the world. That’s all of Western civilization.” As you of course know, the statement is shockingly ignorant. (Western civilization, for example, relies on Arabic numerals for all of its mathematical and technological advances.)

Now over the weekend, Rep. King tweeted: “culture and demographics are our destiny. We can’t restore our civilization with somebody else’s babies.”

This statement is not merely ignorant. It is not merely inappropriate, inaccurate, and unkind. It is the foundational belief of white supremacy. According to King, “our” civilization is the overwhelmingly white “culture and demographics” of the Iowa voters who elected him to Congress. According to King, “we” can’t restore ourselves–we can’t make America great again–if non-whites predominate.

Given these extraordinary remarks, I assume you will no longer allow Rep. King to serve as chair of your Civil Justice subcommittee. Even if King’s multiple statements were aberrations and misunderstandings, they create an overwhelming appearance of prejudice. Voters cannot trust him.

If you allow him to continue as chair, voters cannot trust you either. It was already disturbing that you appointed him Civil Justice chair despite your condemnation of his 2013 remarks. To continue that mistake in light of his now overtly racist agenda would subvert the core mission of the House Judiciary Committee.

Please set aside party politics and your personal relationship with the Congressman, and do the right thing.

Email #80, Subject: investigation priorities?

I read that you and Rep. Jason Chaffetz have written a letter to the Justice department requesting an investigation into the press leaks that lead to Michael Flynn’s resignation as national security adviser. Since you chair the House Judiciary Committee and Mr. Chaffetz chairs House Oversight, your joint letter has considerable weight. While I applaud your focus on the executive branch, I am confused by your choice of issues.

Leaks to the press that involve potentially classified information are a legitimate concern, but in this case those leaks revealed information that the administration was keeping from the public – and apparently even from the Vice President. Without them, Mr. Flynn would still be in his former position, despite his illegal actions and his vulnerability to Russian blackmail.

Mr. Chaffetz also likened your requested investigation to the FBI’s investigation into Hilary Clinton’s use of a private email server. This is an unfortunate comparison. While that investigation yielded no findings of illegal actions, it did influence the Presidential election. As you know, FBI Director Comey’s letter to Congress announcing his reopening of the investigation days before the election may itself have been illegal and so more worthy of a Justice department investigation.

Also, as you know, the President has broken his promise to release his tax records and so reveal his conflicts of interests. While his refusal is legal, it falls far below the “highest standards” you have endorsed for elected officials. Would you and Mr. Chaffetz ask Rep. Kevin Brady, chair of the Ways and Means Committee, to reconsider requests to seek the President’s taxes in order to determine his business ties to specific companies and countries?

While your letter regarding press leaks is reasonable in itself, its role in the larger political context creates the impression of an aggressively partisan attitude.  You seem to be using your role as Judiciary chair unfairly and, ultimately, unwisely. Given the negative national attention you received for your failed Ethics Office amendment last month, I had hoped you would shift to more centrist priorities. Your recent attempts to block communication between Immigration and Customs Enforcement and others members of Congress is equally disturbing, as is your refusal to respond to requests to investigate the President’s conflicts of interests.

You had the reputation of a reasonable, principled Republican concerned with doing the right thing. The deep damage you have done to that reputation in just two months is startling. I hope you will also consider the damage you are doing to the norms of bipartisan government. We have a polarizingly antagonistic President who routinely misrepresents facts and bends and breaks rules to achieve his goals. Your constituents expect and need far better from you.

Email #79, Subject: “nationwide thing”?

When a group of protesters met you outside a local restaurant recently, you told a reporter:

“This is a nationwide thing. This is not something that’s unique to the 6th District. This is going on in every single congressional district in the country. It’s organized by a national organization that is not happy with the outcome of the election. These are my constituents so they’re welcome to be here and express their opinions as well.”

First, let me acknowledge and thank you for that last sentence. It would be easy to disparage voters who disagree with you, but you instead supported their right to protest. The photograph even showed you standing outside beside the group, not hiding inside the building.

I am confused though by your opening statements. This is indeed a “nationwide thing” and certainly not “unique to the 6th district” and it really is happening “in every single congressional district in the country,” but why would you want to advertise that fact? At first I thought I was reading a quote from one of the protestors, bragging about the unprecedented massiveness of their anti-Trump movement.

Did you mention the ubiquity to mean that it’s not just you but all of the GOP Congress that’s under fire? If so, how does that make the situation any better for you? Either way you are facing the strongest opposition of your political career. Do you prefer that the rest of the GOP go down with you?

I am most troubled, however, by your middle statement: “It’s organized by a national organization that is not happy with the outcome of the election.” I assume you mean the Indivisible Guide, which I have read. But I read it well after I had begun writing and phoning and attending meetings with my elected officials. The guide was recommended to me by several people because they saw I was already so engaged.

So you seem to have reversed the order of influence. For me and literally everyone I know who is protesting, the guide is great reading that answered some questions that we were already asking. But no one I know is “organized by a national organization.” My group of friends began protesting before they heard of Indivisible, and they continue to protest independently of it.

If you sincerely imagine that this “nationwide thing” is under the control of a single organization, you are mistaken. I do see how that impression would be reassuring to you, since it implies a much smaller problem. Combatting a single organization, even one as unprecedentedly massive and coordinated as what you describe, would be far easier than combatting the spontaneous and simultaneous opposition of independently driven voters “in every single congressional district in the country.”

You and the GOP Congress are facing historic opposition, and you will continue to face it until you divide yourselves from the historic mistake of President Trump.