THE CONSERVATISM OF ORIGINALISM:

It was for some a little too convenient, sending them scurrying to dictionaries for a definition of "emoluments," since neither the framers of the Constitution nor the justices of the Supreme Court have provided one.

Among the seekers was John Mikhail, a law professor with a PhD in philosophy and associate dean at the Georgetown University Law School. But while reporters, for example, tended to look it up in Merriam-Webster, Mikhail went to dictionaries available to the framers of the Constitution in 1787, which is what litigants do when trying to figure out what the Founding Fathers meant.

But Mikhail didn't stop at a few dictionaries. With the aid of a Georgetown law student, Genevieve Bentz, he embarked on a lexicological odyssey into dozens of long-forgotten dictionaries, published over a 200-year period before 1806, 40 regular dictionaries and 10 legal dictionaries, listed here.

The research yielded a very different, much broader definition than that put forward by Trump's lawyers. "Every English dictionary definition of 'emolument' from 1604 to 1806″ uses a "broad definition," including "profit," "advantage," "gain," or benefit," he wrote in his paper describing the research.

As to the "office-and-employment-specific" interpretation by Trump's team, Mikhail wrote that "over 92 percent of these dictionaries define 'emolument' . . . with no reference to 'office' or 'employment.' "

In other words, by his research, the emoluments clause would bar any benefit or profit to a president via a foreign state, whether in his capacity as president or in any other role, such as the owner of a hotel. It would, specifically, cover Saudi Arabia or Kuwait renting out space at the Trump International Hotel in Washington.

"I sort of felt like I had them in the crosshairs," he told The Washington Post on Thursday.

He did.

On Wednesday, Mikhail's labors paid off. In a historic decision, U.S. District Judge Peter Messitte in Greenbelt, Md., ruled that a suit brought by the District of Columbia and Maryland could go forward instead of throwing it out, as the administration desired.

Messitte cited, in part, what he called the "exhaustive" research of Mikhail, mentioning him by name 17 times.

And while citing numerous other factors, the judge's choice of definition proved crucial to the ruling, the first on the meaning of the Constitution's emoluments clauses. (There are two, one covering domestic gain, the other foreign.)

The judge noted that Mikhail's dictionary research was more extensive than that of the president's lawyers, covering "virtually every founding-era dictionary." Citing Mikhail again, Messitte said, "the President's definition appears in less than 8% of these dictionaries" vs. 92 percent for the broader meaning.

HOW WOULD HE NOT HAVE?:

He acts the same way with foreign governments, thinking that if he acts tough, they will come crawling to Washington. They will make concessions and the world will revert to normal, on Trump's terms. This is how Juncker's visit was billed. Unfortunately that is not how things work.

Plants which close do not reopen, and the Mid-Continental Nail Corporation in Missouri, Amercia's largest nail manufacturer, is a useful example. It imports its metal from Mexico and has been hit hard by the tariffs. It could shut. If it reopens, it will be in Mexico.

Firms with complex supply chains will establish them elsewhere, and the new suppliers will not gladly relinquish this new business. Nor will Latin American farmers who capture the corn and soybean market in China after US produce has been turned away. Moreover, countries will find permanent work-arounds. The Japanese salvaged the Trans-Pacific Partnership after Trump rejected it. Australian, Canadian and New Zealand farmers now have an advantage in the Japanese market, as do European wine producers and car-makers after the EU-Japan trade deal was completed. Things do not revert to normal after all.

Mr Juncker is a smarter man than many of the Eurosceptic herd in this country credit. So many Brexiters I know, who cannot be readily separated from the wine bottle, make snide comments about 'Druncker'. But the sharp operator arrived with a framed photo of the cemetery in Luxembourg where General Patton is buried, for the President. It was inscribed with the words: "Dear Donald, let's remember our common history".

He had also decided to entirely separate defence and trade, and to pursue the German approach of superficial accommodation rather than the French desire for confrontation. While Malmström dangled vague zero tariffs on all motor vehicles at perplexed Republican Congressmen, Juncker offered to buy more US soybeans and LNG, provided Trump suspended current hostilities. Juncker knows perfectly well that European consumers don't like US cars, and that they are suspicious of GM and hormone saturated foods.

