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►  The simple answer to the Trump pardon question

Are there any limits on the president’s power to pardon?

The question, which has generated vigorous debate this summer, has new relevance in view of special counsel Robert Mueller’s continuing investigation into “any links and/or coordination between Russian government and individuals associated with the campaign of Donald Trump.“ No one can know where Mueller’s investigation is leading, but the possibility of criminal indictments cannot yet be ruled out.

Trump has tweeted that the president’s pardon power is “complete.“ At first glance, the Constitution seems to support him, at least for the most part: “The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.“

While that sentence leaves some open questions, you could easily read it to mean that the president has the authority to pardon anyone he likes, with one exception: He cannot stop an impeachment proceeding.

The very question was debated by two of the most far-sighted thinkers in the founding era.

George Mason played a large role in the Constitutional Convention in Philadelphia, but he was dissatisfied by the final document, and he refused to sign it. At Virginia’s all-important ratifying convention, he contended that “the president ought not to have the power of pardoning.“

In particular, Mason objected that “he may frequently pardon crimes that were advised by himself.“ He complained, “If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?“

That seems like a formidable objection, but, as usual, James Madison, his fellow Virginian and the closest thing to the Constitution’s father, was one step ahead of him.

Gently, Madison pointed to “one security in this case to which gentlemen may not have adverted.“ The security was that “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.“ In Madison’s view, “This is a great security.“

In that way, Madison directly responded to Mason’s specific concern. But he also seemed to do him one better. Mason was focused on the most egregious cases, in which a president pardoned people for committing crimes that he himself “advised” (apparently in the sense of personally suggesting and helping to plan). More broadly, Madison urged that if the president was merely “connected, in any suspicious manner,“ with someone who was engaged in wrongdoing, and if he decided to “shelter” (meaning pardon) him, then the president could be impeached.

In recent weeks, there have been many useful discussions of whether a president has the authority to pardon himself. Whatever the answer to that specific question, the more general point is plain: The president has no authority to abuse the pardon power. If he does, impeachment is the appropriate remedy. In that important respect, the pardon power is hardly “complete.“

On the meaning of the Constitution, it’s not a good idea to quarrel with James Madison.


►  Trump continues taunts of Senate GOP leader over health care

Donald Trump resumed his taunts of the Senate’s top Republican on Thursday, expressing disbelief that Majority Leader Mitch McConnell couldn’t persuade a GOP majority to pass a health care bill.

“Can you believe that Mitch McConnell, who has screamed Repeal & Replace for 7 years, couldn’t get it done. Must Repeal & Replace ObamaCare!” Trump tweeted Thursday.

The president bristled this week after McConnell, R-Ky., told an audience in his home state that Trump had “not been in this line of work before” and had “excessive expectations about how quickly things happen in the democratic process.” Both before and after taking office, Trump spoke often about passing the massive health care overhaul quickly.

“Obviously, there’s some frustration,” White House spokeswoman Sarah Huckabee Sanders said of Trump’s tweets. She said the two men spoke by phone Wednesday and that the conversation included talk of health care. Sanders said she didn’t know how long they talked.

Asked to respond to Trump’s statement, McConnell spokesman David Popp said, “The leader has spoken repeatedly about the path forward regarding Obamacare repeal and replace on the Senate floor, at media availabilities and in Kentucky.”

The Senate rejected three attempts by McConnell last month to approve legislation annulling and rewriting much of President Barack Obama’s 2010 health care law. Nursing a 52-48 majority, McConnell needed support from 50 GOP senators to prevail because of unanimous Democratic opposition, but there were enough Republican “no” votes on each tally to sink the effort. Mike Pence would have broken cast a tie-breaking vote.

McConnell spelled out his view of the path forward in his Monday remarks to the Rotary Club in Florence, Kentucky.

“If people can show me 50 votes for anything that would make progress on that, I’ll turn back to it. But in the absence of that, we’re going to be moving on. We have a number of things to do in September,” he said.

McConnell cited must-pass bills that would prevent a government shutdown and a federal default, plus a GOP desire to turn to tax cuts.

But he also kept the door open for a narrower health care effort aimed at stabilizing individual health insurance marketplaces around the country.

“I think no action is probably not going to work, because you’ve got a lot of private health insurance markets imploding,” McConnell said. “So exactly what form that takes is unclear right now.”

