Sunday, July 23, 2017

Trump’s ‘Great National Infrastructure Program’? Stalled

There is broad agreement that American infrastructure problems need to be addressed, but debate over how to pay for it. Construction crews worked on a section of an overpass that collapsed from a large fire on Interstate 85 in Atlanta. Credit David Goldman/Associated Press
WASHINGTON — As a candidate, President Trump billed himself as a new breed of think-big Republican, pitching a $1 trillion campaign pledge to reconstruct the nation’s roadways, waterworks and bridges — along with a promise to revive the lost art of the bipartisan deal.
In the White House, Mr. Trump has continued to dangle the possibility of “a great national infrastructure program” that would create “millions” of new jobs as part of a public-private partnership to rival the public works achievements of Franklin Delano Roosevelt and Dwight D. Eisenhower. He chastises anyone who forgets to include it near the top of his to-do list, telling one recent visitor to the Oval Office, “Don’t forget about infrastructure!”
But an ambitious public works plan, arguably his best chance of rising above the partisan rancor of his first six months in office, is fast becoming an afterthought — at precisely the moment Mr. Trump needs a big, unifying issue to rewrite the narrative of his chaotic administration.
Infrastructure remains stuck near the rear of the legislative line, according to two dozen administration officials, legislators and labor leaders involved in coming up with a concrete proposal. It awaits the resolution of tough negotiations over the budget, the debt ceiling, a tax overhaul, a new push to toughen immigration laws — and the enervating slog to enact a replacement for the Affordable Care Act.
Mr. Trump’s team has yet to produce the detailed plan he has promised to deliver “very soon,” and the president has yet to even name any members to a new board he claimed would green-light big projects.
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The collapse of his health care overhaul effort seemed to clear one item out of the way. But it also raised serious doubts about the ability of Republicans to pass anything other than regulatory rollbacks or routine spending bills.
“The president would have been better off beginning his agenda with a major infrastructure package,” said Senator Susan Collins, Republican of Maine, who has been working with the White House on the issue.
“It would give him a win on an important agenda item for him,” Ms. Collins said. “It would have been better received by Democrats, Congress and, frankly, citizens across the country.”
Senator John Thune, the South Dakota Republican leading infrastructure efforts in the Senate, said consideration of a proposal could slip into 2018. “They’re supposedly going to submit some sort of plan in the fall, so we’ll see,” Mr. Thune told reporters this month. “We’re sort of waiting on the administration to tell us what it is exactly they want to do.”
Unlike the transformative 20th-century efforts the president likes to cite at his rallies, any plan that eventually emerges will not rely exclusively on federal funds. Instead, it will try to use $200 billion in federal spending to attract an additional $800 billion in investment from private investors and local governments over the next 10 years.
President Trump met with business executives in April. Mr. Trump has spoken of “a great national infrastructure program” that would create “millions” of new jobs and rival the public works achievements of Franklin D. Roosevelt and Eisenhower. Credit Stephen Crowley/The New York Times
Its hybrid nature is its greatest virtue. It’s also a drawback. Democrats and centrist Republicans remain skeptical of its limited scope. House conservatives remain hostile toward any big, new federal funding program. As a result, Mr. Trump’s top advisers and Republicans on the Hill are uncertain on how to proceed and unsure what is even possible given the party divisions exposed by the Obamacare repeal effort.
Gary D. Cohn, chairman of Mr. Trump’s National Economic Council, along with the president’s legislative affairs director, Marc Short, banked on one possible political workaround: linking the plan to the administration’s push for a tax overhaul. The approach appealed to Mr. Trump.
“Infrastructure is in my opinion very popular,” the president said in April. “It’s going to be bipartisan. And I’m going to use it in another bill. That’s an important bill.”
To get it done, Mr. Trump and Mr. Cohn, a lifelong Democrat and a political novice, are open to increasing the federal share well beyond $200 billion, according to officials.
Despite his public swagger, Mr. Cohn tends to tread gingerly on sensitive political matters and is reluctant to release details of the administration’s infrastructure proposal, or even a legislative strategy, for fear of having it shot down.
“Right now, it doesn’t appear that they have a plan,” said Richard L. Trumka, president of the A.F.L.-C.I.O., who is pushing for more federal spending. “The president doesn’t know what his own party wants, and he’s not sure what he wants. He can’t get his own party to pony up the money for infrastructure.”
A White House spokeswoman, Natalie Strom, said the timetable for releasing a proposal was the same as it had always been: late summer or early fall. Mr. Cohn’s team is carefully weighing options and seeking advice from dozens of financial experts, construction executives, legislators and local officials, she said.
“Our work on infrastructure is continuing to move as planned,” Ms. Strom wrote in an email this past week. “Rebuilding our nation’s infrastructure has always been a major priority for the president and his team remains on track to do that.”
Mr. Trump plans to name members of the infrastructure panel in the coming weeks. But contrary to what he told The Wall Street Journal this year, the committee won’t have the authority to approve or reject projects, according to an administration official. Instead it will serve in a broader advisory capacity.
“We are working with local governments, federal agencies and our partners on the Hill to finalize a common-sense plan that will receive overwhelming public support and bipartisan majorities in Congress,” Mr. Short said when asked about the status of the plan.