Trump felt the love, and declared a truce, perhaps after realising that he needs allies for the bigger showdown with China. So more pointless noise, more anxiety for American workers and their bosses, and, as in the case of the President's sensational gambits with Kim or Putin, a pathetic climb down, this time to a genially steely former prime minister of Luxembourg, who deserves his cognac on the flight home.

NO ONE HATES JUST MEXICANS:

[A]s America's quarrels with China grow more pronounced, from trade policy to the South China Sea, the more tempting it looks to draw India closer for balance. Last December the Trump administration officially took a further step in that direction, welcoming "India's emergence as a leading global power" in its National Security Strategy.

Yet all of this simply makes Trump's more recent rumblings the more self-defeating, beginning with moves to tighten H-1B visas for technology workers, which have often been used by Indian outsourcers. More recently there have been threats of possible "secondary sanctions" against India, if it continues to buy oil from Iran, one of its most important energy suppliers.

"India's bilateral relations with Iran stand on their own and are not influenced by India's relations with any third country," said Gen. V. K. Singh, India's minister of state for external affairs, in Parliament earlier this month--in effect politely telling the U.S. to back off.

Then there are growing disputes over trade flowing from Trump's attempts to pressure China and rip up the existing global trading system. India has already introduced retaliatory steps against Trump's recent tariffs on aluminum and steel. Trump has complained about Indian tariffs on Harley-Davidson motorcycles in return.

As a still-poor country, India wants the kind of international stability that will allow its economy to grow. Broadly speaking, Modi backs the current global order that Trump is tearing down. The more that destruction continues, the weaker ties between the U.S. and India are likely to become.

Raja Mohan, one of India's most respected foreign policy analysts, put his finger on the brewing anti-U.S. mood swirling around New Delhi in a recent article. "For many in India, it is tempting to align with Trump's critics, at home in America and his allies in Europe and denounce the US president's disruptions," he wrote.

This should be an alarming warning. India is not a formal U.S. ally and is unlikely to become one, at least partly because New Delhi understands only too well that it should not needlessly antagonize China. It can be a prickly country to deal with.

"America's bet on India should be strategic, but Trump cannot see beyond the most recent transaction," said Milan Vaishnav of the Carnegie Endowment for International Peace. "Asking 'what have you done for me lately?' will lead to bad outcomes when it comes to India."

NO ONE JUST HATES MEXICANS (degeneracy alert):

1/ We obtained police reports and call logs from more than two-thirds of the shelters housing immigrant children. In the following tweets, we'll share some of the most disturbing records we found. https://t.co/dDaZdF2Jpx

— ProPublica (@ProPublica) July 27, 2018

HEEL, BOY:

Last week, just days after they met in Helsinki, Trump invited Putin to Washington for a second sit-down. When the Kremlin seemed cool to the idea, the White House backed away... [...]

"We are ready to invite President Trump to Moscow. Be my guest," Putin said at a meeting in Johannesburg, South Africa.

THE lEFT IS THE rIGHT:

If Democrat Scott Wallace beats Rep. Bryan Fitzpatrick (R.) in Pennsylvania's 1st congressional district in November, he will become at least the third richest member of Congress, which is saying something: Nineteen of our legislators have net assets totaling more than $30 million. Wallace, a grandson of a vice president, is worth between $127 million and $309 million.

But Wallace isn't just extremely wealthy. He is also apparently kept awake at night by the thought of the rest of us poor slobs breeding.

Wallace has for many years been at the helm of the Wallace Global Fund, his family's nonprofit foundation, which has given more than $7 million in the last two decades to groups that advocate state-sponsored population control, including China-style limits on the number of children families are allowed to have.

One of these outfits, Population Connected, founded as Zero Population Growth in 1968, had this to say in a lovely brochure for new members:

We advocate: 1. That no responsible family should have more than two children. Any family wanting to care for more than two children should adopt further children. Adopting children does not increase the population. 2. All methods of birth control, including legalized abortion, should be freely available -- and at no cost in poverty cases. 3. Irresponsible people who have more than two children should be taxed to the hilt for the privilege of irresponsible breeding. [Population Connected]

"Irresponsible breeding!"

