Sunday, May 26, 2019
Saturday, May 25, 2019
Thursday, May 23, 2019
"... As the confrontation escalates between the House of Representatives and the White House over the production of documents, the appearance of witnesses and compliance with congressional subpoenas, so too have calls for Democrats to initiate impeachment proceedings. Speaker of the House Nancy Pelosi continues to push for further investigation of the president rather than an impeachment inquiry, while some members of her caucus and its leadership team and several candidates for the Democratic presidential nomination appear more willing to begin impeachment proceedings.
There are a number of different ways to frame the decision that House Democrats must make as they move forward. First, impeachment is a fundamentally political phenomenon: A wide range of political goals and motivations bear on whether individual, elected members of Congress see it as an appropriate path. The aggregation of those preferences, as filtered through party leaders with agenda-setting power, may or may not lead to the opening of an impeachment inquiry. Another framing focuses on the question of whether Congress has a responsibility to pursue impeachment, conveyed by the portion of the oath members take that requires them to “faithfully discharge the duties of the office.”
A third framing, which we address here, is a more practical one: whether, for the purposes of carrying out further investigation, the House’s hand would be strengthened significantly if it initiated impeachment proceedings. A May 15 letter from White House Counsel Pat Cipollone to Jerrold Nadler, chairman of the House Committee on the Judiciary, brings this question into stark relief. The 12-page letter states, in essence, that the White House will not be providing any documents or information requested by the committee as part of an investigation announced on March 4 “into the alleged obstruction of justice, public corruption, and other abuses of power by President Trump, his associates, and members of his Administration.” In its response, the White House outlines a host of political and legal arguments, relying heavily on the premise that Congress has no “legitimate legislative purpose” for requesting the materials. This sweeping repudiation of Congress’s oversight powers brings into stark relief the question of whether there are procedural advantages in pursuing the same information and lines of inquiry under the banner of impeachment proceedings.
Several experts have argued that the House might have a stronger legal position in disputes with the executive branch over information and witness appearances if it were undertaking impeachment proceedings rather than investigations. Michael Conway, who served as counsel on the House judiciary committee during the Watergate investigation, has advanced a similar argument. In particular, he points to a staff memo written in April 1974, which argues that “the Supreme Court has contrasted the broad scope of the inquiry power of the House in impeachment proceedings with its more confined scope in legislative investigations. From the beginning of the Federal Government, presidents have stated that in an impeachment inquiry the Executive Branch could be required to produce papers that it might with‐hold in a legislative investigation.” Others are more skeptical—like Alan Baron, a former attorney for the House judiciary committee on four judicial impeachments, who has cautioned that impeachment proceedings don’t “make all the problems go away.” Certainly—as was suggested during our conversation on the Lawfare podcast last month—we would expect members to ask different kinds of questions during hearings if the goal is to establish a case for impeachment than if they are doing more general investigative work. But that is a separate issue from whether impeachment proceedings would meaningfully change the process members can use to obtain information in committee, the kind of material the committee could obtain and the speed at which the committee would be likely to obtain it. The answer to all these questions is: It depends.
While several House committees are engaged in oversight work that could bear on an impeachment inquiry, the House judiciary committee, which would conduct impeachment hearings, will be our focus here. Historically, the initiation of impeachment proceedings has had implications for the way the judiciary committee obtains relevant material. But broader changes in congressional rules and procedures in recent years mean that today’s judiciary committee may not need the same kind of special powers it was granted as part of previous impeachment inquiries.
The impeachment proceedings against both Presidents Nixon and Clinton began with a vote by the full House of Representatives directing the judiciary committee “to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach” the president in question. In both cases, the resolution granted several specific powers to the committee for it to use in the course of completing the investigation with which it was charged by the full House. First, the authorizing resolutions outlined procedures for issuing subpoenas. Second, the measures laid out a process for taking staff depositions.
Specifically, the Nixon and Clinton resolutions allowed subpoenas to be issued by the chairman and the ranking minority member “acting jointly.” If either declined to act, the individual proposing the subpoena could issue it alone unless the other requested the issue be referred to the full committee for a vote. (Alternatively, the full committee vote could be the first step in the process.) As described in the 1998 report from the judiciary committee accompanying the authorizing resolution, this approach balances “maximum flexibility and bipartisanship.”
It was important for the House to enhance the judiciary committee’s subpoena powers in 1974 and 1998 because of the state of the chamber’s rules at the time. In 1974, only a few House committees had subpoena power under the rules of the House—though other committees, including the judiciary committee, were granted subpoena authority through separate investigative authorizing resolutions reported from the House Committee on Rules in each Congress. As part of broader reforms to the committee system that took effect in 1975, the House provided all committees with subpoena power as part of the rules. In 1977, the House adopted a rule change that allowed individual committees to, if they wished, delegate the power to issue subpoenas to the chairman alone, without the need to consult the full committee. But in 1998, when the House commenced impeachment proceedings against Clinton, the judiciary committee had no such provision granting that authority to its chair.
Indeed, until recent years, unilateral subpoena power was relatively rare for House committee chairs. But between the 113th and 114th Congresses, the number of chairs given this power by their committees doubled—and the judiciary committee was among them. The judiciary committee chair retains this authority in the current Congress; its rules stipulate that “a subpoena may be authorized and issued by the Chairman … following consultation with the Ranking Minority Member.” And while Chairman Jerrold Nadler indicated in January 2019 that he would hold votes on any subpoenas to which Ranking Member Doug Collins objected, the rules do not specifically require that he do so. The need to seek full House authorization for expanded subpoena powers as part of an impeachment inquiry, then, is not as pressing as it was in 1974 or 1998.
There has been a similar evolution in the rules surrounding depositions taken by committee staff, which allow committees to pursue additional information without imposing on members’ time and in a private setting that may be more likely to produce candor from witnesses. Under practices in place in 1974 and 1998, deposition power for committee staff was periodically authorized by the full House for the purpose of specific investigations. The resolutions authorizing both the Nixon and Clinton impeachment proceedings granted the judiciary committee this authority.
Since 1998, however, the rules of the House governing staff depositions have evolved to give committees access to the tool more regularly. In 2007, the House Committee on Oversight and Government Reform was given the ability to set its own rules “authorizing and regulating the taking of depositions by a member or counsel of the committee.” In 2015, the House gave four committees (Energy and Commerce; Financial Services; Science, Space, and Technology; and Ways and Means) the ability to conduct staff depositions; this power was initially granted for the first session of the Congress only but was later extended to the second session. Under subsequent rules issued by the House Committee on Rules for the conduct of such depositions, “at least one member of the committee shall be present … unless the witness to be deposed agrees in writing to waive this requirement.” In 2017, the rule permitting staff depositions was extended to cover almost all standing committees, and the member attendance requirement was modified such that it did not apply if the committee authorized the staff deposition to take place when the House was not in session.
In January 2019, the opening day rules package for the 116th Congress again provided committee chairs with the authority to order the taking of a deposition; under the current rules, either a member or committee counsel is permitted to do so. Members may participate, but their presence is not required. So the judiciary committee already has the power to conduct staff depositions and does not need a special grant of authority to do so.
Yet while today’s judiciary committee already has some of the useful powers for impeachment proceedings available, it could pursue additional procedural items if the House chooses to specifically authorize impeachment. For example, under a resolution introduced by Reps. Rashida Tlaib and Al Green directing the judiciary committee to “inquir[e] whether the House of Representatives should impeach” President Trump, the power to take depositions and affidavits would be extended to “any subcommittee or task force designated by the [Judiciary] Committee,” and depositions could be taken by “consultants” as well as members and staff. The Tlaib/Green resolution also provides for additional funding for the judiciary committee in the context of an impeachment inquiry. (The 1974 resolution authorized the committee to use its existing resources on the investigation, and while funding was not addressed specifically in the 1998 resolution, there had been an earlier dispute in the 105th Congress about whether additional resources allocated to the committee were meant to prepare for possible impeachment.)
It is worth noting that in both 1974 and 1998 impeachment proceedings, the House judiciary committee voted to give the president procedural rights in the committee’s deliberations. The president and his counsel were invited to attend all executive session and open committee hearings, and the president’s counsel was entitled to cross-examine witnesses, make objections regarding the pertinence of evidence, respond to the evidence produced and even suggest additional evidence the committee should receive. Attorney James D. St. Clair represented Nixon before the House judiciary committee during the impeachment proceedings, essentially arguing that Nixon’s statements looked bad but were not criminal. Although St. Clair was not a government employee and was acting as Nixon’s private attorney, he insisted at the time that he was representing the office of the presidency rather than Nixon personally: ''I don't represent Mr. Nixon personally …. I represent him in his capacity as president.'' He made his final arguments before the House judiciary committee in July 1974 as it prepared articles of impeachment against Nixon. During the House judiciary committee’s proceedings to consider impeachment of Bill Clinton in 1998, Clinton’s private attorney David Kendall questioned Independent Counsel Kenneth Starr for an hour.