But time may be running out, and Mr. Short has privately expressed frustration that the president’s team hasn’t made infrastructure more of a priority, according to a Senate staff member who has spoken with him.
Installing high-speed internet cable in upstate New York. Credit Nathaniel Brooks for The New York Times
Senate Democrats are increasingly unwilling to work with Mr. Trump on anything. Nor is there consensus among Republicans on how to proceed.
Senator Mitch McConnell, the majority leader, is skeptical of wedding a tax overhaul and infrastructure — or of any deal that would require him to compromise with Democrats. He has suggested a more modest Republicans-only package. He has also discussed tacking something smaller onto a budget reconciliation bill that requires only 51 Republican votes, according to a person close to the talks.
The idea of an all-in-one bill combining tax reform and infrastructure also has internal skeptics. Treasury Secretary Steven Mnuchin shot it down at a meeting with House members recently, arguing that a combined tax and infrastructure bill was “too big to pass,” according to notes taken by an attendee.
One senior administration aide said Mr. Mnuchin’s position had prompted Mr. Cohn to consider scrapping the idea of melding the two initiatives altogether.
There are other impediments.
Mick Mulvaney, Mr. Trump’s budget director, has told associates he opposes any significant expansion of funding in the plan, according to people close to him. Mr. Mulvaney, who led efforts to shut down the government as a congressman from South Carolina, included a 13 percent cut to the Department of Transportation and reductions to other infrastructure-related programs in his draft budget for the coming fiscal year.
Mr. Cohn, according to two people who have spoken with him recently, has dismissed Mr. Mulvaney’s budget as a “total nonstarter” that no one should take seriously. And while Mr. Mulvaney remains influential with Hill conservatives, Mr. Cohn has the president’s trust. Transportation Secretary Elaine Chao recently called him “the big dog” on taxes and infrastructure.
So far he hasn’t growled. A White House official directly involved in the process said Mr. Cohn’s team was hashing out a “declaration of legislative principles” but would most likely leave much of the bill drafting to House and Senate Republicans.
Still, the broad outlines are slowly coming into focus. The plan would include “massive permit reform” to cut approval times on major projects to two years or less, from 10; loans and grants to improve rural infrastructure; and funding for “transformative projects,” like broadband and power grid improvements. In addition, the effort would include bolstering existing programs funded through the Finance and Innovation Act and new “incentives” to encourage states and localities to bankroll their own projects, officials said.
For his part, Mr. Trump is most concerned about being able to tell voters his plan hit the $1 trillion mark — raising concerns that the administration will simply include previously scheduled local projects in its overall tally to claim victory.
The president — echoing his ill-received remarks about repealing the Affordable Care Act — has told people around him that he did not expect the process to be this difficult, according to one longtime adviser.
The one thing that is not in dispute is the monumental need to do something. The American Society of Civil Engineers estimates that $4.6 trillion is needed to fix crumbling highways, bridges, transit systems and waterworks, and to build out the nation’s power grid and broadband networks.
At work in May on a bridge for Interstate 11 near Boulder City, Nev. Credit John Locher/Associated Press
Tom Naratil, the Americas president for UBS and an advocate of public-private partnerships, said: “From our investor surveys, and in other places, you can see that infrastructure is a unifying, not a dividing, issue. The demand is there.”
But lawmakers from states with rural populations are concerned that local governments will have to collect tolls or raise fees to bankroll projects that are not profitable enough to attract big investors. “My concern is, that works very well for large urban states, but it’s not really feasible for rural states like Maine, where you simply can’t generate the same kind of revenue,” Senator Collins said.
Many members of Mr. McConnell’s conference, including conservative stalwarts like Senator Richard C. Shelby of Alabama, have privately pushed for more federal money.
Sean McGarvey, president of the North America’s Building Trades Union, said he thought the administration needed to make “a very, very sizable public investment” for the plan to succeed. Mr. McGarvey, one of the few labor leaders close to the White House, said his union would like to see “a detailed proposal that can make it through committee, and be voted on through regular order by the end of the year.”
In the absence of a concrete proposal to sell, Mr. Trump’s staff has focused on what it can control — cutting regulations and harvesting “low-hanging fruit” to show some progress, in the words of one administration official.
But even that hasn’t gone according to plan. A big-splash proposal to privatize the nation’s air traffic control system, borrowed from House Republicans, has faced tougher-than-expected opposition.
During a White House “infrastructure week” in June that was overshadowed by the testimony of James B. Comey, the former F.B.I. director, on Capitol Hill, aides raided the Republican policy cupboard for news-release-ready projects. Mr. Trump ended the week with what seemed like a genuinely new, if modest, proposal: a plan to create a council to streamline federal permitting coupled with an online “dashboard” to track federal projects.
One problem. A similar law was passed in 2015. The two senators who introduced the legislation — Senator Claire McCaskill, a Missouri Democrat, and Senator Rob Portman, an Ohio Republican — felt blindsided.
“It’s hard when you work in a bipartisan way to accomplish something meaningful and then the president announces it as if it was new, like it was something he was creating,” Ms. McCaskill said.
But Mr. Trump needed something substantive to prove he was making progress, according to White House aides.
Someone simply forgot to give the two senators a heads-up — and the president veered off script to make the project seem as if it were his idea.