A small handful of online exchanges created by Obama’s law may have no insurers offering coverage next year, but many may have just one company selling policies. Many insurers around the country are proposing to raise premiums, often citing worries that the Trump administration will take steps to undermine the markets, such as halting federal subsidies they receive to lower costs for millions of people.

In Trump’s shot at McConnell on Wednesday, he wrote on Twitter, “Senator Mitch McConnell said I had ‘excessive expectations,’ but I don’t think so. After 7 years of hearing Repeal & Replace, why not done?”


►  Frustrated with White House, McCain unveils Afghan strategy

Senator John McCain of Arizona is proposing a new “strategy for success” in Afghanistan. He’s calling for increasing the number of U.S. counterterrorism forces and giving them a freer hand to target the Taliban, Islamic State and other terrorist groups.

McCain chairs the Senate Armed Services Committee. He declared Thursday that “America is adrift in Afghanistan.”

The Republican senator has been openly critical of the Trump administration for failing to produce a plan for winning in Afghanistan. Donald Trump has resisted the Pentagon’s recommendation to boost U.S. troop levels.

McCain says he’ll seek a vote when the Senate returns in September and takes up the annual defense policy bill.

His amendment to the bill calls for a “long-term, open-ended” U.S.-Afghanistan partnership that includes an “enduring U.S. counterterrorism presence.”


►  Analysis: Trump throws his own North Korea strategy a curve

Just when Donald Trump’s strategy for North Korea was finally starting to show dividends, he threw it a curve.

At long last, his administration seemed to be speaking with one voice on a key national security issue, a surprisingly elusive task in Trump’s first six months. But he upended all that with a threat to slam the North with “fire and fury like the world has never seen” if it provoked America again.

By inflaming the situation, Trump also may have undermined the only serious prospect for resolving the North Korea crisis: successful cooperation with China.

Trump’s strategy has relied on a delicate diplomatic two-step: increasing pressure on China in hopes that, in turn, China will use its influence to get North Korea to abandon its nuclear aspirations. Trump had been deeply frustrated by China’s recalcitrance, but there were signs it was finally coming around, including its vote in favor of the toughest U.N. sanctions in a generation — possibly ever.

On its face, Trump’s move seemed to fit a pattern in which he becomes his own biggest obstacle to achieving his objectives. Sometimes he exposes divisions within his administration that others can then exploit. Other times, Trump stakes out positions so unpopular that needed partners can’t afford to work with him. In other cases, he’s played directly into his critics’ worst suspicions about him.

That tendency has been on display repeatedly, including in his firing of the former FBI director who had been investigating his campaign’s possible Russia collusion, his “Muslim ban” comments that sunk his travel ban in court, and siding with Saudi Arabia over Qatar in the Persian Gulf crisis just as his administration was trying to mediate.

With North Korea, it was the budding prospect for the cooperation he’d been seeking from Beijing that was jeopardized by his latest unforeseen move.

In recent months, Trump had been so frustrated by Beijing’s reluctance to help that he let it be known he was considering new, punitive trade actions. The Treasury Department had even prepared unprecedented “secondary sanctions” targeting Chinese companies and banks that deal with North Korea.

But Trump agreed to hold off after China, with its U.N. Security Council vote, signaled it was finally moving in the direction Trump wanted, U.S. officials said.

So when Trump seemed late Tuesday to lower himself to Kim Jong Un’s level, aggressively threatening the North with physical force, it wasn’t just Washington that was taken aback.

“For the leader of the most powerful country in the world to be talking about the ability to annihilate another country with a power never seen before not only gets a reaction from Pyongyang, but from Beijing, and Europe,” said Jeffrey Bader, formerly President Barack Obama’s top Asia hand who now runs the Brooking Institution’s China program. “That is not helpful to our interests.”

Even before his threat, U.S. officials had been concerned that China would only halfheartedly enforce the sanctions. So Trump’s administration put Beijing on notice it would be closely monitoring its compliance. Secretary of State Rex Tillerson was in Asia pressing other North Korean neighbors to be strict, too. He also offered Pyongyang a way out: Halt missile tests, and eventually, the U.S. would return to negotiations.

But in the wake of Trump’s threat, it’s far from clear that China — the North’s economic lifeline — will feel compelled to punish Pyongyang economically, a step that China ultimately feels is against its interests. The sanctions aim to cut off one-third of the North exports, starving it of cash for its nuclear and ballistic weapons programs.