The current judiciary committee would not be bound by precedents to afford the president these same procedural rights, but committees often adhere to precedents unless there is a good reason to deviate. One can imagine President Trump sending Attorney General William Barr, White House counsel Pat Cipollone, White House Special Counsel Emmet Flood or his personal attorney Rudy Giuliani to the House impeachment proceedings to take full advantage of such rights in televised proceedings. He could even show up personally. So while impeachment proceedings do not unlock significant new procedural avenues for the judiciary committee, they could, in theory, afford the president more opportunities to inject himself or his lawyers into the spotlight.
Impeachment proceedings may also give the judiciary committee a stronger case for obtaining certain materials protected from disclosure by statute, like the grand jury materials from Special Counsel Robert Mueller’s investigation. Under Rule 6(e) of the Federal Rules of Criminal Procedure, certain people—including the government attorney presenting the case—involved in a grand jury proceeding “must not disclose a matter occurring before the grand jury.” There are certain exceptions in the statute that would allow a judge to authorize disclosure for certain specified purposes, including “preliminarily to or in connection with a judicial proceeding.”
As we wrote on Lawfare last month, there is some historical precedent for the House judiciary committee to obtain such information from the court—most notably in the context of the Watergate impeachment proceedings. The relevant court opinion relied largely on a theory of inherent judicial authority, rather than an exception in statute, to turn the Watergate “road map” over to the House judiciary committee.
But on April 5, the U.S. Court of Appeals for the D.C. Circuit ruled that judges don’t have inherent authority to release grand jury materials and must instead rely solely on exceptions outlined in Rule 6(e). So if the committee wishes to access that information, Nadler will likely need to convince the judge overseeing the Mueller grand jury that release of materials to the committee is “preliminarily to or in connection with a judicial proceeding.” Bottom line: It is easier to argue that an open impeachment proceeding is akin to a “judicial proceeding” than it is to argue that any run-of-the-mill oversight activities are preliminary to a judicial proceeding.
There are also important questions about whether impeachment proceedings would produce compliance with congressional subpoenas—by either the executive branch or the courts.
The White House’s principal justification for its current stonewalling strategy for ongoing House investigations would not be relevant in the context of impeachment. On April 24, the president told reporters, “We’re fighting all of the subpoenas,” and Cipollone’s May 15 letter supplies various legal arguments in support of this approach. First, the letter relies heavily on the argument that there is no legitimate “legislative purpose” for the request. (Congress’s general investigative powers are derived from its power to legislate.) Whatever the merits of this argument, it would simply not be relevant in the context of impeachment proceedings, because the power to impeach is contained in an entirely separate and discrete section of the U.S. Constitution.
Second, the letter argues that even if a legitimate legislative purpose can be articulated, committees have limited authority to explore in detail any particular case of alleged wrongdoing, because Congress does not need such details in order to craft legislative fixes. Again, this would likewise not be relevant in the context of impeachment proceedings. The decision of whether to impeach requires the development of a detailed, backward-looking factual record of specific conduct by the president. While it is of course possible the White House could come up with different theories for stonewalling in the context of impeachment proceedings, these two arguments would fall away, leaving only arguments related to executive privilege to be made before the courts.
Beyond the substance, it’s unclear whether courts would consider and decide such cases more quickly in the context of impeachment proceedings than similar cases pursued under the Congress’s investigative authority. One district court judge expedited consideration of one of the current investigative impasses—the House oversight and reform committee’s quest for Trump’s financial and accounting records from Mazars—and ruled in favor of the committee. Trump has already appealed the case, and it is unclear how long this appeal and similar appeals will take. Moreover, the case does not involve any claims of executive privilege. Sorting out the scope of executive privilege is the most thorny and time-consuming issue in cases involving congressional requests for information from the executive branch.
We think it is entirely possible—probable even—that judges would recognize the primacy of impeachment proceedings against the president of the United States and expedite consideration of such cases. The case of U.S. v. Nixon—in which the Supreme Court ruled that the president had to turn over the infamous Oval Office recordings to the special prosecutor—was decided just over three months after the relevant grand jury subpoena had been issued. That was a criminal investigation, so the analogy is not entirely apt, but we think it reasonable to assume courts would take a similarly expeditious view in the context of a subpoena issued pursuant to impeachment proceedings. Of course, it is worth remembering that the Supreme Court has never decided a case concerning a congressional subpoena for information issued to an executive branch official where the president has asserted executive privilege. In theory, the Supreme Court could decide the issue is a political question and leave it to the other two branches to sort out in some other way.
What House Democrats ultimately choose as a course of action remains to be seen, Recent comments from Pelosi about how President Trump may “self-impeach” are open to several different interpretations about where Democratic leaders are headed. The uncertainty at hand isn’t just a matter of politics; it’s also a matter of information: what members of Congress would get and how they would get it."
What Powers Does a Formal Impeachment Inquiry Give the House? - Lawfare
Wednesday, May 22, 2019
"The benefits of actually reading.
"More than a year before the House Judiciary Committee adopted articles of impeachment against President Richard Nixon, Representative Pete McCloskey, a California Republican, became the first member of Congress to call for a discussion about whether to begin an impeachment inquiry over Watergate.
Over the weekend, Representative Justin Amash of Michigan pulled a McCloskey of sorts. He became the first Republican in Congress to say that the report of the special counsel, Robert Mueller, showed that President Trump had committed impeachable offenses.
“Mueller’s report reveals that President Trump engaged in specific actions and a pattern of behavior that meet the threshold for impeachment,” Mr. Amash wrote on Twitter.
“In fact,” he added in a 13-tweet explanation of his conclusions, “Mueller’s report identifies multiple examples of conduct satisfying all the elements of obstruction of justice, and undoubtedly any person who is not the president of the United States would be indicted based on such evidence.”
Mr. Trump responded on Sunday by calling Mr. Amash “a total lightweight” and “a loser.” And on Monday, Mr. Amash went at it again on social media, dispelling common misconceptions about the Mueller report and its findings.
Mr. Amash isn’t likely to be a bellwether for his party. He is a libertarian who has long staked out his own positions on issues such as gay marriage, government surveillance and Mr. Trump’s entry restrictions on Muslim travelers.
But what is remarkable about Mr. Amash’s stand is how much tougher it is than that of the House’s Democratic leaders to date. Wary of a move that has little public support, Speaker Nancy Pelosi and prominent committee leaders have avoided talk of impeachment and have focused on learning what Attorney General William Barr redacted from the report, as well as subpoenaing testimony and documents.
That fight has little to show for itself so far. The House Judiciary Committee has already held Mr. Barr in contempt for defying a subpoena, and the administration has blocked the former White House counsel, Donald McGahn, from testifying about actions by the president that are at the heart of accusations of obstruction of justice. It still isn’t clear whether Mr. Mueller himself will testify.
Adam Schiff, the chairman of the House Intelligence Committee, who has long been one of Mr. Mueller’s strongest defenders, said last week that a “sterile report” was no match for direct congressional testimony from Mr. McGahn or Mr. Mueller. As the Watergate hearings showed, there is power in the public hearing directly from key officials.
But there is nothing sterile about the report, as Mr. Amash and others, including Senator Elizabeth Warren, have eloquently noted. In damning detail it describes the depth of Russian interference with our democracy, Mr. Trump’s associates’ willingness to engage with a foreign adversary and the president’s efforts to thwart Mr. Mueller’s operation.
It’s understandable that Democrats are concerned that an impeachment fight could distract from the issues at the heart of their campaign to unseat Mr. Trump and Republican members of Congress next year. The House needs to investigate aggressively the questionable conduct by this president and follow that inquiry where it leads.
But Democratic leaders also need to be stronger and clearer about what we know.
Walter Dellinger, who led the Justice Department’s Office of Legal Counsel during the Clinton administration, expressed it well in a Washington Post op-ed last week.
“How different would it have been,” he wrote, “if a unified chorus of Democratic leaders in Congress and on the campaign trail had promptly proclaimed the actual truth: This report makes the unquestionable case that the president regularly and audaciously violated his oath and committed the most serious high crimes and misdemeanors.”
That’s what Mr. Amash concluded. And like Mr. McCloskey did all those years ago, he concluded that Mr. Trump’s pattern of obstructive behavior was enough for the House to fulfill its constitutional duties."
Opinion | How a Lone Republican Set an Example for Democrats on the Mueller Report
Tuesday, May 21, 2019
Democratic Calls for Impeachment Inquiry Grow as Leaders Instead Vow to Toughen Tactics - The New York Times. Some folks have to be dragged into the bright sunlight to see reality. They want to live in a cave and believe Platonic shadows are reality.
"WASHINGTON — New divides opened among House Democrats on Tuesday over how to uphold Congress’s oversight powers in the face of President Trump’s stonewalling, with a sizable bloc of progressive lawmakers pushing for the first time over their leaders’ objections to start an impeachment inquiry.
Democrats were at odds about how to fight the latest defiance of a House subpoena, this time by the former White House counsel Donald F. McGahn II, who skipped a scheduled hearing on Tuesday about Mr. Trump’s attempts to obstruct the Russia investigation.
