The Daily Parker

The Supreme Court handed down its ruling in South Dakota v. Wayfair, Inc. this morning:

Brick-and-mortar businesses have long complained that they are disadvantaged by having to charge sales taxes while many of their online competitors do not. States have said that they are missing out on tens of billions of dollars in annual revenue under a 1992 Supreme Court ruling that helped spur the rise of internet shopping.

On Thursday, the court overruled that ruling, Quill Corporation v. North Dakota, which had said that the Constitution bars states from requiring businesses to collect sales taxes unless they have a substantial connection to the state.

South Dakota responded to Justice Kennedy’s invitation by enacting a law that required all merchants to collect a 4.5 percent sales tax if they had more than $100,000 in annual sales or more than 200 individual transactions in the state. State officials sued three large online retailers — Wayfair, Overstock.com and Newegg — for violating the law.

Here's a really interesting bit: "KENNEDY, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, ALITO, and GORSUCH, JJ., joined. THOMAS, J., and GORSUCH, J., filed concurring opinions. ROBERTS, C. J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined."

Ginsburg siding with Thomas and Alito against Roberts, Sotomayor, and Kagan? That's just weird.

New York State has sued the Donald J. Trump Foundation for—wait for it—self-dealing and general corruption:

The lawsuit, which seeks to dissolve the foundation and bar President Trump and three of his children from serving on nonprofit organizations, was an extraordinary rebuke of a sitting president. The attorney general also sent referral letters to the Internal Revenue Service and the Federal Election Commission for possible further action, adding to Mr. Trump’s extensive legal challenges.

The lawsuit, filed in State Supreme Court in Manhattan, culminated a nearly two-year investigation of Mr. Trump’s charity, which became a subject of scrutiny during and after the 2016 presidential campaign. While such foundations are supposed to be devoted to charitable activities, the complaint asserts that Mr. Trump’s was often used to settle legal claims against his various businesses, even spending $10,000 on a portrait of Mr. Trump that was hung at one of his golf clubs.

The foundation was also used to curry political favor, the lawsuit asserts. During the 2016 race, the foundation became a virtual arm of Mr. Trump’s campaign, email traffic showed, with his campaign manager Corey Lewandowski directing its expenditures, even though such foundations are explicitly prohibited from political activities.

The attorney general’s referrals to the I.R.S. and the F.E.C. could add another wrinkle that might slow the foundation’s dissolution. The agencies are not known for their expeditious handling of enforcement actions, and the lawsuit notes that the foundation cannot legally complete its wind down “until the complaints to the Internal Revenue Service and Federal Election Commission have been resolved and it is determined if any penalties or fines will be imposed on the foundation.”

Trump immediately blamed "New York democrats," because of course he did.

Pass the popcorn.

The Associated Press has obtained the latest edition of the Chicago Crime Commission's "Gang Book." It shows the turfs claimed by 59 gangs, including many small areas formed as groups split off from other groups after top leaders go to jail. The book also highlights how social media make gang disputes worse:

Gangs put a premium on retaliation for perceived disrespect. In the past, insults rarely spread beyond the block. Now, they’re broadcast via social media to thousands in an instant.

“If you’re disrespected on that level, you feel you have to act,” said [Rodney] Phillips, employed with Target Area, a nonprofit group that seeks to defuse gang conflicts.

Police say there was a gang connection to most of the 650 homicides in Chicago recorded in 2017 — more than in Los Angeles and New York City combined. Homicides so far in 2018 are down around 20 percent. Police partly credit better intelligence and the deployment of officers to neighborhoods on the anniversaries of gang killings.

So integral is social media to gang dynamics that when Englewood-area pastor Corey Brooks brokered a truce between factions of the Black Disciples and Gangster Disciples in 2016, he insisted they agree to refrain from posting taunts. The gang truce lasted longer than most — 18 months.

Some gangs provoke enemy gangs by streaming live video showing them walking through rival turf. Others face off using a split-screen function on Facebook Live and hurl abuse at each other.

