On September 10, 2017 on Facebook I posted the following question:

Can California establish a new form of state citizenship? It wouldn’t be valid for the federal government, but what if we offered to make immigrants into “California citizens”?

We could allow them to vote in local and state elections, allow them to work and pay taxes, etc etc. We could have them and their employers pay to California the taxes that otherwise would go to the federal government, and then use that money to provide social services: health insurance, welfare, social security, etc.

If we can legalize marijuana even though it is illegal under federal law, why not also do this for our undocumented residents?

Basically, what I am saying is why not model on a state level the new immigration law that we would like the federal government to pass?

Some good comments and questions from my friends led me to consider this question more deeply.  I am setting up this blog post to assemble what I have found.

First, the current law:

Cal. Const. Art II, Sec 2 states: “A United States citizen 18 years of age and resident in this State may vote.”

Cal. Elections Code provides: § 2000. (a) Every person who qualifies under Section 2 of Article II of the California Constitution and who complies with this code governing the registration of electors may vote at any election held within the territory within which he or she resides and the election is held.
(b) Any person who will be at least 18 years of age at the time of the next election is eligible to register and vote at that election.
(c) Pursuant to Section 2102, any person who is at least 16 years of age and otherwise meets all eligibility requirements to vote is eligible to preregister to vote, but is not eligible to vote until he or she is 18 years of age.
(Amended by Stats. 2015, Ch. 728, Sec. 1. Effective January 1, 2016. Operative September 26, 2016, when the Secretary of State issued the certification prescribed by Stats. 2015, Ch. 728, Sec. 88.)

Therefore, in California only United States citizens may vote.  Note that the California Constitution does not expressly prohibit non-citizens from voting.

I was very interested to learn that there are other people thinking about whether non-citizens should be allowed to vote in our state elections.  On August 3, 2017, an opinion piece by Joe Mathews appeared in the Fresno Bee with the headline “Let’s Give Our Non-Citizen Neighbors the Right to Vote in California.”  A similar opinion piece, “Give Non-Citizens the Right to Vote? It’s Only Fair” was authored by Ron Hayduk on December 22, 2014 in the Los Angeles Times.  Hayduk, now an assistant professor of political science at San Francisco State University, has an entire website devoted to the subject of immigrant voting.  So I’m not the only one currently thinking about this question.

It turns out there is a long history of non-citizen voting in this country, and since the 1970s, there have been quite a lot of discussion of the issue, and even several legal decisions on the subject.  Here are some of the key sources:

Leon E. Aylsworth, “The Passing of Alien Suffrage” The American Political Science Review, Vol. 25, No. 1 (Feb., 1931), pp. 114-116. (“During the nineteenth century, the laws and constitutions of at least twenty-two states and territories granted aliens the right to vote.”)

Gerald M. Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 Mich. L. Rev. 1092, 1093-94 (1977).

Jamin Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. Pa. L. Rev. 1391 (1993).

Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 Law & Ineq. 271 (2000).

Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 Cal. L. Rev. 373 (2004).

Tara Kini, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 Cal. L. Rev. 271 (2005).

Bryant Yuan Yang, Fighting for an Equal Voice: Past and Present Struggle for Noncitizen Enfranchisement, 13 Asian Am. L.J. 57 (2006).

Ron Hayduk, Democracy for All: Restoring Immigrant Voting Rights in the United States, (Routledge 2006).

Stanley A. Renshon, Noncitizen Voting and American Democracy (Rowman & Littlefield 2009)

The cases directly discussing non-citizen voting are:

Minor v. Happersett, 88 U.S. 162 (1874).

People v. Rodriguez, 35 Cal.App,3d 900, 111 Cal. Rptr. 238 (1973).

Padilla v. Allison, 113 Cal. App. 3d 784, 113 Cal.Rptr. 582 (1974).

Skafte v. Rorex, 553 P.2d 830 (Colorado 1976).

Other relevant cases include:

Kramer v. Union Free Sch. Dist No. 15, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969) (property requirement for school district elections violates Equal Protection Clause).

Sugarman v. Dougall,  413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973) (citizenship requirement for state civil service employment violates Equal Protection Clause).

Here is what we can glean from all of these sources:

1. There are at least three classes of non-citizens or resident aliens: legal permanent residents, nonimmigrants, and undocumented immigrants.  DACA recipients may be a fourth class, undocumented but given a quasi-legal status.
2. The federal Constitution does not give non-citizens or resident aliens a right to vote in State elections; nor does it prohibit non-citizens or resident aliens from voting in state and local elections.
3. Non-citizens or resident aliens have been considered a “suspect class” entitled to “due process” and “equal protection” under the Fourteenth Amendment, which provides “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
4. Laws that disadvantage people on the basis of race or national origin are subject to strict scrutiny, meaning that the law must further a compelling state interest and must be narrowly tailored to serve that interest.  However, laws that disadvantage aliens have been subject to varying standards of review, including the much more lax rational basis test, requiring only that the law must be rationally related to some legitimate government interest.  Strict scrutiny: Graham v. Richardson, 403 U.S. 365, 372 (1971) (denying welfare benefits to aliens not meeting a residency requirement); In re Griffiths, 413 U.S. 717 (1973) (forbidding aliens to practice law); Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572 (1976) (civil engineering); Nyquist v. Mauclet, 432 U.S. 1 (1977) (financial assistance for higher education); Bernal v. Fainter, 104 S.Ct. 2312 (1984) ( notary public); Dandamudi v. Tisch, 686 F.3d 66, 81 (2d Cir. 2012) (license to practice as a pharmacist).  Rational basis test: Ambach v. Norwick, 441 U.S. 68 (1979) (prohibiting the certification of non-citizen teachers); Mathews v. Diaz, 426 U.S. 67 (1976) (federal medical insurance); Plyler v. Doe, 457 U.S. 202 (1982) (public education for immigrant students); LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005) (bar admission); Van Staden v. St. Martin, 664 F.3d 56 (5th Cir. 2011) (nursing); League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir. 2007) (bar admission).  Note that in Plyler, the attempt to exclude undocumented immigrant students from public schools did not pass the rational basis test.

In California, two appellate cases in the 1970s applied strict (or close) scrutiny and still found “no reason to require the state to grant the voting franchise to a class of persons who are not required to be enfranchised under the Fourteenth Amendment.”  Padilla v. Allison, 38 Cal.App.3d at 787 (citing People v. Rodriguez, 35 Cal. App. 3d 900 ).  (Note that current federal district court Judge Terry J. Hatter was attorney for the Plaintiff in Padilla v. Allison.)

That would seem to end the inquiry, but I think it is worth looking a bit more closely.  In Rodriguez and Allison, the Court was addressing a facial challenge to the California law barring non-citizens from voting.  Because the U.S. Supreme Court had previously stated as dictum in Sugarman that a state could constitutionally limit the franchise to citizens, the California court simply assumed that the state had legitimately done so.  The parties apparently presented no evidence to the contrary.  What the Court did not do is investigate the history of the California law.  That history makes the citizenship rule much more problematic, and difficult to uphold.

The legal issue not previously addressed is set forth in the infamous gerrymandering case, Gomillion v. Lightfoot, 364 U.S. 339, 347-8 (1960):

When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right. This principle has had many applications. It has long been recognized in cases which have prohibited a State from exploiting a power acknowledged to be absolute in an isolated context to justify the imposition of an “unconstitutional condition.” What the Court has said in those cases is equally applicable here, viz., that “Acts generally lawful may become unlawful when done to accomplish an unlawful end, United States v. Reading Co., 226 U. S. 324, 226 U. S. 357, and a constitutional power cannot be used by way of condition to attain an unconstitutional result.” Western Union Telegraph Co. v. Foster, 247 U. S. 105, 247 U. S. 114.

Put another way, a state has the right to do certain things, but not for an illegitimate reason or to achieve an unlawful result.  In Gomillion this meant that a state could draw boundaries to its cities, but it could not do so to exclude blacks from the city.

So the big question that needs to be answered is: why did California only give citizens the right to vote?  If the citizenship rule was simply shorthand for racism, then the law may be unconstitutional. Let’s take a look at the history.

The 1849 Constitution of California provided as follows:

ARTICLE II
RIGHT OF SUFFRAGE
Sec. 1 – Every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro, on the 30th day of May, 1848 of the age of twenty-one years, who shall have been a resident of the State six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law: Provided, nothing herein contained, shall be construed to prevent the Legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage, Indians or the descendants of Indians, in such special cases as such proportion of the legislative body may deem just and proper.

And here is the 1879 Constitution of California:

ARTICLE II.
RIGHT OF SUFFRAGE.
Section 1. Every native male citizen of the United States, every male person who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro, and every male naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been a resident of the State one year next preceding the election, and of the county in which he claims his vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law; provided, no native of China, no idiot, insane person, or person convicted of any infamous crime, and no person hereafter convicted of the embezzlement or misappropriation of public money, shall ever exercise the privileges of an elector in this State.

Clearly, racism was a big part of California’s early voting laws.  The original law essentially limited the vote to white male citizens.  A review of the debates from the 1849 Constitutional Convention amply demonstrates the racism of the delegates.  (For example, see pages 34-38 and 61-76.) There is much talk of the need to exclude Indians, non-white Mexicans and Blacks.  Amendments providing that “no member/inhabitant of this State shall be disfranchised,” based on the Constitution of New York, were discussed at length and rejected.  Delegate Lanford Hastings, later a Major in the Confederate States Army during the American Civil War, objected: “Whether it is designed or not, the adoption of this section of the bill of rights would secure to certain classes, Indians and Africans (if Africans are ever introduced here), precisely the same rights that we ourselves enjoy.” Charles T. Botts successfully inserted the word “white” into the clause on suffrage in order to limit the eligibility of certain Mexicans who had been offered citizenship but had not yet been admitted by Congress pursuant to the Treaty of Guadalupe-Hidalgo.  “It was clear that by the adoption of the clause reported by the Committee, citizens of Mexico would be excluded from voting before they were made citizens of the United States by the Congress of the United States.  His amendment was to insert the word ‘white’ before ‘male citizens of Mexico.’”  Pablo de la Guerra of Santa Barbara (called “Noriego” in the transcript, presumably because he was the son of José de la Guerra y Noriega), the lone white Hispanic delegate to speak on the issue, argued in favor of permitting some acceptable Indians to vote, but at the same time averred “if by the word ‘white,’ it was intended to exclude the African race, then it was correct and satisfactory.” With regard to Indians, Hasting successfully argued, “It would be a most injurious measure to permit the Indians of this country to vote. There are gentlemen who are very popular among the wild Indians, who could march hundreds up to the polls. There is no distinction between an Indian here and the remote tribes. An Indian in the mountains is just as much entitled to vote as anybody, if Indians are entitled to vote.”  In the end, the Convention added a provision that would allow an Indian to vote only upon special vote of the Legislature.

Hostility towards African-Americans was commonplace. Morton McCarver proposed an amendment copied from the Missouri Constitution against the immigration of “free persons of color” which was debated for two days before being rejected.  McCarver was an unabashed racist, offering statements such as “No population that could be brought within the limits of our Territory could be more repugnant to the feelings of the people, or injurious to the prosperity of the community, than free negroes.” Newspaperman Bob Semple, who presided over the Constitutional Convention, concurred: “I can assure you, sir, thousands will be introduced into this country before long, if you do not insert a positive prohibition against them in your Constitution—an immense and overwhelming population of negroes, who have never been freemen, who have never been accustomed to provide for themselves. What would be the state of things in a few years? The whole country would be filled with emancipated slaves—the worst species of population—prepared to do nothing but steal, or live upon our means as paupers.”  The proposal failed presumably because a majority of the delegates thought that it might hamper the State’s admission into the United States, not because there was any overwhelming tolerance for African-Americans.

