Rather than going on my own rant this morning, I’m going to just refer you to the most recent podcast on Gaslit Nation.
Rather than going on my own rant this morning, I’m going to just refer you to the most recent podcast on Gaslit Nation.
On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, I write in strong opposition to the confirmation of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit.
Ms. Rao has espoused and advanced extreme ideological views since college. She has advocated against the rights of sexual assault victims, and it would be particularly disturbing to confirm her for the vacancy on the D.C. Circuit left by the Supreme Court confirmation of Brett Kavanaugh, who was credibly accused of sexual assault. Ms. Rao currently serves as President Trump’s Administrator of the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA), where she was confirmed in 2017 on a near party-line vote in the Senate. This office has been at the center of the Trump administration’s aggressive efforts to undermine vital public protections, and as its head, Ms. Rao has had a platform to put her extreme ideas into action. She has supported numerous policies that have rolled back civil and human rights advances for millions of Americans. The Senate must reject her nomination.
Bias Against Sexual Assault Victims: As a college student, Ms. Rao made several alarming comments about date rape. She suggested that sexual assault victims were partly to blame for being assaulted, and that some women make false rape allegations to avoid accepting responsibility for their actions.
Although Ms. Rao expressed these troubling views years ago, she is currently implementing this dangerous agenda in the Trump administration as the OIRA Administrator. She has supported the effort of the Trump administration to propose new rules to roll back Title IX protections in the context of sexual harassment and sexual assault, and to limit schools’ responsibility for addressing such conduct. Dozens of civil and human rights organizations, including ours, have urged the Trump administration to withdraw this proposed rollback of civil rights protections. In addition, Ms. Rao has also helped block the issuance of guidance recommended by the Equal Employment Opportunity Commission (EEOC) that would help combat sexual harassment in the workplace.
Disparaging Views on Women’s Rights: Ms. Rao has also made disparaging remarks about feminism and women’s rights.
As the OIRA Administrator, Ms. Rao has taken steps to roll back protections for women in the workplace. She halted an EEOC rule that required large companies to disclose what they pay employees by sex, race, and ethnicity – a rule that was intended to remedy the unequal pay that remains rampant in the American workplace. That decision has been challenged in court and Ms. Rao is a named defendant.
Troubling Views on Race: In her college writings, Ms. Rao made numerous insensitive comments about race and campus affinity groups. She demonstrated deep hostility to classmates who joined organizations that allowed them to interact with students from similar racial backgrounds and experiences.
These types of comments are similar to those made by another Trump judicial nominee, Ryan Bounds, whose nomination to the Ninth Circuit was scuttled last year after Senator Tim Scott objected to their racial insensitivity. In a December 2018 letter to the editor of the Wall Street Journal, Senator Scott wrote that “we should stop bringing candidates with questionable track records on race before the full Senate for a vote.” Ms. Rao is clearly such a candidate.
Ms. Rao’s efforts to diminish marginalized communities of color has continued throughout the years. In 2015, she criticized the Supreme Court’s decision that year in Texas Department of Housing v. Inclusive Communities Project, an important victory for the use of disparate impact in proving housing discrimination under the Fair Housing Act. Ms. Rao accused the Supreme Court of misreading the intent of Congress in passing the Fair Housing Act and said the court had adopted “rule by talking points” over “a government ruled by laws.” She wrote: “The judiciary has a duty to ‘say what the law is,’ not what some lawmakers hoped it would be.” By contrast, this important decision was hailed by the civil rights community.
As the OIRA Administrator, Ms. Rao has worked to undermine disparate impact protections at HUD. Disparate impact theory recognizes that unlawful discrimination can be identified through a policy’s unjustified effect and has been repeatedly validated by federal courts, as in the Texas Department of Housing v. Inclusive Communities Project decision. Ms. Rao has initiated a process to roll back disparate impact protections for communities of color that were implemented by the Department of Housing and Urban Development in 2015. This is part of a larger effort by the Trump administration to undermine disparate impact protections and perpetuate inequality and discrimination across the board.
