Key Points of James Comey’s Senate Testimony

Hello all,

The long awaited event has come and passed: James Comey, the beleaguered former FBI director, gave his voluntary testimony in front of the Senate Intelligence Committee. For the benefit of those who did not have three uninterrupted hours to devote to their televisions, I will summarize the main points below.

  • In his capacity as FBI director, James Comey met or spoke privately with Donald Trump–as President-Elect, and then as President–a total of nine times in a period of six months. In contrast, in his years of service under the previous administration, Mr. Comey met privately with President Obama only twice.
  • Contradicting one of President Trump’s prior statements, Comey said that he did not initiate any of these contacts.
  • In one of these meetings, President Trump asked repeatedly for Mr. Comey’s promised “loyalty,” a commitment Comey refused to make. In his mind, this request constituted an attempt to form a “patronage relationship.”
  • Comey began producing memos of his meetings with President Trump from their first one-on-one conversation, because he was “honestly concerned that [Trump] might lie” about the content. He did not make a habit of constructing memos about his conversations with President Obama.
  • Following one of these conversations, Comey asked Jeff Sessions to ensure he and President Trump did not speak alone again– to act, as is his duty as Attorney General, as the appropriate go-between that is meant to exist between the President and the FBI Director.
  • At the time of Comey’s conversations with Trump, he was not, in fact, under direct investigation for colluding with Russia. However, Comey stated today that he is “sure” that Special Counsel Robert Mueller was now investigating the President for obstruction of justice.
  • The subject of at least one of these one-on-one conversations was Michael Flynn– how he was a “good guy,” and how the President “hoped [Comey] could find a way to let [the investigation into Flynn] go.” While this was phrased as a general statement, Comey understood it to be a directive based on the power dynamics in play. He did not, however, say that he felt he was being threatened with termination.
  • Comey was not aware of any recording of these conversations, but consented to– and even invited– their release, if they do exist. He also consented to the release of his memos, both to Robert Muller and the Senate Intelligence Committee.
  • When President Trump tweeted about having “tapes,” Comey felt the need to ensure his side of the story was heard. In that moment, he sent the memos to a friend–a professor at Columbia University– and asked him to share them with the press. He did, which resulted in the bombshell New York Times article on the subject. Many on the right are taking this as an issue of “leaking,” however, as General James Clapper elucidated several weeks back, if the information shared is not classified, it cannot be a leak. There was no classified information in the Comey memos.
  • Without mincing words, Comey testified that President Trump’s comments regarding the Bureau being in “disarray” and having lost confidence in its director were “lies, plain and simple.” He further accused the President of defaming both his character, and that of the FBI.
  • The former FBI director admitted some “confusion” about the reason for his termination, but stated that he took the President “at his word” that he was fired in order to relieve the pressure that the Russian investigation was placing on the President’s office.
  • Unequivocally, Comey was able to state that Russia did, in fact, interfere in the United States Presidential Election– a point that President Trump never expressed concern about in his many conversations with the FBI Director.
  • When asked whether he believed President Trump had colluded with Russian officials in their election interference, Mr. Comey refused to answer in open session. (Naturally, this evokes a fair amount of speculation, because if the answer was “no,” it would not be classified and could therefore be shared.)

There were, of course, other points that could be made. There was the rather odd sidebar about Comey’s lack of confidence in Obama-era Attorney General Loretta Lynch’s ability to remain neutral in the investigation into Hillary Clinton’s emails– one would definitely question the relevance, let alone the evidence for this, which was justified only with an apparent meeting between Lynch and former President Bill Clinton on a tarmac, and Lynch’s request that the investigation be described as “a matter” in discussions with the press.

In a similar vein, Senator John McCain (R-AZ) used his seven minutes of questioning to go off on a winding, disorganized tangent about the investigation into Secretary Clinton; he later explained that he was hoping to impress upon Comey the hypocrisy of his willingness to speculate about the state of the Clinton investigation but not behave similarly in regards to Trump. If that was his goal, he went a long way around the barn without ever reaching his destination.

Finally, in light of yesterday’s events where Senator Kamala Harris (D-CA) was silenced by Majority Leader Mitch McConnell after asking Deputy Attorney General Rod Rosenstein for written confirmation that Robert Mueller would have full independence in his capacity as special counsel, I feel she deserves special recognition here. She spent the seven minutes she had to question Mr. Comey asking the questions that all of us wanted answered. Most, sadly, were not answered in open session, but she did prod Comey into saying that he believed Mueller should “absolutely” have complete independence in his duties.

