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The Deep State vs The Derp State

Can a responsible citizen refuse to take a side?

Writing recently in Foreign Policy, Brookings Fellow Shadi Hamid, author of several books, numerous articles, and thousands of tweets on Islam and democracy, managed to apply some difficult political-philosophical thoughts – on the nature of liberal democracy as a mixed system, or on liberal-democratic politics in the philosophy of world history – to current events and specifically to the presidency of Donald J Trump. That Hamid helps to explain Trumpism as a phenomenon, a force, and a set of ideas without rancor or aggressive defensiveness – and even while at one point implicitly comparing the typical ground level Trumpist to an Islamist taxi-driver on hashish – further recommends the piece.

In a more informal effort in The Atlantic focused on the question of unelected, nominally non-partisan officials mounting a successful resistance or “soft coup” against the President, Hamid again puts himself in the Trumpist’s place:

If I was a Trump voter, I can imagine being frustrated at this sort-of-deep state working to block or undermine Trump’s agenda. I’d say: Well, I voted for that agenda, and not necessarily some vapid, unthreatening version of it. Presumably, if Bernie Sanders, or someone like him, had won the presidency and decided to radically re-orient U.S. foreign policy, there would be elements within the military and intelligence services that would attempt to “block” him. For these state institutions, it wouldn’t only be a matter of democratic legitimacy but also of something as fundamental as national security. Does that mean that presidents, regardless of what a plurality of voters might want, simply cannot act radically when it comes to foreign affairs or national identity? To what extent are Americans comfortable with that—and are we willing to apply whatever standard we come up with consistently?

Needless to say, not everyone discussing this issue has the benefit of Hamid’s long experience dealing with reactionaries – his specialty having been Middle Eastern religious reactionaries, including the above-referenced cabbie. When, for instance, I recently sought to explain how an intelligence operative might view the illicit exposure of damaging information about a mad or criminal or mad and criminal president as the very soul of duty, a longtime internet friend called my statements “disgusting.”

We had been discussing some soul-searching on the same set of questions published by Josh Marshall in the wake of the forced resignation of National Security Adviser Michael Flynn. Marshall had confessed to being torn about how to respond, while Damon Linker and others stressed the danger1, arguing, in sum, that even if we might imagine emergency circumstances justifying extraordinary defiance or resistance against a duly elected president, the present situation, however abnormal it may seem, does not qualify. In this “extremely dangerous” (Marshall) and “deeply worrying” (Linker) fight between the Deep State or its American facsimile versus the provisional revolutionary Flight 93 anti-regime regime, how can responsible citizens not take a side?

***

To answer or at least carefully examine the last question, I think we can begin by returning to Hamid’s two prior ones.

The answer to the first of the two, on constraints on presidents, has to be “necessarily yes, if also necessarily with qualifications.”

The presidency is an institution within a system informed and circumscribed by history, law, and custom, and it is, essentially to say the same thing over again, checked and balanced by other institutions. The word “radical” in this context implies conduct, intentional or not, that defies or in some way threatens to undermine or even overthrow that system, but the system is at the same time the very origin and basis of the presidency or presidential authority itself, as such authority may have existed when the “radical” president was elected. In this sense, a radical presidency would be a contradiction in terms: A radical presidency would be a presidency against itself, a usurpation, and supporting it would amount to a paradoxical form of treason.

If, hoping to avoid such logical entanglements, we agree to interpret the key term more loosely, yet without letting its meaning entirely vanish, we can observe first that, both as a matter of prudence or practical wisdom and as a matter of right and wrong under a democratic ethos, neither a president nor a president’s party should embark upon “radical” – or as Hamid also suggests, “threatening” – measures without commensurately “radical” support for them or, perhaps in some grave emergency, truly “radical” justification for them. Either way, “radical” actions inevitably invite, as they also may or arguably must justify, “radical” counter-measures. A similar rationale underlies the requirement for super-majorities or multiple mutually confirming super-majorities of different types for the passage of constitutional amendments – or the impeachment or removal of high officials.2

Understanding Hamid’s second question well enough to answer it – and deciding just how we should feel about the situation in which “radical” action seems indefinitely if not permanently foreclosed – will require looking at its predicate more closely.

“If I was a Trump voter,” says Hamid, “I can imagine being frustrated at this sort-of-deep state working to block or undermine Trump’s agenda. I’d say: Well, I voted for that agenda, and not necessarily some vapid, unthreatening version of it.” Hamid then seeks to reinforce the point from an alternative perspective, describing a Bernie Sanders presidency seeking “to radically re-orient U.S. foreign policy.”

This hypothetical is flawed in two ways. In the first place the scenario is too narrowly drawn. We do not know what policies Hamid is envisioning here, but, wherever they land on the spectrum from “Come Home, America!” to ” Let us judiciously explore areas of possible cooperation with the Russian Federation,” Hamid glosses over the underlying question of presidential mandate, seeming to assume that all presidencies are created equal, or ought to be treated that way.

Contrarian political observers like to question whether presidential mandates have ever mattered very much, or even existed at all, but what is understood by the term, even if it qualifies as vague and somewhat mysterious, is necessary not just as a guide to what a president may hope to accomplish, but for judging what a president ought to do and how a citizen should feel about it, whether as practical or as moral questions. So, to expand on the illustration, suppose a new president sought to implement an effectively irrevocable departure from U.S. policy of the last century or so. The difference between, in one scenario, a bipartisan or trans-partisan, super-majority and trans-sectoral popular endorsement of a clearly and thoroughly debated, carefully constructed, focused proposal, and, in one of several possible alternative scenarios, a divisive and contradictory mishmash of propositions endorsed by an unstable faction that has captured high office in effect by accident, would be, to say the least, significant in multiple ways.

On this note, and in the second place, we can also observe that the Sanders hypothetical from which Hamid generalizes does not, in fact, mirror the situation actually before us. Hamid’s observation of Middle Eastern politics and specifically of the failure of democracies leads him throughout his work to emphasize the importance of electoral losers willingly accepting the consequences of their defeat, Asking whether, all the same, they should be expected, or could realistically be expected, ever to accept truly radical consequences returns us to the prior question, but, in short, even if we are willing to entertain Hamid’s notion that a plurality president, if lawfully placed in office, might have to be allowed to govern “radically,” Donald J Trump did not win a “plurality of voters.” He won an historically slim majority of electoral votes, but he did not win a plurality of the actual popular vote.

Indeed, as the chart below3 (click to enlarge) details, of the five elections in U.S. history, shaded in pink, in which the winner of the electoral college vote did not win at least a plurality of the popular vote, only one, John Quincy Adams in 1824, won a smaller absolute percentage of the latter.

losingest winners

The Losingest Winners – from Wikipedia

The conditions under which the Election of 1824 were conducted were too unlike those of our 21st Century mass democracy (observe the vote totals and turnout numbers just as starting points) to justify extensive comparisons. The other three clear minority presidents in addition to Trump and Adams were Harrison, Hayes, and George W Bush: It is perhaps notable that Hayes’ victory had to be decided in Congress, and that Bush’s required an extraordinary ruling by the Supreme Court. As for the six presidential winners with lower absolute popular vote percentages than Trump’s – some of them with pluralities, so a different group, with only Adams in common – all of them, every one, was competing in the presence of at least two, and in two instances (Lincoln, Adams), several other significant major nominees, making majority or even near-majority victories highly unlikely.

Trump, in other words, stands alone. He is not merely an unimpressive winner with an impaired mandate. He qualifies as “the worst winner” in American presidential history even before we get to questions of his personal attitude and conduct.

We might differ over just how crucial this difference between Trump and all of the others is, or should be taken to be, but anyone arguing like Hamid, from a position definable as “democratic” (or democratist) in the modern, head-counting sense of democracy, surely cannot dismiss the matter as trivial. Put differently, if a president with super-majority popular support might reasonably feel emboldened to implement major new departures in public policy, and those otherwise inclined to opposition might reasonably decide to seek cooperation and compromise, or at least to hang fire, then a president with Trump’s extraordinarily uncertain mandate, or utter lack of one, might reasonably be expected to act more cautiously, and to seek cooperation and consultation wherever possible.

In some parliamentary systems, the leader of a faction like Trump’s would be required to form a coalition government or possibly a government of national unity, the underlying practical as well as ethical assumption being that governing at all would and should require the discovery of effective majorities on at least some issues, and of ways to compromise and cooperate, or cope with non-decision, on others.

To “act radically” or even “threatening”-ly on the basis of support from an actual minority of voters, as Hamid suggests a Trump or a hypothetical Sanders should be allowed to do, does not suggest to me a genuinely democratic or democratically respectable politics at all. Indeed, if the existence of plurality support from voters can ever be taken to justify radical and threatening action, then the opponents of Mr. Trump would seem to be the ones democratically justified in setting aside a mass suicide pact of legalism in favor of resistance – and possibly including, for example, well-timed leaks of politically damning state secrets to the free press.

***

Here are a series of tweets on the how-deep-is-your-state question, stormed in apparent exasperation by Faheem Hussain, a thoughtful advanced student of political philosophy whom Hamid had referenced in his second article4:

I find Hussain’s overall point well taken – that use of the term “Deep State” tends to be prejudicial – but, as I began to argue on Twitter, I believe the position of the United States of America and the nature of the American regime add, as it were, exceptional complexity to the discussion.

Following Hamid’s example, and trying to see things as the Trumpists or some of them see things, we can observe that, even if the American state remains, as formally constituted, a “shallow state,” implying a government that serves the sovereign People as their instrument, the proportionally shallow state of a wealthy, global, technologically advanced, militarily super-potent neo-empire may remain deeper than even the deepest of any other nation’s states.

To many of us, the Trump Administration seems to be replacing or seeking to replace our “sort-of deep state” with its own “Derp State” founded on conspiracism, dishonesty, ignorance, incompetence, corruption, and malevolence, dedicated to the “deconstruction” – or simply the destruction – of the liberal and democratic work of generations, at growing human cost. Yet reactionary conservatism in America is a complex entity. What distinguishes it, or its singularly American form, from other reactionary conservatisms is not its political-theological character per se, or even less any degree of cruelty or heedlessness we may wish to attribute to it, but the peculiar altar on which it performs its sacred rites: For these peculiarly American conservatives – including many who do not consider themselves pro-Trump, and who may have opposed candidate Trump with the strongest available political rhetoric – the so-called “progressive state” is in itself an evil, something close to evil itself. For them, the sort-of deep American state, possibly in transition to the state intrinsically deep, is not just, as per the above logic, in absolute terms deeper than anybody else’s state, but is absolutely worse as well, because its advance is the one true and final threat to the exceptional American anti-state state, that last best hope of humankind on Earth.

American liberals or progressives may seek to dismiss this reactionary conservative theme as obviously absurd, or worse than mad, but a peremptory rejection may in the American national-political context amount to unilateral disarmament. If progressives cannot embrace the American constitutional system on its own terms, indeed more fully and inclusively than their opponents, and in the meantime cannot approach other sources of American patriotism other than with trepidation, then to whom or what are we to believe their true allegiance belongs, and on what commitments can their unexpected partners of the moment, deep within our shallow state, sworn to protect and defend it, depend?

Though Hussain closes out his storm seemingly exhausted by the discussion (“*whispering* They got to me to- ..”), I think he succeeds in restoring conceptual balance. The problem will remain, however, that, if justifying radical action by radical threat does point to the breakdown of “the system,” such a breakdown would be one already well under way, with perhaps a long way still to go. The choice for the law or for the exception is one we must prefer not to make, but that we will. “I must confess,” says Hamid, “that as Trump’s victory settled, my despair was coupled with a rush of blood to the head.”

(cross-posted at CK MacLeod’s)

Notes:

  1. “Michael Flynn May Want to Call the ACLU,” by Timothy Edgar at Lawfareblog, normally a home for determinedly anti-Trump legal discussion, may have been influential in raising concerns about “the Deep State” to a higher level. []
  2. Thus also, arguably, the imprudence of putting questions of sovereignty up to simple one-time majority decision, as under “Brexit” in the United Kingdom. []
  3. screen-captured from Wikipedia []
  4. “As the political theorist Faheem Hussain notes: ‘Latent in every democracy [is] the permanent bureaucracy[’s] capacity to subvert the elected administration, by virtue of permanence and knowledge.'” []

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189 thoughts on “The Deep State vs The Derp State

  1. Since the Trump administration seems to be enacting a replay of the later years of King George, I’m thankful for the deep state, as it is.

    I mean, it disturbs me that so far, one of the most rational people at the WH these days seems to be Ivanka.

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    • Oscar,
      I’m not. The deep state as it is has been savaged before, and is not what it used to be.
      (I do still have mad respect for the military “deep state” for keeping us the hell out of Iran).

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  2. Let’s remember that the deep state has it’s own direction. It’s internationalist, interventionist, and interested in maintaining it’s power and expanding it. To the extent that this aligns with the current leader, either D or R, regardless of the president’s policies, there is less friction, but rest assured that they’d push back toward a “too radical liberal” like Sanders as well.

    The fundamental question is whether or not you want policy in the hands of un elected, protected bureaucratic functionaries or you want it in the hands of someone who ran for office and got elected by convincing a large number of people to vote for him/her, regardless of how abhorrent you find those policies.

