Opinion | Whitaker May Be a Bad Choice, but He’s a Legal One

AUSTIN, Tex. — President Trump’s selection of Matthew Whitaker to serve as acting attorney general has provoked alarm across the political spectrum, and for good reason. But as troubling as Mr. Whitaker may turn out to be for the rule of law, Mr. Trump was acting within the scope of his constitutional authority. The move was legal, so long as it is temporary, which the law defines as up to 210 days.

That’s not to say that Mr. Whitaker, who until Wednesday had been chief of staff to Attorney General Jeff Sessions, should take over the Justice Department even temporarily. He appears not only to be stunningly unqualified to serve as the nation’s chief law enforcement officer but also to have radical — and deeply troubling — views about the role of the federal courts in our constitutional system. And perhaps most important, as acting attorney general, Mr. Whitaker also takes over supervision of Robert Mueller, the special counsel, even though he has been an unabashed and highly partisan critic of Mr. Mueller’s investigation and almost certainly has an insurmountable professional conflict of interest that ought to force him to recuse from such a role.

Perhaps animated by those concerns, a broad and growing array of commentators, lawyers and scholars have argued that Mr. Whitaker’s appointment violates the Constitution, including, in an Op-Ed this week in The Times, the bipartisan pair of lawyers Neal Katyal and George Conway. At its core, their objection is that because Mr. Whitaker was not confirmed by the Senate to his previous post as chief of staff, and because other Senate-confirmed officers within the Justice Department (such as Deputy Attorney General Rod Rosenstein) are available, Mr. Whitaker is constitutionally ineligible to serve as acting attorney general, even on a temporary basis.

Although it is easy to see why this argument is so alluring, it’s ultimately unconvincing as a matter of both constitutional text and structure. Let’s unpack it.

Except during Senate recesses, the Appointments Clause of Article II requires that the president nominate and the Senate confirm all “principal” federal officers. Clearly, the attorney general of the United States is a principal officer, and so the president could not permanently fill that post without the Senate’s advice and consent. The argument against Mr. Whitaker’s appointment rises and falls on the assumption that someone who temporarily exercises the duties of a principal officer must be a principal officer — or at the very least, an “inferior officer” like the deputy attorney general or solicitor general, who have already been confirmed by the Senate to those posts.

But in an 1898 decision, United States v. Eaton, the Supreme Court rejected the argument that only a principal officer confirmed by the Senate can temporarily fill the shoes of another principal officer. So long as an inferior officer is exercising the duties of the principal officer “for a limited time, and under special and temporary conditions,” the court said, he “is not thereby transformed into the superior and permanent official.” The Supreme Court in Eaton did not go on to define what “a limited time” or “special and temporary conditions” entails, but it made clear that those are the key constitutional considerations.

In the Federal Vacancies Reform Act of 1998, Congress elaborated on those missing pieces. When a senior executive branch officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the statute authorizes the president to choose either that official’s “first assistant” (in this case, Deputy Attorney General Rosenstein); any other currently serving government officer who was confirmed by the Senate; or any senior official, like Mr. Whitaker, who served in the same department as the vacant office for at least 90 of the previous 365 days “to perform the functions and duties of the vacant office temporarily in an acting capacity.”

A separate provision of the statute limits that designation to 210 days, unless the president nominates a permanent successor in the interim. Other laws distinguish between those duties Mr. Whitaker may carry out as acting attorney general and those limited to an attorney general confirmed by the Senate. For instance, the acting attorney general is expressly allowed to sign an application for a warrant under the Foreign Intelligence Surveillance Act but is expressly excluded from the line of succession to the presidency.

Nor is there any argument that the 1998 law is inapplicable because Mr. Sessions did not resign and instead was fired. His departure may not have been voluntary, but rather than force the president to fire him (as did Preet Bharara, the former United States attorney for the Southern District of New York), Mr. Sessions’s letter to the president formally stated that he was “submitting my resignation” at his request.

That the president can name temporary department heads without Senate confirmation is more than just a legal fine point; in many settings, it can be important to the effective functioning of government. A contrary rule could cause major headaches for a new president confronted with vacancies across the senior levels of government. Moreover, it could empower a Senate that is hostile to the president or to particular federal agencies to suffocate those entities by refusing to confirm anyone to run them.

