The Reality-Based Community

There’s more at stake with respect to the nomination of Brett Kavanaugh then “merely” the threat to abortion rights.

Late yesterday, U.S.D.J. Edward Chen of the U.S.D.C. for the Northern District Court of California issued a preliminary injunction blocking the termination of the Temporary Protected Status (“TPS”) designations of four countries: Haiti, Sudan, Nicaragua, and El Salvador.  As described by the Court:

Under three prior administrations, the TPS designations of these countries have been repeatedly extended based on adverse and dangerous conditions in these countries. Under the designations, approximately 300,000 TPS beneficiaries have been allowed to stay and work in the United States because of dangerous or unsafe conditions in their home countries. Without TPS designations, these beneficiaries will be subject to removal from the United States.

Here is a description of the irreparable harm some of the plaintiff families would suffer if the injunction had not issued:

Ebtihal Abdalla and her husband are TPS beneficiaries from Sudan. They have been beneficiaries since the late 1990s. They have three children. One is a TPS beneficiary and has lived in the United States since she was a baby. The other two are U.S. citizens. Once Sudan’s designation is terminated, her husband will be unable to work and, as he is the primary breadwinner, this will have significant impact on the family’s livelihood. Furthermore, since the announcement of Sudan’s termination, Ms. Abdalla has suffered bouts of uncontrollable crying and serious migraines. She has also found it difficult to eat and to leave the house. She was recently diagnosed with severe depression and prescribed medications. Ms. Abdalla’s children have also been impacted by the announcement of Sudan’s termination. For example, Ms. Abdalla’s oldest daughter is currently at a community college. Once Sudan’s termination is terminated, she will not be able to work, and she needs the work in order to help pay for tuition. She is fearful that she will not be able to attend a four-year college or university, as planned, if Sudan’s TPS is terminated before she completes her coursework at the community college. As for Ms. Abdalla’s youngest daughter, she is only twelve and, after learning that her family’s immigration status is in jeopardy, she has struggled at school, with a teacher even expressly voicing concern.

Similar testimony is provided in the declarations of Elsy Yolanda Flores De Ayala, see De Ayala Decl. (testifying about the impact of the announcement of El Salvador’s termination on her, her husband, her U.S.-citizen sister who has cancer, and her three children, one who is a TPS beneficiary and the other two who are U.S. citizens); Hiwaida Elarabi, see Elarabi Decl. (testifying about the impact of the announcement of Sudan’s termination on him, her extended family with whom she lives in the United States and whom she helps support, and her parents in Sudan whom she helps support); Imara Ampie, see Ampie Decl. (testifying about the impact of the announcement of Nicaragua’s termination on her, her husband, and her two U.S.-citizen children, both of whom have special needs); and Wilna Destin. See Destin Decl. (testifying about the impact of the announcement of Haiti’s termination on her and her two U.S.-citizen children).

At the hearing, the government conceded that there are 300,000 registered TPS beneficiaries and that they are likely to be subject to removal.  See slip op. at 8.

There are those of us who know of the story of the MS St. Louis, better known as the “Voyage of the Damned.”  Over 900 mostly Jewish refugees fleeing Nazi Germany in 1939 were denied asylum in the U.S. and Canada.  Many times that number have now been protected by Judge Chen’s order.  Since many of those individuals have children who are U.S. citizens, the total number at risk of irreparable harm is even greater.

Just as there was anti-Semitic animus against the passengers aboard the St. Louis, the Court here found that:

[T]here is evidence that President Trump and/or the White House influenced the DHS on the TPS decisions to at least raise serious question on the merits, the remaining issue is whether there is evidence that President Trump harbors an animus against non-white, non-European aliens which influenced his (and thereby the Secretary’s) decision to end the TPS designation. As Plaintiffs have cataloged, there is evidence of such as reflected by statements made by President Trump before, during, and after the TPS decision-making process[.]

