I’ve decided that life is too short for me to deal with any more trolls. From now on, I’m following the same zero[1] tolerance policy regarding blog comments as I do on other social media. Snarky trolling comments will lead to an immediate and permanent ban from my comment threads.

More generally, I’ve come to the conclusion that the best way to look at the ‘Intellectual Dark Web’ and what remains of the Republican intellectual class is the light of my experience as a blogger.
Put simply. the IDW and others are trolls. Their object is not to put forward ideas, or even to mount a critique, but to annoy and disrupt their targets (us). As Nikki Haley observed, a few months before announcing her resignation as UN Ambassador, it’s all about “owning the libs”
Once you look at them as trolls, it’s easy to see how most of the right fit into familiar categories. They include

• Victim trolls: Their main aim is to push just far enough to get banned, or piled-on, while maintaining enough of an appearance of reasonableness to claim unfair treatment: Christina Hoff Sommers pioneered the genre
• Concern trolls: Jonathan Haidt is the leading example. Keep trying to explain how the extreme lunacy of the far right is really the fault of the left for pointing out the lunacy of the mainstream right.
• Quasi-ironic trolls: Putting out racist or otherwise objectionable ideas, then, when they are called out, pretending it’s just a joke. The alt-right was more or less entirely devoted to this kind of trolling until Trump made it acceptable for them to drop the irony and come out as open racists.
• Snarky trolls: Delight in finding (or inventing) and circulating examples of alleged liberal absurdity, without any regard for intellectual consistency on their own part. Glenn Reynolds is the archetype in the US, though the genre was pioneered in UK print media by the Daily Mail’s long running obsession with ‘political correctness gone mad’
• False flag trolls: Push a standard rightwing line, but demand special consideration because they are allegedly liberals. Alan Dershowitz has taken this kind of trolling beyond parody
  From what I can see, the latest hero of the Dark Web, Jordan Peterson, manages to encompass nearly all of these categories. But I haven’t looked hard because, as I said, life is too short.

fn1. Not quite zero. Commenters with a track record of serious discussion will be given a warning. But, anyone who wastes my time will be given short shrift

Y’all, there’s a new Christmas present for your children to celebrate the birth of a undocumented worker born in a strange land. It’s a wall to keep the likes of Sweet Jesus on his side to keep us God-Fearing Americans safe on the other side.

Just in time for Christmas, Conservative gift retailer Keep and Bear has a toy called “build the wall.” It’s a lego-like mess about how wonderful Trump’s border wall is.

“A mob of 10,000 Central American migrants is marching through Mexico and heading toward El Paso, Texas. Mexican border agents attempted to stop them at the Mexican border, but to no avail,” the promotional material reads.

No, I am not kidding.

 

 

Hell, this is so bad that even Amazon won’t carry it and they carry some really questionable crap.

They also have a depiction of the kind of people we don’t want in our country.

 

 

You shall know them by their hats.

You really need to test the waters over at Keep and Bear – it’ll get your blood Russian to your head.

 

We now have at least two white evangelical "prophets" teaching that some evil cabal of "Them" is keeping a secret cure for cancer from the public. It would be funny if the implications weren't so potentially deadly.

It’s 100 years since the Armistice that brought an end to fighting on the Western Front of the Great War. Ten million soldiers or more were dead, and even more gravely wounded, along with millions of civilians. Most of the empires that had begun the war were destroyed, and even the victors had suffered crippling losses. Far from being a “war to end war”, the Great War was the starting point for many more, as well as bloody and destructive revolutions. These wars continue even today, in the Middle East, carved up in secret treaties between the victors.

For much of the century since then, it seemed that we had learned at least something from this tragedy, and the disasters that followed it. Commemoration of the war focused on the loss and sacrifice of those who served, and were accompanied by a desire that the peace they sought might finally be achieved.

But now that everyone who served in that war has passed away, along with most of those who remember its consequences, the tone has shifted to one of glorification and jingoism.

In part, this reflects the fact that, for rich countries, war no longer has any real impact on most people. As in the 19th century, we have small professional armies fighting in faraway countries and suffering relatively few casualties. Tens of thousands of people may die in these conflicts, but the victims of war impinge on our consciousness only when they seek shelter as refugees, to be turned away or locked up.

In the past, I’ve concluded message like this with the tag “Lest we Forget”. Sadly, it seems as if everything important has already been forgotten.

“When you get to the White House there are two jobs you must lock up – Attorney General and director of the Internal Revenue Service.”[1]

–Joe Kennedy, Sr. to John F. Kennedy, perhaps apocryphally. (Joe Sr. had been involved with organized crime during Prohibition. Sound familiar?)

I am posting this draft paper early, before having a chance to work through all the footnotes and the normative structural proposal. But I think this paper is suddenly more relevant right now.

Walter Dellinger is quoted in the New York Times:

“Whatever the right answer to the particular ethical and legal issues might be, we should not lose sight of the larger question of whether this is an effort to undermine the system of justice,” said Walter E. Dellinger III, who served as acting solicitor general in the Clinton administration.

Mr. Trump is not the first president to appoint an ally with thin credentials to run the Justice Department: John F. Kennedy picked his brother, Robert. Nor is it unusual to staff government agencies with officials who bring vested interests to the job. But Mr. Dellinger said there was no precedent for installing a political crony as attorney general at the very moment that he could decide the fate of a federal investigation involving the president.

My paper suggests that this is not correct, depending on a broad interpretation of a “very moment.” Nixon appointed Richard Kleindienst as AG after the Watergate break-in was already being investigated and prosecuted. John Kennedy appointed his brother Robert Kennedy, who had become famous for prosecuting organized crime… but never investigated Joe Sr.’s organized crime past. (Reagan had his crony Meese during Iran Contra, but Reagan had appointed him before the conspiracy was exposed.)