Representative Jerrold Nadler of New York, the House Judiciary Committee chairman, promised to hold Mr. McGahn in contempt of Congress and warned Mr. Trump and other potential witnesses to expect new hardball tactics. Democratic lawmakers and aides said they could include new subpoenas, possible rules changes allowing the House to fine people held in contempt, and threats to Mr. Trump’s legislative priorities as leverage for compliance.
“We will not allow the president to stop this investigation, and nothing in these unjustified and unjustifiable legal attacks will stop us from pressing forward with our work on behalf of the American people,” Mr. Nadler said during a brief hearing of an emotionally raw Judiciary Committee. “We will hold this president accountable, one way or the other.”
The Democrats’ divisions spring from a shared fear that Mr. Trump is succeeding not just in evading congressional accountability himself but in permanently rewriting the rules of engagement between the legislative and executive branches, freeing future presidents from one of the Constitution’s most potent checks on their power.
“We can focus on McGahn. We can focus on Barr. We can focus on Michael Cohen. We can call the roll,” Representative Val B. Demings, a Florida Democrat on the Judiciary Committee who supports impeachment, said in an interview. “But the problem here is the president of the United States.”
Their concerns that Mr. Trump might be permanently weakening Congress’ powers prompted prominent progressive lawmakers on and off the Judiciary Committee to declare in private meetings and public statements in the past 24 hours that they saw no choice but to initiate an impeachment inquiry.
The new supporters of impeachment included Representative Mark Pocan, Democrat of Wisconsin and a co-chair of the influential congressional progressive caucus, and Representative Mary Gay Scanlon, Democrat of Pennsylvania and the vice chair of the Judiciary Committee.
Tracking 29 Investigations Related to Trump
Federal, state and congressional authorities are investigating Donald J. Trump’s businesses, campaign, inauguration and presidency.
They argued that such an investigation would streamline disparate House inquiries and empower the committees in their push to conduct oversight of the executive branch. And they expressed hope it would show the public that the fight over documents and witnesses is not just another Washington partisan squabble, but a showdown with historic implications.
“Congress has patiently tried to work within traditional means to get to the bottom of this extraordinary situation,” Ms. Scanlon said. “The time has come to start an impeachment inquiry because the American people deserve to know the truth and to have the opportunity to judge the gravity of the evidence and charges leveled against the president.”
Neither side is getting help from House Republicans, who despite the abdication of Representative Justin Amash of Michigan, who came out in favor of impeachment over the weekend, remain opposed to any additional investigation.
“Here we go again — the theater is open,” said Representative Doug Collins of Georgia, the top Republican on the Judiciary Committee, at the outset of Tuesday’s hearing. He proceeded to blast Mr. Nadler for abusing his subpoena power to make unreasonable demands of the White House and witnesses to “get a headline.” Mr. Trump has made similar arguments, saying Democrats are merely trying for a “do-over” after Robert S. Mueller III, the special counsel, could not show he committed a crime.
Impeachment advocates are also increasingly butting heads with their own leader, Speaker Nancy Pelosi, who holds the ultimate decision-making power over her caucus’s strategy and has consistently warned against the divisiveness of impeachment. Several members of the California Democrat’s own leadership team confronted her in private on Monday night with arguments in favor of beginning in inquiry, only to be gently swatted down with calls to stay the current course.
“Candidly, I don’t probably think there’s any Democrat who probably wouldn’t in their gut say, ‘He’s done some things that probably justify impeachment,’” Ms. Pelosi’s top deputy, Representative Steny Hoyer of Maryland, said on Tuesday. “Having said that — this is the important thing — I think the majority of Democrats continue to believe that we need to continue to pursue the avenue that we’ve been on, in trying to elicit information, testimony, review the Mueller report, review other items. If the facts lead us to broader action, so be it.”
But in a sign that Ms. Pelosi senses her caucus growing restless, she called a Wednesday morning meeting to update them on the status and strategy behind the House’s investigations. And people involved in the investigations say that the speaker approved an escalation of tactics short of impeachment to try to turn the tables.
Mr. McGahn may become a test case. He skipped the Judiciary Committee hearing on Tuesday under order of the White House, leaving an empty chair where Democrats had hoped he could serve as a star eyewitness as they seek to build a public case of wrongdoing. The president ordered him on Monday not to appear, citing a Justice Department legal opinion that the Constitution gives senior presidential aides “absolute immunity” from congressional subpoenas compelling them to testify about their official work.
In addition to fighting those claims in court, Democrats indicated that they would swiftly move to hold Mr. McGahn in contempt, perhaps taking the case straight to the House floor rather than waiting for a committee vote. They are newly considering altering House rules to allow for so-called inherent contempt penalties, like fines, people familiar with internal discussions said.
Donald F. McGahn II, the former White House counsel, skipped a House Judiciary Committee hearing on President Trump’s attempts to obstruct the Russia investigation.Erik S Lesser/EPA, via Shutterstock
The Judiciary Committee has already voted to recommend that the full House hold Attorney General William P. Barr in contempt for his defiance of another subpoena asking for Mr. Mueller’s full report and underlying evidence. Democratic leaders had been stalling on bringing the contempt citation to the floor of the full House, but have not indicated they will accelerate a vote when they return in June from the Memorial Day recess.
Ms. Pelosi is said to be newly open to pulling Mr. Trump’s policy priorities into the fray, too. Thus far, she had refused to touch some of Congress’s traditional leverage buttons, like government appropriations bills.
The new arrows in Democrats’ quiver came after lawmakers pushing for impeachment pressed her in a pair of private meetings Monday night
After Ms. Pelosi lamented to members of her leadership team that the battles with the president were overshadowing Democrats’ legislative agenda, Representative Jamie Raskin, Democrat of Maryland, argued that opening an impeachment inquiry could help solve the problem by centralizing fights with the White House over documents, according to three people in the room for the exchange, who spoke on the condition of anonymity to discuss the private meeting.
Ms. Pelosi, who has long tried to move her caucus away from impeachment, was cool to opening such an inquiry right away. She asked Mr. Raskin whether he was suggesting the four other investigative committees just close up their work, the people said, and pointed out that Democrats had won an early court victory on Monday in a dispute over a House subpoena for Trump financial records.
Pressed in another meeting by Representative Steve Cohen, Democrat of Tennessee, whether she was making a political calculation in tamping down impeachment talk, Ms. Pelosi insisted the answer was no, according to one of the people.
“This isn’t about politics at all,” she said. “It’s about patriotism. It’s about the strength we need to have to see things through.”
Ms. Pelosi has numerous allies, even on the overwhelmingly liberal Judiciary Committee. Representative Sheila Jackson Lee, Democrat of Texas, said she was not ready for an impeachment inquiry. “Our job is to educate before we activate,” she told reporters.
And Representative Lucy McBath, a Georgia freshman who is one of the lone Judiciary Committee members from a swing district, said she was trying to remind her colleagues of the political realities of an ideological diverse caucus and voters who sent them there.
“For people like me that are in the kinds of districts that I am in, impeachment is not something that a lot of people in my district want to talk about,” she said. “But at the same time I am tasked with being on this committee to make sure that no one is above the law.”
Democratic Calls for Impeachment Inquiry Grow as Leaders Instead Vow to Toughen Tactics - The New York Times
The New German Anti-Semitism
One of Wenzel Michalski’s early recollections of growing up in southern Germany in the 1970s was of his father, Franz, giving him some advice: “Don’t tell anyone that you’re Jewish.” Franz and his mother and his little brother had survived the Holocaust by traveling across swaths of Eastern and Central Europe to hide from the Gestapo, and after the war, his experiences back in Germany suggested that, though the Nazis had been defeated, the anti-Semitism that was intrinsic to their ideology had not. This became clear to Franz when his teachers in Berlin cast stealthily malicious glances at him when Jewish characters — such as Shylock in “The Merchant of Venice” — came up in literature. “Eh, Michalski, this exactly pertains to you,” he recalls one teacher telling him through a clenched smile. Many years later, when he worked as an animal-feed trader in Hamburg, he didn’t tell friends that he was Jewish and held his tongue when he heard them make anti-Semitic comments. And so Franz told his son Wenzel that things would go easier for him if he remained quiet about being Jewish. “The moment you say it, things will become very awkward.”
As a teenager, Wenzel defied his father’s advice and told a close friend. That friend quickly told his mother, and the next time Wenzel saw her, she reacted quite strongly, hugging him and kissing his face: “Wenzel! Oh, my Wenzel!” Now a stocky, bearded 56-year-old, Wenzel recalled the moment to me on a recent Saturday afternoon. He raised the pitch of his voice as he continued to mimic her: “You people! You are the most intelligent! The most sensitive! You are the best pianists in the world! And the best poets!” In his normal voice again, he added, “Then I understood what my father meant.”
Wenzel Michalski is now the director of Human Rights Watch for Germany. He and his wife, Gemma, an outgoing British expat, live in a cavernous apartment building in the west of Berlin. In their kitchen, Gemma told me that after arriving in Germany in 1989, she often got a strangely defensive reaction when she told people she was Jewish; they would tell her they didn’t feel responsible for the Holocaust or would defend their grandparents as not having perpetrated it. And so, to avoid conversations like these, she, too, stayed quiet about being Jewish.
