RUTHFULLY YOURS

There’s nothing quite like a change of power to expose hypocrisy. Yesterday, the Washington Post ran a long and flattering discussion of fashion designers who are just in anguish that their artistic talents could be abused in the service of a cause they despise. In other words, they don’t want to “dress” Melania or Ivanka Trump.

In an open letter rejecting the idea of working with the Trumps, designer Sophie Theallet said, “We value our artistic freedom, and always humbly seek to contribute to a more humane, conscious, and ethical way to create in this world.” She said, “As an independent fashion brand, we consider our voice an expression of our artistic and philosophical ideas.”

Post fashion critic Robin Givhan doesn’t just report on this choice, she goes out of her way to justify and explain it:

Like other creative individuals, Theallet sees fashion as a way of expressing her views about beauty and the way women are perceived in society. Fashion is her tool for communicating her world vision. In the same way that a poet’s words or a musician’s lyrics are a deeply personal reflection of the person who wrote them, a fashion designer’s work can be equally as intimate. In many ways, it’s why we are drawn to them. We feel a one-to-one connection.

You see, “clothes are commodities, certainly, but they also have an artful point of view that is distinctly personal.” That’s why, Givhan says, refusing to dress the Trumps “is not the equivalent of refusing service.” And so, Givhan concludes, “for those designers for whom fashion serves as their voice in the world, they should not feel obligated to say something in which they do not believe.”

I agree with Givhan. Don’t make anyone “dress” political figures they don’t like. Don’t make any artists use their talents to advance viewpoints they find offensive. There are designers who are happy to work with Trumps. Others aren’t. Big deal. Life goes on.

But if there is a single person who thinks that Sophie Theallet, Marc Jacobs, Derek Lam, and others have a right to refuse to dress the Trumps, but also believes that Christian bakers, photographers, and florists have to use their talents to celebrate gay weddings — there’s a word for you: Hypocrite. Indeed, you’re likely worse than a garden-variety hypocrite. You’re almost certainly malicious and elitist to boot.

Consider the parallels. Photographers, bakers, and florists are using their individual artistic talents not just to document but to celebrate an event. Many of them enter their profession to express their own views about “beauty” and do their work to glorify God. Their art is their best tool for “communicating their world vision.”

But all too many on the Left just don’t care. All that matters is that they refused to use their artistic talents for a gay couple. And aren’t LGBT people protected from discrimination? But wait, aren’t Melania and Ivanka also women? And aren’t women a protected class under nondiscrimination law also?

In the heat of the fall campaign, the commentariat got its knickers twisted over Donald Trump’s vow that, if elected, he’d have his Justice Department appoint a special prosecutor to investigate Hillary Clinton, his political rival. How remarkable, then, that the media is so indifferent to the revelation that, at the very same time, the Obama Justice Department was actively conducting an investigation of Trump.

As I recounted in Wednesday’s column, the FBI reportedly had suspicions that Trump, or at least members of his “team,” might be violating financial and banking laws. Upon poking around, the Bureau determined there was no “nefarious purpose” in the connection of a server in Trump Tower to at least one bank.

Yet the case was not dropped upon the finding of no criminality. Instead, apparently because the bank or banks involved were Russian, the matter was pursued as a national-security investigation under the Foreign Intelligence Surveillance Act (FISA). Indeed, the investigation may well be ongoing.

Reporting indicates that surveillance warrants were sought from the FISA court in June and October 2016. The first one is said to have “named” Trump himself (we don’t know if that means the government was targeting Trump for surveillance, or if his name was merely mentioned in the FISA application). That application was apparently so lacking that the FISA court refused to authorize it, even though that court is generally quite accommodating of government requests to conduct secret searches and eavesdropping. The court is reported to have granted a narrower application in October — one that appears not to have named Trump. The court’s proceedings are secret, so this reporting cannot be confirmed.

I want to draw attention to a fact I did not dwell on in Wednesday’s column: The FBI is not authorized to seek a national-security surveillance warrant from the FISA court — just as it is not authorized to seek such a warrant from a U.S. district court in an ordinary criminal case. Only the Justice Department is permitted to do that. The FBI could not have sought FISA warrants against Trump without the Obama Justice Department’s approval and assistance.

Interesting contrast, isn’t it?

Throughout the criminal investigations of Hillary Clinton for mishandling classified information, the Obama Justice Department would not use the grand jury or help the FBI obtain search or surveillance warrants. As a result, the FBI had no power to compel the production of evidence. Suspects had to be cajoled into cooperating. The only thing the Justice Department was willing to do was grant highly unusual immunity deals, ensuring that suspects could not be prosecuted if they disclosed incriminating evidence.

