PG&E is going into bankruptcy. But what happens after it comes out?

The logo for Pacific Gas & Electric Co. appears above a trading post on the floor of the New York Stock Exchange on Monday.
(Richard Drew/Associated Press)

Pacific Gas & Electric was the only California utility to file for bankruptcy protection when the state went through a self-inflicted energy crisis in the early 2000s. Now it is poised to be the first to file for bankruptcy protection as the state goes through a wildfire crisis.

PG&E, which serves an enormous swath of communities from Santa Barbara to Humboldt counties, filed notice Monday that it intends to file a petition to reorganize its debts under the protection of Chapter 11 of the federal bankruptcy code. Under Chapter 11, companies try to work out a deal with creditors that wipes out part of their debt and puts them on a path to long-term survival.

But bankruptcy is essentially a backward-looking process. It’s about the debts you have amassed, which in PG&E’s case include as-yet undetermined (but no doubt enormous) sums associated with last year’s devastating Camp fire.

What about the fires to come?

The increasing amount of development in areas that were once wild is pushing power lines deeper and deeper into areas that are rich in vegetation that turns to kindling during the state’s seemingly endless dry season. This is a problem not just for PG&E, but for all the state’s utilities.

The state’s big utilities have started installing equipment to cut off power when winds threaten to thrust trees into their lines. That will help, but the real solution is to clear the areas around power lines so they cannot be downed by windblown tree limbs, and that’s a gargantuan task.

According to the Wall Street Journal, a report PG&E filed with the state in January 2018 estimated that its lines were threatened by 120 million trees. With the utility trimming trees at a pace of 1.4 million a year, it can’t possibly get its corporate arms around that problem.

The utility might be able to ameliorate the problem by burying power lines. But that’s an expensive process, and PG&E has 125,000 miles of lines.

Property owners can and should be part of the solution, and the state Legislature took steps last year to give them more incentive to clear their land to provide a margin of fire safety. Insurers also are a factor, as the rates they charge in areas with high fire risks can deter development. And so are local governments, which can do significantly more than they are doing now to increase the supply of affordable housing in cities.

But it seems inevitable that utilities will face more lawsuits, because we will certainly have more destructive wildfires. Our changing climate will guarantee that. And going into bankruptcy now won’t reduce the liability exposure for wildfires and the lawsuits they bring in the future.

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Kamala Harris seems pretty clueless about the Knights of Columbus. That could cost her with Catholics

Sen. Kamala Harris (D-Calif.) pressed a judicial nominee on his membership in the Knights of Columbus.
(Nicholas Kamm / AFP-Getty Images)

In 2017 Sen. Dianne Feinstein was criticized — fairly, in my view — for implying that a judicial nominee couldn’t serve fairly as a federal judge because she was a devout Catholic and “the dogma lives loudly within you.” Now Feinstein’s fellow Democrat from California, Sen. Kamala Harris, is also being accused of Catholic-bashing because of questions she posed to another judicial nominee.

Some of the pushback is coming from inside the Democratic House. Without mentioning any names, Rep. Tulsi Gabbard (D-Hawaii) has criticized other Democrats for suggesting that Brian C. Buescher, a nominee for a district judgeship in Nebraska, is disqualified because of his Catholicism and his membership in the Knights of Columbus. Both Harris and Gabbard’s fellow Hawaii Democrat, Sen. Mazie Hirono, have homed in on Buescher’s membership in the Knights.

In an opinion column in the Hill, Gabbard wrote: “The party that worked so hard to convince people that Catholics and Knights of Columbus like [1928 presidential candidate] Al Smith and John F. Kennedy could be both good Catholics and good public servants shows an alarming disregard of its own history in making such attacks today.”

This is overstating the case. As with Feinstein’s clumsy questioning of Amy Coney Barrett, now a judge on the U.S. 7th Circuit Court of Appeals, it’s a reach to accuse Harris and Hirono of old-fashioned anti-Catholicism because of the written questions they posed to Buescher. But both senators displayed a cluelessness about Catholic culture that could easily come across as hostility.

In her questions, Harris noted that Buescher had been a member since 1993 of the “all-male” Catholic fraternal organization. (By definition, a fraternal organization is all-male.) She asked the nominee: “Were you aware that the Knights of Columbus opposed a woman’s right to choose when you joined the organization?” and “Were you aware that the Knights of Columbus opposed marriage equality when you joined the organization?

The Knights of Columbus, sometimes described as the Catholic answer to the Masons, does oppose abortion and same-sex marriage, as does the Catholic Church generally (including the “liberal” Pope Francis). But it’s not primarily a political organization, as Harris’ questions implied. It’s a fraternal and charitable organization that also offers insurance plans.

In her questions, Hirono said that the Knights had taken “extreme positions,” including support for California’s Proposition 8 outlawing same-sex marriage. Hirono asked if Buescher would promise to resign from the Knights “to avoid any appearance of bias” and recuse himself from cases in which the group has taken a position.

Buescher deftly responded to the senators’ questions. He told Harris that “I joined the Knights of Columbus when I was 18 years old and have been a member ever since. My membership has involved participation in charitable and community events in local Catholic parishes. I do not recall if I was aware whether the Knights of Columbus had taken a position on the abortion issue when I joined at the age of 18.”

Buescher also said he would rule impartially and faithfully apply judicial precedent, including on abortion and same-sex marriage.

Harris and Hirono are free not to take these assurances at face value, and the fact that Buescher ran for state attorney general in Nebraska as a pro-life candidate may give them further pause. A judge who as a private lawyer or political candidate fervently opposed abortion shouldn’t allow his beliefs to affect how he rules in abortion cases. If a senator has reason to think a nominee is incapable of separating his religious beliefs from his judicial duties, by all means she should vote against confirmation.

But it’s unfair to presume that mere membership in the Knights of Columbus — or the Catholic Church — makes a judicial nominee biased. And the idea that a teenager joined a venerable Catholic fraternal group in order to sabotage reproductive rights or same-sex marriage is bizarre. (Buescher joined the Knights 19 years before an “evolved” President Obama announced that he supported same-sex marriage.)

Harris is weighing a run for the presidency. She may find that the aspersions she cast on the “all-male” Knights of Columbus will cost her votes with Catholics who don’t see it as a sinister organization.

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Taxpayers will be on the hook for millions of government work hours that no one actually worked

As the government shutdown continues, furloughed workers likely to get paid, contractors won't, and taxpayers won't get what they paid for.
(Jose Luis Magana / Associated Press)

The U.S. Senate voted late Thursday to grant back pay for furloughed federal workers, which is usually what happens when the government shuts down. It’s a benevolent and fair thing to do — 800,000 employees forced off the job or having to work without pay because of a political fray shouldn’t go without income through no fault of their own.

It’s sad that granting back pay for lost hours is so routine for federal workers that it has become a custom. But that tradition should frost taxpayers who foot the bill for tens of millions of work hours in which no work was done.

President Trump reportedly has promised legislators he’d sign the measure, though it has yet to come to a vote in the House. So if it does come to pass as expected, at least federal workers victim to the shutdown won’t suffer so much financially.

But the uncertainty and the financial stress is taking a toll, particularly in agencies where morale is already low. The union for the Transportation Security Agency says some of its members — who are considered essential personnel and must stay on the job through the shutdown — have or are planning to quit rather than be forced to work without pay. Ditto for the air traffic controllers. And two other unions representing a wide range of federal workers, including Customs and Border Protection officers, have filed lawsuits against the government over the practice.

That shouldn’t surprise. This is the third shutdown in a year for federal workers (albeit one of them lasted only a few hours) and it’s understandable that the stress from such uncertainty and employer dysfunction would have folks looking for the exit.

In an economy in which four out of five workers live paycheck to paycheck, granting back pay is the right thing to do for furloughed workers. But it’s not just federal employees who are caught in the political crossfire; in what has become another tradition, federal contractors lose business during the shutdown and don’t get paid.

So not only does the country not get the work for which it will be paying furloughed employees, private-sector contractors that the government has increasingly come to rely on take the shutdown in the wallet, with some small operators saying they are being forced to lay off workers and fear for the future of their businesses.

Meanwhile, most congressional Republicans — who can usually be counted on to look out for the health of American businesses — continue to stand with Trump over his demand for a wasteful and ineffective border wall that most Americans don’t want, while the government services they do want (and pay for) are circumscribed.

No wonder Americans are so cynical about Washington.

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Please, please turn off the water to the White House

The partial shutdown has led the federal government to underpay its D.C. water and sewage bill. Will they shut off water to the swamp?
(Danil Melekhin / Getty Images)

Just call him President Deadbeat.

With the partial government shutdown sputtering along, different government agencies are unable to pay not only employees, but also some basic bills.

Apparently that includes the White House. You know, where President Trump lives.

And apparently that includes the president’s water bill.

The online site DCist reports that DC Water, the municipal utility, received an email from Treasury officials Jan. 2 indicating that the government would not be paying $5 million of its $16.5 million quarterly water and sewage bill (the federal government is the utility’s biggest customer) because of the shutdown.

The utility’s chief financial officer, Matthew Brown, delivered the news during the board’s Jan. 3 meeting (see the 15:40 mark on the meeting video here).

“That brings up an interesting question,” board chair Tommy Wells said. “Is there a time from nonpayment when we cut someone’s water off?”

“1600 Pennsylvania Avenue, is that what you’re talking about?” someone asked off-camera, drawing laughter.

As a practical matter, it would take a much longer shutdown before that happens. DC Water can shut off service after 30 days, and place a lien after 60 days, and neither seems likely since the government eventually will be good for the debt.

But it’s fun to contemplate.

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Do Democrats think Trump’s wall is immoral or just ineffective?

House Speaker Nancy Pelosi (D-San Francisco) last week called a border wall an "immorality."
(Mark Wilson / Getty Images)

President Trump’s relatively subdued Oval Office speech on border security included one combative note: a challenge to the suggestion by Speaker of the House Nancy Pelosi that Trump’s proposed wall on the border with Mexico was immoral.

“Some have suggested a barrier is immoral,” the president said. “Then why do wealthy politicians build walls, fences and gates around their homes? They don’t build walls because they hate the people on the outside, but because they love the people on the inside. The only thing that is immoral is the politicians to do nothing and continue to allow more innocent people to be so horribly victimized.”

Even though Trump didn’t mention Pelosi by name, it seemed obvious that he was referring to her. Last week she said that “a wall is an immorality between countries,” adding: “It’s an old way of thinking. It isn’t cost-effective.” This isn’t a new position for her. In a “Meet the Press” interview in April 2017, she said: “The wall is, in my view, immoral, expensive, unwise.”

Even if it would have required some extemporizing, you might have thought Pelosi would have responded to Trump’s point about the morality of the wall when she and Senate Minority Leader Chuck Schumer delivered their televised response to the president.

But Pelosi didn’t engage on that issue, focusing on the importance of reopening the government, alternative ways to secure the border and the fact that women and children seeking to enter the United States are not a security threat, but a humanitarian challenge. She called the wall expensive and ineffective, but not immoral. Schumer seconded her on “ineffective” and added “unnecessary.”

There’s a huge difference in messaging between calling a wall ineffective or unnecessary and calling it immoral. The latter claim is associated with the view that most if not all would-be migrants should be welcomed to the United States and that claims for asylum should be assessed generously. It’s a view popular on the activist left of the Democratic Party but harder to sell to more moderate voters.

It also reflects a religious view of immigration. After Trump’s speech, Catholics opposed to the wall launched a Twitterstorm with the hashtag #CatholicsOpposeTheWall. It was clear that most of their objections were moral and religious, not pragmatic, and extended far beyond the issue of the wall. One quoted the Gospel of Matthew: “I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.”

