There is a Deal to be Had on the Shutdown

I sent this letter to our senior Senator from Texas today.

Dear Senator Cornyn:

It’s long past time for you to exercise some leadership and state publicly that this shutdown is bad for the country—and to stop casting blame but find a deal.  There is a deal to be had. (I am not calling it a “compromise” because that’s a dirty word to some; nor am I calling it a “win” because that, too, is a dirty word when gifted to political adversaries).

Try this:

  • $ 5.7 billion for “border security” to be spent however the Administration decides.  One hopes the President and his “advisers” will spend it wisely (and that means very little for a “wall”), but that will be in the Executive’s discretion.
  • A DACA solution that allows all “Dreamers” to ultimately become true American citizens. All of them, so long as they were younger than 18 when they came to the United States.  You must know that the original DREAM legislation had bipartisan support; it was co-sponsored by Orrin Hatch (not exactly a liberal). The bill should be exactly as proposed way back in 2001.
  • End the current chokehold on H-1B visas (which you must know is absurd, damaging to American competitiveness and also hurts our overseas influence).
  • Reopen the Government.   Even with the Administration’s transparent attempt to mitigate selectively the burdens of the shutdown, it affects all of us, not just the 2,000,000 Americans in 800,000 households who are missing paychecks (which they need to pay rent, mortgages, and credit card bills for Christmas presents).  As just one example, shutting down a terminal at IAH (see enclosed clipping)* is just the kind of dangerous stupidity we need to end.

This is a deal that requires everyone to swallow hard and accept.  The question is, are you courageous enough to propose it publicly?


Lee L. Kaplan

*See for example,

Two Million Americans Just Don’t Count

The partial government shutdown started early morning on December 22.  We are now two weeks into a government shutdown that has left 800,000 employees without paychecks (although many of them are expected to work without pay during that time).  That’s 800,000 employees – but we should think of them as belonging to 800,000 households.  At 2.6 persons per average American household, that’s over 2,000,000 Americans.  The Americans in those affected households undoubtedly bought Christmas presents, often with credit cards. How many of them are receiving Visa and MasterCard bills they cannot pay?  How many of those Americans could not pay their rent at the first of this month?

For a man who routinely brags (falsely) about saving jobs, he’s not doing very well.  President Trump, who stated bluntly that he would be “proud to shut down the government for border security,” that he would “take the mantle,” that he would “be the one to shut it down,” and not blame Chuck Schumer or Nancy Pelosi for it, now takes a different tune.   But does any rational person believe him?   Let’s also not forget that, during this same time frame, the President even lied to soldiers, telling them he had gotten them their biggest pay raise–10%–in 10 years.  He’s just a serial liar.  (But I digress.)

The pettiness that has brought the country to this point is staggering.  But what is even more staggering, and truly despicable, is the utter cruelty that a coddled millionaire (or maybe billionaire, who really knows?) is willing to visit upon regular Americans who work for our government, all out of personal pique.  So I have just one more question.  Other than Mitt Romney, is there a single Republican in the United States Senate who will speak out against this pettiness and this cruelty?


Remember when our current President and his now-fellow-travelers criticized President Obama in 2009 for “bowing” at the G20 summit to King Abdullah of Saudi Arabia?  Nevermind that Obama was taller (and younger) than the king; the outrage on the right was palpable.  The Washington Times, Fox News, and others – including our current Tweeter-in-Chief – continued to cite that alleged genuflection as more evidence of spinelessness, all the way through the 2012 election campaign, and throughout the 44th President’s second term.  (This is not a defense of President Obama; his disappearing “red line” in Syria speaks volumes.)

But fastforward to 2018; who’s bowing now?  In the face of obvious murder, and Saudi stonewalling, our President trots out a theory about “rogue killers.”  And even though published photos show mops and cleaning materials being delivered to the Saudi consulate before Jamal Khashoggi’s disappearance, the White House merely dispatches our Secretary of State to “ask tough questions” (read: help the Saudi Crown Prince come up with a story).  Gee, maybe the rogue killers called the consulate in advance to usher their cleaning supplies and garbage bags through the door because “you never know when someone might accidentally bleed out someday in your consulate.”  When 15 people fly in from Riyadh and spend just a couple of hours in Istanbul before fleeing (along with the Saudi consul), everyone knows this was a premeditated killing.  Unfortunately, President Trump’s comments show that any story, no matter how ridiculous, that exonerates Mohammed Bin Salman and scapegoats someone else, will do for the current Administration.