    Now, there are degrees of course. If the current pres decides he’s going to nuke China over the Spratlay Islands, we all might want a little “intervention”. Where you going to draw the line?

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    • Apparently the deep state’s line is probably “Clinton yes, Trump no” in terms of who gets to use the nuclear weapons for stupid piddly ass minor shit like North Korea.

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  3. Good to see you here again CK, you have been missed.

    In my search for a better understanding of the two freedoms:

    -Freedom is the priority, and order is derived from freedom

    -Order is the priority, and freedom is derived from order

    I think I have until recently made a misstep. I was assuming the right as embracing freedom as the prority, and the left as order is the priority. After watching a left anti-state person explain some viewpoints I have realized the two freedoms problem may not at all be a left-right problem. The left anti-state person embraced that freedom is the priority.

    That started me to thinking that if the two freedoms aren’t a problem between the left and right, then it is between authoritarians and anti-authoritarians. On the political compass, it is a problem occuring between the high and low y-axis.

    Considering the beginnings of america, it has leaned anti-authoritarian since it’s first rumblings. What has been the radical faction of development in the nation is radical statism, escalating to radical authoritarianism. That people fighting back against the ever growing power of state, or deep state, (no matter what factional flavor) are not radical at all, they are maintaining freedom as a priority. So then we must ask in relative terms, who is the radical?

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    • I don’t see what basis you have for terming functional statism in the U.S. “radical.” Is statism like pregnancy in that you cannot have a little bit of it? Then how are we not all full-blown pregnantly statist?

      Around the time of the American Founding, there were radical anti-statists, some much more radical, I think inarguably, even than the Anti-Federalists, practicing or trying to implement various forms of participatory democracy. They lost the fundamental argument, as they were always destined to lose it: You can’t have your anarchy and eat it, too. To flash forward, even the FDR-Marshall Welfare-Warfare state in formation, at the peak of WW2, was in many respects an undeveloped state compared to the Soviet permanent warfare state. After war socialism was over, the state or state structure that remained in the US might have been much different from what had preceded the war, or what existed in 1900, 1859, or 1812, and so on, but it doesn’t seem to me to be a very radically statist state compared to many or most other relevant examples – not that I have any confidence in our measuring sticks…

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      • Good points, although to define the struggle to a narrow margin of anarchy I believe would be a significant error, especially in america, where freedom has so long been seen as the priority. In the long term I don’t see that liberal democracy or social democracy emerges as victor, as deployed by state or any other social construct.

        It may take 10 years or 10,000 years, but eventually subjective freedom will win over social ordering. If you think it’s bumpy now, deconstruction really hasn’t even begun.

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  4. I object to the use of the singular “the” deep state. Even among our intelligence organizations, I see agencies rife with factionalism. The Benghazi hearings would not have arisen in a deep state, nor would the FBI’s conduct during the last election have occurred.

    Moving on, the lynchpin of this essay appears to me to be this sentence fragment: “If progressives cannot embrace the American constitutional system on its own terms, indeed more fully and inclusively than their opponents …” Unfortunately, the essay does not provide further comment as to how progressives should embrace the constitutional system.

    But responding to the question as posed, the answer is, of course, that we do. We just disagree on the hermeneutics.

    Let’s take up, for example, the Court’s ruling on SSM, which regularly appears as an argument in favor of a progressively-controlled deep state. Now, conservatives are quite correct that the Constitution is not clear on this point. But their principal argument in the face of the clear language of the Equal Protection clause was to appeal to history. And in so doing they argued the case for the plaintiffs. “Marriage” in the early 21st century is a change of legal status, reversible at will, and nothing more. The defining historical characteristics of marriage — a single male head of household, lasting until death, focused around the raising of families — were all written out of the law long ago. By the time that Obergefell came to the Supreme Court, the defenders of the institution had no law left to rely on, just history. Yet I see very very few conservative commentators owning up to the fact that it was their fellow Americans who deprived ‘marriage’ of meaning.

    Returning to the point of leaking,the essay appears to contemplate a future where people in positions of high power and presumably progressive enemies of the president stop leaking, for the good of the country. To which the following issues must be dealt with:

    The US is, purportedly, deeply committed to free speech and public debate. The Executive branch keeps way too many secrets already. Leaking is in service to the constitutional system, not in disregard of it.

    The essay deprives the President of his own agency. Flynn was not forced to resign. The President could easily have chosen to stand up for his nominee.

    The figurehead of the piece, the Trump voter who is frustrated at this sort-of-deep state working to block or undermine Trump’s agenda, is the one failing to recognize the constitutional system, not progressives. The President has enormous power to set policy. But the implementation of that policy goes through Congress via budgeting and through Executive agencies through the implementation of rules. The deep state or, rather, the conglomerations of multiple deep states, is an inherent feature of our system.

    One further point must be raised: Progressives are not a single unified entity willing to take direction. So if the goal is to seek reduced factionalism in the polity, then the path there requires much more than asking former president Obama to tell his team to settle down. One way to get your opponents to settle down is to make an offer of compromise. No such offer has been made.

    So, to the artfully-hidden request that the country could be healed if only liberals would simply surrender to conservatives, my response is No, but thanks for asking. The way to beat a bully is to stand together.

    And as to the future of the country, we will see what happens when (if) enough voters understand that the sole doctrine of Trumpism is to enrich Trump.

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  5. Quibble: You left out the presidency of John Tyler, who was far more tenuous in his position than Trump.

    Also, I wonder about how this applies to the presidency of Abraham Lincoln. When states begin to actually secede from the union due to the election of a specific candidate, how “legitimate” then is the institution of the presidency?

    I believe terminating the employment of every civilian employee of government (at the state level, as well as the federal) is an attractive option.
    Prosecution as terrorists by military tribunal of civilian employees of government who knowingly and intentionally subvert the lawful operation of government is another attractive option.
    Domestic military action is, IMHO, an attractive option, and already authorized in the words “against all enemies, foreign and domestic.” It would be preferable were a widespread purge of the judiciary achieved in this manner, with prosecutions before military tribunal; as it is the apparent objective* of the judiciary to cultivate every diverse form of incompetence, lawlessness, and corruption among civilian employees of government, whereas any soldier or sailor walking a watch duty making false entries on security documents the property of the U.S. government would be swiftly and severely reprimanded.

    ____________________
    * “Stated objectives often demonstrate wide variance from apparent objectives.” Ernst G. Beier
    Objectively, ensuring, to the extent possible, that social change will be tumultuous in nature is of primary concern to the judiciary.

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    • If the slave populations of the confederacy had a chance to vote on the matter, I doubt any of the states in the CSA would have voted to secede, so I think maybe Lincoln gets a pass.

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      • That is not at all clear.

        Lincoln took close to 60% of the electoral votes with under 40% of the popular vote, while Douglas, the only other candidate to win over 20% of the popular vote, took 12% of electoral votes with 29.5% of the popular vote.

        Further, registration rates and turnout rates do not now, nor then, favor a black population swinging the election, with the notable exception of specially gerrymandered districts.

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  6. The deep state was savaged by GWB. It is no longer what it used to be.
    Partisan witchhunts weren’t even the worst of it — the worst was the Republicans that got sacked.

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  7. This just in: The popular vote doesn’t matter unless neither candidate wins the electoral college, in which case the popular vote still doesn’t matter.

    Nor should it. California’s ballot went on for about a dozen pages of important state and local contests, along with a list of burning referendums. My ballot was just for President, Representative (a shoe-in, with the challenger polling at 20%), and I think a race for a local judge. Since Trump was also a shoe-in (Hillary only won 2 out of 120 counties here), a lot of people in my state didn’t even bother voting, whereas Californians flocked to the polls because they were deciding a host of races. Each state’s election is different, and so the Presidential contest is on a state-by-state basis, with 51 separate popular votes.

    Someone should have explained that to Hillary.

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      • It follows because we are a Republic made up of several states and the topic was thoroughly debated a couple of centuries ago.

        If we have a national popular vote then my state gets to send election monitors to all the other states to check voter ID’s. I’m sure California and Illinois will love that.

        We will all have to do that because come election day about 10 million people named “John Mullins” will pop out of the Appalachian hills, where the census can’t find them, and vote. Then they’ll disappear again.

        And of course if the North East is buried under four feet of snow on election day then sorry about your luck, because God has decided to weigh in and suppress Democrat turn out. Do you really want our President chosen based on the weather?

        What you guys sound like is a fan who keeps screaming that his team should really be champion because they scored more three-pointers.

        That’s not how the game is played.

        Perhaps in the future Democrats will employ better cyber security so the Russians can’t delete Wisconsin, Michigan, and Pennsylvania from their campaign planning maps.

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        • I’m sorry to seem thick here, but trying to summarize your points:

          1) It has been decided.

          2) A national popular vote would be logistically hard.

          I’m not clear on why a popular vote would require out of state election monitors or somehow make the weather more of a factor or somehow create more people named John Mullins. It’s not as though Illinois doesn’t have to accept the results from California under the EC system, or it the EC prevents snow in the Northeast, or protects us from voter fraud.

          The process on election day is literally the same thing it always has been: People go to polls and vote and we count the results. It’s simply changing the counting algorithm to something less obtuse. Our current system appears to be a Rube Goldberg machine for solving… well it’s not obvious what problem it solves. It certainly solved the problem of getting the original states to ratify the Constitution, but the same thing could be said for allowing slavery.

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          • The reason is that we have state-wide elections, not national elections. Some states will have an important governor’s or senator’s race that will boost turn-out. Some states won’t have much of anything being voted on, which will lower turn-out. There’s no way to avoid this factor unless the Presidential election is held on a different day than all the state-wide races.

            Under the Electoral College system, it doesn’t matter if 10 million people named John Mullins show up to vote in Kentucky because Kentucky’s electoral vote totals are decided based on an actual head-count of Kentuckians, the same way Representatives are allocated to the several states. Once Trump has more votes than his opponents, all extra Trump votes from John Mullins became totally irrelevant.

            So we don’t have that happening, and the competition between local politicians works to keep such things from happening. But if the contest is a pure-turn out contest between middle American and the coasts, then game on. We’ll see if we can manufacture more fraudulent votes than Illinois and California, while those states will do the same because Trump=Hitler.

            Winning the national popular vote is as meaningless as getting more offensive yardage. It’s an artifact of how the game was played, not a measure of victory, and it’s not even a uniform sampling of voter preferences because state turn-outs vary for reasons completely unrelated to the Presidential candidates.

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            • <,

              The reason is that we have state-wide elections, not national elections.

              That’s a bit tautological. The presidency is a national position. The fact that we vote for it state by state is an artifact of the system you’re arguing for, not a reason for that system to exist.

              Some states will have an important governor’s or senator’s race that will boost turn-out. Some states won’t have much of anything being voted on, which will lower turn-out. There’s no way to avoid this factor unless the Presidential election is held on a different day than all the state-wide races.

              Is this theory true at every level of granularity? Do city-level elections likewise pollute the results of state elections? It’s not clear to me that the votes of people who also turned out to vote for several different things are somehow less legitimate than the votes of people who turned out only to vote for the president.

              Under the Electoral College system, it doesn’t matter if 10 million people named John Mullins show up to vote in Kentucky because Kentucky’s electoral vote totals are decided based on an actual head-count of Kentuckians, the same way Representatives are allocated to the several states.

              That’s just binning error. It absolutely matters if those fraudulent votes flip the state to the other candidate. Let’s take the same example in a different direction: Let’s say there’s only a handful fraudlent voters, but they flip the results of the election. That amplifies the results of the fraud by orders of magnitude. So it’s a bit of a contrived example–the Electoral College system can amplify or dampen flaws in local elections. There’s no systematic reason to think that it’s an actual improvement, and even if there was, it’s a pretty roundabout way of “fixing” the problem.

              We’ll see if we can manufacture more fraudulent votes than Illinois and California, while those states will do the same because Trump=Hitler.

              Like, literally fraudulent votes or just increased turnout among legitimate voters? Because the second one doesn’t seem to be particularly problematic to me. At least, not as problematic as re-weighting votes and having the same few million people determine the outcome of every election. If there’s a real voter fraud problem, by all means, let’s address that directly.

              It’s an artifact of how the game was played, not a measure of victory, and it’s not even a uniform sampling of voter preferences because state turn-outs vary for reasons completely unrelated to the Presidential candidates.

              If you’re arguing that the fact that the EC affects voting patterns makes looking at the popular vote under an EC system less reflective of actual voter preferences, I agree. But you seem to be going further than that and arguing that voter turnout doesn’t provide useful information about voter preference, or at least it’s so un-useful that we might as well disregard it and replace it with a system that quantizes the results and re-weights each voter’s vote by an arbitrary amount unrelated to factors that affect statewide turnout. I don’t think I can follow you there.

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              • You said: “That’s a bit tautological. The presidency is a national position. The fact that we vote for it state by state is an artifact of the system you’re arguing for, not a reason for that system to exist.

                We don’t have a national election, we have state elections. Then the electors from those states select the President. The original idea was that the electors would be elected by the state legislatures, not the people. It’s the states that are electing the president, as he presides over the United States (which is a union of states). It’s a reflection of the way we populate the House and Senate.