China may see Trump’s apocalyptic missive as evidence he isn’t truly interested in the kind of diplomatic solution that would preserve Beijing’s No. 1 interest: Stability in its neighborhood. Without Beijing’s cooperation, the sanctions would have negligible effect.

So what drove Trump to upset the balance on North Korea so dramatically? And why now?

One possible trigger was a news report about a new U.S. military assessment claiming the North had mastered the ability to fit a nuclear warhead atop one of its long-range missiles — a key step toward being able to strike the U.S. Another may have been Pyongyang’s threat of “thousand-fold” revenge for the new U.N. sanctions.

Trump’s threat blindsided Tillerson while he was in Asia, according to officials familiar with the timeline. And while his alliterative “fire and fury” admonition seemed premeditated, Trump aides insisted that while they’d discussed with the president what tone he’d strike if asked about North Korea, they didn’t know exactly how he’d phrase it. The aides weren’t authorized to comment publicly and spoke on condition of anonymity.

North Korea’s military soon issued its own menacing warning about potential plans to attack Guam, and alarm spread. Tillerson, heading home from Asia, jumped on the phone with Trump for roughly an hour, before working to calm the situation by telling reporters on his plane that Americans should “sleep tight” knowing the situation hadn’t changed and there wasn’t “any imminent threat.”

But Trump soon inflamed the situation again, with tweets boasting of a U.S. nuclear arsenal he said has no equal. Across the government, officials rushed to try to show Trump wasn’t improvising national security on the fly. Defense Secretary Jim Mattis warned the North against “actions that would lead to the end of its regime and the destruction of its people.” And State Department spokeswoman Heather Nauert insisted “we are all singing from the same hymn book.”

“We’ve had a lot of messages,” said former U.N. Ambassador Bill Richardson, who’s traveled to North Korea several times. “We’ve had a diplomatic message from the secretary of state, the national security adviser, the U.N. ambassador, they seem to have different messages, more aggressive. Pre-emptive military strikes. We need to cool down and be rational because this is a very grave situation.”


►  Study says Trump moves trigger health premium jumps for 2018

Actions by the Trump administration are triggering double-digit premium increases on individual health insurance policies purchased by many people, according to a nonpartisan study.

The analysis released Thursday by the Kaiser Family Foundation found that mixed signals from Donald Trump have created uncertainty “far outside the norm” and led insurers to seek higher premium increases for 2018 than would otherwise have been the case.

Republicans in Congress have not delivered on their promise to repeal and replace the Obama-era Affordable Care Act. Trump is insisting that lawmakers try again and that the health overhaul is collapsing. At the same time, he’s threatened to stop billions of dollars in payments to insurers. Some Republicans are considering fallback measures to stabilize markets.

Kaiser researchers looked at proposed premiums for a benchmark silver plan across major metropolitan areas in 20 states and Washington, D.C. Overall, they found that 15 of those cities will see increases of 10 percent or more next year.

The highest is a 49 percent jump in Wilmington, Delaware. The only decline: a 5 percent reduction in Providence, Rhode Island.

About 10 million people who buy policies through HealthCare.gov and state-run markets are potentially affected, as are 5 million to 7 million more who purchase individual policies on their own.

Those in the government-sponsored markets can dodge the hit with the help of tax credits that most of them qualify for to help pay premiums. But off-marketplace customers pay full freight, and they face a second consecutive year of steep increases. Many are self-employed business owners.

The report found insurer participation in the ACA markets will be lower than at any time since they opened for business in 2014. The average is 4.6 insurers in the states studied, down from 5.1 insurers this year. In many cases insurers do not sell plans in every community in a state.

The researchers analyzed publicly available filings through which insurers justify their proposed premiums to state regulators. Insurers are struggling with sicker-than-expected customers and disappointing enrollment, and an industry tax is expected to add 2 to 3 percentage points to premiums next year.

On top of that, researchers found that mixed signals from the administration account for some of the higher charges. Those could increase before enrollment starts November 1.

“The vast majority of companies in states with detailed rate filings have included some language around the uncertainty, so it is likely that more companies will revise their premiums to reflect uncertainty in the absence of clear answers from Congress or the administration,” the report said. Once premiums are set, they’re generally in place for a whole year.

