Archive for the ‘Democrats’ Category
Quinta Jurecic writes at Lawfare:
This morning, the Washington Post reported that the Justice Department sought to prevent former Acting Attorney General Sally Yates from testifying before the House Permanent Select Committee on Intelligence (HPSCI) as part of the committee’s investigation into Russian interference in the presidential election.
According to the Post, the department informed Yates that many of the topics on which she was set to testify, including former National Security Advisor Lt. Gen. Michael Flynn’s contacts with the Russian ambassador to the United States, were likely protected by executive privilege. Yates’s lawyer responded with letters to Acting Assistant Attorney General Samuel Ramer and White House Counsel Don McGahn asserting that Yates’s testimony was not privileged.
Yates had been scheduled to testify in an open hearing before HPSCI today, along with former Director of National Intelligence James Clapper and former CIA Director John Brennan. However, on Friday March 24th, the day after Yates’s lawyer mailed his letter to Ramer and the same day that the letter was sent to McGahn, HPSCI Chairman Devin Nunes canceled the committee’s scheduled open hearing in which Yates was set to testify. The Post also reports that by the day before Nunes canceled the hearing, both Yates and Brennan had informed government officials that their scheduled testimony on Tuesday would likely contradict statements by the White House.
Nunes originally announced that the open hearing with Yates, Brennan, and Clapper had been canceled to make way for a closed hearing with testimony from FBI Director James Comey and NSA Director Admiral Michael Rogers in response to Nunes’s hazy concerns about possible incidental collection of Trump transition team communications. Yesterday, however, Nunes stated that the closed hearing had been canceled as well.
HPSCI Ranking Member Adam Schiff has suggested that Yates’s response was connected to Nunes’s decision to cancel the hearing. Earlier reports indicated that Nunes publicly declared the hearing’s cancellation without first informing Schiff or the other members of the committee, and Schiff stated publicly in a press conference following Nunes’s announcement of the canceled hearing that Nunes had previously tried to cancel or close the hearing, only to face pushback from Schiff.
The latest Post report is particularly noteworthy given concerns in recent days over Nunes’s possible coordination with the White House regarding his series of public disclosures on incidental collection. Yesterday, CNN reported that Nunes was seen on the White House grounds the night before his twin press conferences on March 22nd. Additionally, in his press conference on Friday, Schiff also suggested that Nunes had canceled the hearing after “strong pushback from the White House” following the first HPSCI open hearing, asking, “What other explanation can there be?”
Jennifer Palmieri, communications director for Hillary Clinton’s campaign, writes in the Washington Post:
At the Democratic convention in Philadelphia last summer, Jake Sullivan and I took to our golf carts one afternoon to make the rounds of the television networks’ tents in the parking lot of the Wells Fargo Center. It is standard for presidential campaign staffers to brief networks on what to expect during that night’s session. But on this day, we were on a mission to get the press to focus on something even we found difficult to process: the prospect that Russia had not only hacked and stolen emails from the Democratic National Committee, but that it had done so to help Donald Trump and hurt Hillary Clinton.
Sullivan was Clinton’s policy adviser. He had been Vice President Joe Biden’s national security adviser, a deputy to then-Secretary Clinton at the State Department and a lead negotiator of the Obama administration’s nuclear deal with Iran. He is a widely respected national security expert and, as he does every day, he spoke carefully, without hyperbole. All we had to go on then was what had been reported by the press. We weren’t sure if Russia was doing this to undermine Americans’ faith in our political process or if it was trying to make Trump the next president. But we wanted to raise the alarm.
We did not succeed. Reporters were focused on the many daily distractions, the horse race, the stories they were doing based on the stolen DNC emails and the many other Trump scandals that were easier to explain. Voters didn’t seem worried. Earlier that week, our campaign manager, Robby Mook, was mocked for telling CNN that the leak of stolen emails before our convention was an indication that Russia was trying to help Trump. We did not know, as FBI Director James B. Comey told Congress this past week, that the bureau had already opened an investigation into Russian interference — and into possible links between Trump’s associates and the Russian government, including whether they worked together on his behalf. At the time, it seemed far-fetched that Russia would meddle so openly, and reporters and voters alike seemed convinced that it didn’t matter anyway, because Clinton was going to win.