What is the President’s stated motivation for this kid glove treatment of the Crown Prince, a/k/a Jared Kushner’s lunch partner?  Domestic jobs from arms sales.  “[W]hether or not we should stop $110 billion from being spent in this country, knowing they have four or five alternatives, two of them very good alternatives, that would not be acceptable to me.”  (It’s only $14.5 billion so far, but in any event…does even $110 billion make complicity OK?)  Can that really be the reason, or does the President just not give a damn?

At least a few Republican senators (Messrs. Corker and Rubio) have indicated that they have some glimmer of understanding how our failure to speak out forcefully (let alone take meaningful action) is devastating to our image and influence throughout the world.  Unfortunately, my own Texas Senators – Cornyn and Cruz – have shown no such inclination.  Their disapproval of murder is in the abstract.  It does not extend to individuals, or perhaps just not to journalists.

The only way to influence the behavior of our governing class is to let them know that hypocrisy and indifference to evil has consequences, including the loss of their positions.    The only way to supply even a teaspoon of “Dutch courage” to Republican officeholders who are afraid to cross the President, is to provide concrete evidence that Americans disapprove of making excuses for homicidal dictators, whether they are in Riyadh, Moscow, or Tehran.  In other words, we must VOTE. Expressions of dismay over the dinner table won’t do the trick.  If we want to encourage truthtellers and discourage cowards, we have to VOTE.

There are well over 235,000,000 Americans of voting age, but in 2016, a presidential year, not even 60% of us bothered to vote.  Voter suppression does not account for 100,000,000 citizens failing to exercise this most important right.  We are better than this…aren’t we?  Maybe we really don’t care, but we should.  Everyone should either vote early or make it a point to find a few minutes on November 6 to confirm America’s decency and greatness.

*Thank you, Bob Dole.

What are we FOR?

We have to have principles and standards of conduct in order to criticize others. For it is by those principles and standards that we are able to discern breaches and violations thereof — and condemn them.   But how should we go about that?

It’s hard to live up to high principles and standards.  It’s easier to condemn others’ defaults than our own. More than ever in my lifetime, Americans resort to labels when they talk politics and social issues.  So-and-so is a “gun nut” or a “socialist” or a “baby killer” or a “Nazi.”  In the wake of the 2016 election, people who are truly invested in President Trump, and those who are ardently invested in his fall, are perhaps more prone to this.  Candidly, I fall into that ditch, too, becoming so angry at shenanigans by “the other side” that I call the rascals out for it.  But we need to remind ourselves that the most important question — the one we should pose to ourselves first — is a deeply personal inquiry:

“What am I FOR?”

I am a capitalist, free enterpriser and free trader, laissez faire on social issues, a fervent believer in the first amendment as well as civility, a respecter of heroes, and a foe of dictators and autocrats.  I am willing to impose the death penalty on cold-blooded killers who have rejected our social contract, and I support public and private charity for people who need help through no fault of their own.  Not everyone shares that entire set of beliefs.  But we should all stand perpetually in awe of this 242-year-old American experiment that enables us to have sets of beliefs and to advocate for them.  Yes, what we enjoy in these United States IS an experiment, and even though we may think it is enduring because it has endured thus far, our democracy is still vulnerable to being upended and damaged by reckless leaders, just as a careless lab assistant can break a beaker and destroy years of research.

This last week of mourning for John McCain has provided us an opportunity for reflection — if we will take it.  It calls on each of us to rise to our better natures.  John McCain’s views on many political issues were somewhat beside the point – the point was his ability to reach decisions independently, to oppose bluntly without malice, and to keep as his guiding star the welfare of our country and our citizens. McCain withstood five and one-half years of torture and still refused early release from that hell.  How many of us could do that?  And then, having endured years of captivity and suffering at the hands of Vietnamese jailers, Senator McCain rose above that pain (and his continuing physical limitations caused by torture) to help lead the reconciliation between our two countries.  What he did over his military and political careers is both dazzling and humbling.