Recently, the Michalskis’ youngest son became the third generation of the family to learn that telling people he is Jewish could cause problems. The boy — whose parents asked that he be called by one of his middle names, Solomon, to protect his privacy — had attended a Jewish primary school in Berlin. But he didn’t want to stay in such a homogeneous school for good, so just before he turned 14, he transferred to a public school that was representative of Germany’s new diversity — a place, as Gemma described it, where he “could have friends with names like Hassan and Ahmed.”
The first few days there seemed to go well. Solomon, an affable kid with an easy smile, bonded with one classmate over their common affection for rap music. That classmate introduced him to a German-Turkish rapper who would rap about “Allah and stuff,” Solomon told me. In return, he introduced the classmate to American and British rap. Solomon had a feeling they would end up being best friends. On the fourth day, when Solomon was in ethics class, the teachers asked the students what houses of worship they had been to. One student mentioned a mosque. Another mentioned a church. Solomon raised his hand and said he’d been to a synagogue. There was a strange silence, Solomon later recalled. One teacher asked how he had encountered a synagogue.
“I’m Jewish,” Solomon said.
“Everyone was shocked, especially the teachers,” Solomon later told me about this moment. After class, a teacher told Solomon that he was “very brave.” Solomon was perplexed. As Gemma explained: “He didn’t know that you’re not meant to tell anyone.”
The following day, Solomon brought brownies to school for his birthday. He was giving them out during lunch when the boy he had hoped would be his best friend informed him that there were a lot of Muslim students at the school who used the word “Jew” as an insult. Solomon wondered whether his friend included himself in this category, and so after school, he asked for clarification. The boy put his arm around Solomon’s shoulders and told him that, though he was a “real babo” — Kurdish slang for “boss” — they couldn’t be friends, because Jews and Muslims could not be friends. The classmate then rattled off a series of anti-Semitic comments, according to Solomon: that Jews were murderers, only interested in money.
Over the next few months, Solomon was bullied in an increasingly aggressive fashion. One day, he returned home with a large bruise from a punch on the back. On another occasion, Solomon was walking home and stopped into a bakery. When he emerged, he found one of his tormentors pointing what looked like a handgun at him. Solomon’s heart raced. The boy pulled the trigger. Click. The gun turned out to be a fake. But it gave Solomon the scare of his life.
When Solomon first told his parents about the bullying, they resolved to turn it into a teaching moment. They arranged to have Wenzel’s father visit the school to share his story about escaping the Gestapo. But the bullying worsened, Gemma told me, and they felt the school did not do nearly enough to confront the problem. The Michalskis went public with their story in 2017, sharing it with media outlets in order to spark what they viewed as a much-needed discussion about anti-Semitism in German schools. Since then, dozens of cases of anti-Semitic bullying in schools have come to light, including one case last year at the German-American school where my own son attends first grade, in which, according to local news reports, students tormented a ninth grader, for months, chanting things like “Off to Auschwitz in a freight train.” Under criticism for its handling of the case, the administration released a statement saying it regretted the school’s initial response but was taking action and having “intensive talks” with the educational staff.
The principal of Solomon’s school, in an interview with the German newspaper Die Welt, also said his school had made a concerted effort to resolve the problem. When the reporter asked him if the bullying illustrated the “unreflective behavior of pubescent youths” or “rooted anti-Semitism,” the principal paused to say this was a “very dangerous” question but then answered: “It’s very possible that anti-Semitism is the motive. But we can’t look inside the heads of these students.” (When asked for comment, a representative for the Berlin Senate Department for Education, Youth and Families, which oversees Berlin’s public schools, said it had put into place anti-discrimination measures such as training courses and workshops for students and faculty.)
For the Michalskis, all this was evidence that German society never truly reckoned with anti-Semitism after the war. Germany had restored synagogues and built memorials to the victims of the Holocaust, Wenzel said: “So for a lot of mainstream, middle-class people, that means: ‘We’ve done it. We dealt with anti-Semitism.’ But nobody really dealt with it within the families. The big, the hard, the painful questions were never asked.” In Wenzel’s view, the Muslim students who tormented his child were acting in an environment that was already suffused with native anti-Semitism. “A lot of conservative politicians now say, ‘Oh, the Muslims are importing their anti-Semitism to our wonderful, anti-anti-Semitic culture,’ ” he said. “That’s bull. They’re trying to politicize this.”
Jewish life in Germany was never fully extinguished. After the Nazi genocide of six million Jews, some 20,000 Jewish displaced persons from Eastern Europe ended up settling permanently in West Germany, joining an unknown number of the roughly 15,000 surviving German Jews who still remained in the country after the war. The new German political class rejected, in speeches and in the law, the rabid anti-Semitism that had been foundational to Nazism — measures considered not only to be morally imperative but necessary to re-establish German legitimacy on the international stage. This change, however, did not necessarily reflect an immediate conversion in longstanding anti-Semitic attitudes on the ground. In the decades that followed, a desire among many Germans to deflect or repress guilt for the Holocaust led to a new form of antipathy toward Jews — a phenomenon that came to be known as “secondary anti-Semitism,” in which Germans resent Jews for reminding them of their guilt, reversing the victim and perpetrator roles. “It seems the Germans will never forgive us Auschwitz,” Hilde Walter, a German-Jewish journalist, was quoted as saying in 1968.
Holocaust commemoration in West Germany increasingly became an affair of the state and civic groups, giving rise to a prevailing erinnerungskultur, or “culture of remembrance,” that today is most prominently illustrated by the Memorial to the Murdered Jews of Europe, a funereal 4.7-acre site near the Brandenburg Gate in Berlin, inaugurated in 2005. But even as Germany’s remembrance culture has been held up as an international model of how to confront the horrors of the past, it has not been universally supported at home. According to a 2015 Anti-Defamation League survey, 51 percent of Germans believe that it is “probably true” that “Jews still talk too much about what happened to them in the Holocaust”; 30 percent agreed with the statement “People hate Jews because of the way Jews behave.”
The reactionary, far-right Alternative for Germany, or A.f.D., entered the German Parliament for the first time in 2017 — becoming the third-largest party — with an anti-immigration, anti-Islam platform, while politicians in the party also railed against Germany’s remembrance culture. A.f.D. politicians have often relativized Nazi crimes to counteract what some of them call a national “guilt cult.” In a speech last June, one of the party’s leaders, Alexander Gauland, referred to the Nazi period as “only a bird poop in over 1,000 years of successful German history.”
[Read more about Germany’s New Right.]
Now some 200,000 Jews live in Germany, a nation of 82 million people, and many are increasingly fearful. In a 2018 European Union survey of European Jews, 85 percent of respondents in Germany characterized anti-Semitism as a “very big” or “fairly big” problem; 89 percent said the problem has become worse in the last five years. Overall reported anti-Semitic crimes in Germany increased by nearly 20 percent last year to 1,799, while violent anti-Semitic crimes rose by about 86 percent, to 69. Police statistics attribute 89 percent of all anti-Semitic crimes to right-wing extremists, but Jewish community leaders dispute that statistic, and many German Jews perceive the nature of the threat to be far more varied. Slightly more than half of Germany’s Jewish respondents to the E.U. survey said they have directly experienced anti-Semitic harassment within the last five years, and of those, the plurality, 41 percent, perceived the perpetrator of the most serious incident to be “someone with a Muslim extremist view.”
Fears within the Jewish community of what some call “imported anti-Semitism” or “Muslim anti-Semitism” brought into the country by immigrants from the Middle East and often entangled with the conflict between Israel and the Palestinians emerged after 2000, when during the Palestinian uprising known as the Second Intifada, a wave of anti-Jewish attacks rippled across parts of Europe. The large-scale influx of refugees into Germany from countries such as Syria and Iraq that began in 2015 further fueled worries. Amid the early wave of pride many Germans felt over the welcoming of refugees, Josef Schuster, the head of the Central Council of Jews in Germany, the country’s largest umbrella Jewish organization, urged caution. “Many of the refugees are fleeing the terror of the Islamic State and want to live in peace and freedom, but at the same time, they come from cultures in which hatred of Jews and intolerance are an integral part,” he told a reporter from Die Welt.
The exact nature of the anti-Semitic threat — and indeed, whether it rises to the level of an existential threat at all — is intensely debated within Germany’s Jewish community. Many see the greatest peril as coming from an emboldened extreme right that is hostile to both Muslims and Jews, as the recent shootings by white supremacists in synagogues in Pittsburgh and Poway, Calif., and mosques in Christchurch, New Zealand, horrifically illustrated. Multiple surveys suggest that anti-Muslim attitudes in Germany and other European countries are more widespread than anti-Semitism. At the same time, a number of surveys show that Muslims in Germany and other European countries are more likely to hold anti-Semitic views than the overall population. The 2015 Anti-Defamation League survey, for instance, found that 56 percent of Muslims in Germany harbored anti-Semitic attitudes, compared with 16 percent for the overall population. Conservative Jews see the political left as unwilling to name this problem out of reluctance to further marginalize an already marginalized group or because of leftist anti-Zionism. The far right, anti-Islam A.f.D. — the very political party that, for its relativizing of Nazi crimes, many Jews find most noxious — has sought to exploit these divisions and now portrays itself as a defender of Germany’s Jews against what it depicts as the Muslim threat.