Matthew Whitaker is an egregious appointment in violation of the Constitution and the relevant statutes, as I have argued here on this blog. However, crony attorneys general are common in the 20th century. Both parties have eroded the norm of DOJ independence steadily. It is overdue for Congress to pass legislation to make limit the president’s power to pick a crony/hack/insider Attorney General like Sessions or Whitaker. Or the many campaign managers or partisans chosen by presidents of both parties. Or a brother crony like Robert Kennedy. It is overdue for Congress to create structures of agency independence within the Department of Justice, like the Office of Legal Counsel. This paper offers an incomplete rebuttal to Justice Scalia’s originalist assertions about prosecutors in his Morrison v. Olsen dissent. Those arguments would support the constitutionality of such statutes insulating the Department of Justice now.

[1] Larry Tye, Bobby Kennedy 458 n. 133 (2016) (citing John P. Roche, “The Second Coming of R.F.K.,” National Review, July 22, 1988, p. 34.

Here is the paper in a Google Doc link.

Here is the paper’s introduction:

The office of United States Attorney General has often been identified as “quasi-judicial” or having “quasi-judicial” aspects for much of American history.[1] Other parts of the Department of Justice have also been described as quasi-judicial, such as the Office of Legal Counsel and the Solicitor General. A glance at a list of past Attorneys General seems to confirm this judicial aspiration in practice. Nine Attorneys General became Supreme Court Justices,[2] and others were notably judicious and professional in their tenure in the office.[3] Of course, there are some infamous examples of unprofessional cronyism, but there are famous counterexamples of those who stood up to the presidents they served in defense of legal principles. The “insider” friend, fixer, or brother of the president was presumably the exception.

But a closer examination of the history of the office of Attorney General reveals a surprising pattern: The nineteenth century had relatively few cronyist appointments in an era known for patronage, but the twentieth century ushered in more partisan insiders, hacks, and fixers, just as the DOJ’s power had grown enormously. This shift was remarkably bipartisan, starting under President Woodrow Wilson, a Democrat, and then immediately after under President Warren G. Harding, a Republican. Perhaps this turn in the late 1910s started an era of partisan escalation as each party pushed the norms as they rotated into power. This paper suggests that these trends have contributed to making the DOJ partisan and allowing some presidents to imagine the attorney general’s office as the president’s personal lawyer and fixer. In just over half of the past century, the office of attorney general has been filled by a partisan insider.

This research offered a number of patterns that I found especially surprising. First, nineteenth-century America is known for the rise of the patronage party system. Formal professionalization – especially legal professionalization – emerges somewhat late in the nineteenth century.[4] Nevertheless, there are relatively few crony or patronage attorneys general in an era of patronage without professionalization or recently-emerging professionalization. Second, the Progressive Era (roughly 1900 to 1920) is thought of as an era of reforming the partisan machine, of anti-patronage, of anti-corruption. And yet, the rise of the crony or partisan campaign insider AG begins in the Progressive Era under President Woodrow Wilson, and escalates from there, including in the Roosevelt administration, which was also perceived as being a shift to administrative expertise, the “brain trust,” or at least a team of established politicos. The third surprise is just how bipartisan the cronyism of the Attorney General has been in the twentieth century. Democrats accounted for more of the partisan-insiderism of the mid-twentieth century, though the party balance has shifted towards the Republicans decisively since the Nixon/Reagan era. (See colored chart at p. 3-5). The nepotism of the Kennedy administration with brother/protector Bobby and the corruption of the Nixon administration are most famous to modern observers, but the origins go further back to a time perceived to be more progressive and professional.

In Part I, this paper presents an overview of that pattern, using the rough categories of “professional,” “politico,” and “insider” or crony. [Feedback on these labels is welcome.] I will focus more on the turning point during the Progressive Era: Wilson’s Attorney General A. Mitchell Palmer and Harding’s Attorney General Harry Daugherty. This focus will highlight how that rise of cronyism contributed to the abuses and corruption under those two attorneys general. Part II offers a historical critique of the unitary executive theory on prosecution, exemplified in Justice Scalia’s dissent in Morrison v. Olson, a position that would prevent many structural reforms. That position turns out to be incorrect in its historical assumptions. Part III offers some preliminary suggestions for structural reform of the Attorney General’s office and other parts of the DOJ, borrowing from the independent agency model, while remaining consistent with Article II’s Take Care and Vesting clauses. The breakdown of the norms of prosecutorial independence from partisanship is not a new phenomenon. It is a century in the making. The solutions borrow from some models that have grown elsewhere in the executive branch over that same century.

[1] See Caleb Cushing, A Report of the Attorney General, Suggesting Modifications in the Manner of Conducting the Legal Business of the Government: Message from the President of the United States, H.R. Exec. Doc. No. 33-95, at 6 (1854). See also Caleb Cushing, Office and Duties of the Attorney General, 6 Op. Att’y Gen. 326, 334 (1854). Cushing also noted that Congress established the office of Attorney General “in organizing the judicial business of the United States.”

[2] The attorneys general who became Supreme Court justices: Roger Taney, Nathan Clifford, Joseph McKenna, William Moody, James McReynolds, Harlan Fiske Stone, Frank Murphy, Robert Jackson, and Tom Clark.

[3] These include Edmund Randolph, William Wirt, Caleb Cushing, Evarts, Hoar, Homer Cummings (1933-39), William Rogers, Elliot Richardson,

[4] Shugerman, The Creation of the Department of Justice: Professionalization Without Civil Rights or Civil Service, Stan. L. Rev. (2014)

Physical reminders are still etched on the French countryside more than 100 years after one of the bloodiest battle of World War I.

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