McCain was a giant.  At the very least, we should honor him by trying to emulate him, avoiding wherever possible the kind of meanness and selfishness that now pervades public discourse, and supporting public figures who embody at least a part of his towering values and character.

This November, as we are given the opportunity to engage in America’s most important and world-renowned tradition, we must VOTE.

November 6, 2018 is a Red-Letter Day

This is a plea that I will repeat more than once in the next 4 months or so.  I haven’t blogged much during the Trump Administration and the current (115th) Congress, mainly because the disappointments occur almost daily, and I cannot keep up.  Frankly, it’s too hard to put aside my outrage to try to be clever.  Instead, here is my message, blunt and simple.  I want you to circle the calendar for November 6, 2018—and VOTE.

In November 2016 Donald Trump was elected President with roughly 46 percent of the vote; Hillary Clinton received roughly 48 percent.  When matched against the overall turnout of just over 60 percent, that means Donald Trump was elected by 28% of the voting age population.  That’s right, barely a quarter of us pulled a lever for him.  But he’s there in the White House, along with his parasitic family — Large and in Charge.  And he’s gotten his way, mainly because his party majority in both houses of Congress has generally lined up behind him, notwithstanding his boorish, destructive conduct. 2018 is not a presidential year, but the entire House of Representatives and one-third of the Senate, and innumerable local officeholders, are up for election on November 6.


  • If you are repulsed by the likes of Stephen Miller and people who think every immigrant who doesn’t look exactly like them is a member of MS-13, then tell them so on November 6.  VOTE!
  • If you think due process should extend to families seeking asylum in this country, then hang on to that November 6 date.  Don’t fail to VOTE!
  • If you think it’s a bad idea to punish competitive American businesses such as Harley-Davidson that export to the world by starting a blunderbuss trade war and subjecting those firms to retaliatory tariffs from our best trading partners, you can say so on November 6.  VOTE!
  • If you’d like to send a message to the slugs who admire Putin and disdain Trudeau, Macron, Merkel and May, then November 6 is your chance to do so.  VOTE!
  • If you think it’s grotesquely wrong and dangerous for a sitting President to label a (U.S.-born) federal judge as a biased “Mexican”, you can say so on November 6.  VOTE!
  • If you think a longstanding lawyer-client relationship with a bare-knuckles fixer like Mike Cohen is some indication of the client’s own ethics, then VOTE!
  • If you think that Senators and Congressmembers who once championed civility, not to mention due process and free trade, are cowards for failing to speak out in favor of those concepts, and against a President who trashes those ideas, you need to remember that calendar appointment for November 6.  You need to VOTE!*
  • If you think it’s wrong for 40 or 50 know-nothings to hold the entire House of Representatives (or at least the putative Republican majority) hostage until they get their way, then remember that on November 6.  VOTE!
  • If you think that it’s at least possible for our elected representatives to have higher standards than blind fealty to a narcissistic, early-morning tweeter, then VOTE!
  • If you think making war on the FBI by continually impugning its integrity is dangerous to the rule of law and respect for the rule of law, then VOTE!
  • You don’t have to sympathize with foul-mouthed actors and media personalities to disagree with the way the Administration is running the country, but to do that effectively, you have to VOTE!

Many of us already vote, either by early voting or on the formal Election Day.  But this time, we must beg, persuade, cajole, urge, and embarrass everyone we know to get off the sofa and do the same.  And we need to start early, and encourage early voting.  Our goal should be for 2018 to have the largest turnout in history.  Otherwise we will deserve everything that happens to the country over the next two years.

*Among others in a long list of craven officeholders, I am referring to my own Senator Ted Cruz and my own Representative John Culberson of Texas, both of whom are seeking re-election this year.


Why Does Dan Patrick want to make certain that Caitlyn Jenner uses the urinal next to me?

Raise your hand if you have ever been accosted by a transgender person in a bathroom.

Uh, nobody?

Then … raise your hand if anyone in your family has ever been accosted by a transgender person in a bathroom.

