Constitution. Meet crisis.

For reals.

Chait:

The letter complains that the House fails to grant Trump sufficient control over the impeachment agenda. Though there’s a reason for that — the trial takes place in the Senate, not the House — Trump could in theory try to negotiate for more Republican input into the process. In a briefing with reporters, a senior administration official was asked what changes Trump would need to cooperate. “A full halt” was the answer. That is, Trump will cooperate with an impeachment probe if Democrats stop the impeachment probe.

Such Catch-22 absurdities give this administration no embarrassment. Since Democrats took control of the House last January, Trump has asserted it has no right to investigate him for crimes, no right to obtain his tax returns despite a law clearly authorizing exactly that, and that prosecutors can neither charge nor even investigate his criminal activity. He has claimed the right to start or stop any federal legal proceeding. Some of his positions grow out of the extreme unitary executive theory that figures like William Barr have developed for years, though only for Republican presidents.

But it is, in the main, an expression of Trump’s idiosyncratic convictions. This is a president who asserted his “absolute right” to investigate any person he wants, for any reason even while facing impeachment for abuse of power. He has no conception of the law, except as a tool to compel his opponents to submit to him. His every response to impeachment proves its necessity. [bold is mine]

Paul Campos:

It should go without saying that the legal(ish) arguments in this letter are preposterous. They all revolve around the absurd argument that an impeachment inquiry is somehow subject to the federal rules of criminal procedure, as opposed to being, you know, a congressional investigation specifically authorized by the Constitution, which also specifically does not specify in any way how that investigation is supposed to be carried out.

And I know we’re all inured to this stuff, but I can’t imagine a more straightforward constitutional crisis than a presidential administration simply refusing to cooperate with the legal process laid out in that document by which the legislature is supposed to investigate potential serious executive misconduct.

 

We interrupt your ongoing abuse of presidential power for drug-sniffing dogs

I’ve been meaning to write a post on this since, oh, well, the article is dated February of this year, and haven’t.  But I just got an email yesterday from a student who wrote a great paper for me years ago on just what a bad job drug-sniffing dogs do, but, alas, our criminal justice system pretends like they are highly accurate.  Radley Balko, of course, is all over this:

Last week, I wrote a post looking at how the criminal justice system operates in an alternate reality, one in which truth isn’t dictated by facts or data, but by precedent and case law. Today, I want to look at a case pending before the Supreme Court that is a great example of the problem. [emphases mine]

At issue in Edstrom v. Minnesota is whether a drug dog’s sniff outside an apartment door constitutes a lawful search under the Fourth Amendment. If it does not, the police would be required to obtain a warrant before using a narcotics-detecting dog in that manner. If it does, then the police could take their dogs up and down apartment complexes the way they sometimes do with school lockers. Over at the legal analysis site Verdict, Cornell University professor Sherry Colb runs through what’s at stake, and offers some informed speculation on what the court may do.

For the purpose of this post, though, I want to focus on what’s missing from Colb’s analysis and, should the Supreme Court decide to hear the case, will almost certainly also be missing from oral arguments, the court’s ruling and most discussion of the case: that narcotics-detecting dogs and their handlers aren’t very good at discerning the presence of illegal drugs. Multiple analyses of drug-dog alerts have consistently shown alarmingly high error rates — with some close to and exceeding 50 percent. In effect, some of these K-9 units are worse than a coin flip…

While dogs are indeed capable of sniffing out illicit drugs, we’ve bred into them another overriding trait: the desire to please. Even drug dogs with conscientious handlers will read their handlers’ unintentional body language and alert accordingly. A 2010 study found that packages designed to trick handlers into thinking there were drugs inside them were much more likely to trigger false alerts than packages designed to trick the dogs. (Police-dog handlers and trainers responded to that study by refusing to cooperate with further research.) Many drug dogs, then, are not alerting to the presence of drugs, but to their handlers’ suspicions about the presence of drugs. And searches based on little more than law enforcement’s suspicions are exactly what the Fourth Amendment is supposed to prevent…

If the Fourth Amendment rights of drug suspects hinge on drug dogs, one would think the accuracy of those dogs would be something the Supreme Court might want to investigate. You’d be wrong

The Harris ruling made these dogs’ real-world accuracy irrelevant. In the alternate reality of the criminal justice system, from 2013 on, any police dog that is “certified” is accurate and reliable — because the Supreme Court says they are.