In fact, the U.S. Catholic bishops, while paying lip service to border security, long have espoused what is close to an open borders policy, as I wrote here.

But it’s one thing for clerics to view the wall and immigration policy broadly through the lens of the Gospel’s injunctions about welcoming the stranger. For the Democratic Party to take that view is another matter. Many voters, even if they oppose Trump’s wall and other policies such as the separation of families at the border, still are uneasy about illegal immigration.

Is that why Pelsoi and Schumer didn’t harp on the “immorality” of the wall in their remarks?

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‘Forrest’ Trump promises to strip away California’s FEMA wildfire recovery funds

It sure didn’t take long for Gov. Gavin Newsom to get under President Trump’s skin.

On Tuesday — his second day in office — California’s new governor traveled to Placer County to propose spending an additional $105 million on wildfire safety, including more money to thin dry forests and improve emergency alert systems. That would be on top of the $200 million that lawmakers approved last year.

Newsom also called on President Trump to boost federal funding for forest management, which is vital, given that about 60% of California’s forests are on federal land. Newsom co-signed a letter to Trump, along with fellow Democratic Govs. Jay Inslee of Washington and Kate Brown of Oregon, calling for the Trump administration to “double the investment” in managing federal forests in the West to help supplement state efforts.

After all, the letter noted, California has spent $111.3 million since 2017 on forest health, and almost half the work was done on federal land. Yet at the same time, the U.S. Forest Service budget has been cut by more than $2 billion since 2016.

Trump’s response?

The president misspelled “Forest” as “Forrest” in his original tweet. He deleted it and tweeted the same statement again with the correct spelling. But not before he created a bunch of new memes.

Trump’s tweet is not only cruel and vindictive — thousands of Californians have lost their homes and businesses and are relying on FEMA assistance to rebuild their lives — it’s also incorrect.

California is getting its act together. The state is putting up record levels of funding to reduce fire risk and better prepare communities for the threat of larger, more destructive fires driven, in part, by climate change.

Trump has repeatedly railed against the “gross mismanagement” of forests in California. But he’s never explained what that means or what would be better forest management, aside from his comment about more “raking” of the forest floor. That also created a new meme. Trump seems myopically focused on forests and logging when some of California’s largest fires have been in the brush and grasslands.

This is typical Trump Twitter bluster, set off by the mildest of criticism by California’s new governor. Get ready for a bumpy ride.

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The U.S. doesn’t have a border crisis. It has a Trump-sized crisis of democracy

President Trump addressing the nation Tuesday night from the White House.
(Kevin Dietsch/ EPA/Shutterstock)

President Trump’s speech Tuesday night, and the congressional Democratic leaders’ response, offered nothing to the nation that it didn’t already know – that our government is broken, and there’s not much reason to have faith that it’s going to get any better.

The current manifestation is that the nation elected as president someone who has no idea how to do the job, and who is not predisposed to grow into it. Any stray thought that comes to mind gets trotted out as fact or edict, forcing the few people on Trump’s skeleton staff who have an inkling of how governing works to scramble to corral him, persuade him that he can’t do what he wants to do, or find some loophole through which they can drive whatever bugbear Trump is obsessed with at the moment.

We do not, as the president would have us believe, face a national security crisis at the U.S.-Mexico border. But we do face a crisis in competence. This administration – as did the Obama administration before it – has been unable to come up with a solution for the number of people arriving at the border to seek asylum.

In Trump’s case, his xenophobia and his politicization of the desperate people seeking to exercise their legal right to ask the U.S. for protection has made the problem worse. Separating children from their parents as a deterrence measure. Imprisoning children for weeks in apparent violation of the 1997 Flores court agreement limiting detention of minors facing deportation. Insisting on a wasteful expanded wall to stem illegal immigration that comes less and less across ill-guarded stretches of the border and more and more through legal channels, then fail to leave as scheduled.

In fact, illegal immigration is broadly down over the last quarter-century as the number of border agents has quadrupled. And Customs and Border Protection statistics show drug seizures by Border Patrol agents, a proxy for drug smuggling, dropped from 2.3 million pounds in 2012 to 882,039 pounds in 2017. Most of that decline came in marijuana seizures.

And most drugs are smuggled through in vehicles crossing staffed ports of entry. Adding to the existing 700 miles of wall and fencing would do nothing to affect that flow.

But the president doesn’t build policy out of facts. He builds them out of fears, aiming not to solve a problem but to shore up his shaky political standing and feed the misperceptions of his loyalists.

How do we get out of this mess? There’s no easy path. Trump’s election didn’t cause the polarization in American politics but arose from it. Public trust in government remains near historic lows since the National Election Study began in 1958, and government shutdowns – even partial ones like this one – don’t engender much faith that the people elected to run the government can actually do so.

But it does feed the cynicism and disillusionment that means presidents get elected by a minority of eligible voters, while more than two of five people who can vote don’t.

That’s the real crisis here. Trump on Tuesday framed illegal immigration and its (exaggerated) effects as “a crisis of the heart, and a crisis of the soul,” but in truth we face a crisis of the democracy. And that’s something else that a border wall won’t fix.

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It’s been a good week for poultry at the Supreme Court

Not just ducks and geese prevailed when the U.S. Supreme Court rejected a challenge to the California law banning the sale of foie gras and force-feeding birds to get it.

On Monday, the high court also rebuffed a group of state attorneys general who brought suit against the California law requiring that all eggs sold in the state come from hens kept in cages big enough for them to turn around and spread their wings. And the court said no to a similar group of states, led by the Indiana attorney general, challenging a new Massachusetts law that will prohibit the confinement of pigs, calves and hens in cramped quarters and ban the sale of meat and eggs from animals kept under those conditions.

Interestingly, Justice Clarence Thomas voted to hear those two cases, according to the court’s announcement of its decision. No further explanation was given.

The state attorneys general have been squawking for years about the California egg law, claiming it violates interstate commerce laws. The Indiana state attorney general who led the challenge to the Massachusetts law also made the same claim. And in Congress, Rep. Steve King (R-Iowa) has tried unsuccessfully for years to get a provision into the farm bill that would prohibit states from regulating agricultural products sold in their states. He was really after the California egg law, because many egg farmers in Iowa don’t want to retrofit their barns to California’s requirements.

None of the opponents of these animal welfare measures have gotten anywhere in court or in Congress. It’s good news for animal welfare statutes that the Supreme Court (for whatever reasons) won’t hear challenges to them. But that doesn’t mean it’s the end of the litigation road for advocates for farm animals. Trivia note: The Supreme Court case was filed in 2017 by Missouri’s attorney general at the time, Josh Hawley, the Republican who beat Democratic incumbent Claire McCaskill to become Missouri’s junior senator. The new attorney general, Eric Schmitt, vowed on Tuesday to keep up the fight for consumers and farmers.

Well, so far it’s been a losing battle on all fronts. And I’m not sure how many consumers are still clinging to the old, inhumane way of raising egg-laying hens. Dozens of restaurant chains, grocery store chains and food manufacturers have switched to cage-free suppliers or are in the process of doing so, all in reaction not just to state laws but also to those consumers who have made it clear that they care about their food — as well as the welfare of the animals that provided it. And California voters just passed a ballot measure, Proposition 12, which expressly requires that all eggs sold here come from cage-free hens and that all veal and pork products sold here come from calves or breeding pigs (or their offspring) that were not confined.

All these laws and changes spring from a growing consciousness of the welfare of farm animals. There’s no winning a fight against that.

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Carbon emissions are up. Don’t blame Trump, this is on all of us

Americans understand global warming, yet we continue practices that increase carbon emissions.
(Ben Margot / Associated Press)

Americans seem to be stuck in one of those “do as we say, not as we do” conundrums when it comes to recognizing the connection between climate-altering carbon emissions and how we conduct our lives.

New findings published Tuesday estimate that U.S. carbon emissions increased 3.4% last year, driven primarily by a booming economy, which consumed more electricity, and people buying less-efficient vehicles and driving more miles, including shippers. Despite recent gains in adding renewable resources, coal and natural gas still account for 62% of domestic electricity production, which means increased demand causes increased emissions.

The findings track with preliminary estimates released last month and with reports at the international climate forum in Katowice, Poland, that humankind is failing to take sufficient steps to avoid the worst effects of global warming.

So what’s the conundrum? We know that climate change is real, we know that human activity is propelling it, yet we persist with activities that add to the problem and fail to take sufficient steps to mitigate it. Having climate-change skeptics and industry lobbyists directing federal environmental policy doesn’t help, but President Trump isn’t the one leading consumers to pick gas-guzzlers over gas-sippers.

That’s a consumer choice. So even as we recognize that burning gasoline in our engines adds to global warming, we’re moving away from the more efficient vehicles in favor of the less-efficient but larger SUVs and light trucks. Though I should note that the larger vehicles were getting more fuel-efficient under increasingly stringent Obama administration fuel-efficiency standards, which Trump has moved to freeze.

Consumers are showing some interest in electric vehicles, but they remain expensive and we still don’t have the infrastructure in place – to wit, plentiful and publicly accessible charging stations – to make them more practical for more consumers. Even at home, people without a garage or driveway are unable to charge the vehicles, let alone folks who live in multi-unit rental properties.

Another part of the problem is that technology has yet to come up with batteries that give cars the kind of range that a tank of gas provides, though engineers are working on it. And as voters, we don’t put enough pressure on politicians to use the power of government to move markets away from products that are killing us in favor of those that might keep the world habitable for humans for a longer period of time.

But in the end, we know what we’re doing to ourselves, yet we do it anyway.

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For a self-described ‘deal maker,’ Trump appears to have no idea how negotiation works

People gather near the U.S.-Mexico border fence in the Las Playas Area on Sunday in Tijuana.
(Sandy Huffaker/Getty Images)

“We will have so much winning if I get elected that you may get bored with the winning,” then-candidate Donald Trump declared at a campaign event in September 2015.

It was a line that Trump would repeat many times in one form or another, and since the election it has encapsulated the uniquely binary approach he’s taken to the presidency. He appears to view much of governing as a contest in which one side, and only one side, emerges victorious.

Which is odd, given that someone who claims to be a master deal maker would understand how important it is to avoid zero-sum situations. That’s where we appear to be today, with no end in sight to a partial government shutdown that’s beginning its third unhappy week.

Trump boxed himself in by insisting that Democrats agree not to improving border security, but to taking a specific approach to border security — a wall. Democrats didn’t help things by turning a border wall into something that’s not just ineffective but “an immorality,” in the words of new House Speaker Nancy Pelosi. The result is that there is no possible middle ground.

But Trump chose that path deliberately. Remember, White House Press Secretary Sarah Huckabee Sanders said a week before Christmas that Trump did not want a shutdown and would find another way to fund the wall. The backlash from xenophobic elements in Trump’s base was so fierce, he withdrew that offer as quickly as he’d extended it. The wall became the defining symbol of the shutdown and, possibly, Trump’s presidency.

So here we are, with both sides dug in like the Battle of Verdun circa 1916. That one didn’t end quickly or well.

In a capital filled with reasonable people, Democrats would be happy to fund a wall where it makes sense from a border security standpoint, and the president would recognize that there are plenty of places where a wall makes no sense whatsoever. Both sides would also agree that you can’t solve border problems just by tackling the security aspect. That’s why we on The Times Editorial Board keep arguing for a comprehensive overhaul of U.S. immigration law, a process that is likely to take months.

Sadly, Washington is not filled with reasonable people. Instead, it is filled with would-be winners and losers, and at the moment, they’re all in the latter category.