In Wisconsin, the debate on suffrage at the first Constitutional Convention in 1846 was equally racist but a bit more accommodating of whites who intended to become citizens. That state extended the right to vote not only to “White citizens of the United States” but also to “White persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization.” Wisconsin Constitutional Convention (1848), Article III, Section 1, 2d. The convention debated and rejected a proposed amendment to take away the right to vote of any immigrant who resided in the state for six years but did not become a citizen.  Moses M. Strong, an opponent of negro suffrage, declared that “he did not think that the citizenship of the elector had anything to do with voting. This was a difference not commonly taken and understood by those who talk on this subject. A man may be a citizen and not be a voter, and so he may be a voter and not be a citizen of the state or of the United States. The power to make foreigners citizens of the United States belongs to the United States; the power to prescribe the qualifications of electors has been lodged in the states, plainly showing that they are distinct powers.”  Suffrage debates during first convention, Wisconsin Historical Collections, vol. 27 (Madison: State Historical Society of Wisconsin, 1919): 210-220, at 219. There is no indication that the California Constitutional Convention of 1849 considered extending suffrage to white males who had declared their intent to become citizens.  In any case, that option was never available to non-whites.

It would be wrong to assume that the citizenship requirement for suffrage was unrelated to race.  For example, at the time, it was assumed that only whites could avail themselves of federal naturalization laws to become American citizens.  See Charles J. McClain, Jr., The Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870, 72 Cal. L. R. 529, 538 n. 46. The Naturalization Law of 1802 made only a “free white person” eligible for naturalization. Indeed, in Chancellor James Kent’s influential Commentaries on American Law, the author had expressed doubt whether any of the “yellow or tawny races of Asiatics” could ever become citizens. 2 J. Kent, Commentaries on American Law 72 (3d ed. 1836). Dispelling any doubts, the California Supreme Court in 1854 affirmed that whites only meant whites only. People v. Hall, 4 Cal. 399 (1854). Reversing the conviction of a white man on the testimony of a Chinese witness, the Court explained:

We have carefully considered all the consequences resulting from a different rule of construction, and are satisfied that even in a doubtful case, we would be impelled to this decision on grounds of public policy. The same rule which would admit them to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench, and in our legislative halls. This is not a speculation which exists in the excited and over-heated imagination of the patriot and statesman, but it is an actual and present danger. The anomalous spectacle of a distinct people, living in our community, recognizing no laws of this State, except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claimed, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government. These facts were before the Legislature that framed this Act, and have been known as matters of public history to every subsequent Legislature. There can be no doubt as to the intention of the Legislature, and that if it had ever been anticipated that this class of people were not embraced in the prohibition, then such specific words would have been employed as would have put the matter beyond any possible controversy. For these reasons, we are of opinion that the testimony was inadmissible. People v. Hall, 4 Cal. 399, 404-5.

Chinese immigrants soon became the target of laws seeking to exclude them from the State. On April 28, 1855 California Governor John Bigler approved a bill captioned “An Act to Discourage the Immigration to this State of Persons Who Cannot Become Citizens,” requiring a $50 tax for each passenger who was not eligible for state or federal citizenship. 1855 Cal. Stat. 194. The law was ruled unconstitutional on the grounds of interference with federal power to regulate commerce in 1857 and repealed only in 1955.  People v. Downer 7 Cal. 169 (1857).

Even in 1879, after the 15th Amendment had been enacted, the California delegates insisted on denying the vote to any “native of China.”  Under the influence of Denis Kearney‘s Workingmen’s Party of California, the new Constitution declared:

The presence of foreigners ineligible to become citizens of the United States is declared to be dangerous to the well being of the State, and the Legislature shall discourage their immigration by all means within its power. Asiatic coollieism is a form of human slavery, and is forever prohibited in this State; and all contracts for coolie labor shall be void. All companies or corporations, whether formed in this country or any foreign country, for the importation of such labor, shall be subject to such penalties as the Legislature may prescribe. The Legislature shall delegate all necessary power to the incorporated cities and towns of this State for the removal of Chinese without the limits of such cities and towns, or for their location within prescribed portions of those limits; and it shall also provide the necessary legislation to prohibit the introduction into this State of Chinese after the adoption of this Constitution.

A few years later, the federal Chinese Exclusion Act of 1882 not only restricted new immigrants, but also made it impossible for state and federal courts to grant citizenship to resident aliens from China.  Chinese nationals remained ineligible for citizenship by naturalization until 1943.  For a detailed description of the numerous anti-Chinese laws, see All Persons Born or Naturalized . . . The Legacy of Wong Kim Ark.

Therefore, in light of the history of United States naturalization laws, the citizenship requirement for the right to vote in California must be seen as part of the effort to exclude non-whites from the franchise. There is no evidence that the citizenship requirement served any other purpose. White aliens could become citizens merely by complying with the Naturalization Law of 1802, which required 5 years of residence and a declaration of intent filed two years before admission. The subsequent history of immigration laws in the United States up to the present day is riddled with attempts to use those laws to protect the white majority population from non-white immigrants (as well as from Jews and Catholics). Therefore, any suffrage law tied to citizenship necessarily incorporated the overt racist elements of those laws.

What does this mean with regard to the constitutionality of California’s citizenship requirement for suffrage? It means that the law could be deemed an unconstitutional rule designed to deprive non-whites of equal protection and due process.  This issue deserves a much closer inspection than I can give on this blog, but let me start with some ideas.

The fact that American immigration laws might be constitutional, although historically designed to be racist in effect, might not save a state law that is based on those laws. There are many things that the federal government may do that states cannot.  For example, under the equal protection principle of “one person, one vote” a state could not set up a government with a Senate with disproportionate representation like the one that we have in our federal government.  A state cannot rely on the racist outcome of a federal law to insulate its law from an equal protection challenge.

Put another way, if state voting rights are not necessarily determined by national citizenship, what would the basis be for using national citizenship as a determinative criteria for granting state voting rights?

A challenge to California’s citizenship requirement for suffrage could succeed if it could be proven that the law was intended to and did discriminate against racial minorities at the time it was first enacted.  It would also help to demonstrate that the law continues to discriminate against minorities. The Immigration and Nationality Act Amendments of 1965, which form the basis of our current immigration system based on family reunification, were intended, even by their most liberal advocate Senator Edward Kennedy, to preserve and “not upset the ethnic mix of our society.”  U.S. Senate, Subcommittee on Immigration and Naturalization of the Committee on the Judiciary, Washington, D.C., Feb. 10, 1965. pp. 1–3.  For a state to rely on such an obviously racially motivated outcome, the state must demonstrate a compelling state interest, and prove that the law is narrowly tailored to achieve that interest.  Given the long history of non-citizen voting in the United States, such a compelling interest would be difficult to justify.

Perhaps this analogy will help clarify the issue.  Let’s say that the University of California had a history of admissions policies that tracked United States immigration and naturalization laws.  Initially, the University would have admitted only whites.  After many decades of that policy, in response to an increasing number of Jewish and Catholic applicants, the University established an admissions policy using national origin quotas based on the ethnic mix of the student body at the time.  Several decades later, the University adopted a more neutral-looking policy that admitted mainly children of alumni so as not to upset the ethnic mix of the student body.  Now let’s say that California only allowed graduates of the University of California to vote.  Would anyone think that was ok?

For the record, I first posted these thoughts on Facebook on April 7, 2017:

Here’s the new Democratic Party playbook, if things go as they seem to be going. It’s all about 2020. The key will be when the upcoming Trump recession ends. If it starts too soon, and ends in time, Trump could win a second term, like Reagan did in 1984. But if it starts later, or doesn’t recover enough by November 2020, he and the Republicans are toast, like in 1992 and 2008.

You’ll have an indication that Trump is in trouble if there is a Republican primary challenge. It’s very likely to be Rand Paul, as things stand today, but I wouldn’t count out Cruz and Rubio or even Kasich. All could mount a significant challenge. Even Ryan is a possibility. Any primary or independent challenge would likely be a death knell for Trump, as it was for Carter (Kennedy, Anderson) in 1980 and Bush (Buchanan, Perot) in 1992.

If Trump is weak, the Democrats stand a good chance to gain control of both the House and Senate, as well as the Presidency, as they did in 1992 and 2008. Remember, the high water mark for the Democrats was in 2008, just eight years ago, when they had 58 Senators (plus 2 independents) and a 257-178 advantage in the House. The Republicans peaked in 2014-2016 with 54 senators in 2014 and 247 members in the House in 2016. It’s all downhill for them from here.

The one fear I had if Clinton had won in 2016 was the Republicans taking it all in 2020, a critical census year. Now that feared result has been turned on its head into an amazing opportunity. An across-the-board Democratic win in 2020 would result in an unprecedented and momentous turning point for the country.

After 1992 and 2008, the Democrats were held back by the Republican filibuster and the 60-vote cloture rule in the Senate. Now, thanks to Mitch McConnell, those rules are no longer an impediment. Next time the Democrats are in charge, look for the complete elimination of the filibuster, followed by:

1) An immigration bill allowing a quick path to citizenship for up to 10 million undocumented US residents (soon to become Democrats). This will quickly turn Arizona, Texas and Florida into reliable Democratic states.

2) A $15/hour national minimum wage

3) Single-payer universal health care

4) An increase of seats on the Supreme Court, taking back the majority that the Republicans just stole. (This has been done in the past and will be done now again.)

5) A large raise in the debt ceiling, followed by a massive infrastructure program.

6) Laws against Republican gerrymandering of Congressional districts and voter suppression efforts.

7) Statehood for Puerto Rico and the District of Columbia.

Note that once done, all of these are almost impossible to reverse. Of course there would also be tax increases on the wealthy, as well as the reimposition of bank regulations and environmental protections deleted by the Trump administration. And look for national gun control and abortion rights legislation. Those could be changed back by a future Republican administration, but given the political reforms, the return of the Republicans to power will be more difficult and would require a shift in policies.

As you see, I am ever the optimist. But this can, and very likely will, happen. You read it here first.

Here’s what I wrote on Facebook on June 9, 2017:

When Democrats take back the Senate, we’re going to have to make sure that this type of thing never happens again. That will mean making some tough decisions. It means repairing the damage the Republicans are doing to our country, as well as ensuring that they cannot do it again. We’re going to have to do away with the filibuster (at least temporarily) and enact important legislation, including: (1) statehood for Puerto Rico and Washington, D.C., (2) citizenship for up to 10 million immigrants, (3) laws against gerrymandering, (4) laws protecting the right to vote, (5) campaign finance reform, (6) adding two seats to the Supreme Court, and so on. We need to do this to save our democracy, so that a small minority cannot run roughshod over the rights of the rest of us.

It is not secret that I have long thought that James Comey must be terminated as Director of the FBI.  See my previous blogs from November 14, January 22, and May 3. His grave errors of judgment last year single-handedly threw the election to Donald Trump, the most unstable, mean-spirited and incompetent President in the history of our great country.

I was therefore elated with the news this week that Comey had been fired.  I was invited to speak on CNN International in two segments ( 1, 2) on Tuesday, and was obviously gleeful. But it turns out I was just about the only Democrat who was truly happy with the news. Almost instantaneously, Democratic politicians and commentators flooded the airways with statements denouncing the President’s dismissal of Comey.  I felt, and still feel, that this reflexive “if he’s for it, I’m against it” response was misguided, both on the merits and as a matter of politics.

First, on the merits.  While between segments on CNN I got in a heated debate in the green room with former FBI agent Steve Moore, although I had largely agreed with him in our segment a few minutes earlier.  Our disagreement was over his contention that Hillary Clinton should have been prosecuted.  That belief, which prevails overwhelmingly in Republican and even some Democratic circles, is completely indefensible.  The reason is that the law that Clinton was accused of violating, 18 U.S.C. 793 (e) and (f) of the Espionage Act, does not apply to the facts.  As former military prosecutor and current U.S. Army Judge Advocate John Ford has explained, the law was designed to combat German espionage during World War I and has been narrowly interpreted since that time. In a 1941 US Supreme Court case, Gorin v. U.S., the law was interpreted to require a bad faith intent to benefit a foreign power and damage the national defense.  The Espionage Act has been used only sparingly in the most egregious spying cases.  But an even closer look at the statute reveals a further problem in this particular case: there is no parsing of the law that can possibly apply simply to sending, receiving or storing e-mails on a private server, activities no one ever imagined when the law was drafted 100 years ago.