Hostility to LGBTQ Rights: Ms. Rao also expressed alarming and offensive views about LGBTQ equality.
As the OIRA Administrator, Ms. Rao is in the process of finalizing a new rule that would give a license to discriminate to health care providers who wish to deny medical services to LGBTQ patients, women seeking reproductive health care, and others based on the providers’ religious objections. Ms. Rao is also involved in a process to roll back a rule implementing Section 1557 of the Affordable Care Act that created critical protections for LGBTQ patients.
Offensive Views on Disability Rights: Ms. Rao has defended the cruel and degrading practice of “dwarf tossing,” a dangerous activity in which people compete in throwing people with dwarfism. Dwarf tossing is banned in several states due to the high risk of injury. In criticizing a French law that bans this practice, Ms. Rao wrote that this law “demonstrates how a substantive understanding of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity irrespective of their individual choices.” Ms. Rao has advanced this argument in numerous articles she has written about how courts should resolve disputes involving competing definitions of human dignity.
Ms. Rao’s nomination is opposed by Little People of America, the largest organization representing individuals with dwarfism. They recently wrote a letter to the Senate stating: “We vehemently disagree with Ms. Rao’s view that banning dwarf tossing negates [an] individual’s dignity. A ban on dwarf tossing event[s] significantly reduces the risk of inevitable bodily harm to the person being tossed. We strongly support our community in having individual choice in every aspect of their lives and we advocate for equal employment opportunities so that our community need not be constrained to earning a living by being the recipient of a dehumanizing and injurious activity.”
In opposing Ms. Rao’s nomination, disability rights advocate Rebecca Cokley has powerfully noted: “Dwarf tossing legalizes the treatment of people with my disability as less-than people. As objects. As footballs, if you like…. To me, dwarf tossing is a hate crime. It is an activity that specifically targets a marginalized community because we are marginalized. There is no way you can look at this sort of activity as ‘sport’ instead of assault.”
At OIRA, Ms. Rao has helped implement federal rules to roll back disability rights. For example, a recent rule significantly weakens the protections in the Affordable Care Act for persons with disabilities and chronic medical conditions by incentivizing states to reduce what insurers are required to cover within the ten categories of essential health benefits (including mental health).
Anti-Environmental Views: In college writings, Ms. Rao expressed deep-seated skepticism about environmental protection.
Ms. Rao has brought this anti-environmental mindset to OIRA. She has supported the weakening of public protections against mercury pollution, a troubling decision because high mercury levels have been proven to cause brain damage to infants and young children. She has also supported a proposal to repeal the Clean Power Plan, a major environmental protection effort aimed at combating climate change by reducing greenhouse gas emissions from power generators. The D.C. Circuit resolves many significant environmental disputes, and the addition of Ms. Rao to that court would have a devastating impact on our clean air and water.
Hostile to Women’s Reproductive Freedom: Ms. Rao holds anti-choice views and has advanced them at OIRA. In a 2011 article about how courts treat issues of human dignity, Ms. Rao embraced anti-choice rhetoric, writing: “In Casey, the plurality focused on the inherent dignity of a woman’s freedom to choose an abortion, but minimized the competing inherent dignity of the fetus to life.” In a 1998 article, she criticized Roe v. Wade and said “the Court uses esteemed philosophers to legitimize a controversial perspective. By contrast, there were many persuasive legal arguments against recognizing a constitutional right to abortion.”
At OIRA, she has put her ideology into practice and worked to roll back critical reproductive health care protections. Under a new rule advanced by Ms. Rao, employers who were previously required to provide contraceptive coverage under the Affordable Care Act can now refuse to provide such coverage for nearly any reason just by claiming an objection to contraception. In addition, when OIRA considered a proposed rule that would significantly restructure the federal Title X family planning program (which serves more than four million people a year) and make it impossible for many current providers to participate, it failed to undertake a full analysis of the rule’s economic impact on families and instead only offered a conclusory statement that it would not negatively impact family well-being, despite extensive data to the contrary.