For all their noise and news dominance, presidential elections typically don’t change the country all that much. That isn’t a bad thing but a sign of how strong American democracy is. It rarely veers far from the center, where successful policy usually lies. But on rare occasions, deep historical currents and extraordinary political talents produce an entirely new order. It happened in the presidential elections of 1828, 1860, 1896, 1932—and, quite probably, 2016.

Denied the presidency in 1824 by what he called a “corrupt bargain” in the House of Representatives, Tennessee’s Andrew Jackson swept to a landslide four years later. He was the first president from west of the Appalachians—indeed, the first from anywhere other than Virginia or Massachusetts. Born dirt-poor, Jackson was also the first president to rise to affluence solely by his own effort.

It soon became clear that the country had entered a new political era. “Jacksonian democracy” moved the locus of power sharply down the socioeconomic scale. Soon most states repealed property requirements for voting, a first step toward universal suffrage.

Jackson created the modern Democratic Party, and the intense opposition to his policies coalesced into the Whig Party, establishing the two-party norm that prevails to this day. No wonder the great 19th-century American historian George Bancroft considered Jackson the last of the Founding Fathers.

The next great shift came with Abraham Lincoln. By the 1850s, slavery had become the dominant issue in American politics. The Republican Party, founded in 1854 as an expressly abolitionist party, grew rapidly as the Whigs collapsed. When Lincoln, the Republican nominee, won the presidency in 1860, the Union quickly came apart. South Carolina seceded barely a month after the election. Six more states were gone by Feb. 1, 1861, with a month still to go before Lincoln’s March 4 inauguration.

It would take the greatest war in American history to reunite the country. By the time the Civil War was over, the nation had been transformed. The South, impoverished and politically crippled, would be effectively a Third World country inside a First World one for 100 years. The North, with its rapidly expanding industry and growing population, was politically dominant. More than half the antebellum presidents had been Southern. In the century after the war ended, only two Southerners were elected to the White House: Woodrow Wilson, a Virginia native who made his career in New Jersey, and Texas’ Lyndon B. Johnson.

Presidential elections in the decades after the Civil War tended to be close. Grover Cleveland barely beat James G. Blaine in 1884. Four years later, Cleveland earned a popular-vote plurality while losing to Benjamin Harrison. In an 1892 rematch, Cleveland narrowly beat Harrison, becoming the only president to serve nonconsecutive terms.

But William McKinley’s decisive victory in 1896 marked the dawn of an era of Republican dominance that lasted more than a generation. McKinley ran on a platform of “Sound Money, Protection, and Prosperity,” a doctrine that suited the interests of the nation’s fast-rising affluent classes. His opponent, the Democratic nominee William Jennings Bryan, was one of the great orators of American politics. Bryan railed against the gold standard and called for an inflationary monetary policy, which would have benefited debtors, including most farmers in the West and South.

The Justice Department’s inspector general has announced that his office will conduct a review that will focus principally on FBI director James Comey’s public statements regarding the Clinton e-mails investigation during the 2016 campaign.

These were the three highly unusual announcements describing the status of the investigation in which no charges were filed: (1) the detailed presentation on July 5 of: the evidence uncovered against Hillary Clinton, a legal analysis of the applicable criminal statute, Comey’s determination that an indictment was not warranted, and his opinion that no reasonable prosecutor could disagree with his assessment; (2) the October 28 letter to Congress indicating that the Clinton e-mails case was being reopened owing to newly discovered evidence (derived from the separate investigation of disgraced former representative Anthony Weiner [D., N.Y.], and specifically from a computer shared by Weiner and his estranged wife, Clinton aide Huma Abedin); and, finally, (3) the announcement on November 6 – virtually the eve of the election – reaffirming Comey’s decision (announced July 5) not to seek an indictment.

It is undoubtedly appropriate for Michael Horowitz, DOJ’s inspector general, to consider whether these actions departed from law-enforcement protocols – as I have previously explained. But it is worth noting what the IG will not be reviewing: the Justice Department’s conduct.

The IG’s press release makes no mention of the Justice Department’s decision not to open a grand-jury investigation, despite significant concrete evidence of criminal wrongdoing – the decision that deprived the FBI of the use of subpoenas to compel the production of evidence. Neither will the IG be reviewing the multiple irregular immunity agreements granted by the Justice Department in a case in which no criminal charges were filed, including agreements that reportedly called for the destruction of evidence (laptop computers of top Clinton aides) after a strangely limited examination of their potentially incriminating contents.

There will similarly be no inquiry into why the Justice Department allowed subjects of the investigation (who had been granted immunity from prosecution) to appear as lawyers for the main subject of the investigation – despite ethical and statutory prohibitions on such conduct. Nor, evidently, will the IG be probing why the attorney general furtively met with the spouse of the main subject of the investigation – the spouse who just happens to be the president who launched the attorney general to national prominence by appointing her as a district U.S. attorney in the Nineties – on an airport tarmac just days before Mrs. Clinton submitted to a perfunctory FBI interview, after which came Comey’s announcement that charges would not be filed.