An incident that garnered considerable attention and highlights some of the complexities of this new dynamic occurred on a Berlin street in April 2018, when a 19-year-old Syrian of Palestinian descent took off his belt and flogged a young Israeli man named Adam Armoush, who was wearing a yarmulke. The attacker yelled “Yehudi!” — Arabic for “Jew.” Armoush recorded the attack with his phone for “the world to see how terrible it is these days as a Jew to go through Berlin streets,” as he later put it in a television interview. Schuster advised Jews in cities against openly wearing yarmulkes outside. Almost lost in the uproar was Armoush’s bizarre admission that he was not Jewish but rather an Israeli Arab. He said he received the yarmulke from a friend along with a caveat that it was not safe to wear outside. Armoush said he initially debated this. “I was saying that it’s really safe,” he said. “I wanted to prove it. But it ended like that.”
Many Muslims criticize the notion of “Muslim anti-Semitism” as wrongly suggesting that hatred of Jews is intrinsic to their faith. Muhammad Sameer Murtaza, a German scholar of Islam who has written extensively on anti-Semitism, argues that European anti-Semitism was exported to the Middle East in the 19th century and was only “Islamized” starting in the late 1930s, a process later catalyzed by the Arab-Israeli conflict. Anti-Semitism is indeed a mainly European invention with a proven capacity to mutate. Often intertwined with economic and social resentments, demonization of Jews was long part of Christian tradition, and, with the growth of European nationalism in the 19th century, it took on delusive notions of race. Now as a worldwide resurgence of racist tribalism fuels a rebellion against the liberal democratic order, Germany’s renewed confrontation with anti-Semitism will say much not just about the fate of its unnerved Jewish communities but also about the endurance of any nation’s capacity to build a tolerant, pluralistic society resistant to the temptations of ethnonationalism.
The early signs are mixed. Sigmount Königsberg is the anti-Semitism commissioner for Berlin’s Jewish Community, the organization that oversees synagogues and other aspects of local Jewish life. At a cafe next to the domed New Synagogue, which was spared destruction during the pogroms of November 1938, Königsberg, an affable 58-year-old, told me his mother had been liberated from the Bergen-Belsen concentration camp and had intended to move to Paris. Instead, she became stranded in the German border town of Saarbrücken, and she soon met Königsberg’s father, also a Holocaust survivor. Like other Jewish families, they were ambivalent about remaining in Germany. Königsberg employed an often-used metaphor to describe this unsettledness: Until the 1980s, he said, German Jews “sat on a packed suitcase.” After East and West Germany reunified, many Jews feared a nationalist revival. Despite a wave of racist attacks on immigrants, that revival did not seem to materialize. In fact, the European Union, which was created to temper those impulses, was ascendant. Jews felt more secure, Königsberg told me: “We unpacked the suitcase and stored it in the cellar.”
Now, he believed, that sense of security has eroded. People aren’t heading for the exits yet, he said, but they are starting to think, Where did I put that suitcase?
On a cool, overcast day in late 2017, Yorai Feinberg, an Israeli citizen, then 36, was standing in front of the Israeli restaurant he owns in central Berlin, bundled up in a down coat and smoking a cigarette, when a middle-aged German man stopped on the sidewalk and declared, “You people are crazy.”
“Why?” Feinberg asked, as a friend filmed the encounter on a mobile phone.
“Very simple,” said the man. “Because you’ve warred against the Palestinians for 70 years.”
“Oh, so this is a left-wing story,” Feinberg said.
“I’m not a leftist,” the man said, leaning in toward Feinberg. “You’re leading a war. And you want to install yourselves here.” The man became increasingly belligerent. “Get out of here!” he went on. “This is my homeland. And you have no homeland.”
Feinberg asked him to back off.
“You’ll get your reckoning in 10 years. In 10 years you won’t be living,” the man said. He then added: “What do you want here after ’45?”
It seemed like a rhetorical question, but Feinberg, taking a drag of his cigarette, ventured an answer. “With so many people like you, that’s a very good question.”
Feinberg spotted a passing police car and ran to get help. “No one will protect you,” the man taunted. Then, looking directly at the camera as if addressing Jews everywhere, he added: “All of you go back to your stupid gas chambers. Nobody wants you.” The man had no known connections to any extremist groups, Feinberg later told me. People had considered him to be a regular guy.
A video of the affair went viral on social media. “This heinous attack demonstrates once again that anti-Semitism has arrived in the middle of society and is now articulated openly and bluntly,” Schuster said. In December, a year after the incident, the Anti-Semitism Research and Information Center, or RIAS, a German organization that has been documenting anti-Semitic incidents in Berlin since it was founded in 2015, chose Feinberg’s restaurant to announce an initiative to more actively gather information from other parts of the country.
On the day of the event, Feinberg sat underneath a series of paintings of the Star of David before a score of reporters. “It has not been the easiest year of my life,” he said. Since the incident, he had received a torrent of anti-Semitic messages. One person using the name Greta texted him a poem called “Emancipation,” written in the 19th century by August Heinrich Hoffmann von Fallersleben, who also wrote the words used today in the German national anthem. Addressed “To Israel,” the lesser-known work reads, “You rob from underneath our feet, our German fatherland.” On Facebook, someone named Mahmoud commented, “The reckoning will come, just like the German in the video said.”
After Feinberg spoke, the head of RIAS, Benjamin Steinitz, said that the organization had documented well over 3,000 anti-Semitic incidents since it was founded. One reporter asked Steinitz who was perpetrating the physical attacks: “Are they totally normal citizens? Or are they right- wing extremists?” Steinitz said that from descriptions provided by victims, there appeared to be a difference between big cities and rural areas. In metropolises, perpetrators often came from an “Islamist milieu or a milieu that is based on a left-wing, anti-Israel ideology.” In rural areas and small cities, he added, “it is clearly different.”
A RIAS report released in April illustrated the complexity of the problem. When researchers looked at all reported anti-Semitic incidents — including threats, harassment and targeted vandalism — in Berlin in 2018, they were unable to determine the ideological motivation in nearly half the cases. They could attribute 18 percent of the incidents to right-wing extremists, making it the largest known group, but with such a large proportion of missing information, the numbers were hardly conclusive about which views predominated. The political motivations of violent attackers were even harder to parse. Of 46 reported anti-Semitic attacks in Berlin in 2018, RIAS could identify the ideological motivation of the perpetrators in just 19 cases. Five attacks were carried out by people espousing a “left-wing anti-imperialist” view; five attacks were classified as “conspiracy-ideological” in nature; four were classified as “Israel-hostile”; two as “Islamist”; two others as “right-wing extremist”; one attack was attributed to a “political middle” worldview.
After the event, as guests nibbled on falafel and hummus, Felix Klein took a seat at a corner table. A 51-year-old career diplomat in rimless glasses, Klein is Germany’s first federal Commissioner for Jewish Life in Germany and the Fight Against Anti-Semitism, a lengthy job title for a position that was created just last year. He told me at the event that a feeling of urgency to create the position set in after pro-Palestinian protesters, angered over President Donald Trump’s decision to recognize Jerusalem as Israel’s capital, burned Israeli flags at demonstrations in Berlin in December 2017. The incidents embarrassed the German government and Chancellor Angela Merkel, who, early in her tenure, declared Israel’s security to be a German staatsräson, or “reason of state.”
Klein listed several things the German government should be doing at the federal and state levels to fight anti-Semitism; chief among them was training teachers and the police simply to recognize it. He also said school books should include more lessons about Jewish contributions to Germany. “We only started to talk about Jews when the Nazi period came up in our history lesson,” he said. “We didn’t speak about Jewish life before that, and we didn’t speak about Jewish life after.”
The rise of anti-Semitic acts, Klein told me, was not just a matter of rising hate but a rising willingness to express it. This was because of social media, he said, as well as the A.f.D. and its “brutalization” of the political discourse. There are also the challenges that are caused by anti-Semitism from Muslims, he said, though, he added, according to criminal statistics, this was not the main problem.
Klein was citing the federal statistic that attributed a vast majority of anti-Semitic crimes in Germany to right-wing extremists, the one that many Jewish community leaders disputed. I asked Klein if he thought the statistic was reliable. He acknowledged that, in fact, the methodology was flawed: When it was unclear who the perpetrators were, they were automatically classified as right-wing extremists. “I’ve already started the discussion within the government to change that,” he said.
He added that the existing statistics should not be used as a pretext “to avoid a discussion regarding anti-Semitism from Muslims.” I asked him if there was any fear that such a conversation would raise tensions between minority groups instead of protecting them. “I think there is a fear,” he said. “This is why I think the right strategy is to denounce any form of anti-Semitism, regardless of the numbers. I don’t want to start a discussion about which one is more problematic or more dangerous than the other.”
He leaned in to underscore this point. “You should not start this discussion, because then you start using one political group against the other. We should not do that.”