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How’s this for bad optics: Trump’s top lieutenants getting big raises during the shutdown

As 800,000 federal workers remain furloughed or work without pay, top Trump appointees to get raises.
(LM Otero / Associated Press)

How’s this for bad optics: As the partial government shutdown enters its third week and some 800,000 federal employees remain off the job (or are working without pay), top political appointees and Vice President Mike Pence are about to get huge raises.

According to the Washington Post, pay levels that had been frozen since 2013 will increase Saturday unless Congress votes yet again to freeze them. That’s not likely to happen.

The bumps could amount to $10,000 a year or more, depending on the position, with cabinet secretaries going from $199,700 a year to $210,700 a year. The increases are so high because they encompass several years’ worth of delayed raises that now will go into effect all at once.

In the grand scheme of things, the increases aren’t particularly objectionable. Senior executive positions in government are important and salaries should (reasonably) reflect that, if we want to attract the best candidates (even if the president appointing them doesn’t select the best people).

Congress had frozen senior executive pay levels in the wake of the last recession, and continued the freeze in subsequent spending bills. The freeze was included in the most recent measure that failed to advance at the end of the last Congress. (Senate Democrats refused to support it because of Trump’s insistence that it include $5 billion for the U.S.-Mexico border wall.)

Without approval of that spending bill, the executive pay freeze gets lifted.

And Trump’s top appointees get raises while his intransigence forces more than a third of federal employees off the job. #winning.

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If Trump thinks migrants in the U.S. illegally are dangerous, why has he hired so many of them?

As much as he has railed against migrants who have entered the U.S. illegally, President Trump's businesses seem to like hiring them.
(Nati Harnik / Associated Press)

By now much of the nation recognizes President Trump as the embodiment of hypocrisy, but still, sometimes his blatant duplicity needs to be pointed out.

For instance, Trump railed as a candidate and as president about people living in the country without permission, calling them rapists and violent gang members.

Last year, in a White House meeting discussing so-called sanctuary cities and states with sheriffs and other local California officials, the president said:

“We have people coming into the country or trying to come in, we’re stopping a lot of them, but we’re taking people out of the country. You wouldn’t believe how bad these people are. These aren’t people. These are animals.

If immigrants in the U.S. illegally are so violent and such a danger to society, why did managers of Trump National Golf Club in Bedminster, N.J., surreptitiously remove the names of undocumented workers from a list of employees sought by the Secret Service?

The New York Times, which last month broke the story that golf club managers knowingly hired workers who had entered the country illegally (including the Guatemalan woman who makes Trump’s bed when he’s there and who received a White House certificate for her “outstanding” service), reported Thursday that the club’s human resources office failed to include the names of workers in the U.S. illegally on the list requested by the Secret Service as a security precaution.

No doubt that’s because, as part of the vetting, the Secret Service was requesting Social Security numbers; workers in the country illegally do not have valid Social Security numbers.

Nothing untoward has happened to the president, and I hope nothing does, but the revelations that Trump National managers knowingly hired people who had entered the country illegally, including a woman who made some of the president’s meals, and then hid their status from even the Secret Service is the kind of security lapse that normally would have conservatives fuming.

And then there’s the blatant hypocrisy of the president profiting from the labor of such workers even as he rails against them as a threat to public safety.

In fact, Trump has profited before from the labor of people working in the U.S. without permission, including clients of his modeling agency and Polish laborers who demolished a store to make way for his flagship Trump Towers project in Manhattan (Trump paid nearly $1.4 million in a legal settlement for that one).

I’m still waiting for Trump to tell us which of the migrants working for him after entering the country illegally — and whose names were withheld from the Secret Service — were the rapists and the gang members.

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After China’s moon landing, let’s take a minute to give space exploration the awe it deserves

Five months before I was born, the Soviet Union launched Sputnik, the first artificial satellite to orbit Earth. In 1969, as an 11-year-old, I watched the black-and-white images of American astronaut Neil Armstrong stepping onto the surface of the moon. That was a huge advancement in a remarkably short time.

Space exploration has continued to evolve with missions to Mars and Venus, placing space stations and telescopes in orbit, and dispatching probes to the far reaches of the solar system. There have been so many advances, in fact, that we sometimes take them for granted. We have lost our sense of awe. Which is too bad, because there have been a number of recent developments that deserve some appreciation.

For instance, China just became the first country to conquer the technical difficulties of landing a spacecraft on the far side of the moon — not the dark side, as Pink Floyd described it. The far side of the moon gets sunlight on a regular basis as it orbits the Earth while the Earth itself orbits the sun. So when the moon is full to our eyes, the far side is dark; when it’s a new moon — shadowed to our eyes — sunlight is striking the far side.

But because the far side never faces Earth, it’s impossible to get a direct radio signal, which is what scientists use to control and receive reports from spacecraft. So how did the Chinese handle that hurdle? First, they sent a satellite into an orbital position from which it can receive signals both from Earth and the far side of the moon (you can read about that science here). Then they used the satellite as a relay tower of sorts — a simple yet elegant solution.

Meanwhile, NASA’s New Horizons spacecraft is sending back to Earth pictures of the snowman-shaped Ultima Thule — which is about as long as Catalina Island — orbiting in the Kuiper Belt far beyond the farthest planet in the solar system. That mission, incidentally, launched in 2006, and included a 2015 exploration of Pluto.

Yet New Horizons wasn’t the first spacecraft to reach that distance from Earth. NASA’s Voyager 1 and Voyager 2 spacecraft launched in 1977 — the start of my sophomore year of college — to explore Jupiter and Saturn, with Voyager 2 going on to investigate Uranus and Neptune.

They sent back remarkable photos and invaluable data, and then they kept flying, with Voyager 1 leaving the far boundaries of the heliosphere for interstellar space in August 2012, and Voyager 2 following this past November. The heliosphere, as NASA describes it, is “the protective bubble of particles and magnetic fields created by the Sun.”

And they continue to send data back to Earth using signals that take, in the case of Voyager 2, 16½ hours to travel more than 11 billion miles, helping scientists understand conditions that they heretofore could only imagine or speculate about.

That is the dictionary definition of awesome.

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Trump says Mexico will pay for his border wall thanks to the new NAFTA deal. It won’t

President Trump claimed again Wednesday that Mexico is paying for his wall through the renegotiated NAFTA agreement. It isn't.
President Trump claimed again Wednesday that Mexico is paying for his wall through the renegotiated NAFTA agreement. It isn’t.
(Paul Ratje/AFP/Getty)

President Trump claimed yet again Wednesday morning that Mexico is paying for a wall along the shared border through his renegotiated NAFTA trade deal (which he re-branded as USMCA) with Canada and Mexico.

No, it’s not.

Oh, and about that “much of the Wall has already been fully renovated or built” claim? Um, no. The relatively small amount of wall-and-fence work done since Trump took office has been primarily repairing or renovating existing structures.

It’s true that nearly 700 miles of the 2,000-mile-long border has been walled or fenced, but most of that went up during the Bush and Obama administrations.

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How Trump’s constant lying might forever damage the presidency

It’s fitting that President Trump is finishing up 2018 with inaccurate statements launched at the nation via Twitter. And it’s also pathetic.

The government is partially shut down because the president insists, like an intemperate 4-year-old, that he must have his way and waste billions of dollars in tax money extending existing walls and fences along the U.S.-Mexico border, even though there is no evidence such a monstrosity would achieve what he thinks it will. He tweeted again Monday morning about the “open border,” which he described as an “ ‘Open Wound,’ where drugs, criminals (including human traffickers) and illegals would pour into our Country.”

In fact, the number of illegal border crossers has been steadily decreasing, and most drugs come across at ports of entry smuggled inside of motor vehicles, through tunnels beneath the existing walls and fences, and by boat. Not much impact from a wall there.

Trump also tweeted about his announced withdrawal of U.S. troops from Syria, complaining that “Now when I start getting out the Fake News Media, or some failed Generals who were unable to do the job before I arrived, like to complain about me & my tactics, which are working.” Actually Trump is being criticized for the suddenness of the withdrawal; his abandonment of Kurdish allies in the region, setting the stage for a likely attack by Turkey; the appearance that in walking away he has handed a victory to Russia and Syria; and his rejection of advice from the Pentagon. So the president distorts the criticism of his actions to make himself look like a woebegone victim.

But that the president lies, or at a minimum distorts the truth, has become so common that what once was received as outrageous now gets a shoulder shrug, a recognition that the president cannot be shamed for his falsehoods because he’s impervious to personal embarrassment.

The Washington Post has doggedly tracked the president’s utterances and reports that Trump has made an average of 15 errant statements per day since the start of the year. Fewer than a third of Americans believe the president’s untruths, according to a Post poll, which means that an overwhelming majority of Americans know their president lies. Yet few of them seem interested in holding him to account.

Whatever happens in the 2020 election – Sen. Elizabeth Warren (D-Mass.) announced her candidacy Monday morning, the first of several likely high-profile Democratic challengers – Trump has perhaps irretrievably damaged the relationship between the presidency and the people. Yes, Richard Nixon lied, as did Bill Clinton, but no other president has lied with the persistence and impunity of Trump.

He lies about matters big and small. He lies to try to make himself look better – remember the crowd size claims at his inauguration? – and he lies to disparage his critics. He lies about things that don’t matter, almost as a verbal impulse. He brings to mind comedian Jon Lovitz’s Tommy Flanagan character, a member of Pathological Liars Anonymous, whose every statement is an embellishment or outright lie.

Lovitz did it as comedy; Trump does it as reflex.

So here’s a wish for the new year: That more of Trump’s fellow Republicans in Congress call out his lies for the damage they do to the country, and to the presidency. And that his voters finally begin to care that he lies to them too, and start holding him accountable for it.

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Don’t make a mountain out of a MAGA hat

"Make America Great Again" hats on the factory floor of Cali-Fame in Carson, Calif.
(Luis Sinco / Los Angeles Times)

There’s a maxim in the law that goes “de minimis non curat lex.” A common translation from the Latin is “the law does not concern itself with trifles,” but a more colloquial equivalent is: “No big deal.”

Lawyers and judges sometimes talk about “de minimis” violations of procedure or the Constitution.

Unlike some commentators, I think President Trump committed a de minimis violation of protocol when he autographed “Make America Great Again” hats during his visits to U.S. service members in Iraq and Germany this week.

Assuming, as the president insisted in a tweet, that his aides didn’t distribute the hats (an accusation he attributed to “Fake News” reports), his decision to oblige service members who offered them for his signature doesn’t bother me.

As Trump said: “If these brave young people ask me to sign their hat, I will sign,” he tweeted. “Can you imagine my saying NO?” Actually I can’t, any more than I imagine Barack Obama refusing to sign a HOPE poster if it were thrust at him by a service member.

“De minimis” also applies, in my view, to the infraction supposedly committed by the service members in bringing political paraphernalia to a meeting with the president. (It wasn’t just hats; a Bloomberg News reporter posted a photo of a woman in uniform at Ramstein Air Base in Germany welcoming the president with a MAGA flag.)

Trump signing MAGA hats is a trivial boundary violation compared with his use of the troops as a captive audience for partisan propaganda about his dispute with Democrats over a wall at the Mexican border.

“I don’t know if you folks are aware of what’s happening,” Trump said in remarks at Al Asad Air Base in Iraq’s| Al Anbar Province. “We want to have strong borders in the United States. The Democrats don’t want to let us have strong borders — only for one reason. You know why? Because I want it.”

That politicization of a speech to the troops was outrageous. So if you’re going to slam Trump, focus on that, not on his signing a few hats.

