It’s Mueller, not Trump, who is draining the swamp

Quinta Jurecic writes:

Following the investigation of the special counsel, Robert Mueller, is an enduring lesson in humility, and not merely because no one — not the president, not legal analysts or anyone else — has been able to predict what his office will do next. Mr. Mueller is much more than a prosecutor. To many, he has become Mr. Trump’s opposite: an avatar of justice and probity.

As special counsel, he’s also a storyteller, unwinding the tale of what happened during the 2016 election, while revealing only glimpses of the overall narrative. It’s not clear whether he’ll ever make public the whole of what he knows, or whether the regulations governing his appointment even allow him to do so.

The country is living through an astonishing story without a full sense of what that story is. But as the public waits to discover who on the Trump team knew what and when they knew it, Mr. Mueller has been telling another story, about “draining the swamp.” And how that story plays out stands to have a major effect on how our politics moves forward after the investigation is complete.

The themes of corruption and white-collar malfeasance link the cases of those caught up in the special counsel’s inquiry. Their indictments shed light on the culture of influence peddling and less-than-savory financial transactions that Mr. Trump promised to dismantle if elected president. (He has done the opposite.) [Continue reading…]

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It’s time to regulate the internet

Franklin Foer writes:

As Facebook’s scandals have unfolded, the backlash against Big Tech has accelerated at a dizzying pace. Anger, however, has outpaced thinking. The most fully drawn and enthusiastically backed proposal now circulating through Congress would regulate political ads that can appear on the platform, a law that hardly curbs the company’s power or profits. And, it should be said, a law that does nothing to attack the core of the problem: the absence of governmental protections for personal data.

The defining fact of digital life is that the web was created in the libertarian frenzy of the 1990s. As we privatized the net, releasing it from the hands of the government agencies that cultivated it, we suspended our inherited civic instincts. Instead of treating the web like the financial system or aviation or agriculture, we refrained from creating the robust rules that would ensure safety and enforce our constitutional values.

This weakness has long been apparent to activists toiling on the fringes of debate—and the dangers might even have been apparent to most users of Facebook. But it’s one thing to abstractly understand the rampant exploitation of data; it’s another to graphically see how our data can be weaponized against us. And that’s the awakening occasioned by the rolling revelation of Facebook’s complicity in the debacle of the last presidential campaign. The fact that Facebook seems unwilling to fully own up to its role casts further suspicion on its motives and methods. And in the course of watching the horrific reports, the public may soon arrive at the realization that it is the weakness of our laws that has provided the basis for Facebook’s tremendous success. [Continue reading…]

The Cambridge Analytica-Facebook debacle: A legal primer

Andrew Keane Woods writes:

If you’re [Aleksandr] Kogan, or Cambridge Analytica, expect lawsuits, public hearings and general regulatory hell. Maybe, in the extreme, jail time. If you’re Facebook, expect lawsuits, public hearings, and general regulatory hell. Maybe, in the extreme, the end of the firm as we know it.

Facebook is hoping to pin this on two bad apples: Kogan and Cambridge Analytica. And bad apples they were. But this is a dangerous strategy. For Facebook, the claim that it was always upfront about how user data might end up in developer hands is a strategy that wins the battle but loses the war. If users and regulators decide that the firm did not do anything out of the ordinary—that this is just the way Facebook works—they may reasonably conclude that the firm itself is unacceptable. The EU’s top privacy regulator, Věra Jourová, announced on Monday that she had reached out to Facebook and that “From a European Union perspective, the misuse for political purposes of personal data belonging to Facebook users — if confirmed — is not acceptable.” This does not sound like the kind of small-bore complaint about a one-off problem, but rather the threat of a major reckoning.

It sounds like the kind of thing that should make Facebook want to hire really good antitrust lawyers. [Continue reading…]

‘Corporations are people’ is built on an incredible 19th-century lie

Adam Winkler writes:

Somewhat unintuitively, American corporations today enjoy many of the same rights as American citizens. Both, for instance, are entitled to the freedom of speech and the freedom of religion. How exactly did corporations come to be understood as “people” bestowed with the most fundamental constitutional rights? The answer can be found in a bizarre—even farcical—series of lawsuits over 130 years ago involving a lawyer who lied to the Supreme Court, an ethically challenged justice, and one of the most powerful corporations of the day.

That corporation was the Southern Pacific Railroad Company, owned by the robber baron Leland Stanford. In 1881, after California lawmakers imposed a special tax on railroad property, Southern Pacific pushed back, making the bold argument that the law was an act of unconstitutional discrimination under the Fourteenth Amendment. Adopted after the Civil War to protect the rights of the freed slaves, that amendment guarantees to every “person” the “equal protection of the laws.” Stanford’s railroad argued that it was a person too, reasoning that just as the Constitution prohibited discrimination on the basis of racial identity, so did it bar discrimination against Southern Pacific on the basis of its corporate identity.

The head lawyer representing Southern Pacific was a man named Roscoe Conkling. A leader of the Republican Party for more than a decade, Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him. (He remains the last person to turn down a Supreme Court seat after winning confirmation). More than most lawyers, Conkling was seen by the justices as a peer.

It was a trust Conkling would betray. As he spoke before the Court on Southern Pacific’s behalf, Conkling recounted an astonishing tale. In the 1860s, when he was a young congressman, Conkling had served on the drafting committee that was responsible for writing the Fourteenth Amendment. Then the last member of the committee still living, Conkling told the justices that the drafters had changed the wording of the amendment, replacing “citizens” with “persons” in order to cover corporations too. Laws referring to “persons,” he said, have “by long and constant acceptance … been held to embrace artificial persons as well as natural persons.” Conkling buttressed his account with a surprising piece of evidence: a musty old journal he claimed was a previously unpublished record of the deliberations of the drafting committee.

Years later, historians would discover that Conkling’s journal was real but his story was a fraud. [Continue reading…]