Now that Trump is president, though, the stakes are higher, because the Russian plot succeeded. The lessons we campaign officials learned in trying to turn the Russia story against Trump can help other Democrats (and all Americans) figure out how to treat this interference no longer as a matter of electoral politics but as the threat to the republic that it really is.
* * *
For me, Comey’s disclosure on Monday brought nearly unfathomable frustration. I will never understand why he would send a letter to Congress 11 days before the election to let lawmakers know that the FBI had happened upon more emails — which they didn’t yet know the contents of — that may or may not have been relevant to Clinton, but he did not think the public should know that federal agents were also investigating Trump’s campaign.
Without anyone knowing about the FBI’s interest, it was difficult to bring appropriate attention to the Russia issue and Trump’s curious pro-Putin bent. The week after the convention, we sought out credible national security voices to sound alarms. I was surprised by the enthusiasm with which some, such as former acting CIA director Michael Morell, jumped into the fray. When I worked in the Obama White House, people in national security positions had been uneasy making broad public arguments, particularly about political matters. Not this time. They were so concerned about the situation that, to me, the language they used to describe the threat they believed Russia and Trump posed was shocking. I remember my jaw dropping as I sat in our Brooklyn campaign headquarters and read the op-ed Morell submitted to the New York Times in early August, in which he shared his view that Russia had probably undertaken an effort to “recruit” Trump and that the Republican nominee had become an “unwitting agent of the Russian Federation.”
But the sheer spectacle of Trump kept the Russia allegations from getting the attention they would have had with any previous candidate. His unconventional campaign had so disrupted the press-political ecosystem that no one could fathom or absorb that — in addition to all the drama they saw on stage — Russia may have been conspiring with Trump or his allies behind the scenes to win the election for him. Compared with the lawsuits women were filing against Trump for alleged assault or his 3 a.m. tweets attacking a former Miss Universe, the details of who hacked whom seemed less interesting and more complicated. And because nearly everyone was sure that Clinton would win, and that she therefore needed more watchdogging, reporters and analysts were faster to jump on the latest batch of stolen emails or announcement from Comey.
We sought moments for Clinton and Tim Kaine, her running mate, to talk about Russia when we knew they would be on live television and couldn’t be edited. The debates offered the best opportunity, and Clinton took advantage, culminating with her famous line calling Trump Putin’s “puppet ” in the third one. It was tough deciding how much of her time to devote to the issue. We were in a Catch-22: We didn’t want her to talk too much about Russia because it wasn’t what voters were telling us they cared about — and, frankly, it sounded kind of wacky. At the same time, we understood the issue would never rise to the front of voters’ minds if we weren’t driving attention to it. It was already pretty clear they weren’t going to hear much about it in the press.
On Oct. 7, I thought the Russia story would finally break through. We were at a debate prep session in Westchester County, N.Y., when the director of national intelligence and the secretary of homeland security put out a joint statementsaying that the U.S. intelligence community was “confident” that not only had the Russian government hacked Democrats’ emails, but “Russia’s senior-most officials” were probably directing their release to influence the election. Incredible. Finally, here was the break we had been waiting for. I was on a conference call with my colleagues to discuss our response when someone said: “Hey, Palmieri. There’s an ‘Access Hollywood’ video that just got released.” Literally minutes later, WikiLeaks put out the first batch of John Podesta’s stolen Gmail. And that was that. The rest is history.
* * *
All of us — the press, Congress, the public, the administration — are still guilty of the soft complicity of low expectations. As president, Trump does and says outrageous and false things every week, from ordering arbitrary travel bans to accusing President Obama of illegal wiretapping with no evidence. The Russia charges blend in, making it all too easy to treat them as just the latest thing the president has blustered his way through. I understand how difficult it is to put the threat in the right context. We trod lightly at times during the campaign because it sounded too fantastic to be credible, too complicated to absorb.
In another era, Americans would have been able to count on both Democrats and Republicans in Congress to stand up to this kind of threat. A lot of Democrats like to play the “If we were Republicans” game. I usually hate it; I don’t want to behave like the Republicans do. But it’s useful here. If Clinton had won with the help of the Russians, the Republicans would have impeachment proceedings underway for treason. No doubt. Instead, dealing with Russia falls nearly solely on Democrats’ shoulders.