I kind of want to see that map. And I kind of don't. Chicago Public Media has an online, interactive map that doesn't reflect the 2018 changes.

Chances are, that bourbon you're drinking came from an industrial distillery in southern Indiana:

In just the last 10 years, the number of craft distilleries in this country has ballooned from around 100 to more than 1,400. That growth is a product of consumer demand, but it’s also due to the easing of state distillation laws and the availability of sourced whiskey from suppliers like MGP in Lawrenceburg, Indiana.

Templeton Rye — marketed as Al Capone’s favorite whiskey and proud product of Templeton, Iowa — is also distilled by MGP. Tincup Whiskey, a self-described “mountain whiskey” replete with commercials conjuring a frontiersman image and Rocky Mountain ethos, is mostly MGP, too.

Those brands aren’t alone in their Indiana provenance. Even super-premium brands like High West and Whistle Pig have sourced from MGP at some point in their respective histories. And the list goes on.

MGP isn’t a household name in bourbon, but it’s well known among industry insiders and connoisseurs. With distilling operations headquartered in the old Seagram’s Distillery in Lawrenceburg, Indiana, MGP is one of the largest whiskey sourcers in the industry.

So why do so few people know MGP’s name?

For one, it maintains strict confidentiality agreements with all of its customers; the purchasing brand only has to reveal MGP as its source if it wants to — an option many decline.

In addition, labeling regulations only require that the bottler list in which state the liquid was distilled — easily done in tiny print on the back of the bottle.

This is why I've got Trader Joe's $15 "Kentucky Bourbon" at home instead of $60 Whistle Pig. It's the same whiskey.

Single-malt Scotch, on the other hand, is by UK law exactly what it says on the bottle.

Every time the Supreme Court votes 5-4 in favor of a conservative policy initiative, remember that Merrick Garland would almost certainly have voted the other way, and that the Republican Party essentially stole a Supreme Court seat. They got away with it because 48% of the country voted for Donald Trump in 2016.

Take voter rights, for example. The Court this morning ruled, 5-4, that Ohio's method of purging its voter rolls does not violate Federal law:

Beyond the prohibition on removing voters because they failed to vote, the law calls on states to keep accurate rolls and allows removal when a person fails to respond to a request to confirm registration and then fails to vote in two federal elections.

Ohio sends a notice after a voter skips a single federal election cycle. If they fail to respond and do not vote in the next four years, their names are removed from the rolls.

Justice Samuel A. Alito Jr. said the court’s job was not to decide whether Ohio has adopted the “ideal method” for keeping rolls up to date, but only whether it complies with federal law.

Meanwhile, a Fox News presenter made a Freudian slip over the weekend when she referred to President Trump and North Korean ruler Kim Jong-un "the two dictators."

We can take back Congress in 148 days.

Way back in my first day of law school, Prof. Neil Williams exclaimed that the basis of contract law was "the totality of the circumstances!" Meaning, when evaluating a contract (from whether it exists to whether it's enforceable), you have to look at the context, the facts, the intentions of the parties—everything.

Take, for example, former National Security Adviser Susan Rice's description of the following circumstances:

If Mr. Putin were calling the shots, he would ensure that America’s reliability is doubted, its commitments broken, its values debased and its image tarnished. He would advise the new president to take a series of steps to advance those aims:

First, withdraw from the Trans-Pacific Partnership....

Second, criticize NATO and cast doubt on America’s willingness to defend its allies....

Third, for the coup de grâce: start a trade war with our closest allies.

There is no evidence that Mr. Putin is dictating American policy. But it’s hard to imagine how he could do much better, even if he were.

Josh Marshall ups the volume on the same issue, and points out whether there was active collusion doesn't really matter:

If candidate Trump and President Putin had made a corrupt bargain which obligated President Trump to destabilize all US security and trade alliances (especially NATO, which has been Russia’s primary strategic goal for 70 years) and advance the strategic interests of Russia, there’s really nothing more remotely realistic he could have done to accomplish that than what he has in fact done.