Of course, that’s not the situation the president faced after asking for the resignation of Mr. Sessions. The Justice Department currently includes in its leadership a number of Senate-confirmed inferior officers, and if the pool is expanded to the entire federal government, the president would have hundreds of Senate-confirmed men and women from whom to choose. But there’s no textual basis in the Constitution for concluding that the president should have to name one of those officers first or that an inferior officer not confirmed by the Senate should be allowed to exercise only the duties of a principal officer when no Senate-confirmed inferior officers are available to do so. Such requirements may well be wise as a matter of policy, but it should be for Congress, not the courts, to impose them.

And that may be the real lesson of the increasingly vocal objections to the Whitaker appointment: For better or worse, Congress in 1998 authorized the president to name agency officials not confirmed by the Senate, like Mr. Whitaker, to exercise the functions even of cabinet officials on an acting, time-limited basis, whether or not Senate-confirmed officials were available. The objections to Mr. Whitaker’s appointment highlight why it may be bad policy to permit such an appointment — and why Congress may be well advised to so modify the law.

But to avoid Justice Oliver Wendell Holmes’s warning that “hard cases make bad law,” we shouldn’t let bad policy as applied to bad choices encourage us to make bad constitutional law.

Stephen I. Vladeck teaches courses on constitutional and national security law at the University of Texas School of Law.

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Opinion | This Is Us, Halfway Whole

We avoided Midnight in America. The president concocted a frightscape, the caravan from hell ready to storm our white picket fences, the military deployed as a political stunt, the Constitution inches from the shredder.

By any measure, the election was a referendum on our sickly, staggering democracy. Nearly 70 percent of Americans believe President Trump has damaged the dignity of the presidency, and only half have faith in our system of self-government.

But I’m here to bring you some good news, folks: It will take at least one more election cycle, but the enemies of progress are headed back to history’s basement. And democracy, after a surge of voters who had checked out of their role in the governing part, has a pulse.

One-party rule is over. The Democrats are on pace to win the overall popular vote — that is, total tally cast in House races — by about seven percentage points. They lost it by a point in 2016, and six points in 2014. People under 30 favored the insurgents by about 35 points. Independents, our fastest-growing segment of voters, broke big for the Dems as well. They may not love the party, but they want a check on the runaway presidency.

Equally significant: Progressive and common-sensical treatment of fellow Americans won at the polls. Medicaid was expanded by vote of the people in Idaho, Nebraska and Utah. These deep-red states will now join 33 others in the forward march of Obamacare.

It will be a while before nearly every Republican stands up in Congress and proudly votes to take away someone’s health care or strips protections for pre-existing conditions. That argument is over.

As always, policies to help people — a boost in the minimum wage in Arkansas and Missouri, pragmatic restrictions on guns in Washington State — passed handily, once they got past the gatekeepers and were put to voters.

Trump did his Mussolini-lite thing — the vainglorious tilt of the chin, the boasts and lies for the cult of personality that follows his Red State One plane from bubble to bubble, the authoritarian swipes at an independent press and judiciary.

But white women, from the suburbs of Dallas and Houston and Chicago and Oklahoma City and Denver, ain’t buying it anymore. They’ve joined the majority. The Trump cult is diminishing, though an appeal to facts will not bring those people to reason.

“I can’t really say that anything he says is true,” a Wyoming Trump supporter told us a few days ago, “but I trust him.” That mind-set explains why President Trump revved up the mendacity machine to 30 lies a day in the seven weeks leading up to the midterm elections.

More to the point, as his former press-manager-for-a-moment, Anthony Scaramucci, put it: “He’s an intentional liar. It’s very different from just being a liar liar.” Got it?

No matter. For here is where history will give us some comfort. The American Know Nothing movement peaked in the 1850s on a wave of anti-immigrant and anti-Catholic sentiment. The targets then were Irish and German.

Those dark forces morphed into the Ku Klux Klan, America’s original and most durable domestic terrorists, who waged a post-Civil War campaign of murder and intimidation. They rose again in an oddball coalition — again targeting Irish, Germans and a new element, “swarthy” immigrants from the south of Italy — that gave us Prohibition.