But Democrats can break out of the Catch-22 of the campaign: If we . . .
Later in the article:
The worst part about our lackluster collective response to Russia’s interference is that it represents exactly what the Russians were hoping to produce: apathy. Their goal, in addition to installing a president sympathetic to their views, was to undermine Americans’ belief in our democracy. For Americans to think that none of this really matters, that it’s all a game. That’s how they truly erode U.S. moral authority and strength over the long term. It’s what they have sought to do to European adversaries for many years, and now they have brought this seed of destruction here.
Kevin Drum is on a roll. His new post includes a chart:
Excellent column. Read it now. Good take.
UPDATE: And read this one too, which begins:
It’s laughable watching President Trump whine endlessly this afternoon about how his health care bill didn’t get any Democratic votes. Not one! The Democrats just wouldn’t work with him to craft a bill! Boy, that sure makes things tough.
Needless to say, neither Trump nor Paul Ryan ever tried to bring Democrats into this bill. It was purely a Republican plan from the start, and neither of them wanted any Democratic input. That’s just the opposite of Obamacare, where Democrats tried mightily to get Republican buy-in, and still ended up getting no Republican votes in the end. Not one!
Anyway, Trump’s plan now is to wait for Obamacare to implode and then Democrats will have to do a deal. I guess it hasn’t occurred to him that he could do a deal with Democrats right now if he were really serious about fixing health care. But no. Trump says he intends to move on to tax reform, because that’s something he actually cares about.
In the meantime, it’s very unclear what will happen to Obamacare. With so much uncertainty surrounding it, it’s hard to say how insurance companies will respond. They might give up and pull out. Or they might stick it out and wait. It’s pretty close to a profitable business now, so there’s probably no urgency one way or the other for most of them. . .
Read the whole thing.
There is no question that Donald J. Trump is a lying, thieving, backstabbing, two-faced, violent criminal.
There is also no doubt that he is the front man for a far-right network of white nationalist politicians and businessmen that want to revive the Confederacy. This network has been contracted by Vladimir Putin to facilitate the takeover of the federal government of the United States as part of a larger effort to dismantle western nations, alliances and power. Collectively, they have occupied the White House and begun the process of dismantling the federal government, isolating the US from its allies, bankrupting the economy, restructuring and hyper-funding the military and cleansing the nation of people of color, the poor, people living with disabilities, non-Christians, and anyone else not deemed part of the master race. Together, under the authority of Donald Trump and his Republican Congress, the GOP and the Russian government are gutting the corpse of the United States and positioning its zombie carcass to carry out the will of an adversarial Putin led eastern alliance that is openly working to dismantle the Western World.
And he is legally unimpeachable.
In the United States, the only entity that can impeach Donald Trump is Congress. A Congress that has formed a united front against the Democrats, against Civil Rights, against the people of the United States and in support of Vladimir Putin. They do not respond to their constituencies, their duties as officials, the constitution, media pressure or public shaming. They respond to their contracts. Which have been implemented with the explicit intent to prevent the removal of Putin’s GOP puppet government.
Congress will not impeach Trump.
Here’s why. The Constitution gives only the House of Representatives the legal authority to bring formal charges of impeachment against a sitting president. It would take half of Congress to successfully bring charges. The Senate has sole power to bring a president to trial for impeachment. Two-thirds of the Senate would have to vote to convict and remove Trump from office to successfully impeach him. With the GOP in control of both the House and the Senate, as planned, there is no chance that the GOP will violate its contract with the Russian government in order to impeach Trump.
So here’s the quick takeaway:
The United States has been taken over by a white nationalist puppet government contracted by the Russian government. They want to dismantle federal authority in the United States and all western nations for their own political, economic, social and military visions of an ethnically-cleansed, post western world order.
They are willing to lie, cheat, break laws, and murder to accomplish their goals. They know how to rig elections and utilize mafia tactics. They don’t respond to constituencies, political pressure, or the media. They cannot be shamed away, tweeted away, marched away or phone called away. The will not be investigated by the GOP controlled House and Senate Oversight Committees or Department of Justice. They cannot be impeached.