[Ruth Bader Ginsburg]: Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don't want to have too many of.

CAN SOMETHING FALL APART IF IT NEVER HELD TOGETHER?:

What we now know from the declassified documents is that the FBI submitted the Page application to the FISC in October 2016, after Page had left the campaign. During the summer of 2016, news outlets had reported on a speech that Page made in Moscow that was highly critical of the United States and on Page's ties to prominent Russian figures with connections to the Kremlin. It sounded entirely too reminiscent of the heat the Trump campaign was taking in the press for the ties its campaign chairman, Paul Manafort, had to shady Russian oligarchs. By September 2016, both Manafort and Page had left the Trump campaign.

In October, the FBI noted a string of activities that raised concerns about Russian interference in the 2016 presidential election. These were laid out in the initial application: The FBI described Russia's clandestine intelligence activities; its historical attempts to interfere in U.S. elections; its particular efforts to interfere in the 2016 election--including the cyberattack on the DNC and the release of hacked emails by WikiLeaks--and the intelligence community's joint assessment, a version of which was released to the public on October 7, 2016, concluding that the intelligence community was confident that Russia's senior-most officials directed the targeting of the DNC.

Although Page had left the campaign, the FBI feared Russia was using him for its own purposes. The application states that the FBI alleged there was probable cause to believe Page was an agent of a foreign power under a specific provision of FISA that involves knowingly aiding, abetting, or knowingly conspiring to assist a foreign power with clandestine intelligence gathering activities, engage in clandestine intelligence gathering at the behest of a foreign power, or participate in sabotage or international terrorism or planning or preparation therefor.

The FBI then laid out its case. Many of the details specific to Page in the initial application are redacted. However, it appears to be a chronological narrative that includes references to Page's years in Moscow in the early 2000s as well as a discussion of Page's interactions with three intelligence officers of the Russian SVR (the country's CIA equivalent), all of whom were indicted in the United States for various crimes that amounted to spying for Russia. Two of the SVR agents fled the country, and the third was convicted of conspiracy to act as an unregistered agent of a foreign government and sentenced to 30 months in prison. (These charges, coincidentally, are the same ones leveled against Maria Butina, who is in custody and awaiting further criminal proceedings in the U.S. district court in Washington.)

At this point in the application, the narrative shifts to Page's actions during the campaign, in particular his July 2016 trip to Moscow to speak at the New Economic School, where, according to the FBI application and the now-infamous Steele dossier, Page met with high-ranking Russian government officials. It's this portion of the application that has engendered the greatest controversy. In January and February 2018, the HPSCI--the same committee that had so soberly and thoughtfully laid out a balanced structure for oversight of electronic surveillance activities--exploded into a chaos of dysfunction.

The HPSCI had been operating as a bit of a circus from the beginning of its Russia investigation in early 2017, with Chairman Devin Nunes (R-Calif.) lobbing wild accusations about the unmasking of the identities of U.S. citizens in intelligence reporting by Obama administration officials--a series of accusations that led Nunes to make bizarre late-night trips to the White House and convene press conferences on the White House lawn. Nunes briefly recused himself, although it was unclear just how distant he remained from the HPSCI majority's efforts during the investigation. Despite the constant sense that this once-sober committee was on the verge of running off the rails, it managed to cling to just enough credibility to stay on track until the winter of 2018, when Nunes insisted on releasing a memo that endorsed a new conspiracy theory about how a Democratic administration had: abused the FISA process by using salacious opposition research (with the implication that the funding source made the information itself suspect), incorporated that suspect research into a FISA application, and sent the application to the secret proceedings of the FISC without telling the court there could be bias in the information. Through this complicated string of subterfuges, Nunes claims, the Democrats managed to pervert justice in order to spy on the Trump campaign.

