THE NEW SCARLET LETTER

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It is remarkable that the combination of a self-involved sociopathic President, with the aid of a whimperingly compliant Republican Congress, has the chutzpah to continue to proceed down the path of shredding our Founding Document -- in plain sight.

It is impossible to select the most flagrant example of the current Trump excesses, all tolerated by Mitch McConnell and his shameless team of Republican Party sycophants in the United States Senate.

Right now, if you were in the military, you currently might be most offended by Trump's giving the bird to Congress and our armed forces by taking money that Congress authorized for schools on military bases and spending it on fulfilling his campaign promise to "Build the Wall."

If you were on the scientific staff of the NOAA, you would be humiliated by being told by your leadership that you must never again contradict the President, even when he issues statements that are not only wrong, but wilfully false and a danger to your consumers, i.e., the American public.

Being a lawyer, I am horrified by Trump's neutering of the United States Department of Justice. He has, via his directives and choice of Attorneys General, made clear that he views the Department as his personal staff of legal Brownshirts and protectors of the Supreme Leader. When his first AG proved insufficiently loyal by complying with the legal requirement to recuse himself from the Mueller investigation, the President brought about his departure, and replaced him with the eagerly compliant William Barr, who most prominently disgraced himself by publicly delivering a false summary of the Mueller Report. 

Barr's latest impeachable offense (yes, all cabinet members are impeachable) is to order an antitrust investigation into an arrangement whereby four auto manufacturers voluntarily agreed to abide by California's newly established fleet gas mileage goals for the next seven years.

Some basic facts: The Obama administration set a goal of fleet fuel consumption of 51.5 mpg by 2025. After conversations with auto manufacturers, California, which has the right under the Clean Air Act to set its own legal limits, established a limit of 51.5 mpg for a year later, 2026. Inasmuch as Californians buy 12% of all automobiles purchased in the United States, automakers eagerly accepted the standard, lest they face a bifurcated US market. And to make matters more difficult, thirteen additional states have adopted the CA standards, and those states account for one-third of all auto purchases.  At no time, did any manufacturer argue that the Obama/ California standards could not be met. 

The estimated result is the reduction of released CO2 by half a billion tons by 2035. (I lack the skill to convert that into the billions, or trillions, of gallons of gasoline not consumed.)

But Trump was enraged. He wanted to cut the Obama/CA standards from 51.5 mpg to 37 mpg.  Why insist on inefficiency and environmental harm? Hmm. A number of theories abound: i) Resentment of all things Obama? ii) Dramatic reduction of profits to his oil company contributors? iii) To emphasize the claim that climate change is a "hoax?" What else could there be? A ridiculously unscientific estimate that more efficient cars will, in the end, cost more over the lifetime of the vehicle, or will be unsafe?  Absurd. The new standards will be met by significantly increasing production and sale of electric vehicles, which are far more efficient, and will use, in part, renewable energy sources. But if you love gas guzzlers, they will still be available elements in each manufacturer's fleet, (though I doubt you will be able to find one as inefficient as the 2016 SUV I own that gets 14 mpg!)

But Trump is Trump. So he set William Barr on the automakers! And the so-called Department of Justice has opened an antitrust investigation into the conduct of the four manufacturers who said they would meet the California standards. The DOJ suggested this might be an illegal conspiracy to raise the purchase price of cars!

That claim does not pass the laugh test. The 1890 Sherman Act bars "any contract or conspiracy... in restraint of trade." That means competitors cannot conspire to act together to raise prices to the detriment of the consumer. There is no lawyer, and I mean not even a Trump lawyer, who would dare show up in court and argue that the auto makers' agreement voluntarily to comply with a state environmental mandate is a conspiracy barred by the Sherman Act.

Ahh, but this is not a DOJ effort to win a lawsuit. This is simply a punitive investigation. The DOJ will demand a billion documents, the government will spend millions of dollars "investigating" whether this save-the-environment plan is an illegal conspiracy, and maybe, just maybe, the car companies will back down, though I don't see how they could. But Trump will bluster and inflict pain on his adversaries before he backs down and loses.

Can the DOJ really sue the auto companies for allegedly violating the Sherman Act? It can but it won't. Can the DOJ really sue the state of California for this alleged "antitrust" violation? For complicated legal reasons, the answer to that question is "probably not," but that doesn't mean Trump can't try to bully the state anyway. So Trump had two other agencies of our Federal Government (no, not NOAA this time, -- the Transportation Department and, believe it or not, the Environmental Protection Agency) send California a letter saying its 51.5 mpg standard was "inconsistent with federal law" and if the state did not immediately withdraw from the arrangement it faced "legal consequences." In other words, a letter dictated from the grave by Trump lawyer Roy Cohn.

Friends, while "shame" appears no longer to be recognized by Trumpians, it nevertheless survives. I can only repeat what I have said before: All who have been attached to this administration and have responded to this President's directions are indelibly stained. They bear the scarlet letter "T" on their breasts and are forever disgraced.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

And if you want information on my direct legal involvement with Donald Trump or his tutor, Roy Cohn, there are chapters on each in my memoir "The Client Decides," available on Amazon and Kindle. And look for the forthcoming documentary, "Where's my Roy Cohn," opening in theatres in NYC and LA on September 20.