Dan Abrams did a great job last April analyzing the text of the law, but there’s more that can be said.  Section 793(e) concerns the transmission of information relating to the national defense to someone not entitled to receive it, or retaining information and failing to deliver it to the person entitled to receive it. The first portion (sending information to someone who isn’t entitled to see it, like passing on secrets to a foreign agent) has never been alleged against Clinton, and the second (retaining info and not delivering it, like hiding someone’s mail) is also inapplicable. These provisions cover active espionage. So take a close look at 793(f), which is the only other section relied on in the search warrant obtained against Clinton on October 30.  It covers a person who has information relating to the national defense who “through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed.” That is the section most of the commentators have focused on, and the debate has been about “gross negligence” or the intent standard imposed by the Supreme Court in Gorin. But as far as I can tell, none have really looked closely at the word “removed.”

If you saw the film Snowden last year, you saw Joseph Gordon-Levitt as Snowden put a bunch of data on a usb drive at work and sneak it out of the top-secret compound in a Rubik’s cube.  That’s the type of “removal” that the Espionage Act is designed to prosecute.  You physically take something away from one place and put it somewhere else. But that’s never been what Hillary Clinton did.  Sending and receiving e-mails and storing them on a hard drive is not “removal from its proper place of custody.”  I think most people will agree that receiving and storing are not “removal,” but let me also explain why sending an e-mail is not removal. When an e-mail is sent, a new object is created for transmission and nothing is taken away.  What could be the “proper place of custody” from which the e-mail is “removed?”  The clause simply makes no sense in the context of sending an e-mail, which is not surprising given that it was drafted 100 years ago.  Sending an e-mail is a transmission, which is covered by the next clause “delivered to anyone in violation of his trust” and separately by section 793(e), which requires that the recipient be unauthorized. No one has ever alleged that any of the relatively few e-mails found on Clinton’s server that were marked classified were delivered to people who were not cleared to see them. So really there is no honest reading of the Espionage Act that would criminalize what Hillary Clinton did, which was using a private server to send, receive and store e-mails.  As many have pointed out, what she did may have violated State Department rules, but no criminal statutes. There never was any chance that the FBI would find evidence that would lead to any criminal conviction.

And yet Comey, in violation of long-standing FBI and Justice Department practices, pretended that evidence of criminality was “probable” when he authorized his officers to obtain a search warrant on October 30.  He further violated policy by making sure that the search would be made public (although filed under seal) when he sent his October 28 letter to Congress.  When a junior lawyer in his office questioned whether it was right to risk interfering with an election, Comey wrongly answered that he would not even consider that possibility, even though the Hatch Act and long-standing policies required the avoidance of interference.  Six months later, he told the Senate that he would do it again.

Last week, Comey justified his actions by admitting that he wanted to see e-mails from the period prior to the establishment of the server, supposedly because he thought those related to Clinton’s intent. Intent to do what? He’s never explained that. Clinton wasn’t prosecutable simply because the FBI didn’t have, in Comey’s own words, a “golden e-mail” proving she intended to do something wrong.  She wasn’t prosecutable because the law did not proscribe what she did, regardless of her intent.

This long-winded explanation goes to why I was so happy to hear that Comey was fired. He had revealed himself to be someone who could not properly interpret the law, even in the most significant, high profile case.  And even after having six months to reflect on what he did, he said he would do it again.  He had to go.

That my view was the unanimous view of the Justice Department was evidenced by the memo dated May 9 by Rod Rosenstein, the new Deputy Attorney General who had been approved by the Senate 94-6 just two weeks earlier.  In his memo, Rosenstein states “Almost everyone agrees that the Director made serious mistakes; it is one of the few issues that unites people of diverse perspectives.” Rosenstein takes Comey to task for his July 5 press conference discussing the decision not to prosecute Clinton (which apparently was made weeks before).  “It is not the function of the Director to make such an announcement.” Quoting a litany of statements by former Deputy Attorneys General, Rosenstein also finds Comey’s actions in October to be severely problematic and “antithetical to the interests of justice.”  Rosenstein’s conclusion is that “the FBI is unlikely to regain public and congressional trust until it has a Director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the Director cannot be expected to implement the necessary corrective actions.” In other words, Rosenstein told Trump he had no objection to firing Comey.

Some have criticized the conclusory nature of Rosenstein’s letter, but more details wouldn’t have made it nicer to Comey, only worse.  Comey’s decision-making seems to have been driven by a desire to appear impartial.  I’ve seen a lot of people, even judges, make this mistake. The law often requires officials to avoid the appearance of impropriety or partiality. But that is not a license to do actually improper things, in the hopes of appearing neutral and fair. This was Comey’s mistake. He consistently behaved as though he was compelled to do the wrong thing, in order to create the appearance of doing the right thing. In July, to avoid mounting criticism of the FBI after Bill Clinton’s meeting with Loretta Lynch, he wrongly held a press conference in which he tried to lay out a case against Hillary Clinton while at the same time supporting the decision (made weeks earlier) not to prosecute. In October, he wrongly notified Congress of a further investigation of e-mails before anything significant was found, because he worried that he would be criticized later for “concealing” the fact that they were conducting a new search. In both cases, he decided to do the wrong thing to improve his reputation for neutrality, rather than do the right thing and take unfair criticism.

Mistakes happen and can be forgiven if they are accepted, but it is clear from Rosenstein’s memo that Comey could not ever be expected to understand that he had made a mistake. Rosenstein must have been as infuriated as I was at Comey’s May 3 testimony. It didn’t help Comey that on many critical details, he got the facts wrong.  On the morning before he was fired, the FBI submitted a correction to the Senate, explaining that Comey was mistaken when he suggested that Huma Abedin had forwarded hundreds of thousands of e-mails to the e-mail address of her husband Anthony Weiner.  In fact, only a handful had been manually forwarded.  Comey’s behavior had simply become indefensible.

I never thought that Trump would actually get rid of Comey. After all, that would imply that Comey did something wrong in the lead-up to the election which he won. Since it is increasingly clear beyond any reasonable doubt that Comey’s actions swayed the election to Trump, why would Trump risk feeding the narrative that his election was illegitimate by terminating Comey?  I didn’t think he would do it.  But he did, and so I was happy, happy, happy.  The culprit who cost Clinton the election, and said he would do it again, was gone.  What could be bad about that?

Apparently, that isn’t how most Democrats saw it.  No sooner was the firing made public, when Democratic politicians began lambasting Trump for his decision, and backing off their prior antagonism towards Comey.  There have been several criticisms, some certainly fair. First, no one believed the initial claim that Trump had fired Comey simply because Rosenstein had said it was the right thing to do. That’s not how Trump operates. Everyone suspected, I am sure correctly, that Trump had other motives,  including a desire to stop Comey from talking about the investigation of the Trump campaign’s possible ties to Russian interference in the election. For me, it doesn’t really matter what Trump’s motives were. He’s insane. Just because he wants something to happen doesn’t mean he’s going to get what he wants.  His actions are just as likely to backfire and produce the opposite result. So firing Comey wasn’t a bad thing because Trump wanted to interfere with the Russia investigation, unless it actually would interfere.  And I don’t think it would.

First, I start from the point of having no confidence in the FBI actually finding any evidence of collusion between the Trump campaign and Russia, at least not at the level that would make a difference to anyone. We already know that Trump is nuts and that his campaign was filled with wackos with all sorts of bizarre backgrounds. That even a dozen of them were paid Russian agents wouldn’t make a difference to the people who voted for him, or their Republican enablers in Congress.  Russia certainly was involved in espionage and propaganda aimed at defeating Clinton, and some of it was effective.  But that is not what cost Clinton the election.  She was well on her way to winning before Comey stepped in and ruined everything by making enough people believe she was going to be indicted. Comey is the real villain of the story, not Russia. Russia was a side show. That Trump and his campaign team were aligned and conspiring with other bad people who wanted Clinton to lose isn’t going to change the calculation one bit.

Second, Comey was the director of the FBI, which means he was the figurehead, the one making big decisions, but not anywhere near the agents who are actually doing the investigating. Those folks are 3 or 4 rungs down the ladder. Removing Comey won’t affect their job one bit. If they are really investigating, they will continue. Because of the pervasive anti-Clinton (and hence pro-Trump) attitude at the FBI, my guess is that there is not much investigating going on. After all, and this was one source of my argument with Steve Moore, if the FBI wanted to find something to prosecute against Trump, they’ve had plenty of time and more than enough opportunity. It’s not like there is a dearth of allegations of wrongdoing out there. For example, what’s up with the $25k bribe he paid illegally from his charitable fund to Pam Bondi? If the FBI wanted to nail Trump, they could have done it years ago. But they don’t.  And that’s the big point. The FBI likes to pretend that it is neutral and impartial but it isn’t.  They aren’t robots sitting on a corner just waiting for crimes to pass by so they can enforce them. There are potentially millions of crimes to investigate, and agents and offices have to pick and choose where to spend their time, and that choice is the definition of politics. So I wouldn’t be holding my breath waiting for the FBI to come up with the goods on Trump. Whether Comey or someone else comes in to run the place, that investigation is likely going nowhere, because removing Trump from office is not what the rank and file wants. Compare that to the “moving heaven and earth” that Comey described with the Clinton e-mail investigation where they searched day and night for something that was never going to be there in the first place.

Still, the Democrats in Congress had to act all concerned that Comey’s removal would impede the Trump-Russia investigation and that was the story that got a lot of play for the next few days. The President and others quickly recognized this as a hypocritical about-face, and that has largely worked to deflect the attack. Did the Democrats really want Comey to still be FBI director, just because they hoped he would redeem himself by nailing Trump? That strikes me as borderline insane, given what we know about Comey. I think the opposite is more likely true. If there is any chance at all of the Trump-Russia investigation becoming significant, that chance is far greater without the self-interested shenanigans of an already discredited FBI director.

Some worry that Trump will be able to control the investigation by naming a new director. Perhaps, but that will take time, because the new director has to be confirmed by the Senate. If the new director is seen as a partisan hack, the Democrats will likely be able to make a lot of inroads attacking him. If they can do that enough to win back the House in 2018, then they can conduct their own investigation. If the new director is someone fair who has not made the fatal errors Comey did and promised to make again, then we’re all better off.  Either way, it’s a win.

My initial reaction was that Rosenstein was now going to be in charge of the Trump-Russia investigation and that could only be a good thing. With Attorney General Jeff Session having recused himself, the decision-making falls to Rosenstein, a career Justice Department official, on that matter. Rosenstein clearly needed to have Comey out of the way, as Comey had proved to everyone that he would do whatever he wanted, regardless of what the Attorney General decided. Now that problem is gone, and Rosenstein can try to get the FBI to do a proper investigation. Until this week, everyone considered Rosenstein a stand-up guy. Now that has all changed. Even some of his so-called friends are calling for him to resign. I am not at all convinced that Rosenstein is a bad actor. It is certainly possible that I am wrong.  After all, Trump nominated him, so that’s one big strike against him. But there are plenty of indications he’s a straight-shooter, and his memo supporting the removal of Comey is one of them. Some see it the other way, that he is an enabler who helped Trump remove the person he feared would lead the investigation that might result in impeachment. To believe that, you have to believe a few things that I don’t. First you have to believe that Trump is smart and has a plan.  Second you have to believe that Comey is honest and would succeed in exposing Trump.  If, like me, you don’t believe either of those things, then there is a more positive way to look at Rosenstein.