Ok, that’s a lot. It might be more than you want to hear. But it’s what’s happening. Take it in. Take a breath.
This isn’t going to be easy to digest.
The formal plan to overthrow the federal government of the United States has been in action for years. Vladimir Putin is a ruthless military and political strategist. He knows the offensive and defensive histories, strengths and weaknesses of his nation, its alliances, it’s adversaries and those standing in the way of his ultimate goals. And his ultimate goals don’t begin and end with Hillary Clinton or even the United States. Vladimir Putin is years into a strategy designed to take over the federal governments of the Western powers, install puppet regimes, dismantle their individual and collective authority and usher in a Russian led new world order.
Putin didn’t just up and one day decide that he was going to partner with a C level businessman and celebrity to embarrass Hillary Clinton. He has been plotting to tear down the western alliance — including the UN and NATO — since his days in the KGB and has spent years successfully guiding the GOP to victory in their efforts to take Congress and the White House.
Putin considered every lever necessary to pull to ensure his puppet government would take the White House and that there would not be anything that could be done by Congress or the federal government to unseat him. He planned, he executed and he won. He didn’t just win, but Putin and the White Nationalist network he contracted to carry out his agenda kicked our assess. And they are still in power — kicking our asses.
What’s worse, the Democrats had numerous opportunities to counter the maneuvers of the GOP and they did nothing. As the stated defenders of minority rights and the strategic defenders of the nation against the Conservative Confederacy, they failed to live up to their responsibilities. This failure allowed them to be easily defeated by the GOP’s efforts to dismantle federal authority and Putin’s efforts to dismantle the West.
Every nation has specific governmental, political, and social systems that must be considered when designing a strategic agenda. Different strategies were required for the UK than in the United States. Different levers needed to be pulled to accomplish Brexit than to pull off MAGA.
In the United States, Putin needed to identify a far-right conservative network that aligned with his vision to dismantle federal authority and implement a system of white nationalism. He did not have to look hard to find the GOP and its neo-Confederate heart. That core has functioned since the Civil War and its Confederate flags still fly high around the United States. It has used force, laws and criminal activity to dismantle civil rights, suppress voting, incarcerate and impoverish communities not of the chosen race, and take land from sovereign entities.
The overwhelming majority of GOP candidates and members of the Trump administration are funded by Robert Mercer, David & Charles Koch, Sheldon Adelson, the Scaife family, the DeVos family and other core members of the far-right funding megalith, the Donor’s Trust. These individuals are responsible for such entities as the Tea Party, Freedomworks, the Heritage Foundation, the American Enterprise Institute, the Manhattan Institute and the Federation of American Immigration Reform. They are behind the gutting of the Voting Rights Act, the implementation of illegal voter ID and citizenship requirements. They train “poll watchers.” These individuals funded Breitbart and produced anti-Democratic media and campaigns. They invented the War on Cops and actively work to dismantle civil rights and pass anti-immigrant and anti-POC legislation. The most prominent members in their network are currently occupying the white house and enacting the agenda contracted between them and Vladimir Putin.
Putin also had to identify his opposition and their strengths and weaknesses in countering the maneuvers of the GOP. That honor would go to the Democratic Party — and its defensively inadequate core. The Democrats have stood by and done absolutely nothing as communities of color stood helpless against police brutality and the inaction of Congress, the Department of Justice and the Attorney General. They did nothing as the Crosscheck voter purge system was implemented across the country and the Voting Rights Actwas gutted. They did nothing to protect Tribal sovereignty at Standing Rock. They refused to take action to provide a living wage and fair housing to their working-class constituents and refused to enforce compliance with ADA standards even on election day. They even refused to legally counter Citizens United v FEC or Shelby County v Holder.
The Left has allowed the GOP to get away with almost every single policy maneuver they attempted. Especially those that functioned to deprive the rights of minorities, the poor, and people living with disabilities. . .