                If it were truly a national election then I’d get to vote on Pelosi, Schumer, and Reid. Some European countries have systems like that, where no particular representative represents a particular constituent. They’re all essentially “at large” representatives. I don’t like those systems because they lack accountability in geographically large countries.

                We don’t use such systems, and never will because the smaller states will never ever give up their advantage in the Electoral College, and the consent of those smaller states would be required for any Constitutional amendment.

                Democrats might as well bitch about the sun only being up in the daytime.

                So given the system we use, which was known to both parties beforehand, Trump won 304 to 227. He did that by campaigning virtually everywhere, for every vote. He even ran a ton of ads in Minnesota because lots of people in Wisconsin watch Minneapolis TV. Hillary’s people didn’t realize what he was doing, and didn’t respond by running more ads in Wisconsin, because they aren’t very bright. Instead, Hillary spent all her time campaigning in Hollywood and Long Island. She won them hands down. Too bad she didn’t seem to know about the other states.

                She’s good at rigging elections, but terrible at winning them.

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                • You’re posting an explanation of how the Electoral College works rather than an explanation of why it’s a good idea. I know how it works. I agree that it’s a real thing and that the person who wins it becomes President. These things are not in dispute.

                  If it were truly a national election then I’d get to vote on Pelosi, Schumer, and Reid.

                  Pelosi and Schumer and Reid weren’t running for President as far as I remember. Following your reasoning, I should have a say in the election of every mayor in my state since elections are state elections and not local. It’s actually quite possible to aggregate votes at different levels for different elections. We do it every single election.

                  We don’t use such systems, and never will because the smaller states will never ever give up their advantage in the Electoral College, and the consent of those smaller states would be required for any Constitutional amendment.

                  This is fundamentally it. The Electoral College exists not because it’s a good idea or increases some generally agreed upon metric of fairness or representation. It exists because it systematically creates advantages for groups whose consent would be required to eliminate it. No disagreement here.

                  I don’t think I’m going to argue the point that Clinton was so stupid that nobody in her campaign realized the Electoral College exists. If I can’t convince you that I know it exists, I doubt I could convince you that some third party politician does.

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  8. I think a lot of this discussion, especially that aimed at the legitimacy of Trump’s Presidency, sort of misses the point about the “deep state” discussion. Trump’s Presidency may have a higher or lesser degree of legitimacy based on how one sees the relationship between voter behavior and the result, and there are various lenses through which observers may view that question. But I see very little sober contention other than that Trump’s Presidency is lawful. He was lawfully elected President, in that the laws governing our elections, including the fundamental law of the Constitution creating the Electoral College, produced this result.

    Given that Trump is lawfully President, regardless of what degree of legitimacy or political capital we may wish to assign him (and IMO his cache of political capital is low indeed) the President is charged by the Constitution to take care that the laws be faithfully executed. To that end, he is empowered by Congress as the ultimate director and controller of the vast Federal bureaucratic apparatus. And it is within that apparatus that this “deep state” resides.

    All of this “deep state” stuff can be seen as people lower than the President in the hierarchy, mostly within the higher ranks of the civil service, resisting and subverting the policy directions signaled and in some cases ordered by the President. Do we want this? There is no principled way for us to want it for Trump but not want it for a successor of his who we will theoretically like better both in terms of personality and in terms of policy. Either we accept that the subject matter experts within the bureaucracy will act independently and occasionally in opposition to the President, or we do not accept that.

    This “deep state” business is fundamentally anti-democratic and anti-republican. Small-d democratic, small-r republican. Unelected government employees gluing policies onto the palette of governmental activity despite an elected official’s signal to move those policies around? I have a hard time seeing how, as Hussain’s tweets claim, that is largely consistent with our system of government.

    With one exception. And it’s one we need to be cautious about endorsing.

    If the elected officials move in a direction contrary to the Constitution, these public employees who have sworn oaths to protect and defend that Constitution can claim that they are allegiant to their oaths and to the fundamental law of the country when they subvert orders from political officials that contradict the Constitution.

    Like I say, we need to be cautious about that. A lawfully-elected official has pretty broad latitude to implement policies, and because most politicians actually do follow through on their campaign promises, we can attach at least some gloss of democratic legitimacy to their doing so. The Constitution leaves a great deal of latitude for elected officials to maneuver. Withdrawing from NATO is not forbidden by the Constitution. Imposing punitive tariffs on selected corporations is (likely) not forbidden by the Constitution. Closing the borders and building a wall on the Mexican border are not forbidden by the Constitution. The President can certainly do these things if Congress authorizes him to so so, and some of them can be done if Congress fails to forbid the President from doing them. As a practical matter, although it appears contradictory to the Constitution, the President can involve the United States in a war without Congress’ say-so and Congress has to date never flexed its muscles about the President doing this.

    So let’s say the President, despite lawfully holding that office, is a fool of galactic proportions. (Yes, please do say it.) We nevertheless should want to see the bureaucracy respond in good faith compliance to the President’s dispensation of direction in an effort to implement the President’s foolish policies. (And yes, they are foolish.) Should we see a “deep state” actor spiking or otherwise resisting that direction, I want to see that there is a clear and direct relationship between the spike and the Constitution.

    I’m bothered if instead it’s “We think this is a piss-poor idea and we’re going to make it hard for you to pursue it,” because even though in all likelihood I agree that what we’ve seen spiked so far really are piss-poor ideas, I don’t want to see some subsequent President who I like better than this one set up to be similarly hobbled. As for the horrific reality of Trump’s piss-poor policy decisions? The voters need to see that they got exactly what they voted for, which will only hasten the removal from office of an obnoxious embarrassment on the history of our flawed-but-generally-noble nation.

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    • “If the elected officials move in a direction contrary to the Constitution, these public employees who have sworn oaths to protect and defend that Constitution can claim that they are allegiant to their oaths and to the fundamental law of the country when they subvert orders from political officials that contradict the Constitution. ”

      And the thing to remember is, this happens in the open. This is not slow-rolling background checks or forgetting to handle staffing requests or bureaucrats anonymous leaking things to the Washington Post. Dealing with Constitutionality crises is something that happens where we can all see it, and we know who’s doing what and saying what to whom.

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    • Burt:

      Who, precisely, within the policy-making arm of the Executive agencies is resisting and subverting Presidential policy?

      Certainly the White House is leaking like the Welsh*. But since that’s the President’s own team, he bears the responsibility for managing that crowd and firing anyone who won’t follow his orders.

      Are the Secretaries leaking? Yes, at some level it’s hard to tell because leaking is by definition anonymous. But there don’t seem to be all that many serious leaks from Defense or State or Treasury.

      As best I can tell, the policy-making secretaries aren’t doing so, because they haven’t even been appointed yet.

      By the time you get down to staff level employees with civil service protections, the duty of loyalty to the President is in my mind quite weak. Career bureaucrats are supposed to serve the interests of the agency. Congress, not the Executive, establishes agencies and sets budgetary priorities.

      *(the leek is the national symbol of Wales).

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      • Who, precisely, within the policy-making arm of the Executive agencies is resisting and subverting Presidential policy?

        Oh, that’s actually assuming too much.

        Let’s first have an answer to the question: What examples are there of the policy-making arm of the Executive agencies resisting and subverting Presidential policy *at all*?

        Seriously, it’s possible such a thing could happen at some point. But it doesn’t appear to have happened yet…because they haven’t needed to.

        Honestly, sabotaging the Trump administration is bit like cheating at chess…while playing a thee year old. Why even bother? They literally do not even understand how the pieces move.

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        • Things like “The DEA refusing to reschedule pot at the President’s command”, for instance, could be called “the Deep State resisting the President”. Except the reality there is Congress created a whole bunch of laws the DEA has to adhere to when it comes to scheduling and rescheduling drugs, and not adhering to those laws opens them up to lawsuits.

          They can’t legally handwave a drug status change, because by law the DEA has to jump through a whole field of legally required hoops, challenges, debates, comment periods, etc — and then come to a conclusion it can defend in court against the (again) legally mandated requirements for scheduling drugs.

          Bluntly put: A whole lot of the Executive was created by Congressional law, is legally required to act according to more laws, and is even funded by Congress. The fact that the Executive doesn’t jump to the President’s whim doesn’t mean it’s “resisting”. It often means it legally can’t.

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  9. “When, for instance, I recently sought to explain how an intelligence operative might view the illicit exposure of damaging information about a mad or criminal or mad and criminal president as the very soul of duty, a longtime internet friend called my statements “disgusting.””

    It is one thing to grumble about the fugghed Ell-Tee.

    It is another thing entirely to put a grenade with the pin out behind his can of shaving cream.

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  10. All this worry about the Deep State seems to be ignoring the fact that…it’s not actually doing anything except providing information. People keep *hypothesizing* some sort of massive resistance to Trump happening, but what appears to *actually* be happening, in the world we live in, is that people closely associated with the Trump administration keep leaking damaging stuff.

    That’s it. No one has refused orders. (except to not leak)

    Yes, the intelligence community didn’t play along a few of Trump’s claims, but that’s what they are *supposed* to do, provide truthful information. Yes, he’s probably under investigation by the FBI…but, duh, so was Hillary.

    What is actually happening that is odd (Beside his administration’s complete incompetent) is just…leaks.

    I frankly find all this talk about the Deep State somewhat baffling. There *isn’t* any deep state. I mean, there *is*, but it’s not currently causing any problems I can figure out. Is the idea that it’s causing the *leaks*?

    So, two questions:

    1) Is there any evidence that this leaking is not due to Trump’s management style of pitting people against each other?

    2) If not that, is there any evidence that this leaking is not due to every single person Trump works with loathing him with every fiber of their being?

    Discounting the leaks, the ‘Deep State’ seems to really be some sort of explanation devised to explain why Trump keeps failing.

    In reality, the actual reason is that he is *deeply stupid* and advised by complete ignoramuses who know nothing about how government functions. He is not being *sabotaged*. He doesn’t *need* to be sabotaged.

    (Weirdly, the only person I can think of that is close enough to *be* sabotaging things is Reince Priebus. Which makes an awesome conspiracy theory the more I think about it, but is probably not true.)

    Seriously, someone please point to something that this hypothetical deep state is supposed to have actually done, instead of hypotheticals. Did *they* make Trump issues dumbass executive orders that didn’t stand up in court?

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    • Well, either Trump is incompetent (and Congress not much better) or there’s a Vast Conspiracy to make it look like one.

      If you voted for one or both of them, goodness doesn’t the second sound so much better?

      You know what the Deep State really is — the actual “thing” there? It’s decades worth of law that talk about how departments are created or closed, how regulations are made or removed. (IE: Not at the President’s whims). It’s decades of experience and already created methods and procedures, of firmly allocated spending. It’s the vast machinery of state that is not the President’s to command to turn on a dime, because the bulk of it’s operations and funding were defined by Congress, created through procedures defined by Congress, and operating with the force of law.

      The “deep state” is the fact that the President is not the King, nor even the King of the Executive branch, and that much of the power he has (in his own right or that delegated by Congress) is circumscribed by law and the power of the purse, even when Congress is not explicitly using them against the Executive.

      But saying “Well, a lot of the Executive branch was created by Acts of Congress, funded by Acts of Congress, run via rules created by Congress, and thus the President has a lot less power over them, their methods, and their results than you’d think” is a lot less exciting.

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    • @davidtc

      Much of the hand-wringing – or, if you prefer, justified very heightened Deep State deep worry – followed upon Michael Flynn’s resignation. This post at Lawfare – which has been aggressively anti-Trump, overall – was, I believe, influential: https://www.lawfareblog.com/michael-flynn-may-want-call-aclu [footnote added to post] The report that 9 (nine!) “officials” confirmed that Flynn was recorded discussing sanctions with the Russian Ambassador underlined a popular idea, pushed especially hard by John Schindler – whom some consider a crank, others a Cassandra – that “the IC” was getting ready to gang up on the poor, poor pitiful president, in self-defense against him and also as patriots sworn to protect and defend, and would eventually bring the whole corrupt treasonous crew down by exposing the truth. The further implication is that, of course, the IC would prefer for conventional oversight from Congress and investigation by the FBI to do the job of verifying elements of the Steele dossier and bringing the rest of Kremlingate (and possibly other matters) to light, but there is some fear that both Congress and and FBI (under Trump’s DoJ) may be compromised.

      I suppose I might have retold this story in the post, but I felt I was already going long, and you can blame me for being too interested in the theoretical questions, or for assuming everyone has the general prologue already in mind. It’s easy to lose the thread, or get caught up in side issues. In my own view unusual resistance approximately commensurate to the unusual nature of Trump’s presidency is, first, simply to be expected: He and the people around him have been virtually demanding it. Second, those of us well on the outside can’t really judge whether an “IC coup” is already justified, but I think we have to be open to the possibility it might be. After all, Nixon, we eventually learned, was brought down in key part by leaks from an FBI Associate Director, after conventional oversight had failed, and there are not many people to be found arguing that Nixon’s resignation was unjustified.

      I also think, as I said, that the election of Donald Trump confirmed that a higher level system breakdown is already well-advanced, but maybe we will discover over the course of this “natural experiment,” or series of natural experiments, that we really did not need the system, or the sort-of deep state. Maybe it makes no final difference after all whether we have a derp state instead – whether Defense and State are properly staffed, or whether the work of “deconstruction” interferes with the work of the EPA or other alphabet agencies, or whether the President’s word and minimal competence can be relied on even a little in matters great and small, and maybe none of the developments in policy we’ve already seen and may expect rise to high enough level of human cost to justify “radical” resistance.