Extreme Views on Role of Government: As the director and founder of the Koch Foundation-funded Center for the Study of the Administrative State at Antonin Scalia Law School, Ms. Rao has advocated a number of controversial positions that would hinder the ability of federal agencies to provide critical legal protections for people. In a publication for the far-right Heritage Foundation, she complained that the United States has “a regulatory state that often operates with minimal congressional guidance, inconsistent presidential direction, and deferential judicial review.” In other words, Ms. Rao believes in weakening agencies by limiting their ability to carry out congressional mandates to protect people. Putting her in charge of the White House office that oversees the implementation of federal regulations is truly letting the fox guard the henhouse, a dynamic that has sadly occurred in agency after agency during the Trump administration. Ms. Rao has also advanced troubling views on presidential power, arguing that presidents “must have the ability to remove all executive branch officers at will” and “after removal from office, a President may be criminally liable for his actions.” In light of the ongoing Mueller investigation into Russian meddling in the 2016 presidential election, it is easy to see why President Trump would want someone with these beliefs sitting on the court that might be asked to adjudicate such issues.
Ideological Affiliations: Ms. Rao has been a member of the Federalist Society since 1996, her first year of law school, and, according to her Senate questionnaire, she has given 32 speeches to the Federalist Society over the past decade. This out-of-the-mainstream legal organization represents a sliver of America’s legal profession – just four percent – yet more than 80 percent of President Trump’s circuit court nominees, and a significant number of his district court nominees, have been Federalist Society members. Ms. Rao served as president of her law school Federalist Society chapter, and she has been deeply involved in this organization ever since. She has served on the Federalist Society executive committee for its Federalism & Separation of Powers Practice Group and its International & National Security Practice Group, and as a member of the Federalist Society Regulatory Process Group, Article I Project, and Faculty Division. Ms. Rao’s zeal for this right-wing organization is so strong that she actually listed her Federalist Society participation as an example of her pro bono work in response to question 25 on her Senate Judiciary Committee questionnaire, which asks nominees to list work they have undertaken “in serving the disadvantaged.” If confirmed, Ms. Rao would bring a clear bias and far-right ideological agenda to the bench, and she would not serve as an objective and fair-minded arbiter.
For the foregoing reasons, The Leadership Conference urges you to oppose the confirmation of Neomi Rao to the U.S. Court of Appeals for the District of Columbia Circuit. Thank you for your consideration of our views. If you have any questions or would like to discuss this matter further, please contact Mike Zubrensky, Chief Counsel, at (202) 466-3311.
President & CEO
In light of Nancy Pelosi’s statement about impeachment, this article from the Atlantic is instructive.
The Company Michael Cohen Kept
Podcast: Trump, Inc. April 18, 2018
Long before Donald Trump’s attorney paid Stormy Daniels or had his office raided by the FBI, a pattern was established. The associates of Michael Cohen often land in legal troubles.
Of all the good reporters out there, why would MSNBC choose to hire this guy and make him central to their coverage?
Article from the Intercept
A prominent national security reporter for the Los Angeles Times routinely submitted drafts and detailed summaries of his stories to CIA press handlers prior to publication, according to documents obtained by The Intercept.
Email exchanges between CIA public affairs officers and Ken Dilanian, now an Associated Press intelligence reporter who previously covered the CIA for the Times, show that Dilanian enjoyed a closely collaborative relationship with the agency, explicitly promising positive news coverage and sometimes sending the press office entire story drafts for review prior to publication. In at least one instance, the CIA’s reaction appears to have led to significant changes in the story that was eventually published in the Times.
“I’m working on a story about congressional oversight of drone strikes that can present a good opportunity for you guys,” Dilanian wrote in one email to a CIA press officer, explaining that what he intended to report would be “reassuring to the public” about CIA drone strikes. In another, after a series of back-and-forth emails about a pending story on CIA operations in Yemen, he sent a full draft of an unpublished report along with the subject line, “does this look better?” In another, he directly asks the flack: “You wouldn’t put out disinformation on this, would you?”