The evidence cited by Judge Chen includes remarks by Trump (i) “characterizing Mexican immigrants as drug dealers or users, criminals, and rapists,” (ii) “that ‘15,000 recent immigrants from Haiti ‘all have AIDS’ and that 40,000 Nigerians, once seeing the United States, would never ‘go back to their huts’ in Africa.’” (iii) asking ‘Why are we having all these people from shithole countries come here?,”  and (iv) characterizing immigrants as criminals and comparing them to snakes and animals.  See slip op. at 31.

As reported in the Washington Post:

Justice Department spokesman Devin O’Malley in a statement shortly after the decision said the administration would “continue to fight for the integrity of our immigration laws and our national security.” He said Chen’s decision “usurps the role of the executive branch in our constitutional order,” and rejected “the notion that the White House or the Department of Homeland Security did anything improper.”

Is there any question but that a Justice Kavanaugh would vote to turn away the St. Louis support Trump in this case.

As Catherine Rampell has reported, tax prosecutions in this country are falling:

As the Associated Press has reported:

Chinese tax authorities have ordered “X-Men” star Fan Bingbing and companies she represents to pay taxes and penalties totaling $130 million but would spare her from criminal prosecution, state media said Wednesday.

The announcement ended months of speculation over one of China’s highest-profile entertainers since she disappeared from public view three months ago amid reports she was being investigated for tax fraud.

Of the total amount, Fan is being personally fined around $70 million for tax evasion.

The next step is obvious:  Outsource the criminal prosecution of tax crimes to the Chinese.

Of course, some people might object.

The NYT is now reporting that:

[T]he Trumps appeared to have done more than exploit legal loopholes . . . .  the conduct described [in the NYT article] represent[s] a pattern of deception and obfuscation, particularly about the value of Fred Trump’s real estate, that repeatedly prevented the I.R.S. from taxing large transfers of wealth to his children.

Just so that it’s clear, 26 U.S.C. §§ 6501(c)(1) and 6501(c)(2) provide that:

(1) In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time.

(2) In case of a willful attempt in any manner to defeat or evade tax imposed by this title (other than tax imposed by subtitle A or B), the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.

It seems worthy of mention that Allen Weisselberg, the long-time Trump CFO, went to work for Fred Trump in 1970.

I have posted the letter from the American Bar Association’s Committee on the Judiciary concerning Brett Kavanaugh’s 2006 nomination to be a federal judge.  Beginning on page 8, we find this:

[T]he 2006 interviews raised a new concern involving his potential for judicial temperament. Unlike the earlier 2003 final report and 2005 updated report, the recent supplemental evaluation contained comments from several interviewees with more recent experience with the nominee, which caused them to characterize the nominee as “insulated.” One interviewee suggested that much of his concern about the nominee being insulated was due, understandably, to the nominee’s current position as Staff Secretary to the President. However, this interviewee remained concerned about the nominee’s ability to be balanced and fair should he assume a federal judgeship. And another interviewee echoed essentially the same thoughts: “(He is) immovable and very stubborn and frustrating to deal with on some issues.” Both issues—his professional experience and the question of his freedom from bias and open-mindedness—were brought up (along with others) with the nominee during his 2006 interview, and he was provided a full opportunity to address them in detail as part of our supplemental evaluation material.

The ABA judicial review process had been subject to criticism because it was allegedly too liberal.  During the Bush Administration, there was some concern that the ABA had pulled its punches to avoid such criticism.

I pulled the ABA letter from the Washington Post story which outlines Kavanaugh’s history in greater detail.

Judge Emmet C. Sullivan of the U.S.D.C. for the District of Columbia has issued an opinion that Democratic members of Congress have standing to obtain a judicial determination that President Trump has violated the Foreign Emoluments Clause.  The opinion is here.  The opinion summarizes the issues as follows:

Plaintiffs, approximately 201 minority Members of the 535 Members of the United States Senate and House of Representatives, allege that Donald J. Trump in his official capacity as President of the United States (“the President”) is violating the Foreign Emoluments Clause (“Clause”). Under this Clause, certain federal officials, including the President, may not “accept” an “emolument” from “any King, Prince or foreign State” without “the Consent of Congress.” U.S Const. art. I, § 9, cl. 8. In Count I, plaintiffs seek declaratory relief pursuant to 28 U.S.C. § 2201 in the form of a declaratory judgment stating that the President is violating the Clause when he accepts emoluments from foreign states without first seeking the consent of Congress. Am. Compl., ECF No. 14 ¶¶ 85-86. In Count II, plaintiffs seek injunctive relief pursuant to the Court’s inherent authority to grant equitable relief and pursuant to 18 U.S.C. § 1331 in the form of a Court order enjoining the President from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of Congress.” Id. ¶ 92.