White House Signals Acceptance of Russia Sanctions Bill

WASHINGTON — The White House indicated on Sunday that President Trump would accept new legislation imposing sanctions on Russia and curtailing his authority to lift them on his own, a striking turnaround after a broad revolt in Congress by lawmakers of both parties who distrusted his friendly approach to Moscow and sought to tie his hands.

Congressional leaders said Saturday that they had reached agreement on legislation intended to punish Russia for its interference in last year’s presidential election and its aggression toward its neighbors, despite objections raised by the administration that it would inappropriately infringe on the president’s ability to direct foreign policy. The new White House press secretary said on Sunday that adjustments made to the bill were enough to satisfy the president’s concerns.

“The administration is supportive of being tough on Russia, particularly in putting these sanctions in place,” Sarah Huckabee Sanders, who was promoted to press secretary on Friday, said on “This Week” on ABC News. “The original piece of legislation was poorly written, but we were able to work with the House and Senate, and the administration is happy with the ability to do that and make those changes that were necessary and we support where the legislation is now.”

Still, there seemed to be confusion among the president’s advisers. Anthony Scaramucci, the new White House communications director, said on another show that the president had not made up his mind whether to sign the measure. “You’ve got to ask President Trump that,” he said on “State of the Union” on CNN. “It’s my second or third day on the job. My guess is he’s going to make that decision shortly.” He added, “He hasn’t made the decision yet to sign that bill one way or the other.”

That may reflect nothing more than Mr. Scaramucci’s still getting up to speed in his new role, as he suggested. Privately, White House officials said they saw no politically viable alternative to the president signing the bill and so Ms. Sanders seized on the changes made to lay the predicate.

In reality, while the changes made the measure somewhat more palatable to the White House, they mainly provided a face-saving way to back down from a confrontation it was sure to lose if the sanctions bill reached the floor of the House. The Senate passed the original version of the bill, 97 to 2, and Republicans and Democrats expected a similarly overwhelming, veto-proof majority in the House if it came to a vote.

Not only would a veto by Mr. Trump have presumably been overridden by Congress, but White House advisers conceded it would have been politically disastrous. While other presidents might also have resisted legislation taking away their power to have the final say on sanctions, for Mr. Trump such a stance would be untenable given investigations into whether his team colluded with Russia during the election.

Administration officials said that Mr. Trump supported the array of sanctions that have already been imposed on Russia over the last three years since its annexation of Crimea and intervention in eastern Ukraine. While he has talked of improving relations with Moscow, aides noted that he had done nothing in his first six months in office to lift the sanctions.