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Here are just a few of the ways our immigration and asylum systems fail to deliver basic justice

Two court actions a continent apart are driving home — yet again — the point that the U.S. asylum system neither lives up to basic standards of human decency and due process nor, it seems, to the promises of the Constitution.

In New York on Thursday, a federal district court judge slammed the government for failing to even offer a bond hearing to a man it had detained for 34 months after he arrived at the U.S.-Mexico border and asked for asylum because of threats he’d received in his native Ivory Coast over his political affiliations.

Is that sufficient grounds for granting asylum? Good question, and we have both laws and a court system to guide the answer. Was it necessary for the government to detain Adou Kouadio, 43, while his application worked its way through the system?

No one knows because the government has not been forced to answer two basic questions: Does Kouadio pose a flight risk? And does he pose a danger to public safety? Both those fundamental questions determining whether an asylum-seeker or other migrant will remain incarcerated get addressed in a bond hearing.

Which the government has not granted. For 34 months.

U.S. District Court Judge Alvin K. Hellerstein on Thursday ordered a bond hearing be held within 14 days, a ruling legal experts said was both a rebuke to federal detention policies and a recognition that fundamental rights of due process extend to migrants.

“Petitioner has a clean record, never having been arrested or convicted,” Hellerstein wrote. “There is little risk of flight, since he seeks asylum within the United States, and little risk of danger to the community, judging from his lack of a prior criminal history. Yet, Petitioner has suffered 34 months of detention without an opportunity for a bond hearing while waiting for a final decision on his petition for asylum.”

The judge noted that the government had an interest in weighing due process rights against the national interest but that it had failed to make the case that Kouadio posed a particular threat.

“This nation prides itself on its humanity and openness with which it treats those who seek refuge at its gates,” Hellerstein wrote. “By contrast, the autocracies of the world have been marked by harsh regimes of exclusion and detention. Our notions of due process nourish the former spirit and brace us against the latter. The statutory framework governing those who seek refuge, and its provisions for detention, cannot be extended to deny all right to bail.”

Meanwhile, here on the West Coast, the American Civil Liberties Union has filed a lawsuit in U.S. District Court in Riverside to protect another right of migrants. The suit accuses the federal government and some of the organizations it relies on for detaining people facing deportation — private prison operator Geo Group and the Orange County Sheriff’s Department — of making it nearly impossible for migrants to consult lawyers, which they have a right to do.

Geo Group operates the Adelanto ICE Processing Center in San Bernardino County, and the Orange County Sheriff’s Department operates the Theo Lacy Facility in Orange and the James A. Musick Facility near Irvine; all three facilities house migrants at ICE’s behest.

According to the complaint (which you really ought to read), three men seeking asylum have been unable to use telephones to find or consult with attorneys under bizarre systems in which the phones hang up automatically at the sound of an automated response, detained migrants are forced to make their calls within hearing of others (undermining fundamental attorney-client privilege), and detainees often don’t gain access to phones until after normal business hours.

Also, mail is slow to get delivered and sometimes arrives opened and damaged, further hindering the detainees’ ability to present their cases, the lawsuit charges.

These are no minor things. Hanging in the balance is the ability not only to get proper legal advice, but also to collect the sorts of documents often required to support an asylum claim. Detainees have missed court deadlines because of slow mails and inability to gather their documents from far-flung sources.

And I should note this isn’t a Trump thing. ICE officials, and their contracted detention overseers, have been acting in such manners for years. One of the plaintiffs, Jason Nsinano of Namibia, was initially detained under the Obama administration, as was Kouadio, the man for whom the New York judge ordered a bond hearing.

Though that hearing might not do much good. Shortly after his detention, ICE determined that Nsinano posed neither a flight risk nor a danger to public safety and set bond at $10,000 — an amount that Nsinano doesn’t have.

So Nsinano has been incarcerated for more than three years not because he has been charged with a crime, nor because he poses a flight risk or danger to society, but because he sought asylum and didn’t have the foresight to bring $10,000 with him.

That’s outrageous.

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The appalling normalcy of gun violence in America

Less than two months ago, Ian Long walked into the Borderline Bar and Grill in Thousand Oaks and began firing two semiautomatic handguns, killing 11 people in the bar and wounding an arriving sheriff’s deputy (who tragically was killed when struck by a round fired by another arriving officer) before turning one of his guns on himself.

Raging wildfires that led 75% of Thousand Oaks’ residents to evacuate less than two weeks later overwhelmed the tragedy in the public’s mind, which is a tragedy of another sort. Yes, the fires were awful. Statewide they killed more than 100 people, 86 in the Camp fire alone, while damaging or destroying nearly 20,000 buildings worth at least $9 billion (in the areas hit by the Camp, Woolsey and Hill fires). About 1.8 million acres burned in total, a record.

Wildfires have always been a part of nature in California. One could argue that gun violence is part of California’s nature too, though the latter is something we could do more to control. But first we have to pay closer attention to the problem.

So far this year California has endured 24 incidents in which at least four people were hit by gunfire, one of the definitions of a mass shooting. The Borderline attack was the deadliest, accounting for a quarter of the 50 deaths statewide in such shootings this year. An additional 136 people were shot in those incidents but survived, according to statistics gathered by the Gun Violence Archive.

It’s not just us. Nationwide, there have been 337 mass shootings killing 354 people and wounding or injuring 1,341. That’s a lot of carnage arising from anger or mental illness and too-easy access to firearms.

And the scope of our problem is even broader, because most of our killings and shootings occur in ones and twos. As of early Friday morning, the Gun Violence Archive had counted 56,026 incidents of guns fired at humans nationwide this year, or about 155 a day. That’s a pace of 6.4 shootings an hour,

The body count? An astounding 14,392 people killed — and that doesn’t include gun suicides, which amount to almost twice the number of people shot by others. An additional 27,766 people were wounded or injured in those 56,062 gunfire incidents.

So the total tally so far is 42,158 people killed or wounded by others firing guns so far this year, or 166 people per day, a pace of 4.8 victims per hour.

The most appalling part? This is what we accept as normal.

Happy New Year.

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Trump is keeping the government shut down over an immigration crisis that doesn’t exist

President Trump again points the finger at Democrats for the partial shutdown of the federal government he sought.
(Shawn Thew / EPA/Shutterstock)

The federal government remains in a partial shutdown as President Trump digs in his heels (good thing those bone spurs got better) over his silly wall, refusing to agree to a spending bill that doesn’t include $5.7 billion for what assuredly would be a waste of tax dollars. At some point, one of the few adults left at 1600 Pennsylvania Avenue needs to explain to the president the difference between compromise and capitulation.

And yes, the Senate Democrats are holding firm, too, in their opposition to the wall. The difference, though, is the Democrats recognize the folly in Trump’s obsession, one that the president re-embraced Thursday afternoon in a public statement that makes a pretzel of the truth about the border and public safety.

“The president has made clear that any bill to fund the government must adequately fund border security to stop the flow of illegal drugs, criminals, MS-13 gang members, child smugglers and human traffickers into our communities — and protect the American people,” the White House said, adding: “The administration understands this crisis and made a reasonable, common-sense solution to Democrats five days ago — we’ve not received a single response.”

But the administration clearly doesn’t understand “this crisis,” because it doesn’t exist.

Illegal immigration is at its lowest level in a decade. Young families are arriving at the border in larger numbers — while still constituting a sliver of the overall flow of migrants — but a wall built at some point in the future won’t do anything to fix that. (To its credit, the administration has made small yet positive steps to invest more in Central American governments and economies.)

The vast majority of drugs and other contraband smuggled into the country come through ports of entry, or via tunnels dug under existing walls and fences. Covering more border with a wall — or making it 30 feet tall, as the president wants — doesn’t address either of those smuggling routes.

The reality of the situation — which Trump eschews with reckless abandon — is that most people living in the U.S. without legal status enter the country with permission, and then don’t leave. Not much role for a wall there, either. Do some walk across? Certainly — and then often give themselves up to border agents and seek asylum.

And regardless of their status, immigrants commit crimes at lower rates than native-born Americans.

The president also sought to portray his decision to stay in Washington over Christmas as an effort to work with Democrats in the Senate (he will need seven Democratic or independent votes in the next Senate to get money for his wall into the bill funding government operations for the rest of the fiscal year). Trump, the White House said, is “hoping to negotiate a deal that would stop the dangerous crisis on the border, protect American communities, and reopen the government. The Democrats decided to go home.”

Yes, most did — because the Republicans adjourned both the House and the Senate. That wasn’t a decision by the Democrats.

And it’s pretty certain that if Trump picked up the phone on Christmas Day — or even right now — to tell congressional leaders of both parties that he had come to his senses and would sign a bill reopening the government without funding for the wall, they’d take the call.

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Kavanaugh (and other justices) shouldn’t be exempt from an ethics code

Justice Brett M. Kavanuagh will not be investigated on complaints that he violated judicial ethics.
(Saul Loeb / Associated Press)

There will be no investigation by the federal judiciary of allegations that Supreme Court Justice Brett M. Kavanaugh violated judicial ethics in testifying at his Senate confirmation hearings.

As a matter of rough justice, that might be a defensible outcome: Those complaints seemed like an outgrowth of the political opposition to Kavanaugh’s confirmation, rather than the typical allegations of judicial misconduct filed under the Judicial Conduct and Disability Act. For better or worse, the Senate decided that Kavanaugh was sufficiently credible to deserve confirmation.

Nevertheless, the reason why the complaints were dismissed by the U.S. 10th Circuit Court of Appeals — to which they were referred by Chief Justice John G. Roberts Jr. — highlights a troubling loophole in judicial accountability: Not only Kavanaugh but his colleagues on the court are exempt from an ethics code that applies to other federal judges.

The misconduct complaints dismissed by the 10th Circuit accused Kavanaugh of violating the Code of Conduct for U.S. Judges drawn up by the Judicial Conference of the United States. Among other assertions, they alleged that in his Senate testimony he falsely testified about his prior service in the George W. Bush administration; falsely testified about his “personal conduct, behavior and recollection of events prior to his joining the federal judiciary”; and “displayed partisan bias and a lack of judicial temperament.”

(Not all of the complaints arose from Kavanaugh’s confirmation testimony; some of them alleged that he had favored certain parties as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.)

The 10th Circuit dismissed the complaints not based on the merits but because, now that he is a member of the Supreme Court, Kavanaugh is no longer subject to the disciplinary provisions of the law, which defines a judge covered by its provisions as “a circuit judge, district judge, bankruptcy judge or judge magistrate” — not a Supreme Court justice.

As for the underlying Code of Conduct, that too doesn’t apply to justices, although Roberts has suggested this isn’t a problem because the code serves as “the starting point and a key source of guidance” for the justices. (Roberts also implied in a 2011 statement that formally applying the code to the Supreme Court might be unconstitutional because the code was designed for courts created by Congress — whereas the Supreme Court was created by the Constitution.)

Fix the Court, a group that lobbies for reform and transparency, said that the dismissal of the Kavanaugh complaints “underscores the need for the Supreme Court to adopt its own code of conduct or for Congress to write one if the justices cannot be bothered.”

Precisely. It’s true that justices who behave corruptly can be impeached and removed by Congress, but that’s a rare remedy that probably wouldn’t be appropriate for most ethical infractions. Some other mechanism is necessary to ensure that all federal judges, including Supreme Court justices, are accountable for their behavior.

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The deaths of migrant children in custody should be a wake-up call

Elvira Choc grieves as she attends a memorial service for her 7-year-old granddaughter, Jakelin Caal, in San Antonio Secortez, Guatemala.
(Oliver de Ros / Associated Press)

The body of Jakelin Caal, the 7-year-old Guatemalan girl who died in U.S. immigration custody this month, arrived in her family’s impoverished farming village on Christmas Eve just hours, as it turns out, before Felipe Gomez Alonzo, an 8-year-old Guatemalan boy, died while being detained by federal border agents in New Mexico. The two deaths have drawn significant attention to the medical care available to migrants taken into custody by the U.S. government.