Uh, nobody again?

Well, okay … raise your hand if you know anyone who says they were accosted by a transgender person in a bathroom.

Still nobody?

Last chance, then … raise your hand if you have ever seen someone whom you knew was transgender actually using the “wrong” bathroom?  [And how would you know?]

I guess this epidemic is just underreported by the biased media.

We’ve got to fix this urgent problem to make sure it never happens again.


Cornyn and Cruz — unforced errors

This post is composed mainly of transcript excerpts rather than editorial comments. Texans should know who their United States Senators are—and what they stand for. Although they are licensed attorneys (one a former Texas Supreme Court justice and the other a former U.S. Supreme Court clerk), Senators John Cornyn and Ted Cruz were (or should have been) thoroughly embarrassed from their exchanges with Ms. Sally Yates, a longtime Justice Department professional, during their efforts to sully her motives in declining to approve President Trump’s now-abandoned first step at a selective immigration ban.  The following took place on May 8, in a Senate hearing ostensibly called to discuss the circumstances of Mike Flynn’s belated firing as National Security Adviser.   Our senators waded into the immigration issue, no doubt thinking they would score some points.  After all, Ms. Yates was just another DOJ attorney.  Or was she?

First, the Q & A between Senator Cornyn (R-TX) and Ms. Yates:

“CORNYN: Ms. Yates, this is the first time that you’ve appeared before Congress since you left the Department of Justice, and I just wanted to ask you a question about the — your decision to refuse to defend the president’s executive order.

In the letter that you sent to Congress, you point out that the executive order itself was drafted in consultation with the Office of Legal Counsel, and you point out that the Office of Legal Counsel reviewed it to determine whether, in its view, the proposed executive order was lawful on its face and properly drafted.

Is it true that the Office of Legal Counsel did conclude it was lawful on its face and properly drafted?

YATES: Yes, they did. The office of…

CORNYN: And you overruled them?

YATES: … I did. The office of legal…

CORNYN: Did you (ph) — what — what is your authority to — to overrule the Office of Legal Counsel when it comes to a legal determination?

YATES: The Office of Legal Counsel has a narrow function, and that is to look at the face of an executive order and to determine purely on its face whether there is some set of circumstances under which at least some part of the executive order may be lawful. And importantly, they do not look beyond the face of the executive order, for example, statement that are made contemporaneously or prior to the execution of the E.O. that may bear on its intent and purpose.

That office does not look at those factors, and in determining the constitutionality of this executive order, that was an important analysis to engage in and one that I did.

CORNYN: Well, Ms. Yates, I thought the Department of Justice had a long standing tradition of defending a presidential action in court if there are reasonable arguments in its favor, regardless whether those arguments might prove to be ultimately persuasive, which of course is up to the courts to decide and not you, correct?

YATES: It is correct that often times, but not always, the civil division of the Department of Justice will defend an action of the president or an action of Congress if there is a reasonable argument to be made. But in this instance, all – all arguments have to be based on truth because we’re the Department of Justice. We’re not just a law firm, we’re the Department of Justice and the…(CROSSTALK)

CORNYN: You distinguish the truth from lawful?

YATES: Yes, because in this instance, in looking at what the intent was of the executive order, which was derived in part from an analysis of facts outside the face of the order, that is part of what led to our conclusion that it was not lawful, yes.

CORNYN: Well, Ms. Yates, you had a distinguished career for 27 years at the Department of Justice and I voted for your confirmation because I believed that you had a distinguished career. But I have to tell you that I find it enormously disappointing that you somehow vetoed the decision of the Office of Legal Counsel with regard to the lawfulness of the president’s order and decided instead that you would countermand the executive order of the president of the United States because you happen to disagree with it as a policy matter.

YATES: Well, it was…

CORNYN: I just have to say that.

YATES: I appreciate that, Senator, and let me make one thing clear. It is not purely as a policy matter. In fact, I’ll remember my confirmation hearing. In an exchange that I had with you and others of your colleagues where you specifically asked me in that hearing that if the president asked me to do something that was unlawful or unconstitutional and one of your colleagues said or even just that would reflect poorly on the Department of Justice, would I say no? And I looked at this, I made a determination that I believed that it was unlawful. I also thought that it was inconsistent with principles of the Department of Justice and I said no. And that’s what I promised you I would do and that’s what I did.