But aides prepared a plan in the early days of his administration to reverse some sanctions imposed by President Barack Obama in his final weeks in office in retaliation for Russia’s meddling in the election. The plan discussed by Mr. Trump’s aides was throttled after Republican congressional leaders publicly and privately warned against it.

The stand-down on the sanctions fight came at the start of a week in which the president’s oldest son, Donald Trump Jr.; his son-in-law and senior adviser, Jared Kushner; and his former campaign chairman, Paul J. Manafort, are all set to talk with congressional investigators. White House aides on Sunday sought to explain the president’s assertion on Twitter on Saturday that he has the “complete power to pardon” his relatives and advisers — and possibly even himself.

Jay Sekulow, one of the private lawyers representing Mr. Trump, said the president was simply asserting his authority after a Washington Post report that he was discussing it. But Mr. Sekulow denied that pardons were being considered. “We’re not researching the issue, because the issue of pardons is not on the table, there’s nothing to pardon from,” he said on ABC.

Asked if Mr. Trump could pardon himself, Mr. Sekulow said it was a matter of debate among legal scholars. “From a constitutional, legal perspective you can’t dismiss it one way or the other,” he said. “I think it’s a question that would ultimately, if put in place, would probably have to be adjudicated by the Supreme Court to determine constitutionality.”

Still, even as Mr. Sekulow said pardons were not being considered, a senior administration official acknowledged that the president has raised the matter.

“I’m in the Oval Office with the president last week; we’re talking about that,” Mr. Scaramucci said on “Fox News Sunday.” “He brought that up. He said, but he doesn’t have to be pardoned. There’s nobody around him that has to be pardoned. He was just making the statement about the power of pardons.”
Mr. Scaramucci said the Russia investigations were a distraction. “I worked intensely on that campaign, and I think that the Russian situation is completely overblown,” he said. “I was falsely accused of things related to Russia. I know other people are being falsely accused of things related to Russia. And I’m confident that tomorrow when Jared Kushner speaks, and I’ll keep my fingers crossed in saying this to you, it’ll probably be the last time that he has to talk about Russia.”

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Saturday, July 22, 2017

Congress Reaches Deal on Russia Sanctions, Creating Tough Choice for Trump

WASHINGTON — Congressional leaders have reached an agreement on sweeping sanctions legislation to punish Russia for its election meddling and aggression toward its neighbors, they said Saturday, defying the White House’s argument that President Trump needs flexibility to adjust the sanctions to fit his diplomatic initiatives with Moscow.

The new legislation sharply limits the president’s ability to suspend or terminate the sanctions — a remarkable handcuffing by a Republican-led Congress six months into Mr. Trump’s tenure. It is also the latest Russia-tinged turn for a presidency consumed by investigations into the Trump campaign’s interactions with Russian officials last year.

Mr. Trump could soon face a decision: veto the bill — a move that would fuel accusations that he is doing the bidding of President Vladimir V. Putin of Russia — or sign legislation imposing sanctions his administration abhors.

“A nearly united Congress is poised to send President Putin a clear message on behalf of the American people and our allies, and we need President Trump to help us deliver that message,” said Senator Ben Cardin of Maryland, the top Democrat on the Senate Foreign Relations Committee.

The White House has not publicly spoken about the compromise legislation. But two senior administration officials said they could not imagine Mr. Trump vetoing the legislation in the current political atmosphere, even if he regards it as interfering with his executive authority to conduct foreign policy. But as ever, Mr. Trump retains the capacity to surprise, and this would be his first decision about whether to veto a significant bill.

Congress has complicated his choice because the legislation also encompasses new sanctions against Iran and North Korea, two countries the administration has been eager to punish for its activities.

A sanctions package had stalled in the Republican-led House for weeks after winning near-unanimous support in the Senate last month. Democrats accused Republicans of delaying quick action on the bill at the behest of the Trump administration, which had asked for more flexibility in its relationship with Russia and took up the cause of energy companies, defense contractors and other financial players who suggested that certain provisions could harm American businesses.

The House version of the bill includes a small number of changes, technical and substantive, from the Senate legislation, including some made in response to concerns raised by oil and gas companies.

But for the most part, the Republican leadership appears to have rejected most of the White House’s objections. The bill aims to punish Russia not only for interference in the election but also for its annexation of Crimea, continuing military activity in eastern Ukraine and human rights abuses.

Proponents of the measure seek to impose sanctions on people involved in human rights abuses, suppliers of weapons to the government of President Bashar al-Assad in Syria and those undermining cybersecurity, among others.