Comey was a cancer that needed to be removed for the Department of Justice to function properly. Rosenstein took advantage of a moment when his interest in removing Comey coincided with Trump’s interest in getting rid of the guy talking about the Russia investigation to Congress.  That’s how things get done in any bureaucracy. It’s not enough for the boss or the staff alone to want something. Things happen only when they both want the same thing. So, to me, it doesn’t really matter whether you want to say Trump had a design to remove Comey.  He couldn’t get it done without the Department of Justice, and they couldn’t get it done without Trump. So, just as it is wrong to suggest that Rosenstein engineered Comey’s removal, it is wrong to suggest that Trump did it. They worked together, and likely for different reasons.

We’ll have to wait and see if Rosenstein continues to maintain control of the Trump-Russia investigation or if he agrees to recommend the appointment of a special counsel, as many have demanded.  One reason I was very happy on Tuesday was that Comey’s removal made the appointment of the special prosecutor much, much more likely. It never was going to happen while Mr. Faux-Neutral Comey was around.  An independent special counsel is probably the only possible way that any criminal indictments will come from the Trump-Russia investigation, and it is also the only thing that might lead to impeachment. I don’t consider that likely, but on Monday, it was an impossibility.  Today, post-Comey, there’s a glimmer of hope.

When I began writing about Comey in November, I called for an investigation of the FBI and I think that is still necessary.  Comey testified on May 3 that he had a meeting in his office on October 27 when he and his colleagues decided “unanimously” to send that inane October 28 letter that ruined the election. That’s a conspiracy to interfere with an election and I think the American people deserve to know who else was involved. Comey no doubt has a lot of supporters at the FBI. You’ll notice that we haven’t heard from any who wanted Comey gone. They were leaking and spinning madly in his favor before the firing and have continued to do so as they try to save their skins. The press doesn’t like to bite the hand that feeds it, so many of Comey’s supporters and their misdeeds have not been reported yet.  My hope is that Inspector General Michael Horowitz will uncover what happened. He told Michael Isikoff that his report won’t be finished before the end of the year. It should be easy to ferret out the bad apples.  Just ask them whether they think Comey was correct to send his October 28 letter. Any agent who still does has to go.

It’s a common thing when you don’t have a good argument on the merits to argue the process. That’s a lot of the noise that is coming out this week in Comey’s defense.  Sure, Trump could have waited to fire him face to face, or after giving him a chance to respond, but I’m glad he didn’t. If he had, Comey might have talked him out of it and then we’d be stuck with him for good. Trump could have handled the messaging after the firing better, but he didn’t, because he never does.  There’s no painless way to fire an FBI director, no playbook for how to do it. Trump’s way was classless and clueless for sure, but that’s what he is. And for me, it’s another win, because it gives people something more to complain about. Trump’s approval ratings dropped to record lows this week.  As I said, this whole Comey thing has been a big WIn-Win-Win.

There really is no possible scenario in which FBI Director James Comey is not guilty of a serious error in judgment, and yet he continues to maintain that if he were to do it all over, he would do the same thing.

We’ve seen in the past week a lot of new information on the scandal surrounding Comey’s decision to send a letter to Congress and reopen the Clinton e-mail investigation, culminating in today’s testimony before the Senate Judiciary Committee.   On April 22, the New York Times published a lengthy article with the headline Comey Tried to Shield the F.B.I. from Politics. Then He Shaped an Election. Honestly, to me it seemed the New York Times had been played, and that they were basically parroting the spin their FBI sources were giving them. The gist was that Comey felt he had no choice but to do what he did. Only two things in the article really got my attention.

First, the article revealed that already in the Spring, so around March or April, the FBI had determined that there would be no prosecution. Apparently, there was never going to be an announcement. In Comey’s testimony today, he implied that when Attorney General Loretta Lynch met on the tarmac with Bill Clinton in July, only then did the FBI Director determine that he should speak publicly. He issued his statement, he said, without clearing it with Lynch.  In other words, had Clinton not met with Lynch, Comey never would have told the country that the investigation had come up with no grounds for prosecuting Clinton. He would have let Trump and his surrogates pretend that Clinton was going to jail all the way to the election.  But for some reason, Bill Clinton chatting with the Attorney General changed his mind, and he needed to speak up, not, as we all assumed, out of a sense of duty to clear the Democratic nominee, but only to save himself and his bureau from right-wing criticism, which was building after the Clinton-Lynch meeting.

One corollary of this, if what Comey says is true, is that Lynch did nothing wrong. After all, the investigation was already closed, just no one had bothered to say it publicly. Was she supposed to ignore and not speak with her old friend Bill Clinton indefinitely?  Even after Hillary had been cleared? So everyone can stop blaming Bill Clinton and Loretta Lynch.

Comey not only issued a statement saying the investigation had uncovered nothing worth prosecuting, he criticized Hillary Clinton for her e-mail practices and then testified before a House Oversight Committee, promising at one point to let the Committee know if anything new developed.

That “promise” was apparently on his mind on the morning of October 27 when Comey says the team investigating Clinton asked to meet with him. He says they disclosed that they had discovered metadata on Anthony Wiener’s laptop that showed it contained e-mails from Clinton’s Verizon/Blackberry e-mail. (Previous reports indicated that Comey was informed earlier, just days after the e-mails had been discovered by October 3.)  They were particularly interested in finding e-mails from a three month time period at the beginning of Clinton’s tenure as Secretary of State. Those e-mails, dating from before she had set up the private server in her home, had not yet been located or reviewed in the prior investigation. According to the New York Times, Comey decided to allow his team to reopen the investigation, seek a search warrant to review the e-mails on the laptop, and then made the decision to notify the House Oversight Committee, which he did the following day.

Comey explained to the Senate today that he was interested in those early e-mails because the FBI was still looking for evidence that Clinton intentionally set up her private server to violate the law. At one point during today’s testimony, Comey called that evidence “the golden missing e-mails,” as if they were searching for a prize in a chocolate bar. It was precisely the lack of any evidence of Clinton’s intent that Comey had relied on in July when he declared the investigation over.

According to Comey, there was a “great debate” during that October 27 meeting on what to do. Comey felt he had only two choices, to disclose the new investigation or be accused of concealing it later. His instinct was to disclose.  A junior lawyer, Comey says, asked if they should consider the possibility that disclosure would sway the elections.  Absolutely not, Comey responded.  He could not consider the political consequences and maintain his independence.

The way Comey tells it, his team led by Peter Strzok, “moved heaven and earth” to finish their review of the e-mails in time for him to reveal on Sunday, November 7, less than 48 hours before the election, that they had found nothing incriminating.  According to the New York Times, “agents had found no emails from the BlackBerry server during the crucial period when Mrs. Clinton was at the State Department.”

Here’s where things start to break down in the narrative that the FBI and Comey are trying to push.

There were many other options.  First, someone, anyone, could have pointed out that there was no probable cause to search the laptop e-mails. (Indeed, it was likely the result of an illegal search that the FBI even saw the Clinton e-mails on the laptop in the first place.)  I know, the FBI ultimately got a search warrant from Commissioner Kevin Fox in Manhattan after the story was already front page news (what else was he supposed to do?), but most people who have reviewed the warrant conclude, as I do, that it does not give rise to probable cause to believe that evidence of a crime would be found on the laptop. Of course, knowing as we do that there was nothing incriminating on the laptop bolsters this view.  What made anyone think otherwise?  In the Commissioner’s defense, the FBI also failed to include in the warrant application all of the information regarding Abedin’s prior voluntary cooperation with the investigation, or the fact that no incriminating e-mails had been found in the prior investigation, information that the FBI had already made public in its lengthy report on the investigation published in September. But the real issue is whether, when they decided to seek a search warrant, the FBI had found anything at all to suggest that they would find evidence of a crime on the laptop.

The only thing new in the search warrant affidavit is that there were e-mails between Clinton and her longtime aide Abedin on the laptop. What reason would anyone have to believe that those e-mails contained the “golden e-mails” that Comey and his agents were seeking?  Remember, it wasn’t there.  So what indication was there? We don’t have an answer from Comey or the sources informing the New York Times. And this is the big question that remains.

What seems likely is that, as Comey wrote to Congress, the e-mails appeared to be “pertinent” to the investigation.  Pertinent isn’t the same thing as probable cause. Probable means more than possible. It means you really think there is going to be something there.

When Comey and his investigative team held their “great debate” on October 27, did they even discuss whether there was probable cause?  That’s something we don’t yet know. There is no good answer for Comey. If they didn’t even consider the issue, that’s pretty damning.  If they did consider it, why did they get it wrong? Why did they think they’d find their Golden Ticket?

I’ve used the term “Golden Ticket” because it is very revealing of what I think actually happened. Comey and his team really wanted to find evidence that Clinton committed a crime. They were not dispassionate investigators who had been asked to determine if a crime was committed (which is how the investigation started).  No, they wanted there to be a crime, as much as Charlie wanted to go to Mr. Wonka’s chocolate factory.

A lot of people have challenged me on this argument by saying that there had been probable cause all along.  But that’s not true.  This FBI investigation was not the result of the discovery of a crime, or a report from a victim.  Rather, it was a referral from another branch of government to investigate whether there had even been a crime. The FBI should have been neutral on that question.  But they weren’t.  They got caught up in the endless Republican fishing expedition that set off the investigation, and were disappointed that they didn’t find what they were looking for. It never even occurred to Comey or his agents that Clinton might be innocent and that no crime had actually been committed.  No, as I suggested already last November, they considered Clinton a criminal who had not yet been caught.  And it is worth pointing out that until October 30, the FBI had not yet obtained a search warrant in the case.  Until that time, it was just an ordinary investigation of public sources, department materials and cooperating witnesses.

Some people have said to me that this whole Comey thing just doesn’t matter.  They’re wrong.  It matters a whole lot.  First, it’s important for Democrats to understand why Clinton lost because that will influence how they run in the future. If Clinton was a bad candidate, that’s one thing. If, on the other hand she was a good candidate, on the verge of winning a historic election until the FBI director snatched victory away in a deus ex machina, well, then that’s something completely different.

Second, there’s the issue of Comey not even admitting that he made a terrible error in judgment, and even doubling down and saying that he would do it all again the same way. If that’s true, we need some new laws. It cannot be the case that the FBI director can publicly seek a search warrant against a candidate for president within days of an election and come up empty. In other words, if you get a search warrant under those circumstances, you had better find a dead body, or three, and a smoking Howitzer.

Tied into this issue is the question of whether Comey’s actions changed the outcome of the election. Nate Silver came out today, again, with an article explaining in great detail the obvious — that with three (or four) states won by 1% or less, an event that made even a small number of people change their votes away from Clinton or stay away from polls instead of voting for her necessarily changed the outcome. The evidence is really beyond any reasonable doubt that Comey’s letter cost Clinton the election. Of course, Trump and his minions in their fact-free universe disagree, but leaving them aside, I’ve heard a few arguments. First, people say that the charts showing the polls moving toward Trump after the Comey letter are inaccurate because all the polls were wrong.  That’s silly.  The polls weren’t wrong.  Nate Silver gave Trump a 26% chance of winning.  That’s tails on two coin flips.  It happens.  And the actual result, with narrow victories in four states, supports that view. Also, even if you believe all the polls were skewed towards Clinton to begin with, you cannot ignore that they all shifted markedly towards Trump after the Comey letter.  If you are going to deny the shift in popular opinion in the last ten days of the election, then you at least have to come up with another plausible theory supported by evidence.  What is it?