Benjamin Wittes, Susan Hennessey, and Quinta Jurecic write in Lawfare:
Earlier today, Devin Nunes held a headline-making press conference on Capitol Hill in which he made the following statement:
[F]irst, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition. Details about persons associated with the incoming administration, details with little apparent foreign intelligence value were widely disseminated in intelligence community reporting. Third, I have confirmed that additional names of Trmp transition team members were unmasked. And fourth and finally, I want to be clear, none of this surveillance was related to Russia, or the investigation of Russian activities, or of the Trump team.
Nunes said the HPSCI would be investigating the following questions:
Who was aware of it?
Why it was not disclosed to Congress?
Who requested and authorized the additional unmasking?
Whether anyone directed the intelligence community to focus on Trump associates?
And whether any laws, regulations, or procedures were violated?
Nunes repeated many of his claims at a later press conference at the White House this afternoon, and made the additional claim that there are FISA warrants connected to—though not necessarily targeting—President Trump.
Let’s start with the basics. The full text of what Nunes actually said appears at the bottom of this post. The video is here.
What exactly Nunes is alleging remains a bit opaque. In his initial statement, he makes what seem to be bold and unequivocal claims, but he then spends the question and answer period significantly undercutting several of them.
His statement, for example, says that he has “confirmed” that the intelligence community “incidentally collected” the information in question. But he later says he will say only that it “looks like incidental collection” and acknowledges that he does not know how it was “picked up.”
Nunes repeatedly says he thinks the collection was lawful under FISA, but then characterizes himself as “alarmed.” Furthermore, his statement only references the Trump transition, and it is unclear whether that does or does not involve communications involving President Trump himself. When asked if the President’s own communications were involved, in fact, Nunes gives a number of contradictory responses. It’s not clear at the end of the day whether the issue here is communications about Trump, by Trump transition officials, Trump’s own communications, or a combination of the above.
Still, there’s enough information on the table—assuming any of it is accurate—to begin addressing some questions that lots of people are probably asking. So here’s what we can say based on Nunes’s comments.
Does any of this vindicate or validate Donald Trump’s claims that President Obama wiretapped him?
Answer: Not even close—even assuming that the most flamboyant version of Nunes’s comments are wholly true.
Trump did not wake up early on a Saturday morning and tweet that the NSA or FBI in the course of its normal foreign intelligence operations incidentally intercepted communications or data involving the Trump transition. He didn’t allege that communications were intercepted legally. And he didn’t allege either that the problem—if there is a problem—lay in the masking or unmasking of U.S. persons in lawful intelligence community reporting.
Trump alleged, rather, (1) that his own wires were tapped—with two p’s, no less, (2) that a specific facility in the United States (Trump Tower) and that he personally were specifically targeted for collection, (3) that the surveillance was illegal, (4) that it took place during the campaign, and (5) that it was all ordered by his predecessor, Barack Hussein Obama.
All of those claims appeared to be malicious lies when he made them. And nothing that Nunes is saying, even if it’s all true, supports any of them.
Is it surprising or scandalous that Trump transition communications might be subject to incidental collection?
Answer: Almost certainly not.
Nunes concedes that all of the interceptions appear to be lawful. So we’re not dealing here with a situation of scandalous political spying on an American presidential transition. The nature of incidental collection is that the targets are lawful overseas non-US persons who happen to have contact with US persons, whose communications thus get swept up in the course of spying on someone else.
Now remember that the Trump Transition violated a lot of norms under which transitions don’t generally run entirely independent foreign policies before taking office. The Trump transition organized all sorts of calls with foreign leaders (legitimate targets for surveillance) without coordinating with the State Department or, presumably, the intelligence community. Trump himself famously chatted with the Prime Minister of Pakistan, undid (temporarily) the One China Policy by taking a call from the President of Taiwan, and did his best to torpedo a UN resolution against Israeli settlements, leading Egypt to withdraw the resolution (only for the U.S. to abstain from the vote on the resubmitted resolution the next day). His staff presumably had any number of other communications with folks abroad whom the intelligence community would be derelict not to be listening to. So it’s not remotely surprising that some communications by some Trump transition people ended up being incidentally collected. Indeed, it would be surprising if none had.
Is there anything surprising or upsetting here?