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      • Much of the hand-wringing – or, if you prefer, justified very heightened Deep State deep worry – followed upon Michael Flynn’s resignation. This post at Lawfare – which has been aggressively anti-Trump, overall – was, I believe, influential: https://www.lawfareblog.com/michael-flynn-may-want-call-aclu The report that 9 (nine!) “officials” confirmed that Flynn was recorded discussing sanctions with the Russian Ambassador underlined a popular idea, pushed especially hard by John Schindler – whom some consider a crank, others a Cassandra – that “the IC” was getting ready to gang up on the poor, poor pitiful president, in self-defense against him and also as patriots sworn to protect and defend, and would eventually bring the whole corrupt treasonous crew down by exposing the truth.

        If *that’s* the supposed Deep State, then it entirely changes the direction of the discussion.

        For one thing, it’s nothing at all to do with policy. It’s not anything to do with resisting Trump’s agenda *at all*.

        It’s the intelligence community outing a possibly compromised person in the Presidential administration, in violation of the law.

        That’s probably a discussion we could be having, but it’s not this general mishmash Deep State idea that seems to include the entire government resisting the President, or in fact *anyone* resisting the President!

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        • It’s probably also worth pointing out that Flynn had a almost unique ability to create adversaries within the government during his last 5 years or so of government service, from his J2 work in Afghanistan & Iraq to trying to transform the DIA into a duplicate CIA.

          (and throughout the Obama administration, and even before it started, there’s been big institutional tugs of war between, among others ODNI and CIA, NSA and military cyber warriors, and DIA and the service intelligence activities. So there was chum in the water even before Flynn signed onto Trump’s campaign)

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  11. 1) The differences between Trump’s military policy and the generic Republican’s so far have been much smaller than the current common perception on the internet (and much smaller than his campaign promises alluded to). A generic Republican would have green-lighted the Yemen raid, put Strykers in Syria, deployed CVN 70 as a counter to recent DPRK activity, and asked Congress for substantial increases in Defense spending on both personnel and new equipment – all things Trump has now done. Furthermore, all these things (except asking for more DoD spending) are things the Hillary Clinton administration would have have either done or seriously considered. If anything, the ‘deep state’ is getting its way in these policy areas.

    2) The differences between Trump’s diplomatic policy and the generic Republican’s so far are a difference of degree instead of kind. The generic Republican is skeptical of the institutional State Department, and even more skeptical of, even hostile to, the United Nations. (The generic Republican tends to be OK with NATO, but often distinguish between its military arm and its political arm – being of course, more skeptical of the latter). The skepticism of the institutional State department and the disdain for the UN were signature features of the Dubya administration, and manifested itself especially in Iraq, such as. The ‘deep state’ in this area has complained that they have nothing to do, but are not actively sabotaging anything.

    3) On the specific case of General Flynn, it’s not as clear in hindsight that the leaks were the proximate cause of him being forced to resign. Since he left the APNSA post, more stuff has come to light that was probably disqualifying from the get go. (e.g. lobbying for Turkey. Which, btw, being Erdogan’s inside man in the US government is very much at odds with a worldview thinks political Islam is the current existential threat)

    4) The actually existence of the ‘deep state’, institutional resistance, whathaveyou, has been *severely* overstated, based on press reports using anonymous sources, second hand reports about feelings, Twitter accounts being accessed by former employees, and people mistaking incompetence for active countermeasures. To a large extent the bureaucracy is acting on its own because Trump hasn’t actually hired people to be the political appointees responsible for oversight and upper management. And there’s many reports of people in acting positions understanding their statutory limits and deferring action on items that legally require someone with Senate confirmation to sign off on.

    5) Who do we generally consider the ‘radical’ Presidents? i.e. the Transformational ones? I submit Jackson, Lincoln, TR, Wilson, FDR, LBJ. Jackson, FDR, and (post elected in his own right) LBJ clearly had popular mandates, but TR and Wilson did not. (Lincoln’s mandate was muddled). Now, to be perfectly clear, Trump isn’t in this company. But he’s also not transforming things in a way that are either wise or will stick.

    6) There is a significant plurality, if not majority of the American public that would be very much in favor of getting out of the neo-imperial game. The evidence of this are the continuous polls that show the American public loves to cut foreign aid *and* greatly overestimates the amount of the budget that is comprised of foreign aid. It also was demonstrated in 2006, when the voting public was thoroughly sick of the wars in Afghanistan and Iraq and made it their number one issue in the Congressional election. (it faded in importance once (American) people stopped dying in large numbers.)
    But despite the fact that Trump would find wide support for it, he seems unwilling to disentangle from the Team America World Police paradigm.

    Trump is uniquely positioned to do something radical, transformational, exactly *because* of his unlikely and flukey win. He’s been playing with house money since Nov 8, 2016. But so far, he really hasn’t, and it’s unlikely he’ll be able to. Not anything that’s going still be around when the wheel turns again and a Democrat is back in the White House.

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    • Kolohe: 5) Who do we generally consider the ‘radical’ Presidents? i.e. the Transformational ones? I submit Jackson, Lincoln, TR, Wilson, FDR, LBJ. Jackson, FDR, and (post elected in his own right) LBJ clearly had popular mandates, but TR and Wilson did not. (Lincoln’s mandate was muddled). Now, to be perfectly clear, Trump isn’t in this company. But he’s also not transforming things in a way that are either wise or will stick.

      A personal mandate confirmed by large popular vote majorities is not the only type of mandate. TR – who already had developed a national following – inherited McKinley’s landslide vote, which TR himself was in part credited for having created by his energetic campaigning. As for Wilson, though his numbers in 1912 were reduced by the nature of the 3-way race, he did win an electoral landslide, and he formed a decisively Progressive Administration, co-opting much of TR’s base.

      As for Lincoln, he represented the threat of change, and was treated as a radical, but the first irrevocably radical move was made by the other side. Counter-mandates are often the very best mandates – something giving the Ds reason to hope 2018 and 2020 will be the really-really transformational elections.

      BTW As for Trump as Realist or Neo-Isolationist, did you catch Professor Realist himself on the subject? https://foreignpolicy.com/2017/02/03/trump-has-already-blown-it/ Regardless of what you think about Team America-ism, there are arguably much better and much worse ways to try to get out of that game.

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    • I agree pretty much up until 6. Sure plenty of people don’t know whats in the budget and want to cut foreign aid. But lots of that group still want big increases in the military budget and are very pro intervention. I heard plenty of Trumpets express that: ISIS is EVVIIIILL so we gotta go in to wipe them out and lets stop all that human rights/UN/diplomacy crap. And you ever see how people react to cutting aid to Israel, some of them are against foreign aid also.

      Trump was always, and is, likely to be a pretty conventional hawkish R.

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      • greginak:
        But lots of that group still want big increases in the military budget and are very pro intervention. I heard plenty of Trumpets express that: ISIS is EVVIIIILL so we gotta go in to wipe them out and lets stop all that humanrights/UN/diplomacy crap. And you ever see how people react to cutting aid to Israel, some of them are against foreign aid also.

        But Trump could, uniquely, (because he has, like, real power now and stuff), unite the RON PAUL! right and the left of center-left by withdrawing troops from Syria, Iraq, Afghanistan, Yemen, Korea, Germany, Japan. And still throw a bone to the MIC through re-capitalization of military equipment that is indeed near the end of its service life (or past it, due to now 16 years of war at various intensities)

        Trump was always, and is, likely to be a pretty conventional hawkish R.

        Trump has become one, yes. But Trump has been the only GOP Presidential candidate since 2000 besides RON PAUL! (and Gary Johnson, I think, the year he ran as a Republican) to actually say up front that OIF was a mistake. That’s putting aside his more tenuous claim that he was against it from its inception. Nobody else, even in this cycle, was willing to say that we shouldn’t have gone to Iraq to begin with. (that certainly wasn’t either McCain’s or Romney’s position)

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        • Yeah he said OIF was wrong which does place him high up there. That is, i believe, called the soft bigotry of low expectations.

          But you are correct it is theoretically possible he could do those things. I’d bet he is more likely to wave a bloody shirt and go for the hard sell when he has to watch coffins return to the US.

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          • Yeah, being opposed the Iraq War is Chris Rock cookie, but still, it’s a significant point of departure from Presidential Candidate Generic Republican. That’s all I’m saying.

            Any movement towards a Neo-isolationist stance or even just stepping back from the baseline set by late Administration Obama was stopped in its tracks with authorization (active or passive) of the Yemen operation.

            No President can survive politically with a steady stream of coffins flowing into Dover Air Force base.

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    • Since he left the APNSA post, more stuff has come to light that was probably disqualifying from the get go. (e.g. lobbying for Turkey. Which, btw, being Erdogan’s inside man in the US government is very much at odds with a worldview thinks political Islam is the current existential threat)

      Everything Trump does can be explained by, and is further proof of, the fact he has no idea how the hell anything works. His apparent belief that vetting is some sort of trick the *opposition* uses to stop you from getting your guys in is one of the more obvious example.

      No, Trump, you complete numbnuts. Vetting is what you do so you don’t, for example, *make someone who is employed by a foreign power as your national security advisory*. Which, completely independent of the national security implications of that, LOOKS REALLY BAD.

      Actual people in politics understand vetting. In fact, they vet before even announcing people. Trump, meanwhile, would rather vetting not exist at all, because, again, he is deeply stupid and knows nothing about politics. In his world, he can hire whoever the hell he wants and no one can complain about it.

      Of course, I’m pretending that this slipped by because of lack of vetting. In reality, while I have no idea what vetting found, Trump actually did already know all this. Elijah Cummings *specifically* notified the transition team of that. Everyone knew that Flynn was working for Turkey.

      4) The actually existence of the ‘deep state’, institutional resistance, whathaveyou, has been *severely* overstated, based on press reports using anonymous sources, second hand reports about feelings, Twitter accounts being accessed by former employees, and people mistaking incompetence for active countermeasures.

      Exactly what I think.

      A few Parks Service Twitter feeds going off the rails is not the Deep State.

      To a large extent the bureaucracy is acting on its own because Trump hasn’t actually hired people to be the political appointees responsible for oversight and upper management.

      It’s important to point out that this is not a lack of Senate action. This is because Trump has not actually nominated people.

      And it’s also important to point out that Trump isn’t *quite* as horribly slow at nominating people as the news seems to think. They keep listing how many vacant positions there are, but the reality is, no one has everything filled at this point in time. The problem is that he’s micromanaging and loyalty testing, which means he’s (last I heard) was running at about the third of the speed of Obama and Bush nominations.

      And there’s many reports of people in acting positions understanding their statutory limits and deferring action on items that legally require someone with Senate confirmation to sign off on.

      *Are* there many reports of that, or just the vague idea that there are many reports of that?

      But, yes. The problem is that Trump’s people are trying to *break things* before they have the people in place that could possibly do that. Presidents can do a lot with their people, but the president (Or, indeed, his *staff*) aren’t supposed to be issuing orders to the civil service…he’s supposed to be *appointing* and getting people confirmed, and *they* issue orders.

      People do not really understand how the executive works. All of it, as said above, is created by the legislature, and has laws it has to follow that the rules and regulations were created under, and those rules and regulations can’t just go away because the president want them to.

      But, *just as importantly*, even where decisions are left to the executive, Congress didn’t just *give up* their power…what they actually did was put those decisions into the hands of people *the Senate has to confirm*. To wield that power, they have to get through Senate confirmation, the president can’t just skip the chain of command and give orders to the rank and file civil service, and often even the Department head can’t do that.

      I remember when the CFPB couldn’t operate for quite some time because the Senate refused to confirm anyone. The CFPB existed, it had people running it, but it couldn’t (I believe) do any rule making because the *actual Senate-confirmed head* had to sign off on the rules…and it didn’t have one.

      Trump, again, because he is deeply stupid, does not understand this. In his world, whoever he puts in charge of things is in charge of them.

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      • DavidTC:
        And there’s many reports of people in acting positions understanding their statutory limits and deferring action on items that legally require someone with Senate confirmation to sign off on.

        *Are* there many reports of that, or just the vague idea that there are many reports of that?

        Among other key Pentagon offices still without a presidentially appointed leader: intelligence, budget chief, weapons buyer, technology chief and personnel policy. These and other top positions were vacated by Obama appointees at the end of his term or earlier last year; they are now run by holdover officials in what the Pentagon calls a “performing the duties” status, meaning they can do the work unless it involves a duty that by law can be performed only by a Senate-confirmed appointee.

        I believe I’ve read similar things about the Justice Dept. (there was supposedly an issue when Yates got fired that she was the only one left in the building at the time that could approve asking for certain FISA warrants, though that may have been misreported)

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        • I believe I’ve read similar things about the Justice Dept. (there was supposedly an issue when Yates got fired that she was the only one left in the building at the time that could approve asking for certain FISA warrants, though that may have been misreported)

          The person who replaced her was a US Attorney, which means he was also Senate confirmed, so that specific bullet was dodged. Additionally, it appears that FISA may or may not allow an Acting Attorney General to do that even if not confirmed.