Dilanian’s emails were included in hundreds of pages of documents that the CIA turned over in response to two FOIA requests seeking records on the agency’s interactions with reporters. They include email exchanges with reporters for the Associated Press, Washington Post, New York Times, Wall Street Journal, and other outlets. In addition to Dilanian’s deferential relationship with the CIA’s press handlers, the documents show that the agency regularly invites journalists to its McLean, Va., headquarters for briefings and other events. Reporters who have addressed the CIA include the Washington Post‘s David Ignatius, the former ombudsmen for the New York Times, NPR, and Washington Post, and Fox News’ Brett Baier, Juan Williams, and Catherine Herridge.
Dilanian left the Times to join the AP last May, and the emails released by the CIA only cover a few months of his tenure at the Times. They show that in June 2012, shortly after 26 members of congress wrote a letter to President Obama saying they were “deeply concerned” about the drone program, Dilanian approached the agency about story that he pitched as “a good opportunity” for the government.
The letter from lawmakers, which was sent in the wake of a flurry of drone strikes that had reportedly killed dozens of civilians, suggested there was no meaningful congressional oversight of the program. But Dilanian wrote that he had been “told differently by people I trust.” He added:
Not only would such a story be reassuring to the public, I would think, but it would also be an opportunity to explore the misinformation about strikes that sometimes comes out of local media reports. It’s one thing for you to say three killed instead of 15, and it’s another for congressional aides from both parties to back you up. Part of what the story will do, if you could help me bring it to fruition, is to quote congressional officials saying that great care is taken to avoid collateral damage and that the reports of widespread civilian casualties are simply wrong.
Of course, journalists routinely curry favor with government sources (and others) by falsely suggesting that they intend to amplify the official point of view. But the emails show that Dilanian really meant it.
Over the next two weeks, he sent additional emails requesting assistance and information from the agency. In one, he suggested that a New America Foundation report alleging that drone attacks had killed many civilians was exaggerated, writing that the report was “all wrong, correct?”
A number of early news accounts reported that more than a dozen people died in the June 4, 2012, drone strike that killed Al Qaeda leader Abu Yahya al-Libi in Pakistan. But in a June 20 email to the CIA, Dilanian shared a sentence from his story draft asserting that al-Libi had died alone. “Would you quibble with this?” he asked the CIA press officer.
On June 25, the Times published Dilanian’s story, which described thorough congressional review of the drone program and said legislative aides were allowed to watch high-quality video of attacks and review intelligence used to justify each strike. Needless to say, the agency hadn’t quibbled with Dilanian’s description of al-Libi’s solitary death. Video provided by the CIA to congressional overseers, Dilanian reported, “shows that he alone was killed.”
That claim was subsequently debunked. In October of 2013, Amnesty International issued a report, based on statements from eyewitnesses and survivors, that the first missile strike targeting al-Libi killed five men and wounded four others. Al-Libi was not even among those victims; he and up to fifteen other people died in a follow up attack when they arrived at the scene to assist victims. Some of those killed were very likely members of al Qaeda, but six were local tribesmen who Amnesty believed were there only as rescuers. Another field report published around the same time, this one by the Bureau of Investigative Journalism, also reported follow-up drone strikes on civilians and rescue workers — attacks that constitute war crimes.
Dilanian has done some strong work and has at times been highly critical of the CIA. For example, in July 2012 he wrote a piece about sexual harassment at the agency that angered the press office. In reply to an email from a spokesperson, Dilanian said that complaints about his story were “especially astonishing given that CIA hides the details of these complaints behind a wall of secrecy.”
But the emails reveal a remarkably collegial relationship with the agency. “I am looking forward to working with you, Ken,” a newly hired agency flack wrote him in a March 1, 2012, email.
“Hooray!” Dilanian replied. “Glad to have you guys.”