I’ve also heard some people say that since Comey’s letter didn’t change their mind, it didn’t change the outcome. That’s the narcissistic view and it really doesn’t answer anything. We’re talking about very small percentages of the voting pool.  In any election, about 45% of the electorate is pre-set on each side.  It’s the mushy middle 10%, the ones who haven’t already decided, that determine the outcome. Comey’s letter was enough to sway those deciders, and all of the polls demonstrate that it did, in sufficient number to change the outcome. If you don’t want to believe it, fine.  But this isn’t about your beliefs.  It’s about what happened.

There are a lot of Sanders supporters who want to say that Clinton lost on her own, because it fits their narrative that Bernie was a better candidate and would have won. They want nothing more than to say “I told you so.” But all we know is that Sanders couldn’t beat Clinton. I’m not sure why anyone thinks he would have beaten Trump.  We’ll probably never know.  But it doesn’t help that argument to deny the impact Comey had on the election.  It only shows that you have no real grip on reality.

I titled this blog Comey is Guilty because all of the evidence is starting to point in that direction. He slipped up today, and the Golden Ticket is just one of them. At one point he pretended to Senator Feinstein that he sent his letter to the House Committee and didn’t expect it to become public. That is flatly contradicted by his letter to his own staff that he sent the very same day, stating that his intention was to “supplement the record.”

We won’t get to the bottom of it until we hear from the rest of the people involved. The one I’d really like to talk to is the junior lawyer Comey mentioned who asked whether he should think about the potential influence on the election. Comey said that in the end his staff all agreed on his course of action, but I wonder if that’s really the case. Because the junior lawyer was absolutely correct to bring up the influence on the election and Comey was absolutely wrong to ignore that issue. Contrary to what Comey claimed at the hearing, he was actually required to consider whether his actions would influence the election. The Hatch Act and department policy prohibit actions by public officials that are intended to influence elections.

Comey might argue that he didn’t intend to influence the election, but the junior lawyer’s question demonstrates that he was completely and recklessly indifferent to the possibility. Such disregard might be acceptable if the public official was engaged in a core activity related to his office, but that wasn’t what Comey was doing when he sent his letter to the Congressional Oversight Committee on October 28. He wasn’t furthering his investigation in any way. Rather, he was trying to avoid criticism in the event his team found the Golden Ticket.  Avoiding criticism is not the core job of the FBI, at least it shouldn’t be. And who decided that the FBI avoiding criticism should be more important than the outcome of a presidential election?

But Comey’s defense falls for another reason. If his goal was to avoid criticism, he failed. Did he not consider the possibility that his team would find nothing and he would alter the course of the election? I listened to his testimony today and I really didn’t get any sense that he even thought that was possible. It makes him “mildly nauseous” to think about it now. How did he feel on October 27? He said he was presented with just two doors, disclose or conceal. But that’s pretty revealing, because the thing that he was disclosing or concealing was only the investigation, not any incriminating evidence. And the FBI conceals investigations all the time. In fact, that is their default rule. If he was worried about concealing, why was the search warrant application made under seal?

No, as I heard Senator Leahy point out afterwards, Comey had a much better, and far less damaging option. If he truly believed there was probable cause, he could have authorized the search warrant. If the investigators found nothing, he wouldn’t have to disclose anything and there’d never be any criticism.  If the investigators came up with the Golden Ticket, as he apparently expected they would, he could then have revealed the evidence. In the face of any criticism, all he would have to say is that he produced the incriminating evidence as soon as he found it.

That, after all, is what he has been doing with the investigation into the Trump campaign. So, why not with Clinton?  There is no good answer to that question, and it’s the one that most of the Democratic senators were angling towards.

If I were questioning Comey, I’d focus on the issue of probable cause and the “great debate” they had. What did they debate exactly? Who took which side? And I’d ask him “What made you think it was probable you would find evidence that Hillary Clinton committed a crime?” There is no possible good answer to that question. Either he didn’t think there was probable cause, in which case he should never have authorized the further investigation.  Or he did, in which case he was very wrong.

I’d also focus on what happened during that final week. Did he really authorize the search warrant on October 27 but they didn’t submit the application until Sunday October 30? Each and every day after that, they found nothing. On Monday they found nothing. On Tuesday they found nothing. Etc. What was reported to Comey? Comey said that what they really wanted was to see the Blackberry e-mails (not the ones from the server).  Is the New York Times correct that none were ever found?  How long did that take to determine? How could it take more than a few minutes? Why were they still reviewing e-mails on Saturday November 5?  Did they print them out? What exactly were they looking for? I have hundreds of thousands of e-mails on my laptop also, and I know how to find things. It’s not by printing out the e-mails and reading them. You search words. It’s not rocket science. My guess is that they knew almost immediately that they weren’t going to find the Golden Ticket. And yet they persisted. Comey makes it sound heroic, but it wasn’t.  It was the opposite. They were searching and searching for something that didn’t exist, that never existed, but that they had imagined existed. There never was a Golden Ticket.

This is my third blog on the Comey debacle.  See my earlier entries Investigate the FBI and Letter to DOJ Inspector General Michael E. Horowitz.

When I read the news and see the name of someone who sounds Jewish, my first instinct is to wonder whether I can work out his or her family tree on Geni.com.  Yesterday there were two stories that caught my attention. First, there were reports that National Security aide Ezra Cohen-Watnick was the White House staffer who supposedly showed information to House Intelligence Committee Devin Nunes related to the probe of Russian influence on the Presidential election. Later, there was the report by Ashley Feinberg of Gizmodo that she had managed, in an inspiring bit of internet sleuthing, to find FBI Director James Comey’s Twitter account.  Feinberg, Cohen-Watnick, how could I resist? Before going to bed, I tried to see what I could find.

It didn’t take much time to work out Ashley’s tree, which I did first. Her family has had more than its fair share of tragedy in recent years and so there was plenty of information for me to start her tree, which then matched up with her brother’s tree on MyHeritage. Easy peasy.

It was very late, but I decided to see if Ezra’s tree would be as easy. It wasn’t. He obviously has been trying to have a zero presence on the Web. But you really cannot hide. Still, although Nathan Guttman at the Forward had already reported what he could find, there wasn’t a lot to go on. Fortunately, his synagogue Ohr Kodesh had published an announcement of his engagement celebration with Rebecca Miller late last year. The kiddush was sponsored by Jonathan & Martha Cohen (who turned out to be his paternal grandparents) and  Deborah Levine & Marc Cohen (his father and step-mother).  Some more Googling led to his mother, the nephrologist Terry Watnick. When I discovered Terry Watnick’s Facebook page, I guessed she probably wasn’t a Trump supporter.

At that point, I wrote my good genealogy friend Renee Steinig, who is probably the best genealogist I know for Jews in the United States. For some reason, Renee was awake, so she started building out the tree with me on Geni. I won’t bore you with all the tricks we use, but there’s pretty much nothing Renee and I cannot find. I went to bed very late last night, satisfied that we had connected Ezra and his family to the World Family Tree.

Renee kept working on the tree today, and then sent me something that I think might be newsworthy, or at least creepily coincidental. She had found information on Ezra’s wife, Rebecca Miller.  In 2014, Rebecca’s mother Vicki Fraser did an oral history for the State Historical Society of Missouri International Women’s Forum, where she described what her daughter was doing:

Well, we have 24-year-old twins, Jake Miller . . . [and] Becky Miller, who works for Ketchum, a PR and marketing firm in Washington, D.C. and her big challenges right now are Ketchum is responsible for providing PR and marketing to try to make Russia look better which is particularly difficult when they’re invading other countries and when Putin is somewhat out of control.

So Ezra’s wife Rebecca used to do PR for Putin.  Hmmm.  Googling, you can find stories from 2015, when Ketchum and Putin sort of parted company. Rebecca’s LinkedIn account shows her still at Ketchum.

Maybe it’s just me, but that all seems a bit too coincidental.

In the past years, a wealth of 18th and 19th century Jewish genealogical resources have become available for Bohemia, the western half of Czechia (the new name for the Czech Republic, formerly Czechoslovakia).  As a result, a large number of genealogists working in this area have been collaborating on Geni.com, building interconnected trees covering the entire region and setting up town projects for many of the communities.  Recently, I used these resources to revisit the genealogy of the famed Rabbi Isaac Mayer Wise (1819-1900), considered the founding father of the American Reform movement, the largest Jewish denomination in North America.

Rabbi Wise’s biography is well-known, and is described in detail in the book published in 1916 by his grandson Max Benjamin May (1866-1929).  But Wise’s ancestry, as May concedes, was more difficult to discern:

Very little is known of the ancestry of Isaac Mayer Wise. He could not be induced to talk about his early years, and often said they were too terrible to contemplate. No authentic data are to be found in Wise’s writings; and unlike many another great man who rose from humble beginnings to a position of influence and prominence, he never referred to his early years. While nothing is known of his maternal ancestors, there are a few meagre facts concerning his paternal great-grandfather, grandfather and father. His great-grandfather was a physician named Leo, who had studied medicine at Padua, practiced at Marienbad [Mariánské Lázne], and lived in the neighborhood, in the village of Dürrmaul [Drmoul]. The physician was known as Dr. Leo, and spoken of by his co-religionists as Leo ‘Chakam,’ the Hebrew for Wise. The son of this Dr. Leo, or Leo Weiss, was Isaiah, who also studied medicine at Padua and likewise settled at Dürrmaul. This Doctor Isaiah lived to be over ninety years of age. Besides learned in his profession he was well versed in Talmudical and rabbinical literature, and became a teacher to his son, whom he named for his father Leo. The Leo, grandson of Doctor Leo who had studied in Padua, was educated by his father and became a teacher. Leo Weiss was never a vigorous man, and died shortly after the birth of his youngest child, a daughter. Shortly after receiving his education he removed from Dürrmaul to Steingrub [Lomnicka], a small village of a few hundred inhabitants near the town of Eger [Cheb], in Bohemia, overlooking Saxony and Bavaria. In this village of Steingrub, in which there dwelt a large number of Catholics, Leo Weiss was married twice. His second wife was Regina Weiss. She was, however, a handsome woman, bright, cheerful, lovable, and devoted. She emigrated to America in 1867 with her son Samuel and later lived in Peoria, Illinois, with her daughter, Caroline Korsoski, where she died in 1880 at a ripe old age.

May’s biography adds a few more facts: Wise’s parents had 13 children, seven of whom died in infancy. Isaac was the oldest surviving son, born March 29, 1819 (the date engraved on his tombstone).  Wise first studied with his father in Steingrub until age nine, when he moved to Drmoul to live and study with his learned grandfather, Dr. Isaiah. At age twelve, his grandfather died. Wise then went to Prague to study. On the way he visited a cousin in Mies [Stribro] and an uncle in Pilsen [Plzen]. In Prague he was assisted by the widow of Rabbi Bezalel Ronsperg, an uncle of his mother.  Among the teachers and rabbis Wise claimed to have studied with were Moses Koref, Löb Glogau, and Samuel Freund of Prague, and Aaron Kornfeld of Golcuv Jenikov.  Wise worked as a tutor in the homes of Leopold Jerusalem in Prague and Herman Bloch in Grafenried [Lucina, Nemanice], Bohemia. He was recommended by Rabbi Solomon Judah Rappaport of Prague to be a teacher in Ronsperg [Pobezovice], Bohemia and later took exams in Pressburg [Bratislava, Slovakia] where he studied with Rabbi Moses Sofer.  He returned to Prague and lived with Rappaport before studying for a year in Vienna, living with the German Reform preacher Isaac Noa Mannheimer and teaching the von Wertheimstein family.  At age twenty-three (1842) he passed a rabbinical examination before Rabbis Rappaport, Freund and Teweles, and then served as rabbi and teacher  in Radnitz [Radnice], Bohemia from October 1843.

Wise was married twice, first in Grafenried on May 26, 1844 (according to the family bible) to Therese Bloch, and then in 1876 in Manhattan, NY to Selma Bondi of Dresden, Saxony, Germany.  His 1876 New York wedding license states that his parents were Leopold Weiss and Regina Weiss.  Wise’s first child Emily (the mother of Wise’s biographer Benjamin May) was born February 22, 1846 (according to her gravestone) in Radnitz.  A few months later, Wise and his young family travelled to America, sailing from Bremerhaven for sixty-three days and arriving in New York on July 23, 1846.