Insurers that assumed that Trump would make good on his threat to stop billions in payments to subsidize copayments and deductibles requested additional premium increases ranging from 2 percent to 23 percent, the report found.

Insurers that assumed the IRS under Trump would not enforce unpopular fines on people who remain uninsured requested additional premium increases ranging from 1.2 percent to 20 percent.

“In many cases that means insurers are adding double-digit premium increases on top of what they otherwise would have requested,” said Cynthia Cox, a co-author of the Kaiser report. “In many cases, what we are seeing is an additional increase due to the political uncertainty.”

That doesn’t sound like what Trump promised when he assumed the presidency.

In a Washington Post interview ahead of his inauguration, Trump said, “We’re going to have insurance for everybody.”

“There was a philosophy in some circles that if you can’t pay for it, you don’t get it,” he added. “That’s not going to happen with us.”

People covered under President Barack Obama’s law “can expect to have great health care,” Trump said at the time. “It will be in a much simplified form. Much less expensive and much better.”

But the White House never produced the health care proposal Trump promised. The GOP bills in Congress would have left millions more uninsured, a sobering side-effect that contributed to their political undoing.

The administration sidestepped questions about its own role raised by the Kaiser study.

Spokeswoman Alleigh Marre said rising premiums and dwindling choices predate Trump.

“The Trump administration is committed to repealing and replacing Obamacare and will always be focused on putting patients, families, and doctors, not Washington, in charge of health care,” Marre said in a statement.

The turmoil for people who buy individual health insurance stands in sharp contrast to relative calm and stability for the majority of Americans insured through workplace plans. The cost of employer-sponsored coverage is expected to rise about 5 or 6 percent next year, benefits consultants say.


►  Hearing loss of U.S. diplomats in Cuba blamed on covert device

The two-year-old U.S. diplomatic relationship with Cuba was roiled Wednesday by what U.S. officials say was a string of bizarre incidents that left a group of American diplomats in Havana with severe hearing loss attributed to a covert sonic device.

In the fall of 2016, a series of U.S. diplomats began suffering unexplained losses of hearing, according to officials with knowledge of the investigation into the case. Several of the diplomats were recent arrivals at the embassy, which reopened in 2015 as part of former President Barack Obama’s reestablishment of diplomatic relations with Cuba.

Some of the diplomats’ symptoms were so severe that they were forced to cancel their tours early and return to the United States, officials said. After months of investigation, U.S. officials concluded that the diplomats had been exposed to an advanced device that operated outside the range of audible sound and had been deployed either inside or outside their residences. It was not immediately clear if the device was a weapon used in a deliberate attack, or had some other purpose.

The U.S. officials weren’t authorized to discuss the investigation publicly and spoke on condition of anonymity.

State Department spokeswoman Heather Nauert said the U.S. retaliated by expelling two Cuban diplomats from their embassy in Washington on May 23. She did not say how many U.S. diplomats were affected or confirm they had suffered hearing loss, saying only that they had “a variety of physical symptoms.”

The Cuban government said in a lengthy statement late Wednesday that “Cuba has never permitted, nor will permit, that Cuban territory be used for any action against accredited diplomatic officials or their families, with no exception.”

The statement from the Cuban Foreign Ministry said it had been informed of the incidents on February 17 and had launched an “exhaustive, high-priority, urgent investigation at the behest of the highest level of the Cuban government.”

It said the decision to expel two Cuban diplomats was “unjustified and baseless.”

The ministry said it had created an expert committee to analyze the incidents and had reinforced security around the U.S. embassy and U.S. diplomatic residences.

“Cuba is universally considered a safe destination for visitors and foreign diplomats, including U.S. citizens,” the statement said.

U.S. officials told The Associated Press that about five diplomats, several with spouses, had been affected and that no children had been involved. The FBI and Diplomatic Security Service are investigating.

Cuba employs a state security apparatus that keeps many people under surveillance and U.S. diplomats are among the most closely monitored people on the island. Like virtually all foreign diplomats in Cuba, the victims of the incidents lived in housing owned and maintained by the Cuban government.

However, officials familiar with the probe said investigators were looking into the possibilities that the incidents were carried out by a third country such as Russia, possibly operating without the knowledge of Cuba’s formal chain of command.

Nauert said investigators did not yet have a definitive explanation for the incidents but stressed they take them “very seriously,” as shown by the Cuban diplomats’ expulsions.