Over time, the conspiracy theory would deepen: Since the dossier included information from sources in Russia, that meant that the Hillary for America campaign had colluded with Russia to provide fake information to Christopher Steele, who slipped the fake news to the FBI, which then pulled the wool over the eyes of a succession of four FISC judges, each of whom signed off on further surveillance against Carter Page.

It's an exhausting theory to contemplate, and yet one that many people, fueled by conspiracy-mongering rumors on the Internet about the workings of the "deep state," believed. What the newly released documents show is that the theory is utterly bunk.

On page 15 of the initial application, the FBI offers a lengthy explanation of the sourcing of information about Page's 2016 trip to Moscow. In sum, the Steele dossier was only one part of the case against Page and only one part of the dossier was cited; it focused on a single event against a much larger background of Russian activities and Page's own activities and interactions with indicted and convicted Russian spies. Page was, after all, a man who had boasted in a 2013 letter that he was an informal adviser to the Kremlin.

So against this fuller background of facts (not the complete facts, since the released applications are full of redactions, and since there may be other facts that haven't yet come to light), it is apparent that the FBI would have been derelict in its duty if it didn't at least investigate whether there was cause for concern. Page had longstanding ties to Russia, including past ties to indicted and convicted Russian spies; the intelligence community had concluded that Russia was undertaking active measures to influence the 2016 U.S. election; and Page made a trip to Russia, possibly meeting with Kremlin officials, while he was an adviser to Donald Trump's campaign. Taken together, it appears to be probable cause.

In a tantalizing partial sentence, the FISA application states that "the FBI believes that the Russian government's efforts are being coordinated with Page and perhaps other individuals associated with Candidate #1's campaign"; the rest of the sentence trails off into a lengthy redaction.

The full 412 pages of the application and its three renewals follow much the same pattern. The FBI explains the context, the foreign power, and why it's concerned about Page in particular. It describes the nature of the source information and the status of the FBI's relationship with the source as well as its confidence in his reliability, pointing out that the FBI did indeed tell the FISC about this potential bias in lengthy footnotes in all four applications that explained that a U.S. law firm (now known to be Perkins Coie) had hired a U.S. person (who we now know is Glenn Simpson) "to conduct research into Candidate #1's ties to Russia." Per the footnote, that U.S. person then hired "Source #1" (Steele). Although the FBI didn't believe Steele was aware of who had originated this request or for precisely what purpose, it noted in the first application, "The FBI speculates that the identified U.S. person [who hired Steele] was likely looking for information that could be used to discredit Candidate #1's campaign." The later applications explain that the FBI severed its relationship with Steele because, after giving his information to the FBI, he had also talked to the press. However, per the applications, "notwithstanding Source #1's reason for conducting the research," because of Steele's past reliability in providing useful and accurate information, "the FBI believes Source #1's information herein to be credible."

From all of this, somehow, Devin Nunes spun a crazy conspiracy narrative. Now that the underlying FISA documents have been released, that narrative--along with the HPSCI--is falling apart.

DUDE, IT'S YOUR FORUM; POLICE IT:

The Holocaust was a lie, Anne Frank's diary was a fake, and Jews are barbaric and unsanitary: All those are posts that are still available on Facebook despite being reported to the social media giant.

According to an investigation by the British Times, "scores of examples of material designed to incite hatred and violence against Jews" still remain on Facebook. "Some of it," the newspaper reported, "had already been flagged to the company. When the material was highlighted to Facebook yesterday some was taken down but several antisemitic posts and pages remained up last night."

In part, that's because the company's guidelines designate anti-Semitic posts as hate speech that is slated for removal, but does not view Holocaust denial the same way. Earlier this month, Facebook's CEO Mark Zuckerberg sparked a controversy when he said in an interview that he believed Holocaust deniers were making nothing more than an honest mistake.

"I'm Jewish," he said, "and there's a set of people who deny that the Holocaust happened. I find that deeply offensive. But at the end of the day, I don't believe that our platform should take that down because I think there are things that different people get wrong. I don't think that they're intentionally getting it wrong."

After critics and Jewish communal organizations criticized Zuckerberg's comments, his sister and former Facebook executive, Randi Zuckerberg, rushed to his defense and applauded him for "navigating this incredibly difficult new world where the notion of free speech is constantly changing."