          This is a specific law intended to clarify all this, the ‘Vacancies Reform Act of 1998 ‘, which said, basically, that a president can put in an ‘Acting’ head of various agency for 210 days to act with the power of the position.

          But that law requires the acting head to be employed by the agency for at 90 days before that, and be fairly high up in the organization. I.e., it’s a way for the top civil service person to take over.

          It’s worth pointing out that stuff that requires the agency head to do it is almost always legally *optional*, which rather undercuts the ‘Deep State illegally refusing orders’ stuff. The Attorney General can simply *choose* not to sign off on FISA warrants, for example. Anything that people have to ‘sign off on’ means, by definition, that they can choose to *not* sign off on it. Duh.

          They’d probably get *fired*, but whatever.

          This raises a somewhat weird and interesting point: If an *acting* head, who is *actually part of the civil service*, refuses to sign off on things…can they be fired?

          I suspect not. The president can’t just fire the civil service for *entirely legal* decisions they make. (The president can’t fire the civil service for *any* reasons.) They could probably be *replaced* as Acting head, but not fired from their normal job.

          Granted, just because I figured out this *could* be happening doesn’t mean it is. But it’s an interesting situation to exist: The heads of agencies *do* have decisions making abilities, handed to them by Congress, that the president cannot override, and normally the solution to them not doing what the president wants is to *fire* them.

          But…you can’t fire the civil service. Nor can you put people in it. If there are only ten people in an agency at the appropriate level to become the Acting Head, and *none* of them will sign off on what the president wants when put in as Acting Head, the president is screwed until he gets someone past Congress.

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    • The disconnect between Trump’s words and deeds are however really striking.

      In military affairs, we have heard both ‘seize the oil’ and ‘the ME is none of our business’. But what he does is completely mainstream.

      In the health care debate, it’s all about ‘better care for less money’ (a completely mainstream idea). Then he throws his support behind R-Care which throws 26 million people off insurance according to his own internal analysis.

      Governance by whiplash is unlikely to succeed in a government such as ours with so many veto points.

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  12. This discussion is intractable if framed as an absolute yes or no. There’s a big difference between intelligence officers leaking evidence of illegal activity on the one hand, versus assasinating the president on the other.
    The question is, “what sort of resistance from government actors is warranted given the circumstances?”
    So far, bureaucratic resistance serms focused on leaking evidence of potentially illegal, or at least dishonest, administration activity. It’s easy to see a slippery slope, but government leaks are as old as the republic.

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    • Well, one of them cross the line by releasing Trump’s 2005 tax return, which Rachel Maddow just aired. She might face prosecution under 26 USC 7213, which says:

      (3) Other persons
      It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.

      She’s claiming she can release it under the First Amendment. Sorry, but no.

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        • Yes they do. Ellsberg was charged with conspiracy, espionage, and theft, and would be rotting in jail if Nixon hadn’t used his plumbers to go after him illegally.

          Trump doesn’t have to discredit Maddow. She did that herself by scoring an own goal, showing that Trump paid a higher percentage of taxes than Obama or Sanders. And she quite clearly committed a felony, as did MSNBC.

          They should all go to jail.

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          • If all that happens is that prominent members of the left start speechifying about the importance of the principles contained in the First Amendment, that’ll be a small victory right there.

            You’ll probably want to get screencaps, though.

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            • The left doesn’t give two figs about the First Amendment, an Amendment which doesn’t cover the right to reveal classified or confidential information as protected by law.

              The government needs to send Maddow to prison, otherwise it is not acting to protect our private tax information. If it is not going to protect our private tax information from public consumption then we cannot trust the government with our private tax information, and thus we won’t pay our taxes.

              Back in 2008, under 26 USC 6103, George W Bush could freely access all the tax returns of Barack Obama and Hillary Clinton. But he could not disclose that information to unauthorized parties, nor could any party disseminate it to the media, nor could the media have printed the information. Every step in that latter process carries a $5,000 fine and 5 years in jail, plus court costs. So we don’t do that.

              Rachel Maddow did that, and she needs to pay the price so nobody does it again.

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              • The left doesn’t give two figs about the First Amendment…

                This is a true statement. Mostly because “the left” isn’t an actual thing and, therefore, obviously can neither possess not give figs. The left, in this usage, is nothing more than an amalgamation of supposed positions onto which you’ve chosen to project your own views.

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                • No, the left is the group that took over US universities and turned their pupils into foot soldiers who follow the teachings of philosopher Herbert Marcuse, who held that only progressive speech should be protected and non-leftist speech should be banished – because reasons.

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              • Oh, I see you *are* making the assumption, with literally no evidence at all, that someone in the IRS provided that tax return. Instead of just someone outside the government finding a partial copy of it.

                Ignore my other comment, then. I thought you operating in ‘wrong-headed ideas about law’ mode, instead of ‘making evidence up’ mode.

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                • It’s a really stupid assumption too.

                  First off, it says “Client Copy” which is….not on the IRS copies. Trump, his attorneys, his accountants and tax people, various people who might have wanted to loan him money, etc? Theirs might be marked such.

                  Secondly — and far more importantly — if you were going risk your job and serious jail time to leak from the IRS, you would certainly not have leaked just those two pages and you’d have picked a year with a justification to leak.

                  Whomever leaked this made sure to strip off the really useful information (where money was coming from and going to) and picked a particularly bland year, in which the worst thing is he somehow lost money at real estate during the height of the housing bubble.

                  So tl:dr; This was almost certainly not leaked from the IRS, and likely not leaked from anyone wanting to actually damage Trump.

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              • First Amendment, an Amendment which doesn’t cover the right to reveal classified or confidential information as protected by law.

                The Supreme Court might have something to say about that.

                In fact, they said something–specifically that the First Amendment trumps a statute which would prohibit the disclosure of matters of public concern (even if disclosure is made a crime by statute). It’s in Bartnicki v. Vopper, I’d take a glance before you keep going on about how the First Amendment doesn’t apply.

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                  • Want to place a bet on how the Court would rule on that question?

                    There’s a reason every other presidential candidate for decades has released theirs, and why Trumps failure to do was a major issue during the primary and general election.

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                    • Every other Presidential candidate was just slurping down a government salary as a governor, Senator, or Representative, sucking off the public tit and paying as little as possible, like Bernie and Obama, both of whom paid a far lower percentage than Trump.

                      It’s illegal for anyone to reveal tax information except as described under law, or the press wouldn’t make a big deal about pressuring candidates to release tax returns, they’d just call up a friend in DC, get a copy, and publish it.

                      That, by the way, would be solicitation to commit a felony, which is what a New York Times reporter risked, knowing of course that the Obama DoJ would never bring charges for exposing a Republican’s personal information because the DoJ was corrupt.

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                      • It’s like you didn’t read the actual Supreme court case I mentioned (you know, the one directly on point). Here’s a link

                        The First Amendment decides this issue, and until you make an actual argument which distinguish’s this case from the present situation everything you’re typing is irrelevant.

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            • Oh ffs Jay. I know you can point to liberals who aren’t that hot on the 1st. But liberals have been fighting for the 1st for years. Remember who got slandered as a card carrying member of the ACLU? Why did that resonate and with who. And what does the ACLU often defend.

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            • And their reasoning in that case wouldn’t apply to Donald Trump’s tax returns.

              Congress made revealing people’s tax returns without their consent illegal. There is no public right to know someone’s personal financial business except as laid out by law.

              Under the position you argue, Trump could have Fox News print the tax returns of every single Democrat in the country, including those in Hollywood, and it would be legal. They could reveal John Kerry’s still secret tax returns. They could print celebrities private medical information. And of course Fox News could just start naming all the rape victims as they file charges – because First Amendment.

              Be careful what you wish for.

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      • Presidential candidate tax returns should be released. This seems to fall squarely in the realm of a leak serving the public interest. Wake me up when the deep state does more than tell us stuff we should be knowing anyway.

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        • To qualify as an exemption under 26 USC 6103 to 26 USC 7213(3), the leak would have to be to a Congressional investigating committee or to relevant law enforcement officials, not to the general public. She goes to jail.

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          • We’re talking about what is right, not what is legal. Also, we have the most pro-1A Court in history. It’s highly unlikely she would be prosecuted (has any journalist ever been prosected for publishing tax returns?), and any conviction would almost certainly be struck down.

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            • No journalist has been prosecuted because no journalist has ever done it. Doing so strikes to the heart of the IRS and our system of voluntary taxation. Without those taxes all the liberal causes will die.

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                      • Okay, one did it and knew he was risking jail time.

                        You see, if we don’t want journalists freely printing all our tax return information, we have to make it illegal to print all of our tax information. We did that with 26 USC 7213.

                        There will always be a weak link who is willing to burn some politician or celebrity by anonymously sending someone a copy of a tax return, as each individual copy isn’t watermarked or anything, and now most copies are electronic. Tax returns can’t be locked down like classified information because a vast number of government departments and non-government financial people have to be able to access them (for things like Medicaid and student loans).

                        So the only way to keep such tax information from becoming public is to make it illegal to publish such information without the consent of the filer regardless of how the information was obtained.

                        If you’re unhappy without answer, I’m sure you’ll change your mind if Trump’s people start anonymously burning every Democrat who don’t release their tax returns, such as Nancy Pelosi and most of her Senate colleagues.

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      • She might face prosecution under 26 USC 7213, which says:

        You appear to be confused.

        6103(b): The term “return” means any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.

        Let me repeat with the important part in bold:

        The term “return” means any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.

        I.e., republishing tax return information is only illegal under 26 USC 7213(a)(2) *if it comes from the IRS*. Aka, it is illegal to republish copies, or even any information at all, if it comes from *the actual filed return*. (Or, a schedule, attachment, or list that is supplemental to or part of the return, whatever.)

        It’s worth pointing out, under your goofball interpretation of the law, it would be illegal for *anyone to publish copies of their own tax return*, or even tell anyone about that tax status at all! There’s no ‘even if it’s your own return’ exception in that law! (Talk about surreal first amendment violations.)

        In the real world, under the actual way that law works, this is because you’re not allowed to steal and/or republish stolen tax information from the IRS, even if you have inexplicably targeted your own tax information to do that with.

        Now, it *is* possible that the information provided by Maddow was received *was* stolen from the IRS. Have a lot of fun proving that in court when even the people who got it do not know that.

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        • Incorrect. It doesn’t mean the physical molecules that the IRS received. It means the information contained therein. As part of other investigations and procedures, the physical copy you sent may end up copied and copied and copied. Those copies can go through various hands, including Medicaid, student loan departments, welfare agencies, police agencies, family courts, counter terrorism task forces, IRS contractors testing things like printers and scanning equipment, and Congressional committees. It is a felony to release any of those copies to unauthorized parties, and it is a felony for anyone receiving one of those copies, or a taxpayers own copy, to disclose it to unauthorized parties without proper approval, because what’s protected is the information, not the ink and not the paper.

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          • That’s what I said. Any release comes from the IRS is illegal. Any *other* release, from any other source, is not. (Well, tax preparers have a special law also, but that law does not appear to be contagious.)

            And, hey, dumbass. They *aren’t* from the IRS. I just actually went and did *the slightest bit of research*, having not watched the segment.

            The tax returns were stamped ‘Client Copy’, which, of course, rather implies they *did not come from the IRS*, because the IRS does not stamp things on their tax returns, nor do they accept tax returns that are stamped.

            https://twitter.com/sahilkapur/status/841825498091134976

            Oh, and also *they are not signed* (In fact, the stamp is where they should be signed.), so cannot possibly be the copies from the IRS.

            So they were, in fact, copies of the return *handed back to Trump* by his tax preparers, and Trump either lost them somehow, or he had to disclose them for some business reason to some other entity.

            That entity might be in violation of some NDA, but an NDA obviously has no bearing on Maddow.

            It is, I guess, hypothetically possibly they were physically stolen from Trump, but 6103(b) still wouldn’t apply. (And these are presumably copies so would not literally be stolen property.)

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            • As I noted upthread: Whomever leaked them picked a particularly bland year, and also did not leak the really interesting parts: Where the money was coming from and going.

              It’s like leaking a big author’s hot new novel — and what you get is the back cover blurb.

              If I were a betting man, I’d put money down that this leak wasn’t intended to hurt Donald or inform the public, but goodness — it does give the White House something to be all angry about and shout about.

              Good thing, too, what with the healthcare bill falling apart, Ryan’s disloyalty popping back up, and Comey deciding he’s not only done stonewalling Congress but plans to talk to the public tomorrow….

              (Seriously, what’s up with that? Comey’s stonewalled his own oversight, refusing to talk to even select members in closed session. You don’t do that over nothing. You only do that if you have something so big you don’t want to talk until you have it totally nailed down, or if your target is either on that committee or you think the committee will leak to the target, or if you’re worried Congress will grab the investigation and screw your court case.

              So why’s he suddenly talking to the public? I’m guessing he’ll announce a few closed areas of investigation, refuse questions, and continue on doing what he was doing. At most, he’ll announce there IS an investigation.

              The relevant oversight folks have been starting to make threats about subpoena’s if he doesn’t talk, so maybe this is an attempt to stave that off?

              I mean we all know there’s multiple investigations — everything from weird server chatter in Trump Tower to Flynn to that multi-agency working group. But I can’t think he’s got any bombshells to drop tomorrow.)