Nunes makes two allegations that we put in the category of upsetting if true. The first is that “details with little apparent foreign intelligence value were widely disseminated in intelligence community reporting”—a matter he later alleges took place dozens of times. This should, of course, never happen. When US person information is collected, it is supposed to be minimized unless it has foreign intelligence value. So if Nunes is right here, he’s describing a genuine problem.
He also alleges that he has “confirmed that additional names of Trump transition team members were unmasked”—additional, here referring to in addition to General Flynn. There’s nothing wrong with unmasking in and of itself. But in combination with the previous allegation—that material with little foreign intelligence value was disseminated—unmasking could be a very serious matter. That is, Nunes appears to be alleging that the intelligence community reported a whole lot of material incidentally collected about the Trump transition that was of no foreign intelligence value and then unmasked the US persons involved. This would be a significant abuse if it were true.
But that only raises the question: Is it true?
Color us skeptical—at least for now. Nunes is clearly shooting from the hip here. He clearly does not have all the facts himself (he admits as much). And his allegations are a deep challenge to the professionalism of the men and women of the intelligence community in the conduct of some of their most politically sensitive work. So at least until we learn more facts, we’re going to take Nunes about as seriously as we take Edward Snowden and Glenn Greenwald when they are comparably breathless in alleging intelligence community malfeasance without knowing all the facts in pursuit of their political goals. One shouldn’t presume what he says is false. But we’re not going to presume it true either.
So why is Nunes shooting from the hip here and going public before he has any idea what he’s talking about?
Answer: Beats us.
It’s a bit of a puzzler, really. Nunes says he doesn’t have any reason to think this collection was illegal. In his second press conference, he said that he thinks there is some level of surveillance activity “perhaps legal, but I don’t know that it’s right and I don’t know that the American people would be comfortable with it.” Does Nunes mean to say he believes that there are forms of lawfully authorized surveillance which he believes are ethically wrong? If so, this is an odd format for a HSPCI Chairman to make such a startling revelation to the American people. He says that the Administration was not yet aware of the information and that he would be speaking to the White House later in the afternoon. According to both Nunes and the office of committee Vice Chair Adam Schiff, Nunes did not speak to Schiff prior to the press conference. He says he has spoken to NSA Director Admiral Rogers but not FBI Director Comey. So why is he holding a press conference before getting even his basic facts straight?
Bob Dole once famously quipped that the most dangerous space in Washington was the space between then-Rep. Charles Schumer and a TV camera. Just a hunch, but something similar might be going on here.
Did Nunes publicly disclose anything classified?
Answer: We’re not sure but it’s a question well worth asking.
As Comey said at Nunes’s hearing on Monday, “ . . .
Also, it’s well worth reading Jennifer Rubin’s Right Turn columns this morning, beginning with the always interesting “Morning Bits.” She’s a conservative Republican, and she’s clearly livid with anger over how Nunes is making things so much worse.
Neil Gorsuch is either heartless or has monumentally bad judgment—not what you want in a Justice of the Supreme Court
In Salon Paul Rosenberg summarizes Sen. Al Franken’s questioning in the hearing:
In a few short minutes of questioning Trump’s Supreme Court nominee Neil Gorsuch on Tuesday, Sen. Al Franken, D-Minn., exposed the utter absurdity of an elaborate legal fiction that conservatives have spent decades constructing. That fiction is meant to place them unreachably beyond any possible question, no matter how ludicrous, cruel or unjust their rulings might be. If the Democrats had any semblance of a coherent messaging apparatus, the Gorsuch nomination would be finished. But, of course, they don’t.
It happened so quickly, and Franken’s manner — as usual — was so understated, that it was easy to miss the significance of what happened. But the nation cannot afford to let that happen. The point Franken was making was far too critical to let it pass by unnoticed. In fact, it should be a rallying point to gather around, one that could reset the course of American jurisprudence along more sound and sober lines.
Franken’s questioning concerned the notorious “frozen trucker” case, TransAm Trucking v. Dept. of Labor. Other senators had mentioned it, but never quite in the way that Franken did. A trucker named Alphonse Maddin was fired for making a commonsense decision to save his own life — and to protect others as well. Gorsuch, alone among all the judges who ruled on the case, thought that was perfectly fine. Indeed, he felt it was the only legal conclusion he could possibly reach, a conclusion Franken called “absurd.”