As the Times's investigation shows, however, navigating anti-Semitism and Holocaust denial on Facebook means little more than simply letting vile and violent expressions stand. 

AND THEN THEY WONDER WHY THEY HATE US?:

President Trump boasts that he has reversed American policies across the Middle East. Where his predecessor hoped to win hearts and minds, Mr. Trump champions the axiom that brute force is the only response to extremism -- whether in Iran, Syria, Yemen or the Palestinian territories. He has embraced the hawks of the region, in Israel and the Persian Gulf, as his chief guides and allies.

But in many ways, this hard-line approach began to take hold under President Barack Obama, when those same regional allies backed the 2013 military ouster of Egypt's first elected president, Mohamed Morsi of the Muslim Brotherhood.

That coup was a watershed moment for the region, snuffing out dreams of democracy while emboldening both autocrats and jihadists. And American policy pivoted, too, empowering those inside the administration "who say you just have to crush these guys," said Andrew Miller, who oversaw Egypt for the National Security Council under Mr. Obama, and who is now with the Project on Middle East Democracy. Some of the coup's most vocal American advocates went on to top roles in the Trump administration, including Secretary of Defense James Mattis and Michael Flynn, Mr. Trump's first national security adviser.

OH, FREDO...:

According to CNN and NBC, Trump's former lawyer Michael Cohen claims he was present when Trump's son, Donald Trump Jr., told his father about the Russians' offer to meet and that Trump approved of the meeting. [...]

The meeting was set up after a Russian intermediary told Trump's son that a Russian official had offered to provide documents and information that would "incriminate" Clinton.

THIS HAS TO BE FAKE...:

University of Virginia researchers who looked at data from more than 1,000 students found that all of the advantages supposedly conferred by private education evaporate when socio-demographic characteristics are factored in. There also was no evidence found to suggest that low-income children or children enrolled in urban schools benefit more from private school enrollment.

The results confirm what earlier research found but are especially important amid a movement to privatize public education -- encouraged by Education Secretary Betsy DeVos -- based in part on the faulty assumption that public schools are inferior to private ones. [...]

"You only need to control for family income and there's no advantage," Pianta said in an interview. "So when you first look, without controlling for anything, the kids who go to private schools are far and away outperforming the public school kids. And as soon as you control for family income and parents' education level, that difference is eliminated completely."

Kids who come from homes with higher incomes and parental education achievement offer young children -- from birth through age 5 -- educational resources and stimulation that other children don't get. These conditions presumably carry on through the school years, Pianta said.

Pianta and Ansari used a longitudinal study of a large and diverse sample of children to examine the extent to which attending private schools predicts achievement and social and personal outcomes at age 15.

They started with data from the National Institute of Child Health and Human Development's Study of Early Child Care and Youth Development. That was a 10-site research project that followed children from birth to 15 years with a common study protocol, including an annual interview and observations at home and school and in the neighborhood. In that yearslong study, there were 1,364 families that became study participants, with ethnicity and household income largely representative of the U.S. population, though Pianta and Ansari looked at 1,097 of those children for their analysis.

The Pianta-Ansari study examined not only academic achievement, "which has been the sole focus of all evaluations of private schooling reported to date, but also students' social adjustment, attitudes and motivation, and even risky behavior, all of which one assumes might be associated with private school education, given studies demonstrating schooling effects on such factors." It said:

"In short, despite the frequent and pronounced arguments in favor of the use of vouchers or other mechanisms to support enrollment in private schools as a solution for vulnerable children and families attending local or neighborhood schools, the present study found no evidence that private schools, net of family background (particularly income), are more effective for promoting student success."

"In sum, we find no evidence for policies that would support widespread enrollment in private schools, as a group, as a solution for achievement gaps associated with income or race. In most discussions of such gaps and educational opportunities, it is assumed that poor children attend poor quality schools, and that their families, given resources and flexibility, could choose among the existing supply of private schools to select and then enroll their children in a school that is more effective and a better match for their student's needs. It is not at all clear that this logic holds in the real world of a limited supply of effective schools (both private and public) and the indication that once one accounts for family background, the existing supply of heterogeneous private schools (from which parents select) does not result in a superior education (even for higher income students)."