We have a President who clearly got a great deal of assistance from Russia in getting elected. We can argue about how important it was to his victory. But the reality of the help is not in any real dispute. His campaign at a minimum had numerous highly suspicious contacts with people either in the Russian government or acting on behalf of the Russian government while that was happening. That is a very generous interpretation. He’s doing all the stuff he’d have been asked to do if such a corrupt bargain had been made. At a certain point – and I’d say we’re clearly at or past that point – it really doesn’t matter whether we can prove such a bargain was made. I’m not even sure it matters whether it was explicit or even happened. The bank robber helped the teller get the job and now the teller just won’t seem to lock the safe or even turn on the alarm. We can debate forever whether the teller is just absent-minded or has some odd philosophical aversion toward locks. The debate may be unresolvable. It truly doesn’t matter.

No, it really doesn't, though I expect historians will spend centuries debating why Trump has so thoroughly trashed our country to the benefit of Russia. What matters, right now, is that we at the very least install a Democratic Congress this fall, so that we can at the very least put the brakes on.

Lawfare Editor in Chief Benjamin Wittes points out that President Trump's legal team has not only made a frivolous argument about the president's obstruction of justice, but a stupid one:

The president’s argument leads to an absurdity and it therefore must have a flaw, but identifying what precisely is wrong with it is a bit of a puzzle. And it’s worth doing carefully—not simply dismissing the argument because of the clownish aspects of the letter or because of the argument’s audacity.

The key question here is not whether Article II limits the application of the obstruction laws but how much it does so—whether it does so absolutely or only partially. And critically, if it does so only partially, what is the principle under which the obstruction statutes operate against the president?

Let’s dispense with the easy question first: It is definitely possible for a president to obstruct justice. A president who coaxes a witness to lie, who pays off a witness, who bribes a juror, or who picks up the phone and threatens a federal judge would of course be amenable to criminal prosecution (at least after he leaves office) for obstruction of justice. There would be no plausible defense that he was entitled to do these things because of Article II.

But the allegations against Trump are different, and trickier. They are allegations that his use of his acknowledged Article II powers might constitute an obstruction. The allegations all involve acts—firing people, for example, and supervising investigations and staff—that the Constitution specifically gives the president the power to do. So these allegations raise a different question: Is it possible for a president to obstruct justice in the context of performing his constitutionally assigned role, that is, using only otherwise valid exercises of his constitutional powers?

Before your knee jerks as you exclaim, “Of course!” keep in mind that Congress cannot with a mere criminal statute take away power that the Constitution gives the president. With that principle in mind, it simply has to be the case that Article II, at least to some degree, limits application of the obstruction statutes to otherwise valid presidential actions.

We knew we wouldn't get out of this era without a serious constitutional crisis or two. How we resolve this, and the ones to follow, will define our country for the next century.

I've had a lot of things going on at work the past couple of weeks, and not many free evenings, leading to these link round-up posts that add nothing to the conversation.

But there should be a conversation, and here are some topics:

• President Trump and Jeff Sessions have shifted US immigration enforcement policy such that cruel, unfair, and harmful treatment of immigrants is no longer an unintended consequence—it's now the point.
• Let's not forget that Dinesh D'Souza, who Trump just pardoned, didn't just mess up some campaign finance paperwork. No, this guy funneled tens of thousands through his mistress and his assistant. Trump's pardon seems to be all about rewarding his racist trolling.
• Sears will close another 100 stores in the next couple of months, continuing Eddie Lampert's slow strangulation of the company.
• Roseanne Barr's sacking from ABC could be a learning moment for the right, but it probably won't be.
• Meanwhile, bluish-purple Illinois yesterday became the 36th state to ratify the Equal Rights Amendment, first proposed in 1977. If one more state ratifies it, then it could become law—though there is enough ambiguity in Article V of the U.S. Constitution to stop us counting chickens just yet.