Naturally, the republican camp dissented against most of this, with Donald Trump Jr. calling Comey’s testimony “BS,” and the President’s private attorney stating that Trump felt “vindicated,” and emphasized the parts of the testimony most convenient to his client while dismissing the rest. Standard operating procedure, really.

That’s all for today, folks. Until next time…

— This is the ALF, signing off.










James Comey: You’re Fired… Now What?

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” — United States Declaration of Independence

Folks, the time might be near at hand. Today, following a second day of testimony by former Attorney General Sally Yates, Donald Trump saw fit to fire now-former FBI Director James Comey. Why? Purportedly, because James Comey acted inappropriately in revealing the details of the investigation into Huma Abedin’s email server weeks before the election, and because of his mendacious testimony about that server, saying yesterday that Abedin had forwarded “hundreds and thousands” of emails to her husband–the infamous Anthony Weiner– in her roll as Secretary Clinton’s Chief of Staff. The number, in fact, is not more than a “handful.” There are two major points here: first, Trump had praised Comey’s decision to release this information about the Abedin investigation from the point of his election, through the inauguration and beyond. It is not as though Trump recently became aware of this choice, or had denounced it all along. Along similar lines, the ongoing investigation into whether Comey’s actions violated the law is not nearly complete– it is, in fact, not expected to be complete until the end of the year (MSNBC). Thus, this is neither the beginning of this investigation, nor the end. It certainly seems strange that Trump would fire an FBI Director for taking actions that he praised, before an investigation into his actions had concluded. Second, James Comey, for all of his well-known faults, is a man who has been known throughout his career for his precision in testimony. “A handful” of emails is nowhere near thousands, and there is absolutely no way that James Comey did not know the real number as the Director of the FBI entering Congress to testify– not for the first time– on his decision to release that information and the Trump/ Russia connection. And, let’s all be honest– there is very little chance that he mistook “a handful” for thousands– a man known for evasiveness in testimony would simply have answered with “no comment” if the number had escaped him. While perjury is a crime in itself, this thought process leads to a more disturbing conclusion: James Comey lied, on purpose. And today, he was fired—and certainly not for the reasons stated, because any thinking human is capable of seeing that Trump did not fire Comey because Comey handed him an advantage in the election. So then, why? The logical progression of these events is that Comey, who had helped Trump in the election and engaged in a partisan witch hunt against Hillary Clinton against the mandate of his office, has been working with the President for some time. So today, when Trump asked him to fall on the sword so that he could nominate a new Director who would be more willing to stretch the boundaries of the law, he did. This is, of course, speculation, but as the expression goes, “if the shoe fits…”

Let’s not forget, James Comey was due back in session to testify further on Thursday—a testimony that has now been cancelled. And now, Trump will be able to appoint a new director of the Federal Bureau of Investigations, who will take over the investigation into the Trump campaign’s collusion with Russia. If precedent holds, the appointee will be grossly underqualified, and probably have Russian ties of his own. Then—assuming the nominee is approved by the Senate, the new FBI Director will have access to absolutely everything pertaining to the Trump/Russia investigation, and the authority to make decisions about how, or if, that investigation proceeds. It is not an exaggeration to say that if Trump is successful in appointing an inside man to this position, he will have effectively placed himself beyond the reach of the law. This cannot be allowed to occur.

Representative Jerry Nadler (D-NY) called these circumstances “a constitutional crisis worse than [Watergate].” He is not wrong. This is the time to demand an independent special prosecutor to continue this investigation, prior to the appointment of a new director—at which point there is a very reasonable fear that evidence, and the investigation itself will be destroyed. If Congress allows such a nominee to take control of the FBI, we have lost control of our country.

With this, it is time, I think, to organize a March for Impeachment. Do not get me wrong, I support and appreciate the efforts of the Women’s March, the March for Science, and all the various protests that have occurred since the election, however, the time for single-issue protest in this venue has come and passed. The very fiber of this nation is at risk and we the people, regardless of party and interest group affiliation, must stand up to defend it, and demand that those who allege to represent us defend it as well. If not, we may soon be faced with the very real choice of living under the control of a government that operates outside of the laws on which it was founded, or attempting to follow the suggestion of our Founding Fathers.