Based on these facts, genealogists have for years crafted a tree for Rabbi Wise and his descendants (who include the Ochs-Sulzberger family owners of the New York Times) that identifies his father as Leopold Weiss, son of Dr. Isaiah Weiss, son of Dr. Leo Weiss.  I set out to determine if anything further could be learned about the family from the newly available records.

The Bohemian Jewish census of 1793 has been transcribed and published in book form by Ivana Ebelová, and recently made available online (click on News, then Inventories, for a list of pdf files, except for the index!).  A first step to looking up a town in the census, however, is figuring out what Kreis (Region) it was in. This is not always easy, since the governing Kreis in 1793 may not be the same as the political district of today. An additional complication is that Jewish records usually give the German name of the town, whereas the recent Czech resources are often organized by the Czech town names. Finally, there are often several towns with the same name in Bohemia and Moravia.

We do have a few resources to help. JewishGen has a database with most of the major towns, but is often missing the small villages.  So, the first place I look is usually the Wikipedia page List of historical German and Czech names for places in the Czech Republic. The Wikipedia page is not foolproof.  For example, looking up Steingrub gives a link to the wrong Lomnicka (in Moravia) rather than the correct one we are looking for in northern Bohemia near the German border!  Once I have a likely Czech name for the town, then I can try to find the district or region, using Wikipedia.  If that fails, I turn to a useful tool created by Alex Calzareth, Map of Bohemia and Moravia Jewish Vital Registers.  Again, finding Lomnicka is tricky because there are so many of them, but ultimately I was able to find the right one near Plesná (by typing Lomnicka Plesna until the program finds the right town). This allows you to zoom in and out, seeing all of the towns in the region with surviving Jewish record books. Lomnicka is north of the larger city of Cheb, which Wikipedia tells us is in the Karlovy Vary region. However, looking over at the list of regions for the 1793 census, you won’t find Karlovy Vary. If you go to Julius Müller’s website on Jewish Familiants, you’ll see an old map of the districts in Bohemia. If you zoom out on Alex Calzareth‘s map, you’ll see that Lomnicka is way in the far left, in a district then called Loketsky.

So, you’ll find the 1793 census for Steingrub in the book for the Loketer Kreis. If you search Steingrub in the pdf file, you’ll find every mention of that town. Starting on page 79 is where you can see all of the Jewish families. Looking up the page you will see that Steingrub is part of Walhof Gut (domain), along with the towns Fattatengrün [Bozetin], Zweifelsreuth [Cizebna], Hörschin [Hrzin], Wallhof [Lesna], and Neukirchen [Novy Kostel]. The first three towns have just one Jewish family, Wallhof has three, Neukirchen has four, and Steingrub has eleven.  In 1793, there is no Weiss family in Steingrub, but two of them in Neukirchen.

However, Rabbi Wise’s family history said that his Weiss family lived in Drmoul, so I decided to check there also. Using Alex Calzareth’s map, I find that Drmoul is 51 km south from Lomnicka, and in the Pilsner Kreis.  In 1793, there were 25 families living in the village of Drmoul. The first three listed have the surname Mayer. The next is the widow of Markus Weiss. But the very next entry, I noticed, was named Josaias Doctor.

This was my first clue. Josaias Doctor in Drmoul sounded suspiciously close to Rabbi Weiss’ grandfather Dr. Isaiah.  Doctor is not a common surname in Bohemia and may have denoted Isaiah’s profession. My next step was to take a look at the Familianten book records for Drmoul to see if I could find out more about Josaias/Isaiah Doctor.

In 1726, due the order of the Habsburg ruler Charles VI, the number of Jewish families was limited by quota to 8,541 in Bohemia and 5,106 in Moravia.  To enforce this quota (or numerus clausus), a so-called Familianten order was issued.  According to this order, only the first-born son of each Jewish family was given permission to marry (called a copulatio consensus). The permits could also be sold if there were no son to inherit them. This draconian Familianten order was in force until 1848. As a result, many Jews who could not obtain marriage permits emigrated from Bohemia and Moravia. Those who stayed often married only religiously, and as a result their children were recorded as illegitimate in official records.

Rabbi Wise in fact ran afoul of this law when he was rabbi in Radnitz by marrying Jewish couples without a license. “When called to task for this infraction of the law,” May writes, “he bitterly complained against its iniquity and unjustness, and stated he would continue to disregard so inhuman an edict. When questioned at Prague by a member of the imperial council in charge of Jewish affairs as to the cause of so many illegitimate births among the Jews, he pointed out that it was due solely to the barbarous restrictions of the right to marry.” [May, page 37.]

One other result of the Familianten laws was that the government kept very good records of which families lived in which towns. The list of Familianten were collected in the Book of Jewish Familianten (also called Mannschaftsbuecher in Moravia). Records were collected in 1799 and in 1811 and updated until about 1830.  Each record comprised the name of county, registration number of the family in the whole land (based on copulatio consensus), the registration number of family in the county (set up in 1725), name of the father, his wife, his sons and a few other family details. Today, these records provide a very good resource for researchers investigating their family histories, and they have recently been made available online by the Czech State Archives on Badatelna.eu.

Once again, finding the right book is not always easy. You can try searching the Familianten inventory (Fond 2098) on the badatelna.eu website, using the Czech name of the town. Trying Drmoul comes up blank. Going back to the 1793 census record (above) gives us another clue. See where it says “Kuttenplan”?  That is the name of the town that the Jews of Drmoul actually belonged to. Literally they were under the “protection” of Kuttenplan [Chodova Plana], although living 7.5 km away in Drmoul. Searching for Chodova Plana comes up with one book.  These books usually have a handwritten index in the front or back. This one shows a page for Isaias Doktor.

Isaias Docktor is identified as the son of Abraham Günzburger and Fanny/Debora [daughter of] Aron. He was married twice, to Rifka [daughter of] Abraham (c. 1780) and Rebeka [daughter of] Löwy (c. 1792), and died February 11, 1833. The page identifies his sons Aron (b. 1781), Löwy (b. 1784, d. April 20, 1837), Nathan (b. 1800) and Michael (b. 1802). Löwy is identified as unmarried [ledig].

Isaiah Doktor’s grave is located in Drmoul and has been photographed and indexed by Achab Haidler on his website chewra.com.  I was also able to find the graves for Isaiah’s parents Abraham (d. 1766) and Deborah (d. 1769).  Abraham was a doctor (rofe in Hebrew), and his father was named Isaiah.

Grave of Isaiah Doktor (d. Feb 11 1833) in Drmoul, Czechia.

If Isaias was Rabbi Wise’s grandfather, the dates fit pretty well.  At Isaiah’s death in 1833, Isaac Wise would have been just 13 years old.  But could the Isaiah’s unmarried son Löwy be Rabbi Wise’s father Leopold? If so, it meant that Wise’s parents were not officially married when he was born. That still needed some additional proof.

Many of the Jewish vital record books have been placed online by the Czech State archives. The principle Jewish records are held in Fond 1073, while a set of duplicate parish records (many from just the 1848 time period) are kept in Fond 241. Unfortunately, the record books for these towns did not cover the dates I needed. The book for Steingrub began in 1820, a year after Rabbi Wise’s birth, and none of the subsequent entries mentioned a Leopold or Regina Weiss. The record book for Grafenried did not include any marriage of Rabbi Wise and Therese Bloch. The birth records of Radnitz had no mention of their daughter Emily. (But I later found a record for an illegitimate son of Therese Bloch born March 14, 1845 in Radnitz, who apparently died before being named, which confirmed that Rabbi Wise’s 1844 marriage was without a proper license under the Familiant laws.) I decided to look for further clues, perhaps related to Wise’s siblings. Wise’s sister Caroline was born February 29, 1840 (according to her tombstone in Peoria, Illinois), but the Steingrub birth register ends in 1839, a year too early. I looked through Drmoul records and found no leads. Using Alex Calzareth’s map, I started looking at record books for towns near Steingrub and Drmoul, but at first didn’t find anything that looked useful. I decided that while I was looking through the books, I should try to work on the trees for the other Weiss families in Steingrub and the Doktors in Drmoul, and found that much had already been compiled by fellow Geni curators Oded Hartmann, Yoav Lahad and Benjamin Schoenbrun. In 1840 I found an illegitimate daughter born to Barbara, a daughter of Isaias Doktor.

I also posted about my research to the Jewish Genealogy Portal, a group I founded a few years ago that is now with over 20,000 members the largest Jewish genealogy group on Facebook. This group allows me to post my research and get feedback and help from others while I am working on a puzzle. Craig Partridge, one of the many genealogists collaborating on Bohemia, responded by informing me that one of his Popper relatives, Ignaz Popper of Radnitz married Laura Wise, a niece of Rabbi Wise, born 1849 in Steingrub. Searching the records in nearby Neukirchen [Novy Kostel] in Fond 1073, I discovered Laura’s birth record. Her father was Samuel, the son of Regina Weiss from House 64 in Steingrub. That was my first success at finding a record of a Weiss relative of Rabbi Wise.

So Isaac and Samuel had the same mother, Regina Weiss, but there was no mention in the records of a father to Samuel. This indicated to me that Samuel, and probably Isaac, were born out of wedlock, although I could not find a birth record for either of them to prove it. Samuel’s marriage record was also in the book for Novy Kostel and it provided an age so I could estimate his birth in 1822. Still, the Steingrub birth records for 1822 did not list Samuel. There was however a Lippmann Weiss born out of wedlock in 1833 in House 64 to Rebecca Weiss, daughter of Joachim Weiss.  It seemed very likely that Regina was the same as Rebecca, since it is very common for women’s names to change over time in these old records. The birth record for Samuel’s daughter Bertha [Blümerl]  lists Samuel’s mother’s name as “Rika” which is also close to Rifka, Hebrew for Rebecca.

I kept searching in various record books until I returned again to Novy Kostel, but this time in Fond 241, the Catholic parish copies, which (very unusually) pertained to earlier years than the Fond 1073 book I had used for the birth of Laura Wise. I had initially passed over the description of the book in Czech, but this time my Google Chrome browser offered a translation and I noticed that it said the book contained something related to circumcisions “a description of the book foreskins 1803-1840.” This is something that I had not seen in any other record books from Bohemia and Moravia. Apparently the parish had used the records of the local mohel, Jakob Pollak, to help reconstruct a new book of birth records for the community. Included in this new book was a beautiful ledger of the circumcisions performed by Jakob Pollak over thirty-seven years. Incredibly, in 1819 I found the following record:

The record says that on 11 Nissan 5579 (April 6, 1819) Pollak performed the circumcision of Isaak son of Löbl Doktor of Steingrub. April 6 is exactly eight days after the date of birth of Rabbi Wise on March 29, which is precisely when you would expect his bris to have occurred.  At last we have a birth record for Rabbi Wise, and it proves that his father was not named Leopold Weiss, but rather Löbl (= Leopold) Doktor, who is certainly Löwy Doktor, the son of Isaiah Doktor of Drmoul. Rabbi Wise was clearly born out of wedlock and was given his mother’s surname (Weiss), later changing it to Wise in America.