Pianta and Ansari note in the study that previous research on the impact of school voucher programs "cast doubt on any clear conclusion that private schools are superior in producing student performance."

THE FOUNDER:

Brown offers her readers entrée into many forgotten, but nonetheless fascinating and important, questions. For example, as Secretary of the Treasury, Hamilton had to figure out whether it was possible to pardon a violator of customs law when part of the fine owed by the violator was supposed to be paid to the person who reported the violation.

This is a tricky question. On the one hand, the Constitution empowers the executive to issue pardons. On the other hand, that power was thought to relate to criminal liability only, and not to extend to the private rights of individuals. In other words, a pardon could absolve a man of his punishment--of what has often been called his "debt to society"--but could not relieve him of what he owed to another individual. For did not the customs law give the informant a legal right to his portion of the fine? Hamilton and his colleagues in the executive branch concluded--quite sensibly, and in accord with analogous English practice, as Brown writes--that the pardon could be issued, but conditioned on the pardoned man's paying the informant the latter's portion of the fine.

In another interesting circumstance, Hamilton was confronted with the question whether a municipality could tax the interest on federal securities. The issue arose when William Lowder, the Chairman of Boston's Board of Assessors, wrote to Hamilton, boldly requesting a list of Bostonian holders of federal bonds, so that the city could tax their interest as personal property.

Hamilton's response is surprising, in a way. It is not surprising that he refused to comply, but the reason he gave is perhaps not what we would expect. Hamilton is famous for having anticipated, in his Opinion on the Constitutionality of a National Bank, the arguments for a broad reading of the Necessary and Proper Clause that later appeared persuasive to the Supreme Court in McCulloch v. Maryland (1819). The request of the Boston Board of Assessors also gave Hamilton an opportunity to think about a variation on the other issue that later arose in McCulloch: whether a state could tax the activities of the federal government. It is almost certain that Hamilton would have agreed with John Marshall's ruling in McCulloch that a state could not tax the operations of a federally chartered bank, and with Marshall's related ruling in Weston v. Charleston (1829) that a city cannot tax the interest on federal securities. Yet in 1791, Hamilton raised no such constitutional objection to Boston's proposed tax. He simply refused to comply with the Board of Assessors' request on the grounds that it was incompatible with the public credit of the United States and damaging to "the value of the public stock." [...]

His Common Law Conservative Side

Hamilton was also, Brown explains, a defender of an "extensive" interpretation of the common law. The constitution of the state of New York contained a provision receiving, or adopting as law in New York, the common law of Great Britain. This provision forced New York lawyers and courts to ask: What is the common law? Is it merely the sum of the decisions of the courts at Westminster? Or is it the whole English legal inheritance, as expressed in innumerable decisions, built up over centuries, in courts operating across the entire realm? Hamilton took the latter, more "extensive" view; and this, too, defies our usual understanding of him as a kind of centralist. Here, after all, he was contending that the political community's identity is to be found not just in the rulings of its central authority but also in the customs and usages found in its localities.

We are also used to seeing Hamilton as an innovator, the creator of a new financial and economic order. He sought--in opposition to rivals like Thomas Jefferson--an America that left behind its predominantly agrarian character and built up its institutions of finance, industry, and commerce. Nevertheless, Hamilton's veneration of the whole of the common law marks him, again, as a kind of conservative trying to chart a way forward by the light of principles deeply rooted in his civilization's past.

Finally, we quite reasonably consider Hamilton, especially in contrast to Jefferson, to be a defender of public order and the public authority. Hamilton was a revolutionary, but one who worried that the spirit of 1776, if not channeled properly, might habituate people to disobedience and lawlessness. When, in the early 1790s, the Whiskey Rebellion arose in opposition to the excise tax, Hamilton thought the disturbances would in the end have to be suppressed by the threat of force, so everyone could see that the government could not be defied with impunity. (Jefferson tended to view such rebellions, within limits, as a healthy thing in a republic.)