Paired with the sanctions against Iran and North Korea, the House version of the bill was set for a vote on Tuesday, according to the office of Representative Kevin McCarthy, Republican of California and the chamber’s majority leader.

For months, lawmakers have agreed on the need to punish Russia, separating the issue from others, such as immigration and health care, that have been subject to partisan wheel-spinning. The unity has placed Republicans in the unusual position of undercutting their own president on a particularly sensitive subject.

Yet politically, the collaboration delivers benefits to members of both parties. Democrats have sought to make Russia pay for its interference in the 2016 election, which many of them believe contributed to Mr. Trump’s triumph over Hillary Clinton. And Republicans, who have long placed an aggressive stance toward Russia at the center of their foreign policy, can quiet critics who have suggested they are shielding the president from scrutiny by failing to embrace the sanctions.
There are still hurdles to clear. Neither Speaker Paul D. Ryan nor Senator Mitch McConnell of Kentucky, the majority leader, immediately issued statements on Saturday to give the agreements their blessing.

Mr. Cardin said that though he would have preferred full adoption of the Senate version, “I welcome the House bill, which was the product of intense negotiations.”

He said the legislation would “express solidarity with our closest allies in countering Russian aggression and holding the Kremlin accountable for their destabilizing activities.”

Senator Chuck Schumer of New York, the minority leader, said he expected this “strong” bill to reach the president’s desk promptly “on a broad bipartisan basis.”

In the House, Representative Steny H. Hoyer of Maryland, the minority whip, praised the agreement’s stipulation that “the majority and minority are able to exercise our oversight role over the administration’s implementation of sanctions.”

But Representative Nancy Pelosi of California, the Democratic leader, struck a notably different tone. In a statement, she said she was “concerned by changes insisted upon by Republicans” that would empower Republican leadership only to “originate actions in the House to prevent the Trump administration from rolling back sanctions.”

She also registered concerns about adding sanctions against North Korea to the package, questioning whether it would prompt delays in the Senate. Mr. Schumer and Mr. Cardin expressed no such concerns.

The delays in the House became a source of deep frustration among some Russia hawks, including Senator John McCain, Republican of Arizona, before he left Washington for medical treatment for a brain tumor.
“Pass it, for Christ’s sake,” he said to his House colleagues, as the measure languished last week over technical concerns raised mostly by Republicans.

As House Republican leaders like Mr. Ryan chafed at the suggestion that they were doing the White House’s bidding by not taking up the measure immediately, the administration sought to pressure members by insisting that the legislation would unduly hamstring the president.

Officials argued that Mr. Trump would be sharply constrained — deprived of the power to ease or lift the sanctions as he saw fit. The White House pushed to remove language giving Congress the ability to block such actions.

Some Pundit Meta On Our Twin Crises By Paul Krugman

July 22, 2017 12:56 pm

Right now, there are two huge crises in American politics, but one is clearly bigger than the other. Yet looking at my recent columns, and to a large extent my blogging and tweeting, I’ve been focusing mainly on the lesser crisis. A few thoughts about why.

Clearly the most important thing happening in and to America right now is the constitutional crisis. Not potential crisis: it’s already here. The president’s inner circle is under investigation for possible collusion with a hostile foreign power, collusion that may have put him in office; he himself, whether or not he’s currently a direct target of that investigation, is clearly suspect. Yet he has already made clear his determination to block any investigation that gets too close.

This is way worse than Nixon – yet all indications are that the moral rot of the Republican Party now runs so deep that the constitutional answer to a rogue president is null and void. This is an existential threat to the republic, and it can be hard to focus on anything else.

Yet if Trump-Putin-treason weren’t in the news, we’d all be focused on health care, where Republicans are still trying to ram through a disgusting bill, inflicting immense harm, under cover of secrecy and lies. In the process they are bringing conspiracy theorizing to the heart of politics: every attempt at objective analysis, every statement of plain facts, just shows that you’re an enemy.

So, what to write about? In my case, I’m mainly doing health care. Why?

First, personal comparative advantage. I’m not a national security or legal expert. That won’t stop me from weighing in when I think other pundits are, for whatever reason, failing to see the obvious – as was the case long ago when I stuck my neck out to argue that we were being lied into the Iraq war.

But Trump-Putin-treason is in fact getting plenty of attention.