German anti-Semites are clearly drawn to the A.f.D. One 2018 survey conducted by the Allensbach Institute, a respected polling organization, found that 55 percent of A.f.D. supporters believe that Jews have “too much influence on the world,” far more than the 22 percent average for the overall population. The A.f.D. does not, however, agitate directly against Jews like the far-right parties of old. Its politicians traffic in more insidious forms of secondary anti-Semitism. In a 2017 speech in Dresden, Björn Höcke, the head of the party in the eastern German state of Thuringia, lamented the existence of the Holocaust memorial near the Brandenburg Gate — a “monument of shame,” as he referred to it — and called for a “180 degree turn” in Germany’s “politics of memory.” To deny the Holocaust is illegal in Germany, a country with legal restrictions on hate speech. But to suggest that it be forgotten is a circuitous way of reaching the same end.
Yet since the A.f.D.’s entry into Parliament in 2017, its politicians have increasingly presented the party as steadfastly pro-Jewish and pro-Israel. After the attack on the Israeli wearing a yarmulke in Berlin, Jörg Meuthen, a leading A.f.D. politician, tweeted that Germany had become a “world champion of importing Muslim anti-Semitism.” Recently, an A.f.D. parliamentarian, Beatrix von Storch, accused Germany’s United Nations ambassador of “relativizing” and “trivializing” the threat Israel faces from Hamas. The A.f.D. is not alone in the effort. In France, the far-right National Front — recently renamed National Rally — was founded by Jean-Marie Le Pen, who has been convicted of Holocaust denial. It now portrays itself as the protector of Jews fearful of Muslim immigration. In 2014, Marine Le Pen, Jean-Marie’s daughter and successor as party leader, called National Front the “best shield” to protect Jews against “the one true enemy, Islamic fundamentalism.”
Last year, two-dozen Jewish A.f.D. supporters founded a group called “Jews in the A.f.D.,” or J.A.f.D., asserting, in a “statement of principles,” that it is the only party willing to “thematize Muslim hatred of Jews without trivializing it.” In response, the Central Council of Jews in Germany and 41 other Jewish organizations released a joint statement condemning the A.f.D. as racist and anti-Semitic and warned Jews not to fall for its “apparent concern” for their safety. “We won’t allow ourselves to be instrumentalized by the A.f.D.,” the statement read. “No, the A.f.D. is a danger to Jewish life in Germany.”
On a Sunday afternoon last October, J.A.f.D. held its inaugural event in a gymnasium on the outskirts of the Hessian city of Wiesbaden. A J.A.f.D. supporter in the crowd of attendees, who wore a yarmulke and a Star of David necklace that dangled outside his shirt next to an A.f.D. pin, told me, in a strong Russian accent, that he had emigrated from Moscow in the early 1990s. As reporters gathered around him, he rattled off a series of claims often recited at far-right political gatherings: Muslim immigrants come from an “absolutely alien” culture. They would “bring Shariah law” and “rape” to Germany. When a reporter from the Frankfurter Allgemeine Zeitung tried to get his name, the man refused to give it. He didn’t trust the lügenpresse — “the lying press” — he said, using a phrase that, long preceding “fake news,” had been deployed by propagandists in Nazi Germany to spread conspiracy theories about newspapers controlled by “world Jewry.”
Another reporter approached the anonymous J.A.f.D. supporter and said he was from RT, the Russian state-backed news network. “RT I trust!” said the supporter happily as he broke off to chat with the reporter in Russian. It was not surprising to see RT interested in the story; it makes a special effort to show and to sow social division in the West as part of the Russian government’s influence campaign. But there was also a more specific Russian angle. After the fall of the Berlin Wall, Germany admitted, along with a few million ethnic German “resettlers” from the former Soviet Union, some 200,000 Russian-speaking Jews and their family members. The vast majority of Germany’s Jewish population today has roots in the former Soviet Union. The A.f.D. has tried to win the support of immigrants from former Soviet states — who in Germany have tended to vote conservative — believing them more likely to be receptive to the party’s politics, including support for closer ties to the Russian government. Indeed, in some voting areas with large numbers of immigrants from the former Soviet Union, the A.f.D. has performed disproportionately well. Several members of J.A.f.D. had roots in the former Soviet Union; the chairwoman is a doctor born in Uzbekistan.
J.A.f.D. board members took their seats in a row on a stage as party politicians and functionaries applauded. Before the event, there was much discussion about the Jewish credentials of one J.A.f.D. member not on the stage who had identified himself on Facebook as a “follower of Jesus Christ.” A reporter asked how the group defined Jewishness. One J.A.f.D. board member, a goateed student of German literature named Artur Abramovych, interjected with a reflection that neatly inverted the historical suffering of European Jewry along the axis of ethnonationalism. Abramovych defined Jews as an “ethno-cultural community.” In contemporary Germany and Europe, he went on, “the appreciation for the importance of ethno-cultural community had mostly been lost.” Rightist parties, however, wanted to revive this sense of community, and Jews, he suggested, intrinsically understand this because of their own sense of tribal belonging. “This is the reason that there’s a certain affinity of Jewry to the right-wing parties of Europe.”
Another reporter asked the board members how they viewed the call for a “180-degree turn” in Germany’s politics of memory. “We are not excited about such statements,” responded Bernhard Krauskopf, a retired mechanical engineer who, earlier in the day, said more than 50 members of his family had been murdered in Nazi death camps. He went on to criticize the Social Democratic Party for its “180-degree turn in practice against Jewish Israelis,” for failing to support Israel. The next affront, he added, was the “180-degree turn against Jewish Germans” by the political establishment. “They say, ‘We are so against anti-Semitism,’ ” Krauskopf said, modulating his voice to connote spurious compassion. “And then,” he added in his own ardent cadence, “they import a population group that consists of at least — at least! — 60 percent inveterate Jew haters!”
It was unclear whether this messaging would gain much traction with Jews in Germany beyond the confines of the gymnasium. Josef Schuster, the head of the Central Council of Jews in Germany, told me the number of Jewish A.f.D. supporters is “very small.” But experience in France suggests a modest level of support would not be far-fetched. In 2012, the National Front leader Marine Le Pen was backed by 13.5 percent of Jewish voters, according to the French polling company IFOP, as reported by France 24. Even so, at stake for these parties is not the relatively small number of Jewish votes but rather an appearance of legitimacy and ideological distance from past fascist movements. The J.A.f.D. allows the A.f.D. to reject as absurd accusations that they are Nazis or traffic in Nazi ideology. During the J.A.f.D. event, a series of non-Jewish A.f.D. politicians addressed attendees, and one of them, a member of Parliament named Petr Bystron, professed delight: “I’m looking forward to the wondrous leaps that will be required to depict you, the Jews in the A.f.D., as Nazis.”
The Fraenkelufer Synagogue sits on Berlin’s Landwehr Canal, a snaking, several-mile-long waterway that meets the city’s major river, the Spree, on each end. In September 1945, according to a Chicago Sun reporter, the canal still stank of decayed corpses when 400 Jewish survivors and about 30 American Jewish soldiers gathered for the first postwar synagogue service in Berlin. The main neo-Classical sanctuary that had once stood at the site sat in ruins, but a Jewish-American lieutenant stationed in Berlin named Harry Nowalsky, who could see the synagogue from his bedroom window, had made it a personal mission to restore a smaller, still-intact sanctuary in time for Rosh Hashana, the Jewish New Year. On the cool holiday evening, the congregants, as one reporter wrote, “sang songs of Israel with tear-stained faces.” Today, the trendy and gentrifying neighborhoods near the synagogue — Kreuzberg and Neukölln — are home to a large number of Turkish and Arab immigrants, and for this reason, are considered “no-go areas” among some Jews who live elsewhere, though most of the synagogue’s congregants don’t see it that way.
One Monday morning last year, a 39-year-old local congregant named Shlomit Tripp welcomed a class of fourth graders to the synagogue. Tripp, who wore a tie-dyed headband and carried with her a redheaded puppet she calls Shlomo, runs a Jewish puppet theater. She sometimes gives presentations about Judaism to non-Jewish schoolchildren at the synagogue in order “to open our doors,” she told me, “and to show that we are not a mysterious club you can come up with conspiracy theories about.” Such openness is all the more important because Fraenkelufer Synagogue, like others around Germany, resembles something of a fortress: with an iron fence, security cameras, bulletproof glass covering the stained-glass windows and an incessant police presence on the street in front. Synagogues in Germany have been under police protection since around 1969, when Marxist militants tried to bomb a Jewish community center in West Berlin. The following year, a still-unsolved arson attack on a home for Jewish seniors in Munich left seven people dead. Congregants told me they understand the need for the precautions but also lamented the impossibility of natural exchanges with the outside community.
The children put on yarmulkes available for guests and sat in benches facing the ark. Tripp began with a question:
“Where do Jews actually come from?”
“Israel?” one child said.
“Canaan?” another said.
“Where do you think I come from?” Tripp said.
There was a moment of silence before one girl volunteered: “Germany?”
“Correct!” Tripp said. “I was born here in Berlin. Like a lot of you.”