On March 14, 2012, Dilanian sent an email to the press office with a link to a Guardian story that said Bashar Al-Assad’s wife had been buying a fondue set on Amazon while Syrian protesters were gunned down. “If this is you guys, nice work,” he wrote. “If it’s real, even better.”
The emails also show that Dilanian shared his work with the CIA before it was published, and invited the agency to request changes. On Friday April 27, 2012, he emailed the press office a draft story that he and a colleague, David Cloud, were preparing. The subject line was “this is where we are headed,” and he asked if “you guys want to push back on any of this.”
It appears the agency did push back. On May 2, 2012, he emailed the CIA a new opening to the story with a subject line that asked, “does this look better?”
The piece ran on May 16, and while it bore similarities to the earlier versions, it had been significantly softened.
Here’s the original opening, from Dilanian’s email:
Teams of CIA officers, private contractor and special operations troops have been inserted in southern Yemen to work with local tribes on gathering intelligence for U.S. drone strikes against militants, U.S. officials and others familiar with the secret operation said.
Here’s the version that was published:
In an escalation of America’s clandestine war in Yemen, a small contingent of U.S. troops is providing targeting data for Yemeni airstrikes as government forces battle to dislodge Al Qaeda militants and other insurgents in the country’s restive south, U.S. and Yemeni officials said.
In another case, Dilanian sent the press office a draft story on May 4, 2012, reporting that U.S. intelligence believed the Taliban was growing stronger in Afghanistan. “Guys, I’m about to file this if anyone wants to weigh in,” he wrote.
On May 7, 2012, the AP, Dilanian’s current employer, broke a story about a secret CIA operation that “thwarted an ambitious plot by al-Qaida’s affiliate in Yemen to destroy a U.S.-bound airliner.” The next day, Dilanian sent the CIA a detailed summary of a planned piece that followed up on (and took issue with) the AP story. “This is what we are planning to report, and I want to make sure you wouldn’t push back against any of it,” he wrote.
Dilanian also closely collaborated with the CIA in a May 2012 story that minimized the agency’s cooperation with director Kathryn Bigelow and screenwriter Mark Boal on their film about the assassination of Osama bin Laden, Zero Dark Thirty. Republicans had been criticizing the Obama Administration for revealing classified details about the operation to Boal and Bigelow while withholding them from the public.
“My angle on this is that…this is a pretty routine effort to cooperate with filmmakers and the sort of thing the CIA has been doing for 15 years,” Dilanian wrote in an email to Cynthia Rapp, the head of the agency’s press office. “This is a storyline that is in your interest, I would think, to the extent you could provide information about how routine it is to offer guidance to entertainment people who seek it out—including ones who are Democrats!—it would show that this latest episode is hardly a scandal.”
Dilanian’s pitch appears to have worked. His subsequent story included an on the record comment from CIA spokesman Todd Ebitz. One year later, internal CIA documents released under the FOIA showed that the agency’s office of public affairs—the same people Dilanian had been working with–had asked for and received changes to the Zero Dark Thirty script that portrayed the agency in a more favorable light.
Reached by The Intercept for comment, Dilanian said that the AP does not permit him to send stories to the CIA prior to publication, and he acknowledged that it was a bad idea. “I shouldn’t have done it, and I wouldn’t do it now,” he said. “[But] it had no meaningful impact on the outcome of the stories. I probably should’ve been reading them the stuff instead of giving it to them.”
Dilanian said he was not sure if Los Angeles Times rules allow reporters to send stories to sources prior to publication. The Time’s ethics guidelines, however, clearly forbid the practice: “We do not circulate printed or electronic copies of stories outside the newsroom before publication. In the event you would like to read back quotations or selected passages to a source to ensure accuracy, consult an editor before doing so….”
Bob Drogin, the Times’ deputy bureau chief and national security editor, said he had been unaware that Dilanian had sent story drafts to the CIA and would have not allowed him to do it. “Ken is a diligent reporter and it’s responsible to seek comment and response to your reporting,” he told me. “But sharing story drafts is not appropriate.”