Wednesday afternoon Homeland Security Secretary Kirstjen Nielsen announced that she had ordered medical screenings of all detained migrant children, which raises the question of whether such screenings had been done routinely before. One would hope that people being sent to detention, children or adults, would be screened as a matter of health policy — both for the new arrivals and for the people they would be joining in the detention centers.

Advocates have argued for months that the administration’s detention policies increased the health risks to migrants, particularly children. But the government’s desire to incarcerate migrants to deter others from trying to enter the country apparently outweighed any sense of humanitarian responsibility.

Nielsen also said that six migrants — none of them minors — died in Customs and Border Protection custody in the fiscal year that ended Sept. 30, but didn’t mention the nine other migrants who died in Immigration and Customs Enforcement custody. Just last week Nielsen testified before the House Judiciary Committee that she didn’t know how many people died while in the custody of her department’s various agencies. She promised then to report the numbers back to Congress, but a committee aide said Wednesday that the information had not yet arrived.

More troublesome, though, was the tone of Nielsen’s public statement. She turned the deaths of two children into a diatribe over “an immigration system that rewards parents for sending their children across the border alone, a system that prevents parents who bring their children on a dangerous and illegal journey from facing consequences for their actions, an asylum process that is not able to quickly help those who qualify for asylum, a system that encourages fraudulent claims, and a system that encourages bad actors to coach aliens into making frivolous claims.”

Never mind the atrocious levels of violence tied to gangs with American roots, or the devastating poverty, particularly in areas affected by climate change. Nielsen assigns blame to the courts for rulings that hew to U.S. law, and to Congress.

“As a result of bad judicial rulings from activist judges and inaction by Congress, we are seeing a flood of family units and unaccompanied alien children,” she said. “The unprecedented number of families and unaccompanied children at the border must not be ignored.”

She’s right that Congress must act and that the nation cannot ignore the humanitarian needs at the border. But she also needs to recognize that this isn’t a flood of people seeking to game a system. Rather, it is the flow of the desperate who, even if they do not clear the hurdle for asylum, have the right to be heard and to be treated humanely and with dignity.

Family apprehensions have increased, but there’s nothing in the law that says those families or individual migrants have to be detained while they seek legal permission to remain in the country (unless they had been convicted of certain crimes). Felipe and his father were apprehended by border agents on Dec. 18, and the boy fell ill six days later, on Christmas Eve morning, according to a timeline released by the Department of Homeland Security. The cause of death has yet to be determined. Jakeline died after two days in custody; the cause of death was later ascribed to septic shock.

The government’s response here should be to find faster ways to turn over apprehended families to the custody of relatives, friends or nonprofit agencies that can care for them in more hospitable settings than border-region detention centers. And it should expand the capacity of the asylum system, including the immigration courts, to get faster decisions on who is entitled to asylum.

Finally, the administration should recognize that it is dealing with a humanitarian issue and respond in kind. If it’s capable of it.

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The accumulating casualties of Trump administration trade policies

Chinese and U.S. flags hang on a fence at an international school in Beijing on Dec. 5.
Chinese and U.S. flags hang on a fence at an international school in Beijing on Dec. 5.
(Fred Dufour / AFP/Getty Images)

The stock market rallied Wednesday morning, but the big losses in previous days have rattled observers who consider Wall Street something of a leading indicator of the U.S. economy — a sign that at least some financial industry professionals see something in the data about future business prospects that they don’t like.

Of course, it’s risky to try to read the minds of investors or to draw quick conclusions about the swings of a volatile market. Plus, there’s this observation from the Wall Street Journal on Wednesday: “Behind the broad, swift market slide of 2018 is an underlying new reality: Roughly 85% of all trading is on autopilot — controlled by machines, models or passive investing formulas, creating an unprecedented trading herd that moves in unison and is blazingly fast.”

Nevertheless, there are headwinds building up to impede the progress of U.S. businesses in the coming years, and investors need to factor them into their thinking. One of these hurdles is significant, yet completely artificial: The trade war President Trump is fighting with much of the industrialized world.

Consider this lump of Christmas coal from Bloomberg on Tuesday:

“Bloomberg’s Global Trade Tracker is softening amid a fading rush to front-load export orders ahead of threatened tariffs. And volumes are tipped to slow further even as the U.S. and China seek to resolve their trade spat, with companies warning of ongoing disruption.”

According to reporters Enda Curran and Katia Dmitrieva, analysts say the trade war was responsible for 6 percentage points of the S&P 500’s drop this year. The disturbing signs include lowered projections for economic growth in all the major industrialized regions and slower global trade growth.

While Trump tussles with China and withdraws from or threatens to abandon multilateral trade pacts, the United States is being left behind as other nations form trading blocs with lower barriers. A good example is Japan, the No. 2 market in Asia for U.S. agricultural exports behind China.

The Wall Street Journal reported that on Sunday that Japan “will begin cutting tariffs and easing quotas on products sold by some of American agriculture’s biggest competitors — including Canada, Australia, New Zealand and Chile — as part of the new 11-member Comprehensive and Progressive Agreement for Trans-Pacific Partnership.” The TPP was a trade agreement that the Obama administration championed as a way to promote U.S. trading norms in Asia, but Trump withdrew the United States from it as one of his first acts as president.

That’s not all from Japan, though. According to the Journal’s Jacob M. Schlesinger, “Tokyo will follow up on Feb. 1 by implementing the European Union-Japan Economic Partnership Agreement offering similar breaks for the 28-nation bloc’s agricultural products, aiding American rivals in France, Spain, Italy and the Netherlands.”

The Trump administration is trying to play catch-up, announcing plans recently to seek a bilateral free-trade deal with Japan. That’s a bit like deciding to try to make nice with the family next door after bad-mouthing everyone in the neighborhood.

Even more important are the negotiations the administration is having with China to try to avert an intensification of their tariff duel early in 2019. If those talks bear fruit and the two sides lift their tariffs, it will be the equivalent of repealing a tax increase on both economies. If they don’t, the administration has pledged to increase tariffs and impose them on virtually all goods imported from China, a considerable expansion of the trade war. Those moves would only stiffen the headwinds.

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Quick, somebody go play with our bored president so he’ll get off Twitter

You know what would be nice? If the government shutdown included President Trump’s Twitter account, because the blusterer-in-chief is in fine form here on Christmas Eve. By around lunchtime on the East Coast, the president had tweeted on a number of topics, including his silly wall on the U.S.-Mexico border, offering a bizarre take on its funding:

“Shutdown money?” And, oh yeah, it’s the Democrats’ fault the president shut down the government because he can’t get his way, proving once again that he was temperamentally ill-suited for a job that requires flexibility, diplomacy and vision.

Remember, Trump took full blame for the shutdown during a televised meeting at the White House he arranged in hopes of bullying Democratic congressional leaders into partially funding the wall. So much for the art of the deal.

He also tweeted a shot at the Federal Reserve, blaming it for the current cliff-fall of the stock market. (His trade policies and decision to shut down the government couldn’t have been factors, could they?) There’s a baseless and context-free tweet about the current state of the economy, which is really about the stock market, not the economy, but still:

And he tweeted that the Saudi government “has now agreed to spend the necessary money needed to help rebuild Syria, instead of the United States,” which in reality updates a pledge the Saudis made back in August to invest $100 million in reconstruction, a move that analysts saw as an effort to counter Iran’s influence.

So why is the president all tweety on Christmas Eve? He provides the answer:

So please, someone, anyone, go over to the White House and play with our bored president. It would be a gift to the nation.

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The stock sell-off prompts another desperate tweet from Trump

A picture of President Trump is displayed on a computer on the floor of the New York Stock Exchange as investors dumped shares Monday.
(Seth Wenig / Associated Press)

For the new year, I resolve not to be baited into responding to President Trump’s idiotic tweets.

But that’s next week’s resolution. In the meantime:

I will readily concede that the president knows much more about powerful golfers who can’t putt than I do. But seemingly everything he says about the Federal Reserve and monetary policy is brain-dead.

It’s safe to assume that Trump is in a lather over the plunging stock market, which has erased this year’s gains and is starting on last year’s. Today the Dow lost almost 3%. Bad market, bad! The mind reels over what this is going to mean for the California Public Employees’ Retirement System and other big, financially challenged pension funds.

(Sorry to jump off track here, but what was Treasury Secretary Steven T. Mnuchin thinking? Calling up major banks to confirm that they have “ample liquidity available for lending” doesn’t reassure investors, it raises a question no one seemed to be asking. And adding that he’s convening top federal officials to “discuss coordination efforts to assure normal market operations”? Isn’t that the sort of thing you do without telling anybody?)

OK, so back to Trump and the Fed. Although the markets can influence the economy and the economy definitely influences the markets, they are two different things. So Trump contradicts his own administration’s messaging when he says that there’s a problem with the economy because the stock market turned bearish.

The fact of the matter is, growth is healthy. The holiday season has been great for retailers; according to Mastercard SpendingPulse, retail sales in November and the first half of December were up 5.2% over last year — including an 18% bump online. Meanwhile, Macroeconomic Advisers has estimated that GDP growth in the fourth quarter will be 2.8%, which is not great but not bad. With unemployment well under 4% and inflation slipping back below 2%, the main numbers are all reassuring.

The Fed has been a problem lately for the stock market, though. Investors had already pushed stocks down in anticipation of the Fed increasing its target for short-term interest rates in December, as the Fed said it would do. But they went on a deeper sell-off after the Fed indicated it would consider raising rates twice more next year — a slower pace than this year, but not slow enough to satisfy traders.

Trump has been arguing for much of his tenure that the Fed shouldn’t be tightening up the money supply. In his latest tweet, he suggests that it is misreading the effects of his tariff-powered jihad against much of the industrialized world, of the partial government shutdown he was “proud” to “take the mantle” for, or even of its own monetary policy relative to the rest of the world’s central banks. In other words, he is saying that the United States needs to keep stimulating the economy through below-market interest rates.

Ummm, no. The last time the fed left its foot on the gas too long, it helped inflate the housing bubble that led to the deepest recession in almost a century. There are some who argued that the stock market reflected another bubble before it started its precipitous slide. Although low interest rates are crucial when credit tightens and an economy stumbles, waiting too long to resume neutral monetary policy can have disastrous consequences.

Wall Street traders do not care about such things, though. They want the Fed to be “accommodative” in perpetuity.

If the president had faith in the wisdom of his fiscal and trade policies, including the enormous deficits he’s ringing up and the damage his tariffs are inflicting to importers and exporters alike, he would welcome the Fed’s return to monetary-policy normalcy. After all, one of the biggest threats to a growing economy is inflation, and the Fed stands as the first line of defense against that.

Of course, if your policies aren’t built for sustainable growth, then maybe you do have to worry what happens once the Fed stops nudging the economy forward with lower-than-normal interest rates. The same would be true if your trade policies are acting as a tax increase that undermines the costly tax cuts you championed.

Regardless, there is a clear split between how pessimistic Wall Street traders feel about the future and how the comparatively more optimistic Fed does. Trump ought to be hoping with every fiber of his being that the Fed is right.

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If the government seeks the death penalty, it must ensure the defendant has a competent lawyer

I write often about the inequities of the American capital punishment system, including the arbitrary nature of the decision to pursue the death penalty, the whims or malevolence of the prosecuting side and juries, and the fundamental inhumanity of the execution itself.