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                • I wonder how much of that is standard executive wankery. “we don’t want to tell you more than we absolutely are forced to”
                  (of course, some of that is standard “I’m Investigating! Leave me alone until the whole thing shakes down!”)

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              • “Whomever leaked them picked a particularly bland year, and also did not leak the really interesting parts”

                I love how the response to Trump’s tax returns being released is for liberals to shove their heads even further up their own asses over the issue.

                It’s like when Barack Obama finally released his birth certificate, and immediately there were a thousand amateur document examiners poring over details of font size and stroke angle because they just knew that the whole thing was a fake.

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                • DD,
                  I’m quite sure that you don’t know a jot about what there is to find in a tax return.

                  So, seriously.

                  Romney was the one with probable tax issues anyway.

                  There are VERY LIMITED things that are politically damaging that exist in tax documents. If you can’t name them, then you’re offbase and deserve to be called out.

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                  • Here’s what’s interesting about the whole “tax return issue”, in my view. Nailing Trump on paying less than he’s supposed to (or whatever) was already determined when an older set revealed he took advantage of a loophole in the tax code to pay effectively no taxes for a couple few years. That was during the primary, I believe. (Maybe the general?). No one cared. Put a fork in it.

                    The substantive political issue liberals have been harping on lately is that his more recent tax returns will reveal deep connections to Russian banks and businessmen, and that’s why Trump is keeping them under wraps. None of which came up last night with Maddow, from what I can gather.

                    Which makes me wonder why the issue was brought up at all except to get eyeballs on a hyped up non-story. One which makes Maddow’s journalism look bad (even worse than it already looked).

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                • It’s like when Barack Obama finally released his birth certificate, and immediately there were a thousand amateur document examiners poring over details of font size and stroke angle because they just knew that the whole thing was a fake.

                  No, it’s sorta the opposite of that. Obama released the entirety of document people had questions about; Trump’s “released” tax return was a couple pages outa hundreds.

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                • I love how the response to Trump’s tax returns being released is for liberals to shove their heads even further up their own asses over the issue.

                  The reason people want Trump’s *financial information* is to determine who he is in debt to and by how much.

                  Trump has, BTW, mentioned several times, proudly, that his tax return is thousands of pages long, and of course this is just one year. Saying ‘Oh, liberals wanted something, and they got one ten thousandth of that, and they’re *still unhappy*! Nothing will ever please them!’ is a bit gibberish.

                  ‘You bank guys keep demanding I pay for my house, but I *sent* you a crisp one dollar bill in an envelope last week and you’re still harping about the money I owe you! You’re clearly just a bunch of whiney babies.’

                  And pretending it’s ‘liberals’ asking for his tax return is stupid. What happened is that releasing tax returns is standard for presidential candidates, and he didn’t do it, and got called out on that.

                  This only vaguely intersects the *actual problems* of us not knowing anything about his finances, which is what ‘liberals’ (and other people) really want to know. With *normal people*, we can figure out most of their finances from the basic tax returns plus asset disclosures.

                  We…might not be able to do that with Trump. Even if he had released his full tax returns, we could possibly still have questions, because ‘owes a quarter billion dollars to Russian gangsters’ is not something that our disclosure system is prepared to find.

                  The hope is that his *actual full tax returns*, as opposed to what basically amounts to a summary of on year of his income, will give people a place to *locate* these undisclosed liabilities and possibly any undisclosed assets also.

                  He’s someone who needs to go beyond the norm of ‘releasing tax returns’ to show his actual financial state…and who hasn’t even done that.

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                    • Yup, you got no clue what’ll play in Peoria.

                      I was talking about actual Constitutional problems like Trump being in debt to foreign powers. But we technically *already know this*, so, yes, it is not going to make Trump lose support.

                      If we’re talking about what will make Trump lose his supporters, there is stuff in his tax returns that *could*. I suspect this return was cherry picked to *not* hurt Trump, though.

                      But one thing that does seem to hurt Trump among his supporters is pointing out that he is nowhere near as rich and successful as he seems.

                      Which is why various other people are wandering around pointing out that, if Trump is really worth 5 billion dollars as he claims, he is getting an *absurdly bad* rate of return on investment. It’s fricken 2% for 2005! At the height of the real estate boom! And he’s a real estate guy!

                      As I mentioned elsewhere, buying five billion dollars worth of one-year Treasury bonds December 31 2004, and cashing them in Dec 31 2005, would have gotten him something like a 2.8% (I’ve forgotten the exact number) rate of return! Treasury bonds! The lowest earning and safest investment of all did better than he did!

                      In reality, of course, this is because he’s not actually worth five billion dollars, but it’s funnier to take him at his word and pretend he’s just a really shitty businessman.

                      And this is just playing silly games. Maybe it dings him a little, maybe not.

                      But if we ever got a true financial disclosure of all his assets, and it turns out that he has only a few hundred million dollars that are liquid and the rest he can’t do anything with because they’re collateral for debts, and grand total he’s worth negative money…I suspect that actually *would* damage him in the eyes of his followers.

                      Likewise, actually exposing the Russian debts would probably help along with the Russian investigation, which does keep hurting him, even if the debts themselves are not illegal. (Although there’s always the possibility of actual quid quo pro WRT them.)

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          • It is a felony to release any of those copies to unauthorized parties, and it is a felony for anyone receiving one of those copies, or a taxpayers own copy, to disclose it to unauthorized parties without proper approval, because what’s protected is the information, not the ink and not the paper.

            Oh, and I see you slipped in ‘a taxpayers own copy’. That is just utterly, 100%, completely wrong.

            And kinda stupid, actually.

            First, as I said, that interpretation forbidden people from releasing *their own* tax returns in any manner. If the law forbids people from repeating information on tax returns, it forbids them from repeating *any* information on *any* tax returns, including their own.

            There is no ‘unless it’s your own information’ exception under the law. If you think otherwise, please find it. The law is right there.

            Yes, that would be a very stupid situation…which is why the law doesn’t work that way.

            But second, there’s even dumber problems. 6103 actually defines what sort of material is protected, and it’s *everything* on tax returns, including identity.

            This would mean I could literally stop people from telling other people my name if I told them that I *filed taxes under my name*. Them repeating my name would then be disclosing information that is on my tax return and is protected from disclosure.

            I can trick people into committing felonies by answering ‘What’s your name?’ with ‘I file tax under the name DavidTC’ and wait for them to tell someone else my name.

            What a really stupid misinterpretation of the law.

            In the real world, my identity is protected from disclosure only *by the IRS*, or anyone who has been illegally disclosed to by the IRS. The IRS, and people the IRS has illegally disclosed that information to, cannot tell people who I am, except as allowed by law.

            Anyone else who knows that information, and has learned it in any manner *except from illegally learning it from the IRS*, can tell people just fine. Even if they learned it from a copy of my tax return that I kept.

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            • This story is great.

              Two pages — the least interesting pages, that show the least interesting information, of a single year’s tax return are leaked (and not a recent one). They read “Client copy”. The WH is, unique to this administration, absolutely on the ball and ready to respond with talking points within the hour. I think they even somehow came up with their own copies of the return, because Trump absolutely has an 11 year old return on hand.

              I’m already seeing speculation that the WH leaked it themselves, in an attempt to change the subject off the “Obama is spying on Trump using microwave ovens” story.

              (Which is where, sadly, lack of popularity and a reputation for being a liar bites you. Even if some bank drone leaked the most boring part of a very boring tax return for some reason, it certainly looks a lot like a very pitiful attempt to play the victim and change the subject.)

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              • And as we all know, we take all our tax returns home and stamp them “client copy”, because we keep that stamp next to the toaster beside the bananas. Those are his protected tax returns under 26 USC 6103.

                No matter how you come into possession of one of those, revealing them without authorization (as meticulously defined under law) is punishable by 5 years in federal prison. Among other reasons, that’s why reporters don’t break into Hollywood homes and riffle through desks for tax documents.

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                • And as we all know, we take all our tax returns home and stamp them “client copy”, because we keep that stamp next to the toaster beside the bananas.

                  Do you even have some sort of *claim* you’re making here? What everyone else is assuming is that these were copies provided to Trump by his tax preparers.

                  That is the blatantly obviously reason they are stamped ‘Client Copy’…they are a *copy* prepared for the *client* of the tax preparer.

                  STUPID EXPOSITION THEATER:

                  Tax prep person: ‘We have finished filing your taxes with the IRS, Mr. Trump. Here is a copy for your records, and if you need to show someone, such as banks, your income for this year. Be sure to make them sign an NDA before doing so, so you can sue them if they release them later without your permission, such as if you are president and your tax returns become an issue.’

                  Donald Trump: ‘Ah, I see you have cleverly stamped ‘Client Copy’ in the signature box so I do not get worried that this is something I should have signed and returned if I come across it later.’

                  Tax prep person: ‘Indeed. And so that we ourselves do not get confused. As you might recall, we earlier printed this document without that, and we had you sign it. So that we did not confuse ourselves and try to make you sign *this* copy also, we immediately stamped ‘Client Copy’ so we wouldn’t. Thus informing both you and us that this copy is not for filing, but a copy we are providing you for your records.’

                  If *you* have some other interpretation, you need to state it, because *no one is following your dumbass conspiracy hints*.

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                  • Try reading the law again. 26 USC 7213

                    It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.

                    It shall be unlawful to disclose any return information in a manner not provided by law.

                    If I’m a reporter for Entertainment Tonight and I go to a party at Brad Pitt’s house, wander into his study, and some drunk girl hands me his tax forms, it is illegal for me to go on EW and reveal them to the world.

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                • And, BTW, repeating ‘Those are his protected tax returns under 26 USC 6103.’ does not change the actual law, which protects *filed* returns (and any information from them), not copies made of returns *before* they were filed.

                  Among other reasons, that’s why reporters don’t break into Hollywood homes and riffle through desks for tax documents.

                  Breaking into someone’s houses and stealing their tax records is, quite obviously, illegal under burglary laws.

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                  • But the reporter didn’t commit any burglary. He didn’t even steal anything. He just laid them out on Brad’s desk and took pictures of them, which he then aired on Entertainment Tonight.

                    Nobody does that because it’s illegal.

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                • Have you been posting drunk? Or is English not your first language?

                  That “client copy” stamp there? It’s what your accountants place on the copy of the return they give you, so as not to be confused with the real return you sign and send to the IRS (assuming you are not filing electronically, and as this is 2005 that’s likely enough).

                  Which means this leaked document came from Trump’s own copy of his tax return, given to him by his accountants, for his own records. (And of course, for use when he needs to provide that document for things like loans).

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              • I’m already seeing speculation that the WH leaked it themselves, in an attempt to change the subject off the “Obama is spying on Trump using microwave ovens” story.

                If so, we’ll know tomorrow, when it leaks. ;)

                I started to type that I couldn’t believe the Trump administration would do something so stupid, which would completely undercut their entire rational of not releasing his taxes because he’s under audit or something…

                …and then I suddenly realized that ‘The Trump administration couldn’t do something that stupid’ did not make any coherent sense. It’s like the sentence ‘Colorless green ideas sleep furiously’. The words grammatically come together, but it doesn’t have a meaning.

                So, we’ll see if some random person released it for some unknowable reason, or if the Trump administration was distracting us by taking careful aim at their…well, what used to be their feet. Their stumps? Are they up to their torso now?

                Meanwhile, everyone else is having fun pointing out that if Trump really is worth five billion, he’s getting a *really* bad return on his money. 142 million! 2%!

                Yes, that’s absurd for someone in *real estate* in 2005, but it’s pretty damn absurd for anyone in 2005, in fact. He could have made slightly under 3% if he’d put all his money in *one year Treasury bonds* at the start of 2005. Which is perhaps the dumbest investment ever…but apparently better than what he did.

                Of course, this is actually because he’s not worth anywhere near that amount, but it’s still fun to mock him as if his lies were true.

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            • What a really stupid misinterpretation of the law.

              Heh. More importantly, under this interpretation of the law, *you* just violated it.

              She did that herself by scoring an own goal, showing that Trump paid a higher percentage of taxes than Obama or Sanders.

              Things protected under the law you are citing:

              26 U.S. Code § 6103(b)(2)(A): The term “return information” means — a taxpayer’s identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense,

              *You* just disclosed the identity of a taxpayer.

              *You*, under your own logic, just committed a felony.

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            • If your reading of a law is ridiculous, your reading of a law is ridiculous.

              The law is intended to protect the personal, potentially inflammatory, embarrassing, or damaging information we all have to put in tax returns, without which we would not agree to volunteer tax information to the IRS.

              If you poke legal holes in that, people will no longer pay taxes and the IRS fails, as does the government it funds.

              Do you want a government that is supported by its people and which supports its people, or do you want Rachel Maddow?

              Further than that, do you want a President who pays a high percentage of his income in federal taxes like Trump, or do you want a President who doesn’t, like Obama or a candidate like Sanders?

              And by your interpretation of the law, it would be honky dory for Trump to release the full tax returns of every single Democrat politician, and every single Democrat. All he has to do is run them through an OCR and they’re whitewashed.

              Good times.

              He is trolling leftist idiots like they’ve never been trolled before. I’ve heard he’d already released his 2005 returns. If so, troll level +9, and it’s like he’s using a laser pointer to fuck with cats.