According to Gallup, the average presidential honeymoon lasts seven months. This is a window when the losing party declares a partisan peace, allows the incoming president to pick his cabinet and launch the agenda his victory mandates. Presidential honeymoons are not only a venerable American tradition they are one of democracy’s pillars. For generations they have been ceremonial supports for the peaceful transition of power, and the peaceful resolution of partisan conflicts.

Not this election year. There will be no honeymoon. This year even before Trump arrives in the Oval Office, the opposition cry has been Resist! Block! Reject! It is not just anti-American radicals like Michael Moore, who has indeed called for “100 days of resistance” to the Trump presidency, but by the leadership of the Democratic Party which has vowed to fight Trump’s appointments, has attacked the election result as an expression of popular racism, attempted to discredit the Electoral College by falsely calling it a legacy of slavery, and even accused Trump of being a Russian agent, a pawn in the chess game of its dictator Vladimir Putin. It is a sad day for America when the world’s oldest political party, whose name proclaims it a partisan of democracy, comes out in force as a saboteur of that same system.

Nor is all this simply a fit of Democratic absent-mindedness. Instead, it is the culmination of a long developing shift in Democratic Party politics, a shift symbolized by the current favorite to become its next leader. Keith Ellison is a Muslim radical who spent his formative adult years as a vocal supporter of the anti-American, anti-Semitic racist Louis Farrakhan. Ellison reflects the power of the Bernie Sanders radicals in the Democratic Party who according to recent Gallup polls now represent its majority, even though they lost a rigged primary election which would have made him the party’s presidential nominee.

The face of this new Democratic Party was revealed during a seminal moment in the second Clinton-Trump presidential debate. It came when Trump turned to the cameras and said, “Hillary has tremendous hatred in her heart.” He was referring to her now notorious statement that half of Trump’s supporters belonged in a “basket of deplorables,” which was followed by her iteration of those she had in mind: “The racist, sexist, homophobic, xenophobic, Islamophobic—you name it. And unfortunately there are people like that. And he has lifted them up.”

Next month, we will mark the 24th anniversary of the 1993 World Trade Center bombing.

The prosecutions that followed, including the one I was privileged to lead against the terrorist cell of Omar Abdel Rahman (“the Blind Sheikh”), were pivotal in the development of American national security policy. Up until the 9/11 attacks, almost all of these prosecutions took place in the jurisdiction of the United States Court of Appeals for the Second Circuit.

On Wednesday night, I participated in a Federal Bar Council program on “The Second Circuit and Terrorism” along with former Attorney General Michael Mukasey (the former chief judge of the SDNY who tried the Blind Sheikh case), Judge Joseph Bianco (my former SDNY colleague who later served as a Deputy Assistant Attorney General in the Bush Justice Department), and Roger L. Stavis (who represented Sayyid Nosair, one of the principal defendants in the Blind Sheikh case) in a panel moderated by Fordham Law School Professor Karen Greenberg (who directs Fordham’s Center on National Security). Below is my speech at the start of the program.

Since I don’t get back to my old haunts nearly as much as I’d like to, it is a thrill to be here in our grand courthouse in the Southern District of New York, among so many old friends and colleagues. It is a real privilege to participate in this panel on “The Second Circuit and Terrorism,” with people I’ve learned so much from over the last — I don’t even want to think about how many years have gone by. Let’s just say there was a lot more hair on my head, and a lot less of, well, me, when I first met most of them.

My role at the beginning of this evening is to give a brief overview of how terrorism prosecutions have evolved. What happened here in the Second Circuit, and particularly in the cases that originally sprung out of our SDNY office after the World Trade Center was bombed in February 1993, is ingrained in the foundation of American national security policy — both in terms of what the judicial system could achieve, and where other components of government needed to step up and fill security voids.

In addressing this topic, I’ve always thought it important to point out that when terrorism arrived in our homeland in the systematic way we have experienced it in the last quarter-century, nobody sat around the table and thought about how we should respond to it. There was no grand policy debate asking, “Is this a crime, or is it a war?” “Is our civilian process of criminal prosecution up to this, or do we need to resort to military justice and the ancient laws and customs of war?”

What happened, instead, was an explosion.

When a critical incident occurs domestically, regardless of whether it appears to be terrorism, a major accident, or a natural disaster, it is the first responders who answer the call — police, firefighters, emergency medical personnel, and the like. Back in 1993, we didn’t even think about the military or our intelligence community, which are restricted by various statutes and regulations from operating inside the homeland.