The Weekly Sift: News War

No Sift next week. The next new articles will appear December 19.

If the president of the United States declares war on journalism, journalists are not obliged to just record his words and publish them. They are obliged to take a side – the side of freedom.

- Dan Gillmor, "Trump, Free Speech, and Why Journalists Must Be Activists"
November, 2016

This week's featured posts are "Fake news is like Jessica Rabbit" and "No facts? What does that mean?"

I'm cancelling the December 12 Sift because I'm traveling this week. If you're anywhere near Palo Alto this Sunday, I'll be speaking at the UU church there at 9:30 and 11 on the topic "Season of Darkness, Season of Hope". It's about how the symbolism of the Winter Solstice might apply to our dark political times.

This week everybody was talking about China

One of the scary things about Donald Trump as president is that when he causes an international incident, everybody's first thought is "Did he mean to do that?" Because it's entirely plausible that he just didn't think about it; he so often appears not to think about the consequences of what he does.

This time, though, in spite of Trump and numerous spokespeople portraying his phone conversation with Taiwan President Tsai Ing-wen as no big deal, it looks like it really was an attempt to begin his relationship with China with a shot across the bow. He followed up Sunday with a pair of aggressive tweets:

Did China ask us if it was OK to devalue their currency (making it hard for our companies to compete), heavily tax our products going into their country (the U.S. doesn't tax them) or to build a massive military complex in the middle of the South China Sea? I don't think so!

Actually the U.S. does tax Chinese imports, but since there are no facts anymore, who cares?

The WaPo summarizes why the call was such a big deal to the Chinese. Vox has a general exploration of Trump's foreign policy.

and those manufacturing jobs at Carrier

One of the interesting things to watch in the early days of the Trump administration will be which conservatives stick to their previous principles, and which ones think it's fine for Trump to do things they would have condemned Obama for.

In a nutshell, the deal Trump and Pence worked out to keep some Carrier jobs in Indiana while letting others move to Mexico is not at all the kind of thing he was describing during the campaign, and also counter to the usual Republican free-market principles.

During the campaign, Trump specifically called out Carrier's plan to close a plant in Indianapolis and open one in Mexico. He made it sound like he would get tough with businesses like that, threatening them with tariffs until they knuckled under. Well, that's not at all what happened. Carrier got at least $7 million in Indiana tax breaks. (Pence is still governor, remember?) Plus, who knows what else its parent company, United Technologies, was promised in terms of its defense businesses? In exchange, they agreed not to move as many jobs as they had planned, at least not right away.

Bernie Sanders wrote that the people whose jobs were saved should be happy, but "the rest of our nation’s workers should be very nervous." In essence, the deal establishes that corporations can extort goodies from Trump by threatening to move.

Trump has endangered the jobs of workers who were previously safe in the United States. Why? Because he has signaled to every corporation in America that they can threaten to offshore jobs in exchange for business-friendly tax benefits and incentives. Even corporations that weren’t thinking of offshoring jobs will most probably be reevaluating their stance this morning. And who would pay for the high cost for tax cuts that go to the richest businessmen in America? The working class of America.

OK, you didn't really expect Bernie to side with Trump. But a number of conservatives also raised their voices against the deal, for a different reason: It's exactly the kind of "industrial policy" they hate when Democrats try it. Sarah Palin called it "crony capitalism". National Review called it "a rejection of economic reality".

and the PizzaGate shooting

I had the bad timing to write a somewhat whimsical piece about fake news at the same time that fake news was having a serious consequence: A guy armed with an assault rifle walked into a D.C. pizza place and started shooting, because he was "investigating" a fake-news story that "Hillary Clinton and her campaign chief were running a child sex ring from the restaurant’s backrooms". Because that's so incredibly plausible, I guess.

A sidebar on that story: So a guy believes a ridiculous piece of fake news, takes an assault rifle into a crowded restaurant and fires. Police take him into custody without finding it necessary to kill him first.

He's white, right? How did I know?

and Trump's cabinet picks

More announcements from the High Castle (a.k.a. Trump Tower).

Mattis at Defense. I can't decide whether to be glass-half-empty or glass-half-full about General James Mattis for Secretary of Defense. On the downside, it's never good to have a SecDef whose nickname is "Mad Dog". That Trump compares him to General Patton (from World War II, or maybe from the George C. Scott movie) also makes me uneasy: Patton was a tactical genius who was also a political and interpersonal loose cannon. He did well for us in World War II largely because wise, unflappable men like Omar Bradley, Dwight Eisenhower, and George Marshall stood between him and the president, who was the masterful Franklin Roosevelt. Show me anybody in the Trump administration like those guys, and I'll feel a lot better about having another Patton.