She then showed the children a blue-striped learner’s tallit, a prayer shawl, and, draping it around her shoulders, imitated a man proudly strutting into the sanctuary on the Sabbath. “I’m a Jew. I’m a Jew. I’m a Jew,” she said in a deep voice, eliciting giggles from the children. She tucked herself into the tallit, wrapping it around her head to show how it’s used in deep prayer. “It’s a bit like a meditation,” she said. “So you can feel really close to God.” The children then came up one at a time and Tripp advised them to think of something “really, really nice” as she folded the tallit over each child for a silent moment. Tripp later told me that, during this part of the talk, she imagines a bell — “ding!” — signifying one less anti-Semite for each child that passes.
After the children left, Tripp told me she has never experienced anti-Semitism from the visiting kids or from her Muslim neighbors and considered fears of Muslim anti-Semitism to be exaggerated. “I don’t want to be naïve,” she added. “Sure there’s a problem. But it’s not like you have to pack your bags and move to Israel.”
Fraenkelufer Synagogue would not exist today without immigration. After the war, Jews from Eastern Europe formed a small congregation. After 1989, Jews from the former Soviet Union joined, but by the turn of the millennium, the congregation had dwindled. That began to change several years ago, with the immigration of young Jews from around the world to the neighborhood, including some of the thousands of Israelis who have migrated to Berlin in recent years — many of whom lean to the political left and are troubled by Israel’s rightward political shift.
Among the newcomers to the synagogue are Nina and Dekel Peretz. Dekel, a full-bearded historian and tour guide who arrived in Berlin in 2002 after serving in the Israeli military, told me that his mother was “totally shocked” about the move. “I grew up in this ‘You don’t go to Germany’ mind-set,’ ” he said. To illustrate this, he told me a story about a childhood family road trip through Europe that involved crossing German territory. The family intended to traverse the country without stopping, but somewhere in the Black Forest, young Dekel had to pee. On the side of the road, he got a stinging nettle rash. He deemed this karmic punishment for stopping. His wife Nina’s family, it turns out, is from the Black Forest. “I didn’t know any Jews or anything about Judaism, except the stuff you read in history class,” she told me. After meeting Dekel, she converted to Judaism and now sits on the synagogue’s board. At the time we first sat down to talk, she was eight months pregnant with their first child.
Dekel pointed out that Israelis who live in Germany are often criticized by Israeli right-wing politicians who, as he put it, find fault with Israelis who choose the “easy diasporic life” over the “building up of a strong Jewish state.” At the same time, Israeli politicians, including Prime Minister Benjamin Netanyahu, have urged European Jews to escape the threat of growing anti-Semitism in Europe by coming “home” to Israel. In January, Netanyahu emphasized the threat to European Jews posed by “the combination of Islamic anti-Semitism and the anti-Semitism of the extreme left,” even as Israel’s Diaspora Affairs Ministry warned that, in 2018, it was the far-right threat that had become the most perilous to Jews in the United States and Europe.
Dekel told me that he envisioned Fraenkelufer Synagogue as a kind of sanctuary from many of these ideas: a community that isn’t defined by fear of anti-Semitism or an orientation toward Israel, but by a local brand of German Judaism. “The question is, What do we want to create for our children?” Dekel said. “We are not sitting on a packed suitcase. We are here to stay.”
In July, Nina gave birth to a girl, Ronja Sarah. On a Shabbat morning a few weeks later, the couple brought her to the synagogue for a baby-naming ceremony. Afterward, the congregation gathered at tables for the Kiddush, a post-service reception. People drank wine and vodka and ate dishes of herring and salmon. The mood was jovial. Nina’s father held the baby as Dekel stood to say a few words about his grandmother Sarah, who inspired the baby’s middle name. Sarah had survived a labor camp in Romania and eventually settled in Tel Aviv with Dekel’s grandfather, a Moroccan Jew. Sarah stuck to her Ashkenazi ways, Dekel told the congregation. She watched German television shows and cooked borscht. After Dekel moved to Berlin, he said, she was the first in the family to accept it. “She liked being able to speak German with me,” Dekel said. “And I think she would have been happy to know that a little girl named Sarah was born in Berlin.”
One evening last summer, three generations of the Michalski family — Wenzel and Gemma, Wenzel’s father, Franz, and his mother, Petra, as well as Solomon’s siblings — sat in a row at an English-language theater in Berlin to watch Solomon, now 16 and enrolled in a new private school, perform in a play inspired by his experience with anti-Semitic bullying.
The play began with a scene in a classroom where an assignment was written on the board: “Tribalism Divides Communities — Elucidate.” The teenagers portrayed two tribes, the Whoozis and the Whatzits, who, because of ancient rivalries, fight. Eventually, everyone falls to the floor and perishes in a final battle. But then everyone slowly rises.
“So that’s it?” one tribe member said. “Everyone dies in the end?”
“That sucks,” another said.
“Yes, but it’s realistic,” another said.
Solomon had the last line.
“Well, I don’t know about the rest of you, but I’m not leaving until we get this right.”
After the play, Gemma told me that she didn’t hold grudges against the kids who bullied her son. “I didn’t give up on those kids,” she said. “The school gave up on those kids.” The attitude from many of the teachers, she said, was: “You can’t talk to them; they’re just Muslims.” This revealed a troubling unwillingness to stand up for, as she put it, “life in a liberal, tolerant democracy for everyone, beyond racism.”
I asked Solomon if he had thought much about anti-Semitism before the bullying episodes. He told me about a trip he took with his grandparents just before the bullying began. They visited the places in Poland, the Czech Republic and eastern Germany where his grandfather had hidden from the Gestapo. “That really opened my mind,” he told me. “I knew about my grandpa’s experiences, but I just, you know, felt really proud to be Jewish after that trip. Then after this whole thing happened, it makes me even more proud to be Jewish. I wouldn’t say I feel more religious. But it’s just the identity, the ethnic background of being Jewish and walking in Berlin as a Jewish boy.” His mother later told me that she found it sad that her son had formed a stronger sense of tribal identity based on the experience of mistreatment. She had not wanted him to forge his identity in fear. “I wanted him to be free,” she said.
Solomon told me that he was happy at his new school. He had made new friends of diverse backgrounds, and they had formed a band called the Minorities. Still, he added, he did not feel free to express his newfound Jewish identity in public. He had wanted to wear a Star of David necklace, he told me, but he and his parents had decided that this was not a good idea. The necklace could be exposed if someone were to pull his shirt back. “The thing is,” he said, “it’s still really dangerous. I mean, it’s not like, ‘O.K., everything is fine now.’ ”
James Angelos is a contributing writer based in Berlin. He last wrote about the German New Right."
The New German Anti-Semitism - The New York Times
Monday, May 20, 2019
16-year-old migrant boy dies in U.S. custody, 5th child to die since December. 16-year-old migrant boy dies in U.S. custody, 5th child to die since December. Negligent homicide is the killing of another person through gross negligence or without malice. It often includes death that is the result of the negligent operation of a motor vehicle, which includes the operation of a boat or snowmobile. It is characterized as a death caused by death by conduct that grossly deviated from ordinary care. Negligent homicide may be charged as a lesser-included offense of manslaughter. It is also sometimes referred to as "involuntary manslaughter". State laws vary, so local law should be consulted for specific requirements.
"By Ryan Goodman May 20, 2019
You may have a hard time believing a key argument the Trump administration is using to rebuff efforts by Congress to obtain information legislators need to do their job. The administration has claimed — for example, in a letter from the White House counsel to the House Judiciary Committee in response to congressional subpoenas of the full Mueller report — that Congress must demonstrate to the administration’s satisfaction that the information would serve a “legitimate legislative purpose.” In effect, Congress must show that its interests fall within the power under Article I of the Constitution to pass new legislation.
Faced with a similar argument last week in a hearing for a case involving Congress’s subpoena of Mr. Trump’s financial records, a district court judge, Amit Mehta, was highly skeptical.
But especially with the Mueller report, the administration’s claim isn’t just legally ridiculous. It actually puts our country at grave risk.
There’s a lot wrong with the administration’s position, including that oversight and investigations are a fundamental part of Congress’s Article I responsibilities. The Supreme Court has long recognized as much. Showing a specific legislative purpose is not required. That’s what Judge Mehta told Mr. Trump’s lawyers.
In fact, Congress has many important legislative purposes that would be served by access to the full Mueller report and underlying documents. The administration’s attempt to deny or slow roll the release of this information is hampering Congress’s ability to draft new legislation to protect our democracy from foreign adversaries.
I know from experience. Last year the Republican-led Senate Judiciary Committee asked me to testify about several legislative initiatives that could be informed by an understanding of Russia’s 2016 election interference — including any American’s support for those activities. The full Mueller report and underlying documents could provide a trove of valuable information to inform and accelerate such legislation.