Finally, on Monday Parker will have his final check-out by his surgeon, which should clear him to go back to day camp on Tuesday. The poor fuzzy dude has spent way too much time home alone since his injury. I'm looking forward to him getting back into his pack.

When reading Josh Marshall, one has to let any phrase starting with "big" go through several levels of filters before investing a lot of emotion into it. Many things, according to Marshall, are "big deals" and "big problems" for the President. Perhaps in a normal world, they would be; but here on Bizzaro World, so many things that would have ended another politician's career bounce off Trump's hair like clichés off a hack's keyboard.

Tonight, however, he may have chosen the right adjective phrase:

[A Michael] Cohen business partner...has agreed to cooperate [with prosecutors]. Bad news for Cohen. But here’s where it gets more interesting and complicated. These are not federal charges. They’re state charges. But the agreement obligates [Evgeny "Gene"] Freidman to cooperate with state and federal prosecutors, basically on an as-needed basis.

Freidman also got a very good deal. The charges he was looking at carried, in theory, as much as a hundred years of prison time. The deal he made will allow him to avoid any jail time. He’s literally getting a get-out-of-jail-free card. ... The state is basically walking away from a very big case and it’s not clear what kind of cooperation on other state prosecutions would merit such a generous deal. Freidman is also cooperating with the feds. You don’t do that unless you have a clear understanding that the the feds won’t come at your with further indictments based on your cooperation. Finally, note that this is a prosecution out of the office of the now-disgraced ex-New York Attorney General Eric Schneiderman, who we know was working assiduously to backstop Mueller’s probe with potential state charges.

[M]y sense is that federal prosecutors probably have more than enough to indict Cohen on various bank fraud- and financial fraud-type crimes. It’s always great to have more evidence, more pressure. But the kind of deal Friedman got seems like one that assumes something more than just adding to the evidence against Cohen on those sorts of crimes.

Don't get me wrong; I've read Marshall's blog since it started in the winter of 2000. He's usually absolutely correct about the facts but never quite right about the outcomes. In this case, he might be right about both.

Writing for New Republic, political scientist Scott Lemieux suggests that Democrats start playing constitutional hardball if the Republicans don't let us govern:

If the Democrats take over Congress and the White House in 2021 with Anthony Kennedy as the median justice—giving them a realistic chance of replacing him—it would be wise for Democrats to hold their fire, barring the Supreme Court serially striking down major legislation on specious constitutional grounds (which the decisions of the Obama era suggest is unlikely).

But what if Donald Trump is able to replace Kennedy, and, God forbid, justices Stephen Breyer and/or Ginsburg as well? There is no good outcome in this scenario. Republicans would have a hammerlock on a nine-member Court for decades. If Trump gets two nominees, this Court is likely to be well to the right of the current Roberts Court and likely to go to war with a Democratic Congress.

Even worse, the decisive nominations would be a product of a Republican Senate refusing to allow a president who won two majorities to fill a vacancy, and then confirming multiple nominees of a president who lost the popular vote by a substantial margin. Court-packing is bad, but allowing an entrenched majority on the Supreme Court to represent a minority party that refuses to let Democratic governments govern would not be acceptable or democratically legitimate, either.

For this reason, it would be very unwise for Democrats to rule anything out. They should be careful not to blow up the power of judicial review without good cause. But if desperate Republicans try to establish an anti-Democratic rearguard on the Supreme Court before they get swept out of office, Democrats have to leave all options on the table.

This reflects what we ancient D&D players know as the "Lawful Stupid" problem. Characters with lawful-good alignment run the risk of trying to do the right thing so much that they fail to do the necessary thing. Think: the Enterprise crew deciding not to save a planet because doing so would violate the prime directive. Or the Democratic Party continuing to assume the Republican Party will follow established political norms even when doing so would cause a temporary shift in power in the United States.