Meanwhile, health economics is close enough to my home areas of expertise that I think I know what I’m talking about (and who to consult); so it’s an area where I think I can still add significant value to the discussion.

Equally important, health care is an area where punditry can make a difference, either by helping to stop the Republican bum’s rush or by helping to ensure that those responsible for destroying health care pay the appropriate price. For now, by contrast, Trump-Putin-treason is largely in the hands of Robert Mueller and Trump himself.

Investigative reporting can help move the situation along, and it will be all hands on deck if and when Trump fires Mueller (which seems more likely than not). But for now, it seems to me that I personally best serve the public interest by focusing on the lesser but still great evil.

Friday, July 21, 2017

If Trump Pardons, It Could Be a Crime


President Trump at the White House on Wednesday. Credit Michael Reynolds/European Pressphoto Agency

President Trump and his lawyers have discussed whether he could pardon his relatives and aides to undercut, or even end, the special counsel’s investigation into charges that his campaign colluded with Russia to influence the 2016 election, The Washington Post reported on Thursday night.
There’s no question that with a stroke of his pen, Mr. Trump can shield his son Donald Trump Jr., his son-in-law, Jared Kushner, and other close associates from potential prosecution. Despite the uproar that would set off, we know by now that Mr. Trump loves the grand gesture, whatever the consequences. Besides, his family is at stake.
While his authority to pardon is crystal clear, a crucial, threatening, legal ambiguity should make him think twice about using this authority.
The Constitution gives the president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The framers had sound reasons for bestowing that authority. As Alexander Hamilton explained, criminal law in the late 18th century was so severe that without the pardon power to soften it, “justice would wear a countenance too sanguinary and cruel.”
Consistent with the framers’ design, the Supreme Court has interpreted the president’s pardon power broadly. The president can pardon anyone for any crime at any time — even before a suspect has been charged. Congress cannot withdraw presidential pardons, and prosecutors and courts cannot ignore them.
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But could a pardon be a criminal abuse of power? Some would argue that would contradict the founders’ vision of unlimited pardon authority. If a president sold pardons for cash, though, that would violate the federal bribery statute. And if a president can be prosecuted for exchanging pardons for bribes, then it follows that the broad and unreviewable nature of the pardon power does not shield the president from criminal liability for abusing it.
The Justice Department and the F.B.I. proceeded on this premise in 2001 when they opened an investigation into possible bribery charges arising out of President Bill Clinton’s pardon of the fugitive financier Marc Rich, whose former wife had donated $450,000 to Clinton’s presidential library. The investigation lasted until 2005, though no charges resulted.
Of course, bribery would not be the relevant crime. No one thinks that Donald Jr. or Jared Kushner — or anyone else involved in the Russia scandal — would pay the president for a pardon.
Yet federal obstruction statutes say that a person commits a crime when he “corruptly” impedes a court or agency proceeding. If it could be shown that President Trump pardoned his family members and close aides to cover up possible crimes, then that could be seen as acting “corruptly” and he could be charged with obstruction of justice. If, as some commentators believe, a sitting president cannot be indicted, Mr. Trump could still face prosecution after he leaves the White House.
There is strong support for the claim that the obstruction statutes apply to the president.
In 1974, when the House Judiciary Committee voted to impeach President Richard Nixon, members on both sides of the debate acknowledged that presidential obstruction of justice was not only impeachable but also criminal. A quarter century later, the Senate split 50-50 on whether to remove President Clinton from office on obstruction charges, but senators from both parties agreed that the obstruction laws applied to the president.
There is a broad consensus that a president exercises the pardon power properly — not “corruptly” — when he grants clemency based on considerations of mercy or the public welfare. President Gerald Ford invoked both of those values when he pardoned Nixon: He said that a prosecution of the former president would be too divisive and that Nixon had suffered enough. President George H.W. Bush gestured to both values when he pardoned former Reagan administration officials for their involvement in the Iran-contra scandal.
In Trump’s case, the question would be whether he was acting out of the goodness of his heart, or covering up for his family, his associates and himself.
We expect — and hope — that prosecutors and courts would give wide latitude to a president in evaluating his pardon decisions. Only in the most egregious cases should a president face criminal liability for actions taken while in office.
While the law on this subject is unsettled, that in itself should be unsettling to the president as he considers whether to grant clemency. Not only might the pardons constitute obstruction, but the pardoned individuals might be compelled to testify against Mr. Trump without any recourse to the Fifth Amendment right against self-incrimination, since they would no longer have any concern about incriminating themselves.
He could ensure that his family members and aides get off scot-free for any crimes they may have committed during the 2016 campaign. But by extricating those individuals from a legal predicament, he might make his own predicament worse.
Daniel Hemel (@DanielJHemel) and Eric Posner are professors at the University of Chicago Law School.
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Health Care in a Time of Sabotage