With every solution comes more questions, and Rabbi Wise’s ancestry certainly poses many of them. If the father of Rabbi Wise’s grandfather Isaiah Doktor is named Abraham Günzburger, how does that fit with the legend that Isaiah’s father was also named Leopold?  What do we make of the Mayer middle name? Boys in Bohemia rarely were given middle names. (There is, however, an Isak Löbl Weiss son of Salomon, born 1823 in Lomnicka.) In the records of Prague, the second name is usually the given name of the father. But Rabbi Wise’s middle name may point to a different source. In the mohel records for August 15, 1822 we find Samuel, son of Löbl Mayer, which could be Isaac’s brother Samuel. Did Samuel and Isaac have different fathers?  Or is Löbl Doktor the same as Löbl Mayer? One problem with the latter theory is that there is a Lev Mayer, probably son of Abraham and Sara Mayer, from Lazne Kynzvart, living in Studnicka who dies in 1831. On the Familiant records, Löbl Doktor dies April 20, 1837, but I have yet to find a death record or grave. Who is the father of Isaac’s baby sister Caroline, born 1840? And how is Rabbi Wise related to Rabi Bezalel Ronsperg (Rosenbaum). There are Rosenbaums in the area. You can see on top of Rabbi Wise’s circumcision the record of Hersch, son of Naphtali Rosenbaum of Katzengrün [Kacerov].  But I have not been able to connect this family with Rabbi Bezalel Ronsperg.

As researchers work through the copious Jewish records from Bohemia and Moravia and add to the trees on Geni.com, we will continue to make discoveries and connections. Jews often lived in very small communities, limited by the Familianten laws, and therefore moved around quite often. The key to Rabbi Wise’s ancestry was found in a book for Novy Kostel, a town that did not come up in his biography.

For further information on Jewish genealogy research in Bohemia and Moravia see Getting Started With Czech-Jewish Genealogy and Jewish Communities in Bohemia and Moravia.

About ten years ago, after the success of the Klimt painting case, we were able to purchase a beach house in Malibu.  We searched up and down the coast before finding a narrow 18 foot-wide unit right next to a 150 foot stretch of open beach.  While we were remodeling, our neighbor, actor Alex Rocco (Moe Greene from the Godfather), offered to sell us his unit.  It was an “offer we couldn’t refuse,” and so we combined the two lots into one and built a beautiful home that we’ve enjoyed for summer beach days and parties during the past ten years.

From time to time I get notices from the City of Malibu about hearings on development projects.  I always look at them to see if it’s something near us, but it never was.  So I was surprised when Pam went by our place two weeks ago and saw a big notice concerning a pending development on the fence next to our place.  I either missed or didn’t receive the notice of the one project that really affects our enjoyment of the beach.

Let me start by saying I am absolutely not against development and am also greatly in favor of public access to the beaches.  We really didn’t mind sharing our beach with the public. In fact, the locals who come down from the hills to enjoy an afternoon on our beach make the beach more fun to watch.  Our only problems are with visitors who insist on doing all of the things that are illegal to do on public beaches: dogs, drinking, smoking, nude bathing and barbecuing.

Access to our beach from Pacific Coast Highway has always been very easy.  There’s a small gate that is never locked on the south-east side of the fence and a stairway down to the beach.  So if you can find parking, you can easily get to the beach.  But the beach itself is small and feels very private when you are on it.  That’s really it’s charm, along with a giant boulder in the water that provides endless fun for climbing or diving, or just watching the waves break on it.  The sand on our beach is also a unique feature.  The high tide comes up all the way to the bluff under PCH and cleans the sand every day.  Sometimes the tide brings in lots of sand, other times the beach is all rocks.  The beach changes literally every day.

The best place to sit on our beach is right in the middle, below a little stand built by the locals. It’s the high and dry point, the last to get washed over by the high tide, and it has the best view to watch the kids swimming in the waves on either side of the big boulder. If you are anywhere else, your view gets obstructed by other giant boulders on the beach. So that’s our lifeguard perch and it’s where we put our umbrella and chairs for the day when we are on the beach.

So you can imagine my surprise when I found out that the Mountains Recreation & Conservation Authority (MRCA), acting on behalf of the California Department of Parks and Recreation with the approval of the California Coastal Commission had applied for and obtained a permit from the City of Malibu to remodel our beach, eliminate the existing stairway on the side of the beach and build a new one going right down the middle, landing just where we like to sit on the beach.

On the map above you can see the existing stairs in the upper right, and the planned staircase down the middle.  The existing stairs are going to be removed.  It looks almost reasonable to someone who doesn’t know this beach, and doesn’t understand that the water comes up to where the new stairs are supposed to be almost every day.

Just to give you an idea of how much this beach changes throughout the year, here’s a photo that the MRCA was using, where the sand is at its maximum height and the beach looks beautiful and inviting during a low tide. Below it is a photo (from the side) of the same beach yesterday also at low tide.

The sand is brought in and out with the tides during the year.  Sometimes the high tide dumps sand on the beach, and other times it rips the sand out.  Here’s a photo of the beach with wet sand at a high tide.

See that little dry spot under the green kayak?  That’s where they want to build the new staircase landing.   And here’s what it looked like two hours earlier before the high tide came in.  That high and dry spot where we are sitting is where they want to put the staircase.

So, I’m not at all happy about this new development and I decided that I would try to investigate why this is happening.  Here is where things got interesting.

This project came about as a result of a settlement of a dispute with a developer named Carbonview Limited, affiliated with Oracle billionaire Larry Ellison, which is planning to combine two lots a few miles up the beach at 22224 and 22230 PCH, and push further out toward the sea by 19 feet an existing lateral public access easement, losing about 1,609 square feet of potential public beach access. Below is a photo of the Carbonview lots, and the lateral access easement being modified. In July 2014, Carbonview’s development permit was approved by the California Coastal Commission with the condition that the developer make a “donation of $400,000 dollars to the Mountains Recreation Conservation Authority (MRCA) for the construction of public vertical accessway improvements within the Coastal Zone of the City of Malibu.” Ordinarily, the Coastal Commission doesn’t like taking away public access easements, but in this case, they said “the donation of $400,000 to the MRCA will provide for the enhancement and opening of a new public vertical accessway.” The resolution approved by the Commission stated: “The purpose of the account shall be to construct new access improvements within undeveloped public beach vertical accessways within the Coastal Zone in the City of Malibu, as authorized by the Executive Director.”

The MRCA, the Coastal Commission and Department of Parks and Recreation spent about 12 months working with Carbonview to identify a location to spend the $400,000 on a new vertical accessway.  In August 2015, the South Central Coast District Staff submitted a report to the Coastal Commission concerning the project.  Initially, staff identified two potential sites.  “One was located on La Costa Beach (owned by the California Coastal Conservancy) and it was anticipated that at this location a stairway leading from Pacific Coast Highway down to the sandy beach could be constructed, and a viewing platform and restroom could also potentially be constructed. The second potential site identified was located on Big Rock Beach and immediately adjacent to a 65-foot wide parcel owned and utilized by the California Department of Transportation (Caltrans) as a Vista Point. It was anticipated that this site would be dedicated to the MRCA, and vertical public access improvements, such as a stairway, could then be constructed.”  Beautiful La Costa Beach and Los Flores Beach above and below Duke’s are desperately in need of public access, and the Coastal Commission has long planned to build access points in those areas.  The Coastal Commission recently fined property owners $5.1 million for blocking public access on Los Flores beach, which we can get to from our place only when the tide is very low. The public viewing area at Big Rock also has been on the list for a stairway to provide access down to the beach. But without any explanation whatsoever, these proposed sites were jettisoned in favor of a new site — our tiny beach. When the settlement was announced, the Malibu Press gushed that the new funds “will provide the only public beach access in the three-mile stretch between the access at Big Rock and the ‘East Carbon Beach’ access point.”

Here’s where things get interesting.  In the August 2015 report to the Coastal Commission, no one ever mentioned that our beach already had easy public access, with an open gate and a perfectly good staircase!  The report gives the impression that the $400,000 are going to be used to provide a new vertical accessway to the public.

“The applicant and MRCA staff determined that this site could be opened to public use in a timely manner with relatively few improvements necessary to allow the public to utilize a view area adjacent to PCH as well as the beach area below. The applicant has developed a plan for the construction of the improvements that would allow public access to the site, both at street level as well as access to the beach area on the property. Specifically, the proposed vertical access improvements include the construction of a stairway leading from PCH down to the beach, a viewing area, sidewalk, and provision of shoulder parking along PCH, including one accessible parking space, as depicted on Exhibit 6. As mentioned above, the applicant has coordinated with State Parks and MRCA, and both agencies support the proposed access improvements.”

You’d have to read pages 11-13 of  the report to understand just how deceptive the staff report was. There is a lengthy section on the need for beach access, noting that there is no other public access in Malibu for two miles upcoast and .8 miles downcoast. The impression given is that this development is needed to provide a new public access on this three mile stretch in Malibu.  The deception must have been intentional.  Take a look below at the photo attached as Exhibit 5 to the report. That thick white border covers up the existing staircase on the right side of the beach.

If I had been on the Coastal Commission and was presented with this report, I might have voted for it also.  Who would be opposed to opening up a beautiful new beach to the public?  Here’s the gorgeous rendition of the new beach, omitting the existing staircase and adding the new one down the middle.

So here is what the staff failed to show the Coastal Commission: there already is a beautiful staircase that runs from the street down to the beach.

Here are some guests at a neighbor’s wedding party going up the stairs yesterday.

The gate at the top is always unlocked.  We have public access all the time. That is why the locals love this small beach.  We’re even featured on the Our Malibu Beaches mobile phone app.

California Coastal Act, Section 30001.5 states:

“The legislature further finds and declares that the basic goals of the state for the coastal zone are to: . . .

(c) Maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners.”

I am pretty confident that none of the members of the Coastal Commission would have approved the expenditure of $400,000 designated for “new beach access” in Malibu on a project that seeks to remove an existing public stairway and move it 75 feet up the beach to a spot that no one using the beach would ever want.

I’m planning to contact the Coastal Commission and raise this issue with them. It’s disgraceful that $400,000 that was supposed to open up new public access is being used to ruin our already public beach.

UPDATE Feb 10, 2017: This week Jessica Nguyen of MRCA spoke at a meeting of the Coastal Commission to inform them of the permit obtained from City of Malibu, but again failed to mention that public access and stairs already exist on this site.  Watch the video of her speaking at 0:24:20.   I also located videos of the prior hearings.  See August 12, 2015 at 7:27:30 (Carbonview), and July 10, 2014 at around 4:59:00.

UPDATE March 7, 2017: Jessica Nguyen wrote me “Per my voicemail, the MRCA is considering relocating the stairway to the east of the storm drain. Additionally, the City has determined that the project was not properly noticed to the surrounding residents, therefore a new hearing will be held for the project. The date of the hearing has yet to be finalized, but I will let you know when we have a date set up.”

To comment on the project, contact Jessica Nguyen, Mountains Recreation & Conservation Authority, 5810 Ramirez Canyon Drive, Malibu, 90265, Office: (310) 589-3230 ext. 125, Cell: (805) 300-0083, jessica.nguyen@mrca.ca.gov.

UPDATE May 11, 2017: A hearing will be held on May 15, 2017.   Item 5E – Coastal Development Permit No. 16-019 / 20516 Pacific Coast Highway.  The Staff report is available online.    The MRCA has proposed a new location for the staircase.

At the hearing, I voiced my objections to the proposal, principally that the placement of the stairs would take away valuable beach space.  Watch the video.  Item 5E at 44:23.  The Commission unanimously approved the permit sought by MRCA.

Update May 22, 2017.  I filed an appeal of the Planning Commission decision.  Below is the text of the appeal:

Appeal of Coastal Development Permit No. 16-019, approved May 15, 2017 by City of Malibu Planning Commission Resolution No. 17-33 – 20516 Pacific Coast Highway

Background: In connection with a completely separate permit application (Carbonview), MRCA obtained a $400,000 donation “to provide for the enhancement and opening of a new public vertical accessway.” (CCC App. No. 5-84-791-A1, Staff Report, page 2.  See https://documents.coastal.ca.gov/reports/2014/7/Th18a-7-2014.pdf)  As set forth by the CCC, “The purpose of the account shall be to construct new access improvements within undeveloped public beach vertical accessways within the Coastal Zone in the City of Malibu.” (Id. p. 6.)  MRCA has chosen to spend this public money on a small beach that already has public access via an open gate and stairs.  MRCA intends to remove the existing un-permitted staircase on the edge of the property, and replace it with a larger pylon-supported structure.  The proposed staircase will eliminate as much as one-third of the prime beach space on this small beach.  See https://schoenblog.com/?p=1091 for more background.