“We requested their departure as a reciprocal measure since some U.S. personnel’s assignments in Havana had to be curtailed due to these incidents,” she said. “Under the Vienna Convention, Cuba has an obligation to take measures to protect diplomats.”

U.S. diplomats in Cuba said they suffered occasional harassment for years after the restoration of limited ties with the communist government in the 1970s, harassment reciprocated by U.S. agents against Cuban diplomats in Washington. The use of sonic devices to intentionally harm diplomats would be unprecedented.


►  DeVos says she didn’t decry racism enough

Education Secretary Betsy DeVos on Wednesday distanced herself from her comment earlier this year about the nation’s historically black colleges and universities being pioneers of school choice, saying that in the past “there were no choices” for African-Americans in higher education.

“When I talked about it being a pioneer in choice it was because I acknowledge that racism was rampant and there were no choices,” DeVos said in an interview with The Associated Press in her office at the Education Department. “These HBCUs provided choices for black students that they didn’t have.”

DeVos, who marks six months in office this week, alienated many African-Americans in February when she described historically black colleges as “real pioneers when it comes to school choice.” In May, she was booed while attending the commencement ceremony at a historically black college in Florida.

“My intention was to say they were pioneering on behalf of students that didn’t have another choice. This was their only choice,” DeVos said. “At the same time I should have decried much more forcefully the ravages of racism in this country.”

The Trump administration and DeVos have come under criticism from civil rights advocates for undoing some civil rights protections, including rescinding Obama-era federal guidance that instructed schools to allow transgender students to use the bathrooms of their choice and Donald Trump calling for banning transgender individuals from serving in the military.

DeVos, a billionaire Republican donor and long-standing school choice activist from Michigan, said that she has spent her career campaigning on behalf of minority children.

“That’s where my heart has been for three decades is to really empower and allow all families the same kind of opportunities I’ve had for my kids,” she said.

At the same time, DeVos acknowledged that she could have done more to reach out to African-American communities around the country to make her position more clear.

“I’ve had these conversations with some of the African-American organizations that represent higher education, but probably not as explicitly as I am right now,” DeVos said.

The NAACP and the National Association For Equal Opportunity in Higher Education did not return requests for comment about DeVos’ remarks.

“It was a mistake and it sounds like she’s acknowledged it,” said Johnny Taylor, president of Thurgood Marshall College Fund, an organization representing HBCUs. “The reality is that people who decided that one statement, an error, is a statement about her commitment and knowledge about HBCUs — it’s not realistic, it’s not fair.”

Marybeth Gasman, a professor of education at the University of Pennsylvania who studies minority-serving institutions, wasn’t convinced.

“At the time she made the comments about school choice, I am certain she was trying to promote her school choice agenda,” Gasman said in an e-mail. “I am glad she realizes the comments were offensive. That’s important.”

The issue of minorities’ access to higher education remains controversial today. The Justice Department said last week it would conduct an inquiry into how race influences admissions at Harvard University after a coalition of more than 60 Asian-American groups brought a complaint alleging the school uses race as a factor in admissions and discriminates against Asian-Americans by holding them to a higher standard.

DeVos said her department was not involved in that process and added that this “has been a question for the courts and the courts have opined.”

The Supreme Court last year upheld a University of Texas program that considers race, among other factors, in admissions, offering a narrow victory for affirmative action. A white Texan who was denied admission to the university sued, but the high court said the Texas plan complied with earlier court rulings that allow colleges to consider race in an effort to bolster diversity.

At America’s elite private colleges, many of which have drawn criticism over race-conscious admission policies, incoming classes have become increasingly diverse in recent years.

Asked whether race should play a role in college admissions, DeVos said it is already being considered in the selection process.

“Well, they are looking at that, that is a factor today,” DeVos said referring to college admissions officers. “I am not going to debate that, I am not going to discuss that.”

But DeVos said the key to giving students equal access to higher education lies in elementary and secondary school.

“It is not fair to think that when students transit through a K-12 system that is not preparing them for beyond, that somehow we are going to wave a magic wand and things are going to be perfect for them at the higher-ed level,” DeVos said.

“So I’ve always said: What we should really be talking about is what are we doing to ensure that every single child — no matter their family income, no matter their racial background, no matter their ZIP code — has equal opportunities to access a quality education.”

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