I am sure that there will be plenty more to talk about in the coming days, but until then: stay informed, stay alert, and stay safe.

ACA Repeal Passes the House: What Does This Really Mean?

In a 217-213 vote, Republican members of the House of Representatives managed to pass a bill yesterday (May 4th, 2017) that will supposedly begin the process of repealing and “replacing” the Affordable Care Act. While the President and members of Congress are celebrating their symbolic victory, it is important to pay attention to the big picture. The first noteworthy subject is the Senate, which has promised a deliberation process that will last upwards of six weeks and include a proper evaluation by the Congressional Budget Office. There have also been hints from more than one Republican Senator that the bill that the Senate will vote on will look little, if at all, like the bill that exited the House today. Now, given whose hands this is in, that’s not necessarily encouraging in itself– a new bill doesn’t necessarily mean a better bill. That said, the new bill would then have to return to the House for approval, and given what happened the last time the House had a more moderate healthcare bill in front of them, one can imagine that negotiation process will be…difficult, at best. Assuming the Senate passes a bill, it will then most likely go to committee for debate and compromise before coming to a vote in both houses once again. In short, this is far from over.

That should not, however, serve as an excuse to be anything less than acquainted with the nature of the bill as it presently stands. Most notably, the classification and management of individuals with pre-existing conditions has been at the forefront of conversations, and rightfully so. While we do not fully know what is and is not funded by the bill yet–neither do many Republicans who voted for it– we have had several glimpses into its contents. First, an amendment to the bill proposed by Representative Tom MacArthur (R-NJ) will allow states to petition the federal government for the right to charge individuals with pre-existing conditions more. States who take advantage of this will be required to maintain a so-called “risk-sharing” plan, which will be partially subsidized by the eight billion dollar amendment that was added yesterday, May 3rd, to help cover the cost. The AARP, among others, have described this funding as inadequate. The bill also does not define pre-existing conditions that would qualify for the waiver– meaning any condition identified by insurance companies would likely be at risk. Here are some examples:

  • Mental Health: Anorexia Nervosa, Bipolar Disorder, Bulimia Nervosa, Generalized Anxiety Disorder, Major Depressive Disorder, Obsessive-Compulsive Disorder, Post-Traumatic Stress Disorder, Schizophrenia, etc.
  • Behavioral/ Developmental Health: Autism Spectrum Disorders, Down Syndrome,   Attention Deficit (Hyperactivity) Disorder, Tourette’s Syndrome, etc.
  • Chronic Physical Health Conditions: Arthritis, Asthma, Blindness, Cancer, Deafness, Diabetes, Epilepsy, Heartburn, Hepatitis, Heart Disease, HIV/ AIDS, Migraines, Obesity, Osteoporosis, Paralysis, Tooth Disease, Ulcers, etc.
  • Women’s Health: Cesarian section, Endrometriosis, Menstruation, Ovarian Cyst,  Premenstrual Dysphoric Disorder (PMDD), Postpartum Depression, Polycystic Ovarian Syndrome (PCOS), as well as surviving domestic violence or sexual assault, etc.

For a full list of conditions, see below, courtesy of Igor Volsky:

Now, first and foremost, health insurance absolutely is a game of odds: many of these disorders do carry a higher risk of needing health care, and some would argue that that means it is reasonable to ask those people to pay more. This might seem fair in the absence of context, but looking closer reveals the myriad problems with such a mentality. First, many chronic and deadly diseases disproportionally affect minorities in this country, particularly people of color as systemic inequalities in socioeconomic status make access to adequate nutrition, as well as preventative and responsive care more difficult. This reality is further complicated by the decreased likelihood of adequate government intervention in minority-prevalent and low-income areas facing public health crises. Flint, Michigan, a city in which more than half of residents are African-American and the average resident is living below the poverty line, tells this story as well as anywhere: residents remain without clean drinking water three years later. So, minorities are more susceptible to disease and less likely to receive federal aid to manage public health crises. Now add the likelihood of facing discrimination when seeking care, and subsequent inequities in the care provided to people of color, individuals of low socioeconomic status, non-heterosexual individuals, transgender or gender non-conforming individuals, women, individuals with low levels of education, and people with disabilities– a likelihood high enough to compel the CDC to begin issuing annual reports on the subject. Finally, consider that the people most disproportionally affected by these diseases, and the most likely to receive discriminatory and unequal care, are also individuals most heavily impacted by financial inequities– namely, the wage gap, and discriminatory hiring practices, assuming they have the necessary documentation and ability to work in the first place. It is also important to note that, regardless of minority status, many of these diseases would make it difficult for a person to work full time, or at all. So, is it reasonable to demand higher payment from these individuals, or from people who are healthy and making more money than average? Maybe it’s the liberal in me, but it seems two things should be clear: 1) if the United States is going to continue to tout the myth of American Exceptionalism, we need to get on board with other leading nations in recognizing healthcare as a fundamental human right– not a right of the wealthy, or even a right of citizenship; 2) if changes to the Affordable Care Act need to be made, it is because the ACA does not do enough to progress healthcare in the United States towards a single payer system, not because it does too much.