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              • If you poke legal holes in that, people will no longer pay taxes and the IRS fails, as does the government it funds.

                With withholding, you don’t have to file taxes to give the government your money. You have to do it to get back what they overcharged you.

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              • If your reading of a law is ridiculous, your reading of a law is ridiculous.

                Hey, pay attention. That’s *your* reading of the law that’s ridiculous. You’re claiming it’s illegal to distribute *any* tax returns, regardless of the source…I’m jut pointing out the law you’re talking about says tax returns or tax *information*, and ‘tax information’ specifically includes the identity of taxpayers.

                If it is illegal to redistribute tax returns from any source, as you appear to be claiming, than it is *equally* illegal to talk about if someone else filed taxes or is a taxpayer. That is, very clearly and explicitly, ‘tax information’ that is protected under *the exact same law*.

                And you just did that. So, under your dumbass theory that the law covers all tax returns (and tax information) from any source…you just committed a felony by redistributing the tax information that Trump filed a tax return in 2005. Oops.

                Of course, in reality, the law actually only bars redistributing tax returns and tax information that *illegally came from the IRS*. Which these didn’t.

                Of course, you *might* be claiming they did come from the IRS. (You keep *implying* that, at least.) Which would *actually* make what you said a felony, in the real world.

                Not us, though. We do not have intent or knowledge of the ‘fact’ that tax information came from the IRS, so we fail the basic requirements of a crime. You, OTOH, appear to be arguing both incorrect facts and misinterpretations of the law that, if either are true, makes your actions a felony!

                Kinda dumb there, but you do not even seem to understand the basics of this law.

                And by your interpretation of the law, it would be honky dory for Trump to release the full tax returns of every single Democrat politician, and every single Democrat. All he has to do is run them through an OCR and they’re whitewashed.

                And now we playing the ‘Is George Turner deeply stupid or is he lying?’ game.

                Any tax returns or tax information that comes *from the IRS* is illegal to distribute. (Except as provided by law.)

                The tax returns Maddow is distributing *did not come from the IRS*.

                Thus, by definition, it is legal to redistribute them.

                We can speculate what, exactly, ‘Client Copy’ means to try to figure out where those came from. As I said, a ‘client copy’ is what tax preparers would call the copy they handed Trump. But what we do know is that they *cannot* have come from the IRS with ‘Client Copy’ stamped on them, because the IRS *does not have unsigned tax returns*.

                If your allegation is that those forms *were* leaked from the IRS, and then manipulated to have Trump’s signature removed and a stamp put on them, please *openly state* that allegation.

                Otherwise, you’re an idiot who doesn’t understand that leaking things from the government can be illegal while *the exact same information* can be completely legal to distribute from other sources.

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                • Again, if your reading of the law is ridiculous, your reading is ridiculous.

                  What the law says is that it is illegal to reveal the information from a tax return in a manner not described by law (such as giving it to Medicaid, student loan people, police investigators, a Congressional committee, and various other official users of tax information). The law goes into excruciating detail about who may receive tax return information, such as your co-filer, widow, person with power of attorney, etc. Rachel Maddow’s audience is not listed among them.

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                  • What the law says is that it is illegal to reveal the information from a tax return in a manner not described by law (such as giving it to Medicaid, student loan people, police investigators, a Congressional committee, and various other official users of tax information).

                    6103(b): The term “return” means any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person, and any amendment or supplement thereto, including supporting schedules, attachments, or lists which are supplemental to, or part of, the return so filed.

                    If it is not a thing filed with the ‘Secretary’ (By which they mean the IRS), it is not legally a tax return.

                    Thus 7213 *does not apply*.

                    Something stamped ‘Client Copy’ was not filed with the IRS.

                    And that is absolutely the last word I’m saying on the subject, because the law is absolutely crystal clear about this.

                    If you still doubt, I direct you to:

                    https://surlysubgroup.com/2017/03/15/did-rachel-maddow-break-the-law-trumptaxreturns/

                    Read that, and then read the comments.

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                    • So everyone in the IRS is free to give any tax return to reporters right before they mark it as “filed”?

                      So any copy of the filed return, which is just a copy, can also be freely given to reporters.

                      If that’s true, why did they bother writing a thousand lines of law, because the law doesn’t accomplish anything useful?

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                      • So everyone in the IRS is free to give any tax return to reporters right before they mark it as “filed”?

                        ‘mark it filed’?

                        Where does the work ‘mark’ appear in that law? Tax returns are protected the second they are *filed*.

                        The IRS does not file tax returns. *People* file tax returns with the IRS.

                        Here, read 26 U.S. Code § 6072(a):
                        In the case of returns under section 6012, 6013, or 6017 (relating to income tax under subtitle A), returns made on the basis of the calendar year shall be filed on or before the 15th day of April following the close of the calendar year and returns made on the basis of a fiscal year shall be filed on or before the 15th day of the fourth month following the close of the fiscal year, except as otherwise provided in the following subsections of this section.

                        That law orders *human beings* to file income tax returns before a certain date, which hardly makes any sense if the IRS is in charge of filing them once the IRS gets them.

                        So any copy of the filed return, which is just a copy, can also be freely given to reporters.

                        No, once the return is *filed*, it cannot be copied and distributed.

                        This has nothing to do with whether or not a copy made of something that was was intended to be filed, or even a copy made of something was *later* filed, can be copied and distributed.

                        That law protects information from *escaping the IRS*, or being redistributed after it does so, and *only that*. That is *all* it does.

                        That law does not protect copies of a tax return made before filing it, that law does not protect tax preparers from distributing copies of returns of their client (That’s a *different* law.), that law does not protect people who leave their actual tax return laying around in public before filing.

                        And, likewise, that’s why there are specific laws forbidding tax preparers from giving out tax information of their customers, which would be *really odd* to have as a law if giving out any tax information was already illegal. Same with US banks. There are all sorts of entities that are *legally prohibited* from giving out any information about our tax status if we inform them of it…and none of those laws would even need to exist if your interpretation was correct and it was already illegal for anyone to disclose any tax information at all.(1)

                        And, again, I point out, there is absolutely no exception under that law for *your own information*. None.

                        Which, if the law worked the way you think it does, would mean that no one would be allowed to talk about any information on their own taxes, or release their taxes. They could ask the *IRS* to release them, which is actually a real formal procedure you can ask them to do…but outside of that they couldn’t just show people copies they had made, or even *tell* people how much taxes they paid. (In fact, I am unsure how tax prep people could even *work*.)

                        1) Note the ‘redistribution’ law you think Maddow violated only seems to apply to information that came illegally from the IRS, not any other sources, *even if* that other source gave it out illegally.

                        And the same with soliciting copies, oddly enough. It’s illegal for you to make an offer for an IRS employee to illegally give you a copy of someone else’s taxes. But it does *not* appear to be illegal for you to offer to pay a *bank* employee to illegally give you a copy of someone else’s taxes. (It might be illegal to actually *do that*, because paying people to commit felonies is obviously illegal, but it doesn’t seem illegal to *offer*.)

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                        • Take another look at 26 USC 7213

                          It has several parts coverting:

                          (1) Federal employees and other persons
                          (2) State and other employees
                          (3) Other persons

                          The other persons in (1) refers to all the people who have to work with the tax returns so the IRS can process them.

                          The other persons in (3) includes Rachel Maddow, so let’s have another look at that section.

                          (3) Other persons
                          It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.

                          Zooming in on that first sentence:

                          It shall be unlawful for any person (Rachel Maddow) to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title (such as getting it from a reporter who got it from some anonymous source) thereafter willfully to print or publish in any manner not provided by law (such as a special episode on MSNBC) any such return or return information.

                          She totally did that.

                          She needs to go to jail.

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                          • Jesus Christ, you literally can’t maintain any sort of continuity in your thoughts, can you?

                            I *know* about 26 USC 7213.

                            What *you* keep refusing to actually look at is where that law says ‘(as defined in section 6103(b))’ and then actually *read* that other law.

                            6103(b) says that ‘returns’ and ‘return information’ are defined as *anything filed with the Secretary*. They become returns and return information *upon filing*, not before. (Well, ‘return information’ also include information that the IRS goes out and gets, it doesn’t have to be ‘filed’. Probably also includes stuff gathered during an audit.)

                            6103(b)(1) The term “return” means any tax or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person…

                            (2) The term “return information” means—
                            (A) a taxpayer’s identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense,

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                        • 6103 section three does the heavy lifting:

                          (3) Taxpayer return information
                          The term “taxpayer return information” means return information as defined in paragraph (2) which is filed with, or furnished to, the Secretary by or on behalf of the taxpayer to whom such return information relates.

                          I’m not a lawyer, but I “check what the definitions are” is always good advice to start. :)

                          I’ve seen too many people go off into the weeds because they decided a precisely defined term meant something else entirely.

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                          • “I’ve seen too many people go off into the weeds because they decided a precisely defined term meant something else entirely.”

                            Yeah, it’s sort of like when someone decided that “state” actually meant “The USA Federal Government”.

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                          • I hate to disagree with someone who is mostly correct, but there are three things defined in 6103: ‘returns’, ‘return information’, and ‘taxpayer return information’. All of them require the information to be ‘filed’ first.

                            The first two are barred from being redistributed under 7213. The last one, the definition you quoted…isn’t. ;)

                            Mostly because the ‘taxpayer return information’ is just ‘return information’ about a specific taxpayer.

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                            • It’s useful to ask what harm the law was intended to prevent. Obviously, the harm was having a taxpayer’s private tax information printed in the media without their permission, an event deemed so unacceptable that causing it to happen under 26 USC 7103(1) and (2) was punished as a felony carrying a five year maximum sentence.

                              So, asking about the meaning of “filed with” and other terms, the filers copy and the IRS copy are exactly the same. Why would the release on one be okay and the other a felony when they information released, and the harm it causes, are also exactly the same?

                              Thus, (3) refers to the return or “return information:” and applies to anyone who receives the information. No matter how you acquired someone’s tax returns, revealing them does the same harm as if the IRS leaked them. So nobody is allowed to print them in public without the authorization of the filer or his legal representatives.

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  13. The FBI leaks about Hillary were a perfect example of government employees pursuing their own agenda. Funny how they didn’t bother any of the Serious Voices now worrying about the Deep State.

    Seriously, these days anyone who claims to have principle is a liar. End of story.

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    • Theory #2: The FBI was *HELPING* Hillary by turning the email issue into a non-issue before the election.

      If trumpbaggers were complaining in December about Clinton being corrupt, she could point to the FBI. “See? Look! BEHOLD. The FBI said, for the umpteenth time, that there was *NOTHING* there! NOTHINGBURGER!!!!!!”

      This was back when everybody knew that Trump was going to lose, remember. Even the best and brightest thought he was going to lose.

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              • It’s not really the same thing.

                What was happening with leaks about the Hillary email investigation were not really a matter of national security, and clearly designed to influence the election.

                Before people misunderstand that and allege that poorly-handled emails *could* or even did impact national security, that is not the point. (It is also wrong, but it’s not the point anyway.) The point is that the *leaks* about Hillary’s email did not help national security. The leaks were not exposing some *currently existing* hole in national security that needed fixing immediately. Hillary was no longer in office. That server was no longer functional. There was no reason the investigation could not play out.

                Especially as the more important leak was *nothing*. Nothing at all. It was clearly just a way to get ‘Hillary’s emails!’ back in the public consciousness after the investigation had been closed.

                Whereas the leaks about Flynn *were* pretty serious national security issues, especially since the story doesn’t just appear to be Flynn…it appears that a reasonable large fraction of a presidential administration has been subvert by a foreign power, and while that investigation is happening, *those people are currently in power*. And the leaks obviously will not impact any election at all.

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                • Huma and Weiner work for whom again?
                  Yeah.
                  Let me know when you have that answer.
                  And then we can talk about which countries are ACTUALLY COMPETENT at influencing American Elections.

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    • “Funny how they didn’t bother any of the Serious Voices now worrying about the Deep State.”

      We can say the same thing about the IRS going after conservative groups in the mid-2000s.

      “oh that’s just BSDI” well, I’m not the one who started the BSDI conversation.

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        • There’s a direct correlation between commitment to ideological priors and reliance on counterfactual analysis to confirm those priors. It’s a closed, circular loop. One obvious to everyone outside of it. DD rarely breaks outa that loop.

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          • From Wiki:

            United States federal tax law, specifically Section 501(c)(4) of the Internal Revenue Code (26 U.S.C. § 501(c)), exempts certain types of nonprofit organizations from having to pay federal income tax. The statutory language of IRC 501(c)(4) generally requires civic organizations described in that section to be “operated exclusively for the promotion of social welfare”. Treasury regulations interpreting this statutory language apply a more relaxed standard, namely, that the organization “is operated primarily for the purpose of bringing about civic betterments and social improvements”.[1] As a result, the IRS traditionally has permitted organizations described in IRC 501(c)(4) to engage in lobbying and political campaign activities if those activities are not the organization’s primary activity.[2]

            Chris Van Hollen has filed a lawsuit against the IRS to stop the tradition of allowing groups engaged in politics to be registered under 501(c)(4).[3]

            I’da thought a law and order, “principles first” guy like you, DD, would applaud the effort to restrict political orgs from qualifying for that type of tax exempt status.