Intermittently dormant thereafter for nearly a century, the devil we know came roaring back when Trump launched his presidency of fear and hate. And of course, he had the full backing of the Klan elements. “Go, Trump, go,” tweeted David Duke, the former Klan leader, on this year’s election eve. Duke loved the Trump anti-Mexican ad that was so racist even Fox News pulled it.

Sadly, fear of “others” was probably the deciding factor in governor’s races in Florida and Georgia. And our petulant president on Wednesday sneered at the Republicans who refused to embrace his dark vision and lost. He didn’t mention the many who did wrap their arms around him — in the Senate races in Montana and Nevada — and were shown the door.

Kansas, always a bellwether for how race shapes this country, said, enough! Kris Kobach, one of the most anti-immigrant politicians in the country, was soundly defeated for governor there. He ran caravan ads, the full Trumpian dystopia, but it couldn’t save him.

True, the caravan scare was likely to have inspired a man to slaughter people in a synagogue in Pittsburgh — probably the worst act of anti-Semitic violence in our nation’s history.

But let’s not forget what happened afterward. Ari Mahler, a nurse and the son of a rabbi, cared for the shooter. “I wanted him to feel compassion,” he wrote on Facebook. “I chose to show him empathy.”

And while we’re on the subject of our better angels, let’s cherish the 83-year-old man in Wisconsin who walked a mile to the polls after his car was totaled by a deer. Perhaps Benjamin Franklin had him in mind when he emerged from the Constitutional Convention with a now-famous answer to a question about what kind of government they had created. “A republic, if you can keep it.”

I invite you to follow me on Twitter (@nytegan).

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Commentary: Lessons in forgiveness, a century after World War One

World leaders including U.S. President Donald Trump and Russian President Vladimir Putin will gather in Paris on Sunday to commemorate the armistice of Nov. 11, 1918. The centenary is a natural occasion to reflect upon abiding lessons for today from the tragic and seemingly pointless carnage of the “Great War.” The central question is why the peace that followed proved to be no more than a fragile and unstable intermission between two global conflicts – and what modern-day Europe can learn from the mistakes of those interwar years.

In the run-up to the ceremony in Paris, French President Emmanuel Macron is making a journey along the former front in northern France, which will culminate in a meeting with German Chancellor Angela Merkel at Compiègne, where a previous German representative signed the armistice in a railway carriage. The French president is already highlighting the relevance of the troubled years between the wars to contemporary Europe. He finds disturbing parallels in the resurgence of nationalist tensions. And in keeping with his pro-European stance, he insists on the crucial role of the European Union in combating what he calls the “leprosy” of nationalism.

But an alternative lesson points to the importance of the United States, rather than the EU. What went wrong in the interwar period was that America disengaged from Europe after its crucial intervention on the side of the Allies in 1917 under President Woodrow Wilson. In particular the Senate voted against ratifying the peace settlement of the Treaty of Versailles and joining the League of Nations, the forerunner to the United Nations, that Wilson had himself urged. After World War Two, by contrast, the United States underwrote the rebuilding and defense of western Europe and backed the process of integration that has culminated in the EU. From this perspective there is further cause for alarm given Trump’s lack of respect for the rules-based international order that Washington itself fostered over the past 70 years.

There is also a third lesson that is relevant to today’s highly indebted world: the importance of debt forgiveness between nations. World War One was fought in not just the trenches, but also the treasuries of Europe. Indeed, the ability to mobilize economic and financial resources became the deciding factor as hopes for an early end to the hostilities swiftly faded and the war became one of attrition. All the countries piled up debts at home to finance their military effort, but France and especially Britain were also able to borrow from the United States to supplement their resources of food, raw materials and munitions. Germany, by contrast, was cut off from such support.

On Armistice Day the military hostilities ended, but the financial conflict continued in a bitter battle over debt. Ominously, the terms of the armistice included a demand for German reparations, a clause inserted at the behest of the French leader, Georges Clemenceau. That insistence on economic and financial redress in the Treaty of Versailles of 1919 was a grievous mistake. Attempts to enforce the eventual heavy bill (of 132 billion gold marks, or over $30 billion at the pre-war parity) – in effect imposing a huge war debt on Germany – undermined the Weimar Republic, making it vulnerable to the rise of Hitler.