One would imagine it is for this reason that Democrats in the House of Representatives sang “Na Na Na Na, Na Na Na Na, Hey Hey, Goodbye” at House Republicans yesterday following the passage of the bill, with the obvious implication being that those who voted to take healthcare away from their constituents will have a difficult time getting re-elected. So, while Republicans gleefully celebrate the first step in reversing human rights progress, it is our job to ensure our Democratic representatives were correct, and to fight against this bill–or whatever version of it emerges from the Senate–with all of our efforts. It is no understatement to say that there are millions of lives on the line.

Finally, for your daily dose of irony, I give you this:


Yes folks, that is Representative Jason Chaffetz (R-UT)–who just had surgery for a pre-existing condition in his foot–gleefully rolling into Congress to take away your ability to afford to do the same. Chaffetz also recently announced his decision not to run for re-election in 2018. From the looks of things, that seems like a sensible decision to me.

— This is the ALF, signing off.

Republicans Change Course, Prepare for Healthcare Vote Thursday

Not more than a few weeks after declaring “Obamacare is the law of the land,” House Speaker Paul Ryan and the Republican party are moving forward with a modified American Health Care Act, and have declared their intention to bring the bill to a vote in front of the entire House of Representatives tomorrow, Thursday May 4th.

Discussions to revive the AHCA (Trumpcare, Trump(doesn’t)Care, RyanCare, GOPCare, Zombie Care, take your pick) began shortly before President Trump’s 100th day, in what appeared to be a frenetic search for a campaign promise that would be possible to fulfill prior to the ultimately superfluous deadline. For the majority of that time, however, there has been little indication that these conversations would end any differently than they did the first time around– the common belief has been that the votes simply are not there. The original amendment to the bill was enough to bring the ultra-conservative Freedom Caucus’ votes back on board, but simultaneously  alienated moderates by further stripping protections for pre-existing conditions.

So what changed between late last week and today? The absolute answer is unclear, as the Congressional Budget Office will not be able to compose a cost and effect estimate before the amended bill comes to a vote Thursday. If nothing else, that should make clear exactly how concerned Republicans are about the effects of this bill: they want to ensure it is passed before anyone can figure out what the cost will be– whether in dollars, or human life. That said, what we do know is that the compromise reached today, which brought several “no” votes back into the fold, added eight billion dollars in spending, purposively for offsetting the cost of treating those with pre-exiting conditions. Some Republican moderates say this is enough. The American Medical Association (AMA), American Association of Retired People (AARP), American Cancer Society, and Democratic party leaders do not agree, calling the number woefully inadequate and reiterating the statistic that, if passed, the AHCA will leave 24 million people uninsured in the next nine years. Senate Minority Leader Chuck Schumer also likened the bill to administering cough syrup to a person with stage four cancer, saying the AHCA leaves people as badly off as they were before the passage of the Affordable Care Act.