CORNYN: I don’t know how you can say that it was lawful and say that it was within your prerogative to refuse to defend it in a court of law and leave it to the court to decide.

YATES: Senator, I did not say it was lawful. I said it was unlawful.

*   *  *  *  *  *  *  *  *  *  *

And now, the exchange between always-self-confident Senator Cruz (R-TX) and Ms. Yates:

CRUZ: OK. Let’s revisit the topic, Ms. Yates, that — that you and Senator Cornyn were talking about.


CRUZ: It is correct that the constitution vests the executive authority in the president?


CRUZ: And if an attorney general disagrees with a policy decision of the president — a policy decision that is lawful — does the attorney general have the authority to direct the Department of Justice to defy the president’s order?

YATES: I don’t know whether the attorney general has the authority to do that or not. But I don’t think it would be a good idea. And that’s not what I did in this case.

CRUZ: Well, are you familiar with 8 USC Section 1182?

YATES: Not off the top of my head, no.

CRUZ: Well, it — it — it is the binding statutory authority for the executive order that you refused to implement, and that led to your termination. So it — it certainly is a relevant and not a terribly obscure statute.

By the express text of the statute, it says, quote, “whenever the president finds that entry of any alien or of any class of aliens into the United States would be detrimental to the interest of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem appropriate.”

Would you agree that is broad statutory authorization?

YATES: I would, and I am familiar with that. And I’m also familiar with an additional provision of the INA that says no person shall receive preference or be discriminated against an issuance of a visa because of race, nationality or place of birth, that I believe was promulgated after the statute that you just quoted.

And that’s been part of the discussion with the courts, with respect to the INA, is whether this more specific statute trumps the first one that you just described.


YATES: But my concern was not an INA concern here. It, rather, was a constitutional concern, whether or not this — the executive order here violated the Constitution, specifically with the establishment clause and equal protection and due process.

CRUZ: There is no doubt the arguments you laid out are arguments that we could expect litigants to bring, partisan litigants who disagree with the policy decision of the president.

I would note, on January 27th, 2017, the Department of Justice issued an official legal decision, a determination by the Office of Legal Counsel, that the executive order — and I’ll quote from the opinion — “the proposed order is approved with respect to form and legality.”

That’s a determination from OLC on January 27th that it was legal. Three days later, you determined, using your own words, that although OLC had — had opined on legality, it had not addressed whether it was, quote, “wise or just.”

YATES: And I also, in that same directive, Senator, said that I was not convinced it was lawful. I also made the point that the office of — OLC looks purely at the face of the document and, again, makes a determination as to whether there is some set of circumstances under which some portion of that E.O. would be enforceable, would be lawful.

They, importantly, do not look outside the face of the document. And in this particular instance, particularly where we were talking about a fundamental issue of religious freedom — not the interpretation of some arcane statute, but religious freedom — it was appropriate for us to look at the intent behind the president’s actions, and the intent is laid in and out his statements.

CRUZ: A final, very — very brief question. In the over 200 years of the Department of Justice history, are you aware of any instance in which the Department of Justice has formally approved the legality of a policy, and three days later, the attorney general has directed the department not to follow that policy, and to defy that policy?

YATES: I’m not. But I’m also not aware of a situation where the Office of Legal Counsel was advised not to tell the attorney general about it until after it was over.

CRUZ: Thank you, Ms. Yates. I — I — I would note, that might be the case, if there’s reason to suspect partisanship.”

Sooooo, who schooled whom?  Every Texan should think long and hard about supporting politicians who believe that Government attorneys who are sworn to uphold the law should nonetheless blindly line up to support Executive orders that they believe are not only unlawful, but violate the U.S. Constitution.  We’re lucky that a Sally Yates at one time served the American people, but unlucky that she has been removed from DOJ.  And we’re even more unlucky that Texas has two Senators who are blindly partisan and don’t embarrass easily.   But we can do something about that in November 2018 and 2020.