Credit Saul Loeb/Agence France-Presse — Getty Images
Is Trumpcare finally dead? Even now, it’s hard to be sure, especially given Republican moderates’ long track record of caving in to extremists at crucial moments. But it does look as if the frontal assault on the Affordable Care Act has failed.
And let’s be clear: The reason this assault failed wasn’t that Donald Trump did a poor selling job, or that Mitch McConnell mishandled the legislative strategy. Obamacare survived because it has worked — because it brought about a dramatic reduction in the number of Americans without health insurance, and voters didn’t and don’t want to lose those gains.
Unfortunately, some of those gains will probably be lost all the same: The number of uninsured Americans is likely to tick up over the next few years. So it’s important to say clearly, in advance, why this is about to happen. It won’t be because the Affordable Care Act is failing; it will be the result of Trump administration sabotage.
Some background here: Even the A.C.A.’s supporters have always acknowledged that it’s a bit of a Rube Goldberg device. The simplest way to ensure that people have access to essential health care is for the government to pay their bills directly, the way Medicare does for older Americans. But in 2010, when the A.C.A. was enacted, Medicare for all was politically out of reach.
What we got instead was a system with a number of moving parts. It’s not as complex as all that — once you understand the basic concept of the “three-legged stool” of regulations, mandates and subsidies, you’ve got most of it. But it has more failure points than, say, Medicare or Social Security.
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Notably, people aren’t automatically signed up for coverage, so it matters a lot whether the officials running the system try to make it work, reaching out to potential beneficiaries to ensure that they know what’s available, while reminding currently healthy Americans that they are still legally required to sign up for coverage.
You can see this dependence on good intentions by looking at how health reform has played out at the state level. States that embraced the law fully, like California and Kentucky, made great progress in reducing the number of the uninsured; states that dragged their feet, like Tennessee, benefited far less. Or consider the problem of counties served by only one insurer; as a recent study noted, this problem is almost entirely limited to states with Republican governors.
But now the federal government itself is run by people who couldn’t repeal Obamacare, but would clearly still like to see it fail — if only to justify the repeated, dishonest claims, especially by the tweeter in chief himself, that it was already failing. Or to put it a bit differently, when Trump threatens to “let Obamacare fail,” what he’s really threatening is to make it fail.
On Wednesday The Times reported on three ways the Trump administration is, in effect, sabotaging the A.C.A. (my term, not The Times’s). First, the administration is weakening enforcement of the requirement that healthy people buy coverage. Second, it’s letting states impose onerous rules like work requirements on people seeking Medicaid. Third, it has backed off on advertising and outreach designed to let people know about options for coverage.
Actually, it has done more than back off. As reported by The Daily Beast, the Department of Health and Human Services has diverted funds appropriated by law for “consumer information and outreach” and used them instead to finance a social media propaganda campaign against the law that H.H.S. is supposed to be administering — a move, by the way, of dubious legality. Meanwhile, the department’s website, which used to offer helpful links for people seeking insurance, now sends viewers to denunciations of the A.C.A.
And there may be worse to come: Insurance companies, which are required by law to limit out-of-pocket expenses of low-income customers, are already raising premiums sharply because they’re worried about a possible cutoff of the crucial federal “cost-sharing reduction” subsidies that help them meet that requirement.
The truly amazing thing about these sabotage efforts is that they don’t serve any obvious purpose. They won’t save money — in fact, cutting off those subsidies, in particular, would probably end up costing taxpayers more money than keeping them. They’re unlikely to revive Trumpcare’s political prospects.
So this isn’t about policy, or even politics in the normal sense. It’s basically about spite: Trump and his allies may have suffered a humiliating political defeat, but at least they can make millions of other people suffer.
Can anything be done to protect Americans from this temper tantrum? In some cases, I believe, state governments can insulate their citizens from malfeasance at H.H.S. But the most important thing, surely, is to place the blame where it belongs. No, Mr. Trump, Obamacare isn’t failing; you are.

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