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              • At the very least you’d think a guy who presents himself as smarter than his interlocutors would be able to make the distinction.

                Oi! No such luck. It’s ALL meta, bro. All the way down. Nothin but meta….

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                • Distinction between what? A perceived flaw that even the IRS perceived as enough of a flaw to apologize for and…. what?

                  I mean, we can argue over whether it was *REALLY* something that the IRS should have apologized for doing.

                  They were merely stopping and frisking the entities that looked like they’d be trouble. That’s one of those things that benefits everybody in the neighborhood.

                  The fact that the IRS apologized for it makes it more difficult for people to argue that the IRS did nothing wrong, though. Not impossible, as I’m sure you know… but tougher.

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                  • Distinction between what?

                    The formal application of the law and how it’s enforced. That’s not a hard concept to understand, is it?

                    Actually, I’da thought you would ALSO be in favor of cracking down on violations of the law as its formally written, JB. I mean, that’s measurable, yes? How can we get to a more responsible set of law and enforcement when you and DD criticize Dems for actually trying to enforce the laws as they’re written??…!!??

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                      • So, let’s consider why they shouldn’t have apologized. Is it because it makes Dems and Obama look bad (politics) or because they actually were wrong (policy)? Given that you haven’t done any other research, your comment must be limited to a judgement on the politics of the situation.

                        Enough said, right? It’s meta (ie, politics) all the way down…..

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                        • I disagree. I said what my train of thought was.

                          Here. I’ll cut and paste it.

                          “the IRS apologized for doing what it did”.

                          From there, I jumped to “they shouldn’t have done what they did”.

                          Is there a set of thought processes I should have used instead?

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                          • “Hey, when I said that Wilder had it right that we can’t restore our civilization with other people’s babies I was talking about inter-racial marriage creating homogeneity man!”

                            they shouldn’t have done what they did.

                            What, engage in the initial actions even tho they were consistent with the law or apologize for it because that’s just bad politics?

                            Look, the IRS scandal was a big deal. Politically. I wrote about that at the OT during Romney’s run when I expressed my absolute amazement that he/they chose to focus on the Benghazi nothingburger rather than the IRS scandal as their preferred leverage point. I get that it was bad politics. Bad policy? Seems like they were trying to enforce the law to me.

                            Just another example of extreme vetting, in this case of charitable orgs, ya know? (heh)

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                            • Bad policy? Seems like they were trying to enforce the law to me.

                              I think this is possibly true, but the question is, what other search terms did they use besides the ones that are obviously targeting right-leaning groups? Selective enforcement of the law would still qualify as “going after conservative groups”.

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                              • Sure. There are all sorts of ways to criticize those actions. I’m responding specifically to DD’s comment about the Deep State and that the entire thing was purely partisanly motivated. That begs all the questions in play, and in fact (which was my point) by begging those questions DD undermines his own view that it’s only other people who beg questions….

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                            • What, engage in the initial actions even tho they were consistent with the law or apologize for it because that’s just bad politics?

                              What did they apologize for?

                              That. That’s what they shouldn’t have done.

                              Bad policy? Seems like they were trying to enforce the law to me.

                              Seems like they shouldn’t have apologized, then.

                              Or said something like “I apologize for caring too much about the law” rather than “That was absolutely incorrect, it was insensitive and it was inappropriate. That’s not how we go about selecting cases for further review. The IRS would like to apologize for that.”

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                              • Or said something like “I apologize for caring too much about the law”

                                That’s what you say when offering your resignation.

                                The inspector general’s report did not find that IRS employees involved in the screening were motivated by a partisan agenda. It suggested they were trying to come up with a more efficient system for screening applications from political advocacy groups, which have proliferated in recent years.

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                                • It suggested they were trying to come up with a more efficient system for screening applications from political advocacy groups, which have proliferated in recent years.

                                  Overzealousness in attempts to properly apply the law.

                                  Pity about the apology, then. That apology really undercut their appearance of doing this in good faith.

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                                  • Pity about the apology, then. That apology really undercut their appearance of doing this in good faith.

                                    “It’s meta all the way down, dammit!! You’ve got your facts and I’ve got mine. But mine are Meta, so you know they’re bettah!! Wolverines!! Aarrggghhh!!”

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                                    • I was the one arguing for object level, Stillwater.

                                      The people who are arguing that the apology does not indicate something worth apologizing for but is, instead, a deep kabuki of signalling are elsewhere in the thread.

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                                      • I was the one arguing for object level, Stillwater.

                                        See, that’s why you I and never really get into an actual discussion. What you view as object level (that the IRS apologized) is in my view the meta level (what are they apologizing about and why?).

                                        You’re always one level above me, bro.

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                          • Yes.

                            [if you want to know what I think you should have done instead, please continue reading.]

                            90% to 95% of what comes out of DC on any given day is posturing. The statement itself is devoid of meaning, but the purpose of the statement is to signal tribal alliances, willingness to compromise etc.

                            Now, the IRS was absolutely correct in doing what it did. Many groups (both conservative and liberal) are abusing the tax code. We should want an IRS that enforces the tax code as written (and as promulgated in rules and regulations). If there is a poor fit between lived experience and the law, the answer is not to ignore the law but to go either to Congress or internal rule-making to adjust the law.

                            But in reality the IRS is a favorite whipping-boy, especially by conservatives. So even though the IRS is empowered (arguably, required) to engage in these kinds of analyses, no one (and, again, especially conservatives) wants them to do so. So useful facts are blown out of proportion, inconvenient facts ignored and the law ridiculed.

                            Activists on all sides know full well that you can get just as much mileage out of the appearance of impropriety as actual impropriety, and the former takes much less work.

                            All of which results in the same tired dance of a governmental agency apologizing for doing its damn job.

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                              • Wait. Is that a backhanded way of agreeing with Francis’ view as written up there? Or are you switching cups again since your main line of attack was derailed?

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                              • NO.

                                government actors at all levels are speaking to multiple constituencies all at the same time. Presuming that you are the intended recipient of the message and that the message is complete, truthful and accurate is a TERRIBLE idea.

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                                • Regarding critical analysis of press coverage of administration statements, this is probably a dead thread but let’s see if anyone picks up on this.

                                  to wit: the MEALS ON WHEELS SCANDAL.

                                  Go read K.Drum. MoW gets pennies from the Community Dev Block Grant program, which is just a terrible program in the first place. But the Trump admin said something stupid and now the liberal blogosphere is lighting up about hungry elders.

                                  As a good-govt advocate, I’m appalled. As a partisan I’m amused.

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            • That Wiki is a pretty poor description of what the IRS did. Congress expressly placed limits on Section 501(c)(3) organizations such that “no substantial part of the activities . . .” can involve lobbying or political campaign activities. The Code did not make this limitation applicable to Section 501(c)(4) organizations. So the IRS reasoned that Congress did not mean to apply the same restriction on 501(c)(4) organizations as it did on 501(c)(3) organizations.

              If Chris Van Hollen’s argument is in that Wiki, he’s in Orly Taitz territory.

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                • Compare (c)(3) organizations:

                  (3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

                  With (c)(4) organizations in which the highlighted language does not exist:

                  (4)(a) Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.

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                  • {{I can’t believe I’m in the position of defending a scandal I criticized in real time while it was happening….}}

                    The relevant part, from a legalistic pov, is this: operated exclusively for the promotion of social welfare. People, obviously, just like you are, can disagree about the scope of those words. But there is a pretty clear textual justification for investigating the operations of 501c4s that engaged in partisan political advocacy under color of satisfying that provision.

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                    • I can’t believe I’m in the position of defending a scandal I criticized in real time while it was happening

                      Perhaps you’ve changed significantly since then.

                      If you haven’t, then I suggest that this be an indicator that something has gone awry.

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                    • The legalistic point is this: expressio unius est exclusio alterius. The legislature has expressly prohibited 501(c)(3) organization from engaging in substantial lobbying and political campaign activities, but made no such expression regarding 501(c)(4) organizations, but you insist that 501(c)(4)s also must not engage in substantial lobbying and political campaign activities.

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            • “I’da thought a law and order, “principles first” guy like you, DD, would applaud the effort to restrict political orgs from qualifying for that type of tax exempt status.”

              Interesting how you address me as guy, like, I can’t possibly be female?

              Also you’ve got this affect like you’re ripping the absolute shit out of me but you aren’t actually disagreeing with my contention that the IRS went after conservative-leaning groups to a far greater extent than it did liberal-leaning groups, so, maybe you didn’t think your clever plan all the way through.

              “oh bu-bu-buub-buuuhIII QUOTE THE RUUUUULES” Yeah, the cops can point to all kinds of regulations and rules about why that particular black dude had to get shot forty times, but that doesn’t mean they’d have gunned down a white dude in the same situation, and don’t we consider that to be a problem?

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              • Well, since all you did is go ad hominem (you know what that means, right? of course you do…) in your reply I’ll assume you’re conceding the substantive point, DD.

                Unless the entirety of your argument is the ad hominem part…??? Well, that would be an interesting shift. It’d mean you think Some People’s views ought to be excluded from reasonable discourse no matter what they say.

                Hmmm. Interesting…..

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                • You didn’t actually disagree with my contention that the IRS targeted conservative groups to a greater extent than liberal groups. The argument you did present is easily rebutted by pointing to disparate impact theory and practice.

                  Please do better. I think you actually could reply to my claim if you tried, and watching you go into a frothing rage spiral is really sad. Although, y’know, if you just want to run away from the thread that would be fine too.

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                  • You didn’t actually disagree with my contention that the IRS targeted conservative groups to a greater extent than liberal groups.

                    I rebutted it by saying that it wasn’t partisanly motivated, with subsequent quotations even!

                    But look, you’re playing the ideologue’s game here: “hey, if you can’t prove that radical claim X can’t be disproven then I’m right about Y”. But the problem, which you very well know since you’re a super smart guy, is that neither you nor I can prove a negative. Only madness (hint hint) results from engaging in that enterprise.

                    So we go to the best available empirical evidence for situation X consistent with the best available evidence for our beliefs related to governing situation Y and determine – and this is the key part! – our approximations of the truth regarding X. That an explanation for X may be possible isn’t sufficient for an empirically based justification that it IS true. The totality of evidence matters here. And unfortunately for folks like you, the totality of evidence just doesn’t support your ideologically motivated judgements re: how things actually are.

                    That’s not to say your views are entirely wrong. I don’t think they are. They’re just not complete, and you consistently insist that they are.

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                    • ““hey, if you can’t prove that radical claim X can’t be disproven then I’m right about Y”.”

                      did you read the damn articles about this?

                      When you do, pay attention to the part where the IRS apologized for auditing more conservative groups than liberal ones.

                      PS Francis is doing a much better job of this than you are.

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              • “my contention that the IRS went after conservative-leaning groups to a far greater extent than it did liberal-leaning groups,”

                Possible responses:

                1. You’re just factually false. Raw counts of investigations are not the appropriate statistic; you also have to know how many submissions the IRS was facing.

                2. True but irrelevant. Since the very existence of the Obama admin was a tremendous fund-raiser for conservative causes, there were more conservative-leaning groups who were abusing the law. And who knows, perhaps conservative groups are more willing to push the boundary on this issue. A Republican administration would never spend the resources on investigating; a Democratic one can always be accused of witch-hunting.

                3. Which IRS? The IRS is an enormous organization. Staffers can and do screw up; the relevant question is what was policy — both formal and informal.

                4. Since when do conservatives care about disparate impact? Liberals do; we’re worried that the burdens of purportedly neutral policies are unfairly borne by disfavored groups. Conservatives are all about law-and-order, baby.

                Now, these are just a subset of possible responses to the claim made and I do not assert that I have researched the truthfulness of any of them.

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                • Point 2 is pretty important. Not long after 9/11, the IRS issued similar guidance to apply extra scrutiny to all of the 9/11 related charities that were popping up because they were the new hotness for fraudulent nonprofits. The Tea Party movement brought with it another gold rush of really questionable nonprofits. I’m sure that the anti-Trump movement will be another, albeit a less profitable one. There’s nothing so profitable as fleecing angry old people, and that’s not the key rage demographic (yet).

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  14. I’ll just assume its more relevant and pertinent to talk about the bad IRS behaviors from years then killing Meals on Wheels or cutting school lunches. And of course there is no evidence those things work.

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  15. And Trump’s foreign police advisor, Gorka, was a member of a nazi backed group in Hungary.

    Sean Hannity pulled a gun on Juan Williams after a TV bit. Just to show it off though.

    Also apparently the admin is accusing the Brits of spying on Trump for Obama.

    Thursdays…man ….it feels more Mondayish to me.

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  16. The deep state is convenient for everyone.

    Republicans can say that the “entrenched special interests” deep state will sink any attempt at good-faith reform or legislative activity, and so there’s no benefit to working with the other side or trying to compromise because it won’t pay off.

    Trump can say that the “secret cabal” deep state is actively working to destroy his Presidency, and so there’s no benefit working with the other side or trying to compromise because they’re out to get him.

    And Democrats can console themselves with the notion of a “Batman” deep state that’s working silently behind the scenes to keep everything on the rails, and so there’s no benefit to working with the other side or trying to compromise because it’ll all come out right in the end anyway.

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