A few days ago, I wrote about the nature of those who wind up being executed. This year 11 of 25 executions were of people who had displayed “significant evidence of mental illness,” nine of the condemned showed “evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range,” and at least 11 were abused as children.

What did they have in common? They also tend to wind up with bad lawyers, a function of their relative poverty. Where a wealthy individual charged with murder can afford to hire higher-caliber lawyers, the poor tend to get assigned counsel that the government pays for who historically have included a high percentage of the incompetent.

As the Death Penalty Information Center argues:

“Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol.”

An old report by the Dallas Morning News found that one-quarter of 461 Texas death penalty convictions it examined involved lawyers who were later disbarred. Similarly, 20% of death penalty cases in Washington state had involved lawyers who were later disbarred. Those statistics date to the 2000s – Washington has since banned the death penalty – but there’s little evidence that death-penalty states have invested more money or significantly raised standards for the lawyers they assign to criminal cases where someone’s life hangs in the balance.

Yet higher courts often don’t find such behavior or incompetence to be sufficient to overturn a verdict or a death sentence. Under the 1984 Strickland vs. Washington decision, a defendant must establish not just that his lawyer was deficient, but that there is a “reasonable probability” that the deficiency affected the outcome of the trial. That calls for an uncomfortable level of crystal ball-gazing in cases that determine whether someone lives or dies.

In many instances, the upper courts decline an appeal on technical grounds established under the Anti-Terrorism and Effective Death Penalty Act of 1996, which critics argue gutted habeas corpus by limiting appeals and leading courts to base their rulings on something other than whether the condemned actually committed the crime or received a fair trial.

So on the menu of arbitrary factors that determine whether someone receives a death sentence — whims of the prosecutor, the defendant’s race, ethnicity and economic status and geography – we can add: access to a good lawyer.

Yes, that’s a function of economic status. But when courts assign lawyers to represent indigent defendants in capital cases, they bear a significant responsibility to ensure the lawyer knows what he or she is doing.

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Another ugly breakup in the Trump administration

Who’s the real Mad Dog in the Trump administration?

While the rest of us were doing something holiday-ish — celebrating the fourth Sunday of Advent, perhaps, or watching the Rams give C.J. Anderson his career back, or bingeing on the Hallmark Channel — President Trump was terminating the employment of his Defense secretary, James N. “Mad Dog” Mattis, two months early in a belated fit of pique.

The president reportedly was irritated by the resignation letter Mattis submitted Thursday, which some in the punditocracy characterized as a “stinging rebuke” because it lays out a case for multinationalism. Or rather, he was irritated by the way the media, analysts and other politicians reacted to it, because (according to the New York Times) he had accepted the letter without reading it.

I think “stinging” is hyperbolic, although the letter is by no means a Scott Pruitt-like mash note. (It’s hard to imagine Mattis writing a letter like that to anyone, ever.) It maintains a respectful tone as it lectures Trump on the need to work with the rest of the world and respect the United States’ allies in order to face down authoritarianism while still shedding the mantle of “the policeman of the world.”

In other words, it falls into the “It’s not me, it’s you” category.

The most interesting thing about this whole episode is how perfectly it sums up the presidency of the man previously known best for firing contestants on a reality show.

Mattis was an unconventional pick — he was only the second former military leader to serve as secretary of Defense since the post was created in the wake of World War II, and the first since President Truman picked George C. Marshall in 1951. Other presidents saw the important principle served by putting a civilian at the head of the armed forces; Trump did not.

Regardless, like several of Trump’s unconventional initial picks, Mattis brought a reassuring, “adult in the room” quality to the proceedings. Never mind the nickname — Mattis is a scholar, a student of history, which is exactly what the president is not. So it was only a matter of time before some conflict would emerge between Trump’s desire for bold strokes and Mattis’ more conventional approach to national defense.

The breaking point reportedly came early last week, when Trump decided to summarily pull U.S. troops out of Syria and to withdraw about half our forces from Afghanistan. The surprise moves prompted Mattis to submit his resignation, although he planned to stay on through a NATO meeting in February.

And once the breakup happened, there had to be an ugly coda. In this administration, it’s either scandal — OK, it’s usually scandal — or a bitter parting shot from the former boss. Whatever you think of his tenure at the helm of the Defense Department, Mattis deserved better.

Trump’s pick for acting secretary of Defense, Patrick Shanahan, had been plucked from the top ranks of a giant defense contractor (Boeing) last year to serve as Mattis’ deputy. That makes him an unconventional pick as well — although the department has been led over the years by several former business executives (including bankers and automakers), he appears to be the first to have made his career as a defense contractor.

Not that the president isn’t committed to draining the swamp.

This being the day before Christmas, I’ll let the president have the last word.

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President Trump’s very bad week in immigration

The president's fixation on illegal immigration obscures the nature of the problem - and the fixes.
(Pablo Martinez Monsivais / Associated Press)

When President Trump decreed that all asylum seekers must present themselves at a port of entry to have their application considered, he broke clear language in U.S. law that says people may present themselves anywhere along the border and request asylum.

Trump predictably got sued, and predictably tried to enforce that rule while the court cases proceed. And just as predictably, the courts told him no. And predictably again, rather than go through the regular appeals process, the president ran straight to the Supreme Court, which shot him down Friday without comment — though by a narrowly divided 5-4 vote.

Meanwhile, President Shutdown is on the verge of furloughing a large portion of the federal government because Democrats in the Senate (wisely) refuse to vote for an omnibus spending bill that would include $5 billion to extend the wall and fencing along the U.S.-Mexico border.

In both cases, the president would have us believe that people entering the U.S. without permission is a crisis — and some do believe him.

But it’s not a crisis. It is a problem with remedies that are within the U.S. government’s power to use, but it refuses to. For instance, it could vastly expand the capacity of the immigration system to process asylum requests more quickly, and it could release those awaiting decisions to the care of organizations that will help insure they return for meetings and interviews.

In fact, Trump inherited just such a program from President Obama that had a near-perfect success rate in getting participants to show up for appointments and court dates. But then Trump killed it because he gets more headlines and political mileage over ranting about illegal immigration than he does over actually working on solutions.

And no, the wall is not a solution. Just ask a ladder manufacturer. Or a tunnel expert. Or a rafter. Or an agile climber.

Interestingly, illegal immigration is at its lowest level in a decade, according to a report from the Pew Research Center. It estimated there are 10.7 million people living in the U.S. without permission, down from a peak of 12.2 million on 2007. Per Pew:

“The declining overall number of unauthorized immigrants is due mainly to a very large drop in the number of new unauthorized immigrants, especially Mexicans, coming into the country. Consequently, today’s unauthorized immigrant population includes a smaller share of recent arrivals, especially from Mexico, than a decade earlier. Increasingly unauthorized immigrants are likely to be long-term U.S. residents: Two-thirds of adult unauthorized immigrants have lived in the country for more than 10 years.”

And other reports note that people added to the ranks of the undocumented increasingly are folks who arrived with permission but then didn’t leave. Better tracking by the government of visa-holders would go a long way toward resolving that, while a wall would do absolutely nothing.

Which the American public recognizes — nearly-two thirds oppose shutting down part of the government over wall funding.

At some point Republicans are going to have to take a stand against the president’s unhealthy fixation on illegal immigration and work across the aisle with Democrats to reform the immigration system and laws, from visa categories to limited amnesty to border enforcement.

In fact, congressional Republicans could work with the Democrats to pass a veto-proof bill to fund the government, and actually lead the country. But that would require putting country ahead of party, a test they have failed time and again.

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New (and maybe ominous) developments in the Mueller Massacre Watch

Since virtually the day he was appointed (May 17, 2017), special counsel Robert S. Mueller III has been investigating on what many fear is borrowed time. The concern that President Trump would enact his own version of Richard Nixon’s Saturday Night Massacre by firing Mueller is constantly fed by Trump’s unhinged tweets about a “witch hunt.”

And don’t forget that, according to the New York Times, Trump actually asked then-White House Counsel Don McGahn to dismiss Mueller soon after Mueller was named to investigate possible collusion between Trump’s 2016 campaign and Russia.

But Mueller is still here, and he has notched an impressive series of indictments and guilty pleas. But the Mueller Massacre Watch is on alert today because of two new developments.

First, as my colleague Del Quentin Wilber reports, Justice Department officials are saying that Acting Atty. Gen. Matthew Whitaker will not recuse himself from supervising Mueller’s investigation. (Those officials also revealed that Whitaker until now hasn’t been briefed on the probe.)

Before joining the administration, Whitaker criticized the Mueller investigation, which some see as an ominous sign that he will undermine it once he replaces Deputy Atty. Gen. Rod Rosenstein as the senior Justice Department official on the case. In an editorial in November, the Los Angeles Times wrote that it was “hard to imagine a less reassuring replacement” for Jeff Sessions than Whitaker.

Since then, Trump has said he will nominate former Atty. Gen. William Barr as Sessions’ successor. But that takes us to this week’s second revelation, that Barr last June sent an apparently unsolicited memo to Rosenstein and Assistant Atty. Gen. Steve Engel assailing the idea that Trump could be questioned about possible obstruction of justice connected to his firing of former FBI Director James B. Comey.

Essentially, Barr’s memo is a lengthier version of the argument Harvard law professor Alan Dershowitz has made on television: that the president can’t obstruct justice by exercising his constitutional authority to hire and fire appointees such as Comey.

Barr does concede that a president could obstruct justice if he “knowingly destroys or alters evidence, suborns perjury or induces a witness to change testimony.” But his analysis would block what is widely considered to be one of Mueller’s main avenues of investigation.

Rep. Adam B. Schiff tweeted this warning today: “Absent an iron-clad commitment to recuse himself from the Russia probe and obstruction of justice issue, this memo should disqualify Barr from consideration.” Schiff isn’t a member of the Senate, which will consider Barr’s nomination, but his fellow California Democrat Dianne Feinstein is. In fact, she’s the top Democrat on the Senate Judiciary Committee, which will conduct confirmation hearings.

This is what Feinstein said today: “Mr. Barr’s memo to Deputy Atty. Gen. Rod Rosenstein, which we received late last night, is very troubling. The drafting of this memo was not undertaken lightly. The memo presents a thoroughly crafted legal argument against investigating the president, with pointed conclusions that the president is above the law. The president is not above the law.”

Feinstein added: “There’s no reason for a lawyer in private practice to do this unless he was attempting to curry favor with President Trump and convey that he would protect the president.”

If even a few Republican senators have similar concerns, Barr might have to promise to recuse himself from the Russia investigation to win confirmation, which would leave the investigation under Rosenstein’s oversight. That would be the best outcome anyway.

Speaking of Rosenstein, he tried to calm matters Thursday by expressing confidence in Barr and promising that the Russia investigation would he “handled appropriately by the Department of Justice.”

Even so, the Mueller Massacre Watch continues — and for good reasons.

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Trump revives his threat to shut down part of the government

Having proudly claimed responsibility for any government shutdown that should occur this month, President Trump now seems determined to force one. That’s some Christmas gift to more than 300,000 federal workers who may be temporarily furloughed (or forced to work without a timely paycheck, if their jobs are deemed “essential”).

According to House Speaker Paul D. Ryan (R-Wis.), Trump informed top House Republicans on Thursday that he would not sign the short-term funding bill that the Senate passed Wednesday. That’s because the measure does not include the $5 billion Trump has sought for building a higher, more extensive wall along the southern border.

Funny, but the White House announced Tuesday that Trump did not want to shut down the government and would instead find other ways to fund the wall. Evidently, the blowback from far-right members of Congress and the pundit class persuaded Trump to make his stand on the end-of-year spending measure after all.