Two years later, a ruling from the U.S. Court of Appeals for the 7th Circuit stretched the dimensions of this new reality. In United States v. Bentley, the defendant was searched after an alert by a drug dog that had alerted 93 out of every 100 times it sniffed. Why did it alert so often? Perhaps because the drug dog’s handler admitted that he rewarded the dog with a treat only when it alerted. The dog was confirming its owner’s hunches, and getting a treat each time it did. It also had a false positive error rate of 41 percent — 4 out of every 10 drivers searched because of a dog’s alert turned out to be innocent…

And, yet, in our criminal justice system, those searches would not violate the Fourth Amendment rights of the people inside. Because in this reality, the Supreme Court determines what is and isn’t true. And the Supreme Court has said that so long as they’re certified, drug dogs only alert when someone is guilty.

It really is astounding how little science and fact count for in our criminal justice system when weighed against past precedent and a bias towards finality.  And this comes from the very highest levels that the Supreme Court honestly just doesn’t care that drug-sniffing dogs are a horribly blunt and failure-prone instrument.  It’s like if we somehow let police regularly pull over people for speeding with radar guns that had a +/- 20mph error rate and just didn’t care.  But hey, drugs are bad!  Ugh.

How to shoot someone on 5th Avenue and get away with it

Terrific piece by Peter Beinart that brings in relevant social-psychological research to explain the evil genius behind Trump’s plain sight flouting of democracy and the rule of law:

And yet, Trump’s China remarks don’t appear to have hurt him much. The majority of Republican voters and politicians still oppose his impeachment. His China comments may even prove politically shrewd. Research into the psychology of secrecy and confidence helps explain why.

In January 2016, Trump infamously declared, “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.” The statement was widely interpreted as a commentary on the loyalty of Trump’s voters. But it can also be understood as a commentary on the value of brazenness—of acting publicly rather than furtively and confidently rather than bashfully. It’s a value academics have confirmed time and again…

The researchers’ conclusion: There is a secrecy “heuristic”—a mental shortcut that helps people make judgments. “People weigh secret information more heavily than public information when making decisions,” [emphases mine] they wrote. A 2004 dissertation on jury behavior found a similar tendency. When judges told jurors to disregard certain information—once it was deemed secret—the jurors gave it more weight.

While it’s unlikely Trump has heard of the secrecy heuristic, his comments about murder on Fifth Avenue suggest he grasps it instinctively. He recognizes that people accord less weight to information that nobody bothers to conceal. If shooting someone were that big a deal, the reasoning goes, Trump wouldn’t do it in full public view. The logic works even better when it comes to Trump’s comments about Ukraine and China. Most Americans know murder is against the law. Whether inviting foreign meddling in an American election constitutes a “high crime or misdemeanor,” by contrast, is less well established. By openly inviting such meddling, therefore, Trump sends the message that it’s not that important. If it were, he’d have kept his request a secret.

But brazenness entails more than just a lack of secrecy. It also entails confidence. And here too, there’s ample evidence that Trump’s confidence works to his political benefit…

If people use secrecy as a heuristic to gauge importance, they use confidence as a heuristic to gauge competence. As Cameron Anderson, a professor at UC Berkeley’s Haas School of Business, explained to me, “There is a lot of research showing that when people exhibit confidence, they come across as more competent, intelligent, skilled, and so forth.” The word con man, the Harvard professor and former Obama-administration official Cass Sunstein has noted, is short for confidence man. That’s because “when con men succeed,” Sunstein observes, “it’s usually because they enlist the confidence heuristic. They don’t show any doubts. They act as if they know what they are doing.” Thus, they win people’s trust.

By openly asking Ukraine and China to investigate a political rival, Trump expressed confidence that he’s doing nothing wrong. And while one might think the majority of Americans would view Trump’s confidence as an outrageous sham, academic evidence suggests that con men can be surprisingly difficult to unmask.

Short version: Trump is not so great at actually being a president.  But as a con man, he is nearing “great and unmatched” ability.

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