The question remains, does the Republican party actually have enough votes to pass this bill? Ultimately, this remains undetermined. House Majority Leader Kevin McCarthy (R-CA) has claimed that “the bill was passed,” but also, in the same breath, suggested we all “be optimistic about life,” so take that with as large a grain of salt as you feel it deserves. Minority Leader Nancy Pelosi (D-CA) did not offer an explicit opinion about whether the AHCA had the necessary support, but did emphasize that the Republican party would be hitching its moral and fiscal platform to the bill were they to garner the votes to ensure its passage. This is a fair, if less-than-optimistic point by Pelosi, but it seems there is one more important waiting to be made: even if the bill does squeeze through the House of Representatives, it will–far more likely than not–die on the Senate floor. Senate Republicans do not have the full majority to pass the bill in a partisan vote. Given that House Republicans made no effort to seek Democratic input on the bill, it seems unlikely that they would able to get any votes from them. The only remaining option would be to go nuclear, again, but Senate Majority Leader Mitch McConnell has vowed not to change Senate procedure regarding the passage of bills. Thus, even if Republicans do gain the symbolic victory in the House, it is highly unlikely to amount to anything meaningful. That is not, however, an excuse to become complicit: it is absolutely imperative that anyone and everyone who could be affected by this bill make their opinions about it known to their Representatives tomorrow, and, if necessary, their Senators in the coming weeks. The victories the Resistance has gained thus far have come directly at the hands of millions of people on the front lines, standing up and demanding their elected representatives do their job and represent the interests of their electorate. We cannot grow complacent now, or we risk losing the energy and renewed efficacy within the Democratic party that will drive us forward towards victories not just in resistance, but also in 2018 and beyond.

Finally, it is worth noting that this decision came in the midst of FBI Director James Comey’s second public testimony on the investigation into the Trump administration’s possible collusion with Russian efforts to undermine the election, and a day before Comey and NSA Director Michael Rogers testify in front of the House Intelligence Committee for the second time, in a closed session to allow for the presentation of classified information. It also comes the same day that the House approved a budget that would fund the Federal government through September, but included none of the provisions Trump insisted on. As Rachel Maddow reported last night, the budget is, line for line, effectively a list of Democratic policy goals. (This also led to quite an amusing conference call in which the White House attempted to spin the budget as a Conservative victory, though that is outside of the point of this post). With all this in mind, one has to wonder if this rush to pass the AHCA is nothing more than a desperate attempt to get a victory before anyone notices what else is going on.

It certainly is an interesting time folks. Expect more in the very near future as all of this unfolds.

— This is the ALF, signing off.

Strike on Syria, and Domestic Chaos: The Events of April 6, 2017

Today is one of those days where if you do not have endless hours with which to peruse the news, you might find yourself tempted to throw your hands in the air, bury your head in the sand, and hope that nothing blows up. I’m here to say that you definitely should not do that. Instead, we’re going to break this down.

  • Trump Strikes at Syria: a day after US Ambassador Nikki Haley threatened unilateral action against Syria on the floor of the United Nations, and mere hours after President Trump’s first official press statement on the subject, the United States Navy launched 59 Tomahawk missiles at a Syrian air field. Thus far the only confirmed hits have been equipment. Information about human casualties has not been made available. This act came, purposively, following a chemical attack in northern Syria, in which at least 86 people died, most likely from exposure to Sarin gas. The Syrian government, headed by President Bashar al-Assad has denied responsibility for this attack, though Assad has been accused of using chemical weapons in the past. This is, of course, a breaking story, but several talking points have rapidly emerged. First, the word in Washington is that Russia was warned ahead of the strike– now the question is, by whom, and for what purpose? And finally, when President Trump unilaterally authorized this strike– an attack on a military base of a recognized sovereign state could very reasonably be called an act of war, one that would require the approval of Congress to pursue– did he overstep the authority of his office? While President Obama made several strikes against the Islamic State in his tenure as President, those acts were permissible by virtue of the Authorization for Use of Military Force, which gave the President authority to act as s/he sees fit in the pursuit of known terrorist organizations in the wake of the attacks of September 11th, 2001. Assad’s regime is not a recognized terrorist organization, but one of a sovereign nation. This proved a barrier to President Obama in 2013, when he sought Congressional approval for air strikes in Syria. Congress would ultimately sit on the resolution until it was rendered obsolete. This renders President Trump’s claim yesterday that Obama’s unwillingness to act in Syria led to the chemical attacks both baseless and absurd, but also calls into question the entire legality of tonight’s acts. While President Trump can seek “retroactive approval” from Congress in regards to these strikes, the question remains: what was so urgent that he could not seek such approval ahead of time, when he had time to warn Russia? This question becomes slightly more ironic in light of this tweet, sent out by Donald Trump in 2013:

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  • Senate Goes Nuclear: with a 55-45 vote, the filibuster–both against nominee Neil Gorsuch, and as a tool to force bipartisan consensus–is dead. The moment of the rule change marked the beginning of 30 hours of debate, after which the Senate will initiate the confirmation vote sometime Friday. Amid all of the known controversy surrounding Judge Gorsuch that I discussed in my recent post, it was also recently revealed that he plagiarized parts of his book The Future of Assisted Suicide and Euthanasia (2006).  If plagiarism can disqualify a student from admission to graduate school, it should disqualify a nominee from admission to the Supreme Court. Right now, the most important thing that members of The Resistance can do is contact your Senators and tell them to vote “no” Friday.
  • Nunes Recuses Amid Ethics Investigation: after a discussion with House Speaker Paul Ryan (R-WI), House Intelligence Committee Chair Devin Nunes (R-CA) has temporarily recused himself from the Committee, pending its Russian investigation. He will be replaced by Representative K. Michael Conaway (R-TX). This news comes in conjunction with an announcement that the House Ethics Committee would be investigating whether Nunes made “unauthorized disclosures of confidential information” in his visit to the White House to review documents that prompted calls for his ouster. Nunes denied the charges in a brief press conference, claiming they were “false, and politically motivated.” Upon completion of his written statement, Nunes declined to answer questions.  Paul Ryan voiced support for Nunes’ decision to step aside, admitting that the Ethics investigation could prove to be a distraction in the Intelligence Committee’s probe. 
  • Chinese President Xi Jinping Visits Mar a Lago: finally, on an already chaotic day, Palm Beach, Florida received Xi Jinping, President of the People’s Republic of China. Shortly afterwards, and in what appeared to be a well-calculated power play, President Trump landed in Florida as well. Thus far the only clear commentary on the meeting is that it has been pleasant, but one can imagine that the two major topics under discussion are trade, and North Korea. Trump has promised a stronger trade policy after invoking the word “rape” to describe his impression of the present state of trade between China and the United States– commentary that I and others disavow as both tone-deaf and inaccurate in its representations. Tension over those comments, however, may well be put aside in favor of cooperative action in the face of repeated North Korean missile launch attempts in recent weeks. While this could be an issue of concern to the United States and the world as a whole in coming years, do not be surprised if these missile launches begin to be used as points of distraction in the following weeks, depending on the outcome of the air strikes in Syria. It appears the Trump Administration is looking for opportunities to demonstrate its willingness to use force, and North Korea could be presented as such under the correct circumstances.

Before wrapping up, I feel compelled to discuss President Trump’s press conference following the air strikes on a level that has less to do with reporting. The President, speaking much more slowly than usual in what seemed a relatively ineffective means of superimposing gravity, discussed the “tiny babies” who died in the chemical attacks. He is correct to describe these war crimes as an atrocity. That said, let’s not pretend this was any measure of sincerity: this is the same man who created a blanket ban of Muslim entry into the United States not once, but twice in his first hundred days as president. He did not care about the babies dying in the Middle East until they provided a convenient justification for his agenda, any more than his administration cared about rape until they could find one instance of an undocumented immigrant committing a sexual assault and politicize it to validate their xenophobia. If there is anything more deplorable than his overt ambivalence towards everyone other than himself and his inner circle, it is his willingness to feign empathy to advance his purpose.

Finally, it is important to acknowledge that attacks such as these have the very real potential to inspire or justify radical beliefs and acts in response. We have a responsibility to do and be better than this. That said, it is also necessary to recognize that retaliation is a strong possibility– stay safe and stay aware.

— This is the ALF, signing off.

Going Nuclear: What to Know Ahead of Thursday’s Cloture Vote

United States Supreme Court nominee Neil Gorsuch has invoked one of the more inflammatory partisan controversies currently plaguing the nation– at least in terms of domestic concerns. Some of this was inevitable, following the unprecedented refusal of the Republican-majority Senate to grant even a hearing to President Obama’s nominee Merrick Garland following the death of Justice Antonin Scalia in February of 2016. Senate Majority Leader Mitch McConnell (R-KY) (in)famously justified this decision on the grounds that a departing president should not be given the opportunity to make a lifetime appointment. Then, prior to the election, several high-ranking Republicans –including Ted Cruz (R-TX) and John McCain (R-AZ)– stated that if Hillary Clinton won the election, any nominee of hers would face unified opposition as well. Thus, the rumblings from liberal voters in the aftermath of the election that any nominee of President Trump’s should be filibustered by default could perhaps be understood from this alone. However, the issues at hand run much deeper.