The largely fruitless quest for reparations became entangled in the skein of inter-Allied wartime debts, illustrating the importance of debt forgiveness between friends as well as foes. Britain, which had itself lent altogether about as much as America, was prepared to forgo its claims if the United States also did. But America insisted on repayment of its loans in full. This meant that France could only honor its debts to Britain and the United States if it received German reparations. The messy business dragged on until the economic crisis of the early 1930s, when reparations were abandoned and the repayments to America ceased.

The contrast in the treatment of debt after World War Two was telling and helps to explain the lasting peace that followed. America offered aid rather than loans through the Marshall Plan that pump-primed western Europe’s post-war recovery. And West Germany got a sweeping write-down in its international debts (on which the Nazis had reneged) in a crucial settlement reached in London in 1953.

The failure of reparations and the impasse over the Allies’ intertwined debts during the interwar period sprang from the same source, which still holds true today. Any such payments depend ultimately on countries’ willingness to pay, rather than their capacity to pay. That readiness to comply will be lacking if obligations appear to be unfairly onerous. As much as anything, it was a failure to grasp the need for debt forgiveness that poisoned the peace after World War One.

This lesson is pertinent today for the euro area, which Macron is keen to strengthen after the monetary union so nearly came apart during the financial crisis of 2010-12. Following its exit from eight years of bailouts in August, Greece must run primary (before interest payments) budget surpluses stretching out 40 years in order to repay the huge euro zone loans that it has received. Despite attempts to sugar the pill by charging very low interest rates and extending the maturity of the loans, the plan will cause lasting bitterness.

If European leaders want to show they have truly learned a crucial lesson of World War One, they should forgive a big chunk of Greek debt. At the same time, they should be wary of plans for tighter integration that in effect share debt between euro zone states. The financial animosities that followed World War One suggest that is a dangerous path to pursue.

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Opinion | Tipping the Scales of Justice

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Patrick Chappatte is an editorial cartoonist for The New York Times. View more of his work, visit his website or follow him on Twitter. @PatChappatte

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Opinion | Why Democrats Must Impeach the President

On Tuesday, voters across the country demanded accountability in government, insisting their elected representatives not just talk a good game but act in the interests of the American people.

Nationwide, Democrats received 7 percent more votes than Republicans — about three million — in an election that saw a higher percentage of voters than any midterm since 1966. Those voters flipped seven governorships and 367 state legislative seats to Democrats, giving them majorities in seven more state chambers. Most important, voters ended Donald Trump and his Republican enablers’ free rein in Washington by flipping the House.

But this blue wave should have been even bigger. Democrats’ inability to run the table on a Republican Party that depended on lying, race-baiting and suppressing the vote is a sign that the American people do not know what the Democratic Party stands for. We Democrats can begin to answer that question by acting to guarantee equal justice under the law.

As President Trump continues to accelerate his lawlessness, the new Democratic House majority must initiate impeachment proceedings against him as soon as it takes office in January.

For nearly two years, Mr. Trump has publicly flouted his oath of office. He has turned the presidency into a moneymaking enterprise for a family business he refuses to divest from, in direct violation of any plain reading of the Constitution. He is all but an unindicted co-conspirator in two federal felony cases. He has created an atmosphere of criminality through his hateful, violent rhetoric against political opponents, journalists and private citizens alike.

Most egregiously, he has a longstanding pattern of obstructing justice. On Wednesday, he continued this by firing Attorney General Jeff Sessions and installing Matthew Whitaker — who has publicly called for curtailing the special counsel’s investigation — as acting attorney general, sparking a constitutional crisis that threatens the rule of law itself.

As the list of Mr. Trump’s impeachable offenses — at least nine and counting — has grown, more than 6.2 million people across the country have signed a petition, created by my organization Need to Impeach, demanding that their representatives confront his lawlessness. For months, public support for impeaching the president has been roughly equal to what it was before Richard Nixon resigned.

Yet the current Democratic leadership has insisted that no one so much as mention the word “impeachment.” Instead, they have suggested using Mr. Trump’s abuses of power as bargaining chips in future negotiations.

For too long, Democratic leaders have convinced their fellow elected officials that bland, nonconfrontational and incremental centrism is the way to win elections and make progress. In truth, it’s just the easiest way to protect the balance of power in Washington. But by trying to meet a corrupt Republican Party halfway, instead of taking clear stands for what’s right