Looking at this opinion and many of the others that I have posted, you get an idea of what’s at stake in the Kavanaugh nomination fight.  To be as blunt (and, perhaps, as apocalyptic) as possible, the confirmation of Kavanaugh would be a disaster of historic proportions.  It is not just about the survival of Roe v. Wade, although, of course, it is about that. Rather, Kavanaugh and the “hard right” block that is already on the Court will threaten the entire fabric of Constitutional protections developed in the last century.

We now have a reasonably strong case that Brett Kavanaugh boasted in his high school yearbook of having had a threesome with one woman and another man.  That boast, circumstantially at least, lends credence to Christine Blasey Ford’s claim concerning an incident in the summer between Kavanaugh’s junior and senior years in high school.

One of the notations in Kavanaugh’s high school yearbook is a reference to “Devil’s Triangle.”  Before yesterday, the Urban Dictionary defined “Devil’s Triangle” as:

A threesome with 1 woman and 2 men. It is important to remember that straight men do not make eye contact while in the act. Doing so will question their sexuality.

(Since yesterday, there has been an additional, secondary, meaning:

A drinking game where you get a girl too drunk to consent (and hopefully to resist) to having sex with you and a buddy at the same time. Eye contact is to be avoided to provide plausible deniability to your sexual orientation and any other questions that may come up about the event in the future.

Some of Brett’s favorite drinking games include Devils Triangle and Quarters.

For the purpose of this discussion, I will ignore the new secondary meaning.)

At the Senate Judiciary Hearing yesterday, Kavanaugh claimed that the term referred to some sort of drinking game.  However, prior to Kavanaugh’s testimony yesterday, no one else in the universe had ever heard of the game.  In fact, Wikipedia had no reference to the term in connection with a drinking game.  That glaring omission was remedied at 5:18 P.M. yesterday when an individual with a U.S. House of Representatives IP address added the following definition to the Wikipedia discussion of “Devil’s Triangle”:  “[A] popular drinking game enjoyed by friends of Judge Brett Kavanaugh.”  I assume that the reference to Kavanaugh in the secondary definition was meant to be snarky. This new definition has since been removed.  See the full story by CNN.

Why did Kavanaugh lie about the meaning of the term in his yearbook?  It is likely that Kavanaugh and Mark Judge engaged in some adolescent boasting, representing to their classmates that the incident with Dr. Ford involved sexual intercourse.  Of course, it is true that this was not actually the case.  But, as the CNN story relates, numerous members of Kavanaugh’s class, including Kavanaugh, boasted of sexual relations with a woman named “Renate,” boasts that were also likely untrue.  (Of course, Kavanaugh lied about that lie when, in his testimony yesterday, he claimed that the references to “Renate” in the yearbook were because she was a “great friend.”  Yeah.  Right.)

Yes, the boast was false–neither Kavanaugh nor Judge actually had intercourse with Ms. Blasey, as she was then known.  But, of course, the false boast gives lie to the current Kavanaugh line, namely that there was never any incident at all involving Kavanaugh, Blasey, and Judge.

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In a letter from Robert M. Carlson, President of the American Bar Association directed to Senators Grassley and Feinstein, the ABA:

[U]rge[d] the United States Senate Judiciary Committee (and, as appropriate, the full Senate) to conduct a confirmation vote on Judge Kavanaugh’s nomination to the Supreme Court of the United States only after an appropriate background check into the allegations made by Professor Ford and others is completed by the Federal Bureau of Investigation.