Senate Minority Leader Chuck Schumer (D-NY) has declared his intention to filibuster Neil Gorsuch’s confirmation vote, and has rallied the votes to do so. However, this decision did not come immediately upon President Trump’s election, or even upon the selection of Gorsuch as a nominee, as Senator McConnell as well as the President and other top Republicans continue to suggest. Several factors have led to what has ultimately been a measured choice on the part of Schumer and the Senate Democrats. First and foremost, the question of whether a lifetime appointment should be granted to a President presently under investigation by the FBI and committees in both houses of Congress for potential collusion in efforts to influence his own election looms significantly, and not without a heavy sense of irony. Newly-elected Democratic National Committee Chairman Tom Perez has asserted that a vote on any nominee should be delayed until the conclusion of the FBI investigation– a sentiment echoed by Senator Elizabeth Warren (D-MA), among others, leading to Twitter hashtags such as #NoProbeNoRobe and #StopGorsuch, among others, which have reached an audience as of this writing of over 4 million site users.

While that argument alone holds more weight by the day in light of information surfacing daily about President Trump’s Russian connections, there are also significant concerns about the nominee himself. Neil Gorsuch–eminent qualifications aside–has drawn criticism across several categories. First, following then-candidate Trump’s promise to nominate a justice who would work to overturn Roe v. Wade (1973), the intersectional feminist community has been justifiably skeptical of Gorsuch, a skepticism only fueled by the book he authored arguing against physician-assisted suicide. There have also been questions about his tendency to side with big business over workers, fueled by the high profile case in which he sided with the trucking company TransAm after their decision to fire Alphonse Madden, a worker who abandoned a broken down truck when faced with life-threatening hypothermia.

Gorsuch did not help his case, so to speak, by giving one of the most evasive testimonies of any Supreme Court nominee in United States history. Some have claimed this refusal to answer questions about his judicial style or priorities were a justifiable attempt to avoid getting “Borked” (a reference to Ronald Reagan’s nominee Robert Bork who gave a very thorough and detailed testimony, which many have claimed cost him his confirmation). However, it would seem to behoove one under such intense scrutiny to provide some modicum of voluntary disclosure, if only to avoid fueling the fire of obfuscation surrounding everyone associated with the Trump administration at this point. Beyond this, there are questions of his judicial ability: as Gorsuch sat in his confirmation hearings, the Supreme Court unanimously overturned his ruling in Thompson R2-J School District v. Luke P, in which Gorsuch ruled that, in the case of an autistic child, a school district is fulfilling its duties laid down in the Individuals with Disabilities Education Act as long as it is doing ‘more than de minimus,‘ effectively stating that there was nothing wrong with a school doing little more than dragging students with disabilities along in school until they reached an age to legally drop out.

In spite of these concerns, Mitch McConnell has declared his intention to move for a cloture vote–which is the 60 vote threshold required to end debate– Thursday. With the Democrats holding enough votes and having announced the intention to prevent the cloture, in order to overcome the filibuster and confirm Gorsuch in spite of Democratic resistance, McConnell and the Republicans will need to change the Senate operating procedures to allow for the confirmation of a Supreme Court nominee with a simple majority vote. One could craft a dissertation on the insanity of a simple majority vote being sufficient to change the rules to avoid a cloture vote, but I will refrain from the urge. The point, for now, is that McConnell has declared his intention to “go nuclear” and proceed with the rules change, in spite of criticism from both sides that a lifetime appointee should be subject to the 60-vote threshold. As Chuck Schumer has stated, if Gorsuch cannot meet the standard met by every previous Supreme Court Justice, “don’t change the rules, change the nominee.” While plenty of people agree with that sentiment, others have stated that the Democrats should avoid the filibuster, saving it for the next nominee. Still others argue that the Democrats should not fear this so-called “nuclear option,” first because it will only require three Republican defections to avoid the rule change, and second, because if McConnell is willing to change the rules now, there is no reason to believe he will not be willing to do the same in the future. I tend to hold with this position. As Bill Scher stated: “if the operating assumption is that waging a filibuster means losing the filibuster, then the filibuster is already lost.”

Time will tell if the Senate Republicans manage to deliver on their promise to appoint Neil Gorsuch to the Court prior to the Easter recess. In the meantime, I submit this to you as a final point of order:


— This has been the ALF, signing off.