On the upside, he is a real general who actually knows something about military affairs. He didn't just play a general on TV or give a bunch of defense-related speeches or something. People who know their fields are rarities in the Trump cabinet, so I don't want to complain too much. Also, he apparently told Trump that torture doesn't work very well, and he wants to preserve the Iran nuclear deal, so he gets credit for that.

On the downside, he pairs with National Security Advisor (and former General) Michael Flynn to virtually eliminate civilian oversight of the military. (A third general is rumored to be Trump's choice to head Homeland Security.) By law, a general has be out of the military for seven years before taking the SecDef job, a provision that Congress would have to waive for Mattis. That opens his nomination to filibuster.

Mnuchin at Treasury. I'm trying to imagine the response if President Hillary Clinton had nominated a hedge-fund founder and former Goldman Sachs partner, who made billions off the housing crisis. Way to drain the swamp, dude.

and the protesters won one

The Army announced that it won't allow the Dakota Access Pipeline to go under a dammed section of the Missouri River. Alternate routes are being explored.

and the ongoing corruption issue

The NYT illustrates the problems in a series of circular diagrams that include both government agencies and Trump business interests. The gist is that Trump will frequently be in the position of deciding as president whether he should make more or less money.

Trump's business empire, and its dealings in foreign countries and with foreign governments, seems to set up clear violations of the Emoluments Clause, a part of the Constitution that you never hear about because no president previously thought he could get away with violating it:

So, for example, any loan the Trump Organization gets from the Bank of China would need to be examined to make sure its terms aren't more favorable than it might have gotten if Donald Trump weren't president. Otherwise the deal might include a gift, which the Clause bans. Richard Painter, who was the chief ethics lawyer in the George W. Bush White House, elaborates:

Even absent a quid pro quo, the Emoluments Clause bans payments to an American public official from foreign governments. Yet they will arise whenever foreign diplomats stay in Trump hotels at their governments’ expense; whenever parties are organized by foreign governments in Trump hotels (Bahrain just announced such a party in a Trump hotel this week); whenever loans are made to the company by the Bank of China or any other foreign-government-owned bank; whenever rent is paid by companies controlled by foreign governments with offices in Trump buildings; and whenever there is any other arrangement whereby foreign government money goes into the president’s businesses.

However, think about how to enforce this, if Congress decides to let it slide. Conceivably a court could step in, but courts can't just take something up because it sounds wrong. Someone has to come to court claiming to have suffered an injury that the court has the power to correct. (That's what's meant by the legal term standing. You have to have standing before you can sue.)

Who could do that? Maybe a competing business that suffers from foreign-government favoritism towards the Trump Organization? Law professor Jonathan H. Adler doesn't even offer that possibility:

the underlying controversy is almost certainly non-justiciable. It is difficult to conceive of a scenario in which someone would have standing to challenge Trump’s arrangements, and even harder to think what sort of remedy could be ordered by a court.

And Painter agrees:

The only remedy for a serious violation of the Emoluments Clause is impeachment.

and you might also be interested in

As absentee and provisional ballots get counted in various states, Hillary Clinton's lead in the national popular vote continues to grow: currently more than 2.6 million votes, or 2%.

One thing this means is that the polls were not actually that far off. Going into election day, most pollsters were called for a 3-4% margin. She also did not run much behind Obama's 2012 pace, when he won by 3.9%.

Lindsey Graham and Dick Durbin are putting together a bipartisan effort to protect the DREAMers from deportation. We'll see if Graham is by himself on this, or if a few other Republicans (Flake? McCain?) are willing to join. I have a hard time picturing the House backing this, but that's a battle I really want the public to see. The DREAMers are the most sympathetic of the undocumented immigrants, because they broke no laws and most of them know no other country than the United States. If we can't find a place for them, America really has become a hard-hearted country.

A good description of one of the big problems our democracy is facing: "Conservative media needs a scared, paranoid audience, while democracy needs reasonable voters."

Not sure why Trump tweeted about flag-burning. I haven't heard of anybody doing it lately; maybe he's just anticipating that somebody will. Anyway, it's a pretty clear First Amendment issue: The reason people object to it is that burning a flag expresses an opinion they don't like. Nobody objects if you burn a flag that is worn out; that's actually the preferred method of disposal. Nobody cares if you have flags on your 4th of July napkins and then throw them in the campfire. The only time people object to burning a flag is if you're doing it to make a point.

In religious terms, laws to protect the flag from burning constitute idolatry: The symbol has been elevated above the thing it's supposed to symbolize. The flag symbolizes our American freedom, but idolators want to protect the flag at the expense of our freedom.