A black-robed judge in the warm comfort of his chambers decides that a trucker should have meekly accepted freezing to death (alone in his truck, in midwinter, in the middle of the night), and there’s nothing anyone can do about it. That is conservative jurisprudence in a nutshell. It’s reason enough to not merely reject Neil Gorsuch but also spurn any judge who would justify himself and his rulings with similar rhetoric — like John Roberts before him — of simply, heartlessly interpreting the law the only way he could, by “calling balls and strikes.”
The acts of the matter were perfectly straightforward. As summarized by the court, “In January 2009, Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. After reporting the problem to TransAm and waiting several hours for a repair truck to arrive, Maddin unhitched his truck from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.”
Maddin successfully sued for reinstatement, the court explained, under a provision that “makes it unlawful for an employer to discharge an employee who ‘refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.’”
Throughout the proceedings, Gorsuch was the only judge at any level who thought Maddin should have risked death or been fired. That’s what Franken honed in on, dramatizing Maddin’s plight, going through it step by step. After Maddin made a stop at about 11 p.m. on the night in question, he noticed his brakes had frozen. He called for repairs. Franken took it from there.
The dispatcher says wait, hang on there. OK, couple hours goes by, the heater is not working in his cab, it’s 14 below zero, . . . 14 below zero. He calls in and says, ‘My feet, I can’t feel my feet. I can’t feel my feet, my torso, I’m beginning not to be able to feel my torso,’ and they say, ‘Hang on, hang on, wait for us.’ OK, now he actually falls asleep, and at 1:18 a.m., his cousin I think calls . . . and wakes him up, and his cousin says that he is slurring his speech. . . . Now, the Mayo Clinic in Minnesota says that is hypothermia, and if you fall asleep in 14-below-zero weather you can freeze to death. You can die.
He calls them back, he calls them back and his supervisor says, ‘Wait. You gotta wait.’ So he has a couple choices here, wait or take the trailer out, with frozen brakes, onto the interstate.
Doing that, Franken observed, would have put others’ lives at risk as well as Maddin’s own, since without reliable brakes he could only drive 10 to 15 miles per hour. “So what’s that like on an interstate?” Franken asked Gorsuch. “Someone’s going 75 miles an hour, they come over a hill, and slam into that trailer.”
Then there was Maddin’s hypothermia to consider. “He’s a little woozy. . . . I don’t think you’d want to be on the road with him, would you, Judge?” Franken asked. Gorsuch stuttered but did not reply.
“You would? Or not?” Franken pressed. “It’s really easy: Yes or no, would you like to be on the road with him?”
After a bit more back and forth, Gorsuch finally admitted the obvious: “I don’t think I would.”
Franken then wound up his recounting of the case. “He gets fired. And the rest of the judges all go, ‘That’s ridiculous; you can’t fire a guy for doing that.’ There were two safety issues here, . . . the possibility of freezing to death or driving with that rig in a very dangerous way.”
Then Franken asked Gorsuch another simple question: “Which would you have chosen? Which would you have done?
Gorsuch replied, in his best law-school patronizing manner, “Oh, Senator, I don’t know what I would’ve done if I were in his shoes, and I don’t blame him at all for a moment for doing what he did do. I empathize with him entirely.” Which clearly is no answer.
So Franken pressed him again: “OK, we [have] been talking about this case [and] you haven’t decided what you would have done? Haven’t thought for a second what you would have done in his case?”
Responding defensively, Gorsuch said, “I thought a lot about this case.”
“And what would you have done?” Franken asked. “I’m asking you a question. Please answer the question,” Franken pressed.
“Senator, I don’t know,” the finest legal mind in all of conservative America answered. “I wasn’t in the man’s shoes, but I understand why . . . ”
“You don’t know what you would’ve done,” Franken summed up for him. “OK, I’ll tell you what I would’ve done. I would’ve done exactly what he did. And I think everybody here would’ve done exactly what he did. And I think that’s an easy answer. Frankly, I don’t know why you had difficulty answering that.”
From there, Franken turned to the dissent Gorsuch wrote. As Franken described it, . . .