Along with Kenneth Wainstein, who served as the head of the Justice Department’s national security division under President George W. Bush, our panel gave the best advice we could on a wide range of legislation proposed by members of the committee, Republican and Democratic, in addition to ideas of our own. The proposed reforms included the expansion of enforcement authority for rules governing foreign agents, closing loopholes in the Lobbying Disclosure Act, defining more precisely the federal crime of conspiracy to defraud the Federal Election Commission, imposing new immigration controls on foreign nationals who interfere in United States elections, prohibiting the use of shell companies to conceal election contributions by foreign nationals, incentivizing collaboration between social media companies and independent evaluators, and adding reporting requirements for political campaigns when approached by foreign agents with stolen information. That is a long list, yet it goes on.
The redacted Mueller report is rich in information, but legislators would very likely benefit enormously by knowing more about a number of things from the pages that have been kept from Congress: how Moscow devised its attempts to penetrate the Trump campaign and the tactical benefits it expected to gain from different parts of the operation, what actions Americans took wittingly and unwittingly to support Kremlin front organizations and WikiLeaks, and why members of the Russian delegation at Trump Tower were not charged with violations of the Foreign Agent Registration Act. Those are just a few of the many pieces missing from the puzzle.
The Mueller report also hints at specific legislative reforms for the Hill to consider. Congress may need to expand the federal offense of trafficking in stolen property to include hacked emails, define what counts as a “thing of value” when offered to a campaign by a foreign government agent, and improve how the intelligence community coordinates its response and warns political campaigns of foreign threats.
The list of possible reforms is daunting, so Congress will also need to figure out what among the worthwhile efforts should be prioritized. But any run at these problems must be informed by an understanding of the organizational and individual weaknesses that allowed the Russian interference operation to gain such traction.
Our legislators aren’t flying blind, but the Trump administration is preventing them from obtaining the kind of visibility that would best serve the country. Time is running short: The electoral calendar won’t bend, and the full threat of foreign interference remains unaddressed.
The administration’s bad faith arguments for keeping this information secret will surely affect how federal judges view the executive branch’s position when Congress takes officials to court over the full Mueller report. Judge Mehta’s reaction to Mr. Trump’s lawyers is a signal of how this will play out.
But we’re a long way off from that battle. In the meantime, the White House is robbing Congress of information vital to protecting our democracy and national security through the exercise of legislative powers.
Ryan Goodman (@rgoodlaw) served as special counsel to the general counsel of the Department of Defense. He is a professor of law at New York University and editor in chief of the blog Just Security."
Opinion | How Trump’s Stonewalling Puts Our Democracy at Risk
Sunday, May 19, 2019
"Gwen Carr, Eric Garner’s mother, leaving One Police Plaza, Police Headquarters in Lower Manhattan, on Monday.Stephanie Keith for The New York Times
Gwen Carr, Eric Garner’s mother, leaving One Police Plaza, Police Headquarters in Lower Manhattan, on Monday.Stephanie Keith for The New York Times
As Eric Garner lay dying, he was gasping for air and bleeding in his neck and eyes. The arm of a New York City police officer was pressed hard against his throat.
When the medical examiner described Mr. Garner’s last minutes in the small, airless courtroom at Police Department headquarters, police officers, news reporters and family members of Mr. Garner drew sharp breaths.
Some cast their eyes to the floor.
One woman wept as the man beside her gently stroked her back.
Mr. Garner’s family has seen no justice in the five years since his death.
Daniel Pantaleo, the officer who put Mr. Garner in a chokehold during the fatal arrest in July 2014, never faced criminal charges after a grand jury on Staten Island, one of the most police-friendly areas of the city, declined to indict him.
Mr. Pantaleo not only remained on the force but also saw his income rise after Mr. Garner’s death, collecting a 35 percent increase in overtime pay the following year, even though he was on modified duty.
The federal civil rights investigation into the death fell into a dispute between federal prosecutors in Brooklyn and veteran civil rights prosecutors in Washington over whether to file charges. The attorney general at the time, Loretta Lynch, ultimately authorized prosecutors to move ahead toward indictment, but problems with the initial F.B.I. investigation delayed the case until after President Trump took office.
At long last, however, Mr. Pantaleo is standing for a departmental trial, on charges brought by the city’s Civilian Complaint Review Board. The review board accused him of reckless use of a chokehold and intentional restriction of breathing. If a judge finds him guilty, his fate will reside with the police commissioner.
One of the many people waiting in line to attend the departmental trial of Officer Daniel Pantaleo.Yana Paskova/Getty Images
One of the many people waiting in line to attend the departmental trial of Officer Daniel Pantaleo.Yana Paskova/Getty Images
The disciplinary hearing, which is being held at Police Headquarters, in downtown Manhattan, has forced a brutal reassessment of a dark moment in the city’s history.
It also serves as a visceral reminder of the cost of refusing to hold the nation’s largest police department accountable when something goes wrong.
On Thursday, when lawyers showed the court an exchange of text messages between a sergeant at the scene of the deadly arrest and a supervising lieutenant, we learned how warped we have allowed the city’s policing culture to become.
“He’s most likely DOA,” the sergeant wrote in a text message to Lt. Christopher Bannon. “Not a big deal,” Lieutenant Bannon replied. “We were effecting a lawful arrest.”
New York has made considerable progress in its policing practices over the years, but there still is not adequate accountability when abuses arise.
One reason is that the department, understandably, has gotten the credit for one of New York’s greatest successes: a celebrated, decades-long drop in crime.
Another is that the department took on a nearly heroic status after the Sept. 11 attacks, which is also understandable. The department also enjoys the political power that comes with having the nation’s largest police union.
These forces have cemented the Police Department’s nearly untouchable status in city politics.
Mayor Bill de Blasio learned this when hundreds of cops turned their backs on him at the funerals of two police officers killed by a man who had spouted anti-police vitriol. The officers were angry that a few months earlier Mr. de Blasio had the audacity to say that the Garner case made him think of the possibility of losing his biracial son in an encounter with the police.
Some police officers turned their backs during a funeral procession, in protest against Mayor de Blasio.Damon Winter/The New York Times
Some police officers turned their backs during a funeral procession, in protest against Mayor de Blasio.Damon Winter/The New York Times
Rudy Giuliani was able to ride the Police Department’s political power to win the 1993 mayoral election, whipping up racist sentiment among the force to unseat Mayor David Dinkins, the city’s first and only black mayor.
Sometimes, deference to the Police Department comes with a price. Former Mayor Michael Bloomberg’s unquestioning support of the overbroad use of stop-and-frisk under Police Commissioner Raymond Kelly, for instance, threatened to tarnish Mr. Bloomberg’s legacy.
Wary of the N.Y.P.D’s power, New York’s mayors have largely allowed the 36,000-officer force to police itself.
What other possible explanation is there for allowing the department to handle Officer Pantaleo with such kid gloves over the past five years?
Mayor Bill de Blasio and his police commissioners initially said they would await the outcome of a federal civil rights investigation into the death before moving forward with any disciplinary measures.
Yet, at the trial this week, the public learned that the department’s own internal affairs investigators found that Officer Pantaleo had used a banned chokehold on Mr. Garner, and they were ordered by a supervisor to recommend that the department bring disciplinary charges against him. But the Police Department never brought those charges, even after it was clear that federal prosecutors had dropped the ball. Why not? Mayor Bill de Blasio owes the Garner family and the public an explanation.
Mr. de Blasio also vowed to retrain the entire police force in the wake of Mr. Garner’s death. But half a decade later, the data shows that officers are still using chokeholds, and that they rarely face serious punishment for doing so.
Few have paid a higher price for the city’s refusal to take police abuse seriously than the family of Eric Garner.
Erica Garner at a vigil for her father in 2015.Carlo Allegri/Reuters
Erica Garner at a vigil for her father in 2015.Carlo Allegri/Reuters
In 2017, Erica Garner, Mr. Garner’s daughter, died of a heart attack at the age of 27 after years of activism against police brutality in the aftermath of her father’s death.
Gwen Carr, Mr. Garner’s mother, has been relentless. This week, she brought earplugs to the trial so she wouldn’t have to hear her son’s cries for help as a video of his arrest played in the courtroom.
Outside Police Headquarters on Thursday, Ms. Carr said she wouldn’t rest until the officers involved were off the force. “They do not think of us New Yorkers as human beings,” she said.
Ms. Carr is right. Eric Garner deserved better, and so do we."
Opinion | When Will Eric Garner Get Justice?
"The phone call that ruined Mohammed Hoque’s life came in April 2014 as he began another long day driving a New York City taxi, a job he had held since emigrating from Bangladesh nine years earlier.
The call came from a prominent businessman who was selling a medallion, the coveted city permit that allows a driver to own a yellow cab instead of working for someone else. If Mr. Hoque gave him $50,000 that day, he promised to arrange a loan for the purchase.
After years chafing under bosses he hated, Mr. Hoque thought his dreams of wealth and independence were coming true. He emptied his bank account, borrowed from friends and hurried to the man’s office in Astoria, Queens. Mr. Hoque handed over a check and received a stack of papers. He signed his name and left, eager to tell his wife.
Mr. Hoque made about $30,000 that year. He had no idea, he said later, that he had just signed a contract that required him to pay $1.7 million..."
‘They Were Conned’: How Reckless Loans Devastated a Generation of Taxi Drivers - The New York Times