 Issue on Appeal:  Will the project “enhance and improve the public’s ability to enjoy and access the coastline,” or is there a less damaging alternative that will better serve the public interest?

I. The findings are not supported by the evidence.

Pursuant to LIP Chapters 6, 10 and 12, the Commission made various findings that the proposed development would have no significant scenic or environmental impacts and that “the proposed public beach access staircase will enhance and improve the public’s ability to enjoy and access the coastline.”  These findings were not supported by the evidence.  The evidence presented at the Commission hearing was that the new location of the staircase would significantly impair the accessibility and quality of the beach for the public, while providing little or no improvement in public access and safety.

The MRCA representative stated that the design of the new staircase would eliminated only 1-2% of the usable beach space.  This was false, as her calculations did not take into account the very large boulders on the beach, nor the fact that the high tide reaches the top of the beach, which is frequently stripped of sand and more rocky than displayed in the photo.  In truth, the staircase lands in one of the three most desirable spots on the beach.  No one wants to sit right next to a staircase.  The proposed location essentially eliminates one-third of the area from public use.

The existing wooden staircase and railing, installed by local Malibu residents to allow for public access from the street, is much better positioned to preserve precious space on this small beach.  No study was done by the Commission or MRCA to determine how the public currently uses this beach, especially on the weekend.  (According to the staff report, they only visited the site one time, on Wednesday July 19, 2016). In our estimate, the number of public users per available square feet during the summer weekends is probably already as high as any beach in the area, and certainly much higher than on the large, expansive beaches in Los Angeles and Santa Monica.  Taking away rare space on this very small beach would be devastating to the public enjoyment of the beach.

Therefore, the findings of the Commission are not supported by the evidence and the permit should be rejected on that basis.

II. There was lack of a fair or impartial hearing.

During the hearing, one of the Commissioners asked the Planning Director Ms. Blue, “What happens if we do not approve?”  She answered “Well, you approved it already last year.”  This was a very unfair response, as the prior approval was without proper notice, no objections were filed or considered, and the staff had recommended that the prior approval be rescinded.  Ms. Blue then went on to say that the Commission would have to give grounds for refusing to approve, which of course they could easily have done.  But she put the onus on the Commissioners, and deterred them from taking the necessary steps to reject the permit.

III.   The decision was contrary to law.

The law protects not only public access, but also the use and enjoyment of the beaches of our city.  Coastal Act § 30210 et seq.  Section 30221 states “Oceanfront land suitable for recreational use shall be protected for recreational use. . . ”  Policy 2.1 of the Malibu LCP states: “The shoreline . . . within the City provide a wide range of recreational opportunities in natural setting . . . These recreational opportunities shall be protected . . . .”

This is a rare case where no one is fighting over whether there should be public access.  There is already public access on this beach.  Indeed, this beach has the only public access for miles in either direction, and is already included on the Our Malibu Beaches mobile phone app.  The issue is really just the location of the stairs.  The proposed location would remove public beach space on a very small beach, thereby decreasing opportunities for public use and enjoyment of this beach.  The new stairs would also ruin the natural setting of the beach, and turn the whole beach (just 150 feet wide) into a staircase landing.  The existing stair location, nestled on the edge of the property, is supported by the local residents and neighbors, the people who currently use and enjoy the beach.

The only conceivable advantage of the new staircase is safety, but there have been no findings that the existing staircase is unsafe, or that the proposed improvements outweigh the loss of rare beach space.  Nor has there been a study to determine if there is a less destructive alternative and new stairs can be built in the existing location on the edge of the beach.  (The engineer on the project, Wynn Engineering, refused to discuss the project with Appellant.) The neighbors do not oppose the current stair location.  They only oppose the new location as it will simply ruin the beach for the public.

What is driving this project exactly?  It is important to understand what is happening here. The MRCA received $400,000 to develop “new” vertical public access in Malibu.  Apparently, the MRCA could not find a place to spend the money in time, so they decided to spend it on improving an already public beach.  This improper use of public funds designated for a particular purpose is illegal.  See Save the Welwood Murray Memorial Library Committee v. City Council of Palm Springs (1989) 215 Cal.App.3d 1003 (quoting Roberts v. City of Palos Verdes Estates (1949) 93 Cal.App.2d 545 at 547 (“where a grant deed is for a specified, limited and definite purpose, the subject of the grant deed cannot be used for another and different purpose.”)  Therefore, the project may and probably should be rejected solely on that basis.  This is not a “new” vertical public access point. The public is being deprived of the proper use of the funds, which were expressly donated to increase public access by opening up new beaches, not to remodel the access to an already public beach.

The Appellant would like to work out the issues with MRCA and the Planning Commission, but so far, the attitude has been that the MRCA can do whatever it wants with the property.  That really isn’t true.  This is not a private development, but a public one.  As such, the public has a right to ensure that its interests are protected.  The City of Malibu can and should reject the development application because it actually impairs the public right to enjoy a significant portion of this public beach.  At the very least, the MRCA should be required to consider the impact of the project on public enjoyment of the beach, and determine if less damaging alternatives exist.

Update: May 4, 2018:

At the hearing on November 27, 2018, the Malibu City Council ordered MRCA to come up with new plans that would have less impact on the enjoyment of the beach.  Watch the video at 57:00 et seq. and read the Minutes. I was very happy that members of the City Council spent so much time on the appeal, including a visit to the site.  They understood the problems and agreed that the plans needed to be revised. Here are the new plans submitted by MRCA, with the replacement stairs in the same location as the existing stairs.

20516 PCH20516 PCH

This article was originally published in the Jewish Journal.

Like most Jews whose family history features flights from persecution, I have a soft spot for refugees, the “huddled masses yearning to breathe free” welcomed to our shores by Emma Lazarus’ famous poem engraved on the pedestal of the Statue of Liberty. But there have always been those who felt differently.

President Trump’s recent Executive Order suspending the State Department’s Refugee Assistance Program and restricting visa entry from seven Muslim-majority countries is one in a long line of racist, anti-immigrant measures, from the Naturalization Act of 1790 (limiting naturalization to whites) and Chinese Exclusion Act of 1882 (prohibiting Chinese laborers) to the Immigration Act of 1924 (enacting national origin quotas to reduce the number of Jews and Italians, and exclude Arabs and Asians), which have influenced our immigration policies up to the present day. As President Truman said in vetoing the similarly problematic Immigration and Nationality Act of 1952, “In no other realm of our national life are we so hampered and stultified by the dead hand of the past, as we are in this field of immigration.” Congress overrode his veto. President Kennedy was so disturbed by the racist and discriminatory nature of our immigration laws that he even wrote a book about it, A Nation of Immigrants, in which he warned that “emotions of xenophobia – hatred of foreigners – and of nativism – the policy of keeping America ‘pure’ … continue to thrive.”

President Trump campaigned largely on xenophobic rhetoric aimed at Latinos, Asians and Muslims, both here and abroad. For example, on November 6, just days before the election, he called the community of 25,000 Somali refugees in Minnesota a “disaster,” and promised not to admit further refugees without the approval of the community. It is therefore hardly surprising that the new President used his broad executive authority to stop admitting refugees and restrict entry to the United States by individuals from countries like Somalia, which he believes may be sources of radical Islamic terrorism. I expect there will be many more of these types of orders in the days to come, and, in my view, the President will likely succeed in implementing these policies.

To be sure, Trump’s first executive order on immigration has caused a great outcry, even among those who generally support strong anti-terrorism efforts, mainly because it was so poorly conceived and executed. In just the first days, hundreds of travelers were caught in limbo, and attorneys working over the weekend obtained a temporary stay of certain elements of the order, some of which, like the refusal of entry to valid green card holders, may have already been retracted by the administration. There seem to be no exceptions made for properly vetted visitors, including students or scientists attending conferences on tourist visas, or even people who have assisted our armed forces.  No doubt there will be protracted litigation over some of the more objectionable parts of the order, such as the instruction to prioritize refugee claims made by members of “a minority religion” (i.e. Christians). Singling out seven countries might also run afoul of the Immigration and Nationality Act of 1965, which barred discrimination against immigrants (but not visitors) on the basis of national origin (unless permitted by Congress). But the upshot is that Trump is pulling up the welcome mat. The huddled masses are no longer going to be welcome. That is the message he is sending to his constituents, and to those living abroad.

Rather than focus on the legality of Trump’s executive order, which has already disrupted the lives of thousands of people, we should be focusing on the underlying policy issue. Is this the country that we want to be? Do we really want to admit no students, no scientists, no tourists, no visiting family members, no artists, no musicians, and no skilled employees from these seven countries? What exactly was wrong with the existing vetting procedures? Why were these seven countries chosen, and not others, like Saudi Arabia, with a history of exporting terrorists to our shores? A strict reading of the executive order would bar any non-US citizen “from” Iran from obtaining a tourist visa, meaning that many of the relatives of our Persian Jewish community living abroad in Israel or Europe can no longer come to visit. Does that make anyone safer?

With regard to refugees, there is an even more fundamental question. Should we close off our country to even the most persecuted refugees? There are thousands of refugees, families with children, who have been waiting for years while their applications were vetted and who now are blocked. Some argue that we need to set up high barriers to entry to prevent terrorists from entering the country. Almost 80 years ago, when the United States faced a far greater threat than we do today, and Jews were the ones clamoring to get in, Americans made the same argument. “How do we know there won’t be Nazi spies among the refugees?” they asked. Assistant Secretary of State Breckinridge Long ordered all consular officials “to put every obstacle in the way” to delay and stop granting visas to Jewish refugees. As a result, ninety percent of the quota spots were left unfilled, and the Jews trapped in Europe, our relatives, were murdered.

I see little or no difference between the America First policy of President Trump, and the similarly-named nativist policy that informed Breckinridge Long. We can do better, I think, than defying our own principles in the name of security.

The drought is over. No, not the water drought, although the recent rainstorms means that only 50% of the State is still suffering.  Not since the Schoenberg Prism during the 2001-2002 season has the Los Angeles Philharmonic performed a work by Arnold Schoenberg on a regular subscription concert.  I blogged about this five years ago, and again in 2014, when a performance of the Schoenberg Violin Concerto was cancelled due to illness of the violinist.

But now it is really over.  Last night, Gustavo Dudamel conducted the LA Philharmonic in the Begleitungsmusik zu einer Lichtspielszene, Op. 34 and Piano Concerto, Op. 42.  Emanuel Ax was the soloist.  Ax loves the concerto and has performed it many times over the years, including back in 2001 during the Schoenberg Prism.  Ax recorded the concerto with former LA Phil conductor Esa-Pekka Salonen, but not with LA Phil, but the Philharmonia Orchestra.  This week’s performance may even available on livestream.  Mark Swed gave it a nice review in the LA Times.

My parents said that the pre-concert talk by Russell Steinberg was fabulous, devoted entirely to the Schoenberg.  Apparently he had the entire audience humming the opening lines of the concerto.

One thing no one has mentioned, I think, is the private “program” of the concerto, which was composed in Los Angeles in 1942.

Life was so easy
Suddenly hatred broke out
A grave situation was created
But life goes on

My grandfather was 68 years old when he wrote the piano concerto.  The entire world was in flames.  He had a young wife and three very young children (ages 10, 5 and 2).  The contrast between the serene, sunny lifestyle in his new home, and the conflagration raging in his old one, must have been stark.  You can hear that contrast in the concerto.  It’s a timely reminder that we gotten through tough times before.