AP spokesman Paul Colford told The Intercept that the news organization is “satisfied that any pre-publication exchanges that Ken had with the CIA before joining AP were in pursuit of accuracy in his reporting on intelligence matters,” adding that “we do not coordinate with government agencies on the phrasing of material.”
Dilanian’s emails were included in a FOIA request that sought communications between the CIA and ten national security reporters sent from March to July 2012. That request turned up correspondence between the press office and Dilanian, Adam Goldman, then at the AP and now at The Washington Post, Matt Apuzzo, then at AP and now at The New York Times, Brian Bennett of The Los Angeles Times, Siobhan Gorman of The Wall Street Journal, Scott Shane of the New York Times, and David Ignatius, a Washington Post columnist.
It’s impossible to know precisely how the CIA flacks responded to reporters’ queries, because the emails show only one side of the conversations. The CIA redacted virtually all of the press handlers’ replies other than meager comments that were made explicitly on the record, citing the CIA Act of 1949, which exempts the agency from having to disclose “intelligence sources and methods” or “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” The contents of off-the-record or background emails from CIA press handlers clearly don’t disclose names, titles, or salaries (which can easily be redacted anyway); they may disclose sources and methods, depending on whether you view manipulation of American reporters as an intelligence method. (The Intercept is appealing the redactions.)
The emails also show that the CIA asked the Post‘s Ignatius to speak at a May 2012 off-the-record conference, “Political Islam’s Future: Challenges, Choices, and Uncertainties,” for U.S. government intelligence analysts and policymakers. The invitation was extended in an email from the press office, which said that the conference organizers “would like you to draw upon the insight from your field experience, reporting, and broad network of contacts during the lead up to the Arab Spring to share how journalists sense that major political, social, or religious changes are in the making.”
Ignatius replied that he would be “pleased and honored to do this,” but unfortunately he would be traveling in Europe on the day of the conference. The CIA then proposed “a smaller round table with our…folks sometime in the future.”
“Smaller round table would be great,” Ignatius replied.
Ignatius told The Intercept that the round table never took place. But he confirmed that he had previously spoken to the CIA twice since 2005. “I talked to them about how journalists collect information,” he said. “It was meant as an admonition and a caution about the need to get things right and not to bend to political pressure and to have systems in place to catch errors.”
Ignatius said he had gotten approval of his editors before he spoke to the CIA, and didn’t see any conflict or problem with addressing the agency. “There’s a very sharp line between our profession and the intelligence business and it shouldn’t be crossed,” he said. “I talked to them about what I’d learned as an editor and the importance of getting it right. I wasn’t sharing any [sensitive] information with them.
Records released in response to another FOIA request, seeking information about journalists who had been invited to address or debrief CIA employees, show that several Fox News reporters have visited the agency.
Fox News’ Bret Baier gave an address about the importance of charity in 2008 (which was reported at the time), and the then-ombudsmen for NPR, The Washington Post, and The New York Times (Jeffrey Dvorkin, Michael Getler and Daniel Okrent, respectively), appeared together on a CIA panel. The event description said that journalism “shares some of the same missions that intelligence analysts have—presenting information in an unbiased fashion and challenging prevailing opinions.” The ombudsmen, the invitation said, could help the CIA “see how journalists deal with some of our common professional and ethical difficulties.” (It’s not clear from the documents when the ombudsmen event was held, but it would have been in 2009 or before.)
In 2007, Juan Williams, then at NPR in addition to his role at Fox News, gave a “standing-room-only” speech sponsored by the agency’s Office of Diversity Plans and Programs. During his speech Williams praised CIA personnel as “the best and brightest,” and said Americans admired the agency and trusted it “to guide the nation and the nation’s future.”
Williams also spoke about Nelson Mandela, saying he was an example of a leader who “came from outside the system.” There was a certain irony here—the CIA played a key role in Mandela’s 1962 arrest by the South African apartheid regime, which resulted in him spending 28 years in prison—which Williams was either unaware of or politely chose not to note.
Photo: J. Scott Applewhite/AP