At least, that’s what it looks like at the moment. Plans change rapidly in the Trump White House, which is nothing if not flexible.

There’s a civics lesson here. Under the Constitution, Congress has exclusive control over the federal purse. The power to tax and spend rests in the legislative branch alone, and you know, it’s pretty good at it! As long as it doesn’t have to balance those two things.

Yet when Congress is divided, the president’s veto power gives him more than a little say over the appropriations process. As long as he has enough support in one of the chambers to sustain the veto (an override requires a two-thirds majority in each chamber), he can kill a bill that doesn’t fund a project he favors, or that requires him to spend on something he doesn’t want to support.

Over the years, I’ve seen any number of spending bills vetoed for those reasons. What makes the current fight different is that so much of the government’s funding has been piled into a single continuing resolution. The combination makes the stakes considerably higher and gives the president more leverage.

So why is so much riding on one piece of legislation that Trump is threatening to veto? Because Congress failed to pass by Oct. 1 (the start of the fiscal year) about half of the appropriations bills that provide annual funding for the various federal agencies. The seven remaining bills have been joined into one that covers about a third of the federal workforce, including the departments of Homeland Security, State, Housing and Urban Development, Transportation, Agriculture, Treasury and Interior. Wall funding is an issue just for the DHS bill, but because that measure has been lumped in with half a dozen others, the consequences of a shutdown would be that much greater.

Sad to say, it’s a sign of considerable progress that Congress managed to get five of the 12 annual spending bills done by Oct. 1. But if lawmakers really want to wield the full power of the purse, they need to get the appropriations process back on track and stop making huge chunks of the government vulnerable to year-end hostage-taking.

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Entrapment? Nope. Michael Flynn says he knew that lying to the FBI was a crime

Michael Flynn leaves after the delay in his sentencing hearing at U.S. District Court in Washington.
(Saul Loeb / AFP/Getty Images)

U.S. District Judge Emmet G. Sullivan performed a public service Tuesday when he got former national security advisor Michael Flynn to acknowledge that he knew he was committing a crime when he lied to the FBI about his conversations with Russia’s ambassador during the presidential transition.

In recent days, Flynn’s lawyers and some conservative commentators have pushed the idea that the FBI had taken advantage of Flynn by not warning him in advance that lying to agents would be a crime. The Wall Street Journal published an editorial with the over-the-top title “The Flynn Entrapment.”

Sullivan took a lot of air out of that theory at Tuesday’s sentencing hearing for the retired general.

“Were you not aware that lying to FBI investigators was a crime?” the judge asked Flynn.

“I was aware,” Flynn replied.

Given the fact that Flynn pleaded guilty to lying, the suggestion that he was treated unfairly seemed puzzling, though some speculated that it was a bid for a pardon from his former boss. President Trump has expressed sympathy for Flynn, tweeting “Good luck” before the hearing. By contrast, the president has called his former lawyer Michael Cohen, who also has pleaded guilty to federal charges, a “rat.”

Whatever the motivation for alleging that Flynn was treated unfairly, the strategy seems to have backfired.

Although special counsel Robert S. Mueller III has recommended that Flynn not receive any prison time, Sullivan said he was “not making any promises” on that point. He postponed Flynn’s sentencing until after two of Flynn’s former business associates, who were charged with illegally working on Turkey’s behalf, go on trial. Flynn has agreed to cooperate with prosecutors in the case.

Sullivan deserves praise for debunking the notion that Flynn was entrapped, though his caustic criticism of the defendant was sometimes over the top. In language reminiscent of British judges, who are known for their scolding of defendants, Sullivan said: “I’m not hiding my disgust, my disdain for this criminal offense.” The problem with getting carried away by your indignation is that you sometimes make mistakes.

Referring to Flynn’s work for Turkey, the judge told Flynn: “All along you were an unregistered agent of a foreign country while serving as the national security advisor.” But, as the judge later admitted, Flynn’s work for Turkey had ended in mid-November of 2016, before the start of the Trump administration. Sullivan also had to walk back a suggestion he made that Flynn might have committed treason.

But Sullivan was absolutely correct on the main point, which he stated in careful language: “This is a very serious offense — a high-ranking senior official of the government, making false statements to the Federal Bureau of Investigation while on the physical premises of the White House.” Flynn is not a victim.

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The West is being won — by women

Rep. Martha McSally (R-Ariz.) speaks at a rally in Mesa, Ariz., with President Trump in October.
(Nicholas Kamm / AFP/Getty Images)

Who knew that Arizona Gov. Doug Ducey was a feminist?

For today, at least, he is. By appointing outgoing Republican Rep. Martha McSally to the U.S. Senate to replace retiring Republican Jon Kyl (who had been appointed in September to fill the seat vacated when John McCain died), Ducey has increased the female representation from Arizona in the Senate by 100%.

Good for him! McSally’s appointment also means that in a few short weeks, she will join Democrat Kyrsten Sinema in the Senate (which might be a tad uncomfortable, given that Sinema beat McSally on Nov. 6 after a brutal campaign for the seat held by retiring Republican Sen. Jeff Flake).

It’s quite remarkable for a state for that never had a women serve in that position, let alone two at same time.

You know what else is remarkable? As of January, both Senate seats in four Western states will be held by women. In Nevada, Sen. Catherine Cortez Masto, a Democrat, will be joined by fellow Democrat Jacky Rosen, who knocked off Republican Sen. Dean Heller last month (electorally speaking). The new all-female Senate teams in Nevada and Arizona will join those from Washington state, which has been represented by women senators (Maria Cantrell and Patty Murray) since 2001, and California, which has had only female senators (currently Dianne Feinstein and Kamala Harris) since 1993.

Trip on that for a minute. Four Western states.

Of California’s immediate neighbors, only Oregon is the odd (wo)man out with two male senators, though unlike other states it has had a woman in that position before. But Oregon does have a woman serving as governor (Kate “the other Gov.” Brown), so the state gets points for female leadership.

Does this mean I’m saying McSally is a great appointment? No comment. I didn’t follow the race closely, though she was a bit Trumpy for my taste during the campaign and, according to the Washington Post, had to apologize to Cindy McCain for slighting her late husband.

But heaven knows the Senate’s Republican caucus desperately need more women in its ranks. Remember when the Senate GOP couldn’t find even one woman to serve on the committee of 13 men working on a plan to undermine, er, overhaul the Affordable Care Act?

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Where should the Trump Foundation’s money go? I have a few thoughts

President Trump listens during a meeting in the Cabinet Room of the White House in Washington, D.C., on Dec. 13.
(Evan Vucci/Associated Press )

New York Atty. Gen. Barbara D. Underwood announced Tuesday that President Trump and his family had agreed to dissolve his charitable foundation, which the state alleges served as a piggy bank for Trump’s personal and campaign needs.

Naturally, this prompted a slate of stories rehashing the juiciest allegations in the state’s lawsuit, which will move forward. A personal favorite: The foundation gave $7 to the Boy Scouts of America in 1989, which the Washington Post’s David Fahrenthold observed “matched the amount required to enroll a boy in the Scouts the year that [Trump’s] son Donald Trump Jr. was 11.”

Underwood summarized the allegations this way: “Our petition detailed a shocking pattern of illegality involving the Trump Foundation – including unlawful coordination with the Trump presidential campaign, repeated and willful self-dealing, and much more.” Ouch.

It’s worth noting, though, that Trump tried to shutter the foundation after the election, only to be held off by the attorney general. So in one respect, Tuesday’s agreement simply gives Trump what he’s been seeking for months.

Naturally, there is an important twist. The foundation will have 30 days to submit a list of nonprofits that will collect the remaining balance — $1.75 million, much of it contributed by folks outside the Trump family — jointly with Underwood’s office, with the attorney general having veto power. So, no more contributions to support the re-election of Republican officials while they are investigating Trump businesses.

But where should the money go? Here are a few suggestions of groups that find themselves particularly in need at the moment:

* Groups responding to the humanitarian crisis on our southern border, such as Catholic Charities of the Rio Grande Valley, the Refugee and Immigrant Center for Education and Legal Services and Kids in Need of Defense.

* And while we’re at it, groups that support and sustain displaced people, such as the International Rescue Committee and Doctors Without Borders, now that the U.S. isn’t so eager to take them.

*The Committee to Protect Journalists, in the name of Jamal Khashoggi.

* To offset the administration’s attacks on the Affordable Care Act’s provisions on contraception and preventive care, Planned Parenthood. Admittedly, that one would sting.

* The California Republican Party, because Trump has proved to be incredibly hazardous to GOP candidates’ health in the Golden State. OK, the party isn’t really a charity. But it could really use the help.

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The U.S. is now jailing 15,000 migrant kids in immigration detention centers

The recent death of a 7-year-old Guatemalan girl in Border Patrol custody was tragic, and I hope the inspector general’s investigation into what happened is both comprehensive and fast. Especially since the father of Jakelin Caal Maquin disputes some basic elements of the Border Patrol’s version of events.

But the death also spotlights the broader issue of the U.S. government making prisoners of migrant children in astonishing numbers. As of last week, the government was holding 15,000 minors – mostly teenage boys – in various detention centers around the country.

Let that sink in: The U.S. government is jailing children who, in most cases, arrived at the southwest border seeking asylum. Do they all qualify for sanctuary? Probably not, but we have a system for making such decisions, and at the moment, that system is imprisoning an entire village’s worth of minors.

Part of the problem is so many kids have arrived that the government lacks the capacity for handling the asylum requests. An agile administration would find a way to increase the processing capacity rather than incarcerating the children.

We don’t have one of those. The problem first surfaced with a surge of unaccompanied minors during the Obama administration, which also flailed about trying to find a solution. But it has now has been exacerbated by another Trump administration policy to conduct deeper background checks into people who volunteer to serve as guardians so the children can be released while their applications are considered. The government said it needed tougher checks to protect the minors, but that was clearly a pretext.

In fact, from July through late November the government arrested 170 would-be guardians because they, too, lacked legal permission to be in the country.

That, to no one’s surprise, has had a chilling effect on sponsors volunteering to take the children in. So much so that, NPR reports, children are being held an average of 50 days, even though the 1997 Flores court settlement says they must be released to a caregiver (usually a relative or family friend) “without unnecessary delay,” defined as with 20 days.

So Trump’s strategy for dealing with migrant children isn’t deterring others from arriving, protecting national security or acting in the best interests of the children it is taking responsibility for by incarcerating them. And it may be violating the 1997 Flores agreement.

So why exactly is the administration sticking with this appalling approach?

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Ryan Zinke was a nightmare for the environment. His replacement might be worse

Ryan Zinke's overdue departure from the Interior department could leave an even wilier fox in charge of that particular henhouse.
(Michael Reynolds / EPA-EFE/REX)

The announced departure of Ryan Zinke as Interior secretary was both expected and overdue – even in this scandal-plagued administration, Zinke stood out as the object of at least 17 investigations (several of which closed without finding fault), and whose involvement in a real estate project in his hometown of Whitefish, Mont., has been referred to federal prosecutors. And with Democrats taking over the House next month, Zinke was sure to face some serious grilling time in committee hearings.

Then there are Zinke’s atrocious environmental policies, in which he has happily done President Trump’s bidding in trying to open as much federal land to oil and gas drilling and other extractive industries as quickly as the administration can. He also led the charge in shrinking the Grand Staircase-Escalante National Monument and Bears Ears National Monument in Utah, among others — actions that environmental groups have challenged in court.

So good riddance, for the sake of both ethics and the environment.

But, much like the fall of Scott Pruitt over at the Environmental Protection Agency, Zinke’s departure isn’t all good news.

Zinke’s likely successor is his deputy, David Bernhardt, a longtime oil, gas and water lobbyist who knows his way around regulatory bureaucracies in ways Zinke doesn’t. Where Zinke’s rash moves to make sudden changes left those decisions vulnerable to court challenges, Barnhardt knows how to handle the technical end of the regulatory process.

In many ways, he probably poses a bigger risk to environmental protections than did Zinke. And that’s saying a lot.

Similarly, when the scandal-plagued Pruitt wore out his welcome — really, how bad must you be to cross a line that even Trump finds too hard to defend? — he was replaced by his deputy, former industry lobbyist Andrew Wheeler, who has kept a much lower profile than his predecessor while methodically trying to dismantle regulations that, in some cases, stretch back decades.

This is where the Trump administration is doing significant damage. While the country focuses on Trump’s furtive journey through a legal minefield, and on his lies, tweets and blustery outbursts, the remaining members of his administration are trying to methodically destroy governmental oversight of the environment.

Environmental groups have lined up to challenge many of the changes in court, but damage is still being done, whether it’s Trump’s dismissal of climate science, policies favoring fossil fuels, or the recent rollbacks of federal water protections (done, Wheeler announced, in service of states’ rights).

Those legal challenges are good, but voters also need to get vocal about the damage this administration is causing to the environment and to national treasures set aside for the public benefit, not reserved for the oil, gas and mining industries.

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Another accomplished Republican woman defects from the party of grumpy white men

California Chief Justice Tani Cantil-Sakauye.
(Rich Pedroncelli / Associated Press)

The Republican Party can count another notable defection this week: California Chief Justice Tani Cantil-Sakauye, who told reporters this week that she decided to dump her affiliation with the GOP after the Brett M. Kavanaugh Supreme Court hearings. She reregistered as having no party preference.

This was news to me in part because I didn’t realize Cantil-Sakauye was a Republican, though I knew she had been appointed by one, former Gov. Arnold Schwarzenegger. In fact, I never gave much thought about her political affiliation, which is exactly what you want in a chief justice.

I can’t believe the Republican Party wants to chase away smart people, especially women. But as long as the party’s leadership continues to cover for the toxic president, more are likely to leave. (If this were a novel, it would soon be revealed that the Trump presidency was an elaborate plot cooked up by foreign agents in order to destroy the Republican Party from within.)

“Instead of going forward, we’re going backward,” outgoing Republican Rep. Ileana Ros-Lehtinen of Florida said of her party in an interview with NPR on Friday, noting that she was not a “Trump Republican.”

“We need to pay attention to the changing demographics of our country,” she warned her party. “We have not been attuned to that. We have been appealing to one certain section of America.”

Namely, grumpy white men, which is not exactly a strategy for success in the demographically changing U.S.

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Will the death of a 7-year-old girl at the border finally bring some oversight to our immigration gulag?

The death of a 7-year-old migrant in Border Patrol custody spotlights treatment of migrants.
(Scott Eisen / Getty Images)

The death last week of a 7-year-old Guatemalan girl hours after Border Patrol agents took her and her father into custody is a tragic turn of events that engenders no small amount of finger-pointing and recriminations. Someone must be to blame, but who?

White House spokesman Hogan Gridley told reporters Friday morning that the death was “a horrific, tragic situation. Obviously, our hearts go out to the family and to anyone who’s suffered any type of danger and peril that they see so often when they make that trek up from the southern border.”

He then turned political: “It’s a needless death and it’s 100% preventable. If we could just come together and pass some common sense laws to disincentivize people from coming up from the border and encourage them to do it the right way, the legal way, then those types of deaths, those types of assaults, those types of rapes, the child smuggling, the human trafficking that would all come to an end. And we hope Democrats join the president.”

That’s one hyperbolic and reality-challenged way of framing it, and was clearly the talking point of the day for the administration — Homeland Security Secretary Kirstjen Nielsen said pretty much the same thing earlier on “Fox and Friends.”

The girl died in U.S. custody of dehydration and vomiting, and reportedly didn’t receive medical treatment until 90 minutes after her father told agents that the girl was throwing up. When asked if the U.S. bore any responsibility for her death, Gridley responded, “Does the administration take responsibility for a parent taking a child on a trek through Mexico to get to this country? No.”

Yet the government does bear responsibility for the health and welfare of people it takes into custody — especially children. And in most cases, it chooses to incarcerate the migrants (federal law requires only that people with specific criminal convictions be detained during deportation proceedings).

It’s unconscionable that the government incarcerates children in the first place. And it’s unconscionable that the government didn’t announce the girl’s death for a week. It didn’t see fit to inform Congress even though Customs and Border Protection Commissioner Kevin McAleenan testified before the Senate Judiciary Committee about his agents’ role in tear-gassing migrants at Tijuana as he discussed the “border security and humanitarian crisis” along the Southwest border.

Did McAleenan not know of the girl’s death in the custody of his agency? Or did he not see that as a sufficient tragedy to be considered part of the humanitarian crisis?

There have long been complaints about the federal system for incarcerating migrants, including issues associated with for-profit prisons, contracts with local jails (where migrants, often not even accused of a crime, are housed with local inmates), and the Tornillo tent city near El Paso where 1,600 children (soon to expand to 3,800) are being held as they await release to guardians — and where facility officials failed to conduct proper background checks on their workers.

It’s heartening — at least — to see that the Homeland Security Office of Inspector General has already announced an investigation. If there is to be any silver lining to the tragic death of the girl identified by her government as Jackeline Caal, may it be that our nation’s immigration gulag gets stronger, deeper and more effective scrutiny and congressional oversight, and that this administration is forced to accept responsibility for the misery it has caused among people who, by and large, are guilty of nothing more than seeking safety and a better life.

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Who does America execute? A lot of people with mental illness and brain traumas

It’s been apparent for years that the American death penalty system is so deeply and irredeemably flawed that it should not be used to determine whether someone should die for a crime. It’s prone to manipulation by prosecutors and police, witnesses get details wrong (intentionally and not), and the penalty is applied disproportionately on minorities and the poor.

But a new report by the Death Penalty Information Center also argues that the death penalty is also disproportionately applied on people with mental illness and brain traumas.

The organization, which released its annual year-end overview early Friday morning, reports that of 25 executions in 2018 — a near-record low for the modern era — at least 11 of the condemned displayed “significant evidence of mental illness.” Further, at least nine showed “evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range” and at least 11 had suffered “chronic serious childhood trauma, neglect, and/or abuse.” Many of the executed fell into more than one category.

Of the 25 executed men, six – or about 25% — were age 21 or younger when they committed the crimes for which they were sentenced to death. There is growing consensus among experts that the rational part of the human brain doesn’t fully mature until age 25 or so.

So we’re killing people who were immature at the time of their crimes, or who were mentally ill at the time of their execution (and often at the time of the crime), or who had learning and other cognitive disabilities.

Yes, murder is a horrific crime, resonating far beyond the victim. It is deserving of harsh punishment. But do the mentally ill deserve to be executed for acts they may not have understood? Or whose rational culpability is weighted by cognitive disabilities? And who were at a disadvantage in helping their attorneys defend them?

Death rows are packed with people whose illnesses and disabilities were significant factors in their crimes. The Supreme Court has ruled that the insane and the developmentally disabled are ineligible for the death penalty, but determining the threshold can be subjective. And is someone more culpable if he kills on his 18th birthday than if he committed the crime the night before?

Here in California, Ronnie McPeters, who shot and killed a woman at a Fresno fast-food drive-through in 1984, told a psychiatrist that he was filming a commercial. After his conviction and removal to death row at San Quentin, his mental state deteriorated further to the point where he hoards his own feces, talks to a wife and children who do not exist, and hears imaginary voices of his victim’s relatives.

A federal judge ruled in 2007 that McPeters was too mentally ill to be executed, and the state attorney general’s office has joined with McPeters’ lawyers to ask the state Supreme Court to commute his sentence to life in prison because it would be unconstitutional to kill him.

Yet because of court backlogs, McPeters still sits on death row along with more than two dozen other condemned inmates who, like him, are probably too mentally ill to be executed. One, Justin Helzer, put his own eyes out with a pen trying to drive it into his brain. A third, Oscar Gates, thinks he’s in prison because the state wants to steal his inheritance from Howard Hughes and “that prison medical staff are trying to poison him with radioactive cobalt, or that Howard Hughes told him how to cure AIDS with yellow chili peppers,” according to court documents.

At least here in California federal courts continue to bar executions, and even with the passage of Proposition 66 and a new (and disputed) single-drug lethal injection protocol, it doesn’t seem that executions will resume soon — if for no other reason than that state will have trouble obtaining the execution drugs even if the courts allow it fire back up “the machinery of death,” as Supreme Court Justice Harry Blackmun so eloquently phrased it.

Capital punishment is an immoral practice that the nation has proved time and again that it can’t get right, from exonerations (four from California’s death row) to botched executions, and at its heart is little more than official vengeance. It needs to end.

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White House Chief of Staff Newt Gingrich would be a beautiful disaster

Former House Speaker Newt Gingrich (R-Ga.) departs the White House Wednesday.
(Michael Reynolds / EPA-EFE/REX)

Some things are just too good to be true, yet it’s hard to resist believing them. That story about Miley Cyrus telling fans to worship Satan if they wanted to be rich and famous like her? Ummm, no. Or the new PlayStation 4 for $89 on Black Friday? Sorry.

This next news tidbit probably falls into that category:

This would be a Washington reporter’s dream. Gingrich can’t help himself — he is a chaos machine. Yes, so is the man who might employ him; both seem to jump from one idea to the next, regardless of how big a gap there might be between the two concepts. But Gingrich is cerebral, and President Trump is … not.

More important, the president’s chief of staff is the guy who’s supposed to bring order and discipline to the presidency. The chief is not just the gatekeeper to the Oval Office; he or she is the enforcer who keeps the president focused and moving forward toward the administration’s objectives.

That’s not Gingrich’s forte, not by a long shot. He’s an astute politician, having engineered the Republicans’ ascension from a quasi-permanent minority in the House to a seemingly dominant majority. But as Republicans would freely admit, he wasn’t anything close to disciplined as a speaker. And as a result, he would be an unmitigated disaster as a chief of staff.

Here’s a telling quote from former Rep. Scott Klug (R-Wis.), in an interview with the Wall Street Journal in 2011 about then-presidential candidate Gingrich: “Newt has 10 ideas a day — two of them are good, six are weird and two very weird.”

Gingrich is not just an outside-the-box thinker; he’s an outside-the-building-where-the-box-was-delivered thinker. That makes him receptive to new ideas, which is a good thing, but also prone to an ever-expanding agenda, which isn’t helpful at the top of the White House bureaucracy.

Klug added that he wasn’t sure how Gingrich could make it through the campaign (Gingrich actually lasted until early May, longer than most of the contenders). “It’s very hard for him to remain focused. That will be a real challenge for him.”

That’s also one of the main reasons a Gingrich appointment, as profoundly bad an idea as it might be, would be a treat for the White House press corps. Granted, he is no more a fan of journalists than Trump is. But reporters could count on him saying something headline-worthy just about every day — sort of like Rudy Giuliani, only with a more historical references.

And that’s why Trump won’t pick Gingrich, or if he did, why Gingrich’s tenure would rival Anthony Scaramucci’s for brevity. The president wants to be the story, and rightfully so; he doesn’t want to have to compete with his chief of staff for the media’s attention.

So as much of a Christmas gift as it would be for some of us if Gingrich took John F. Kelly’s place as the West Wing bouncer, it’s not going to happen. I think I’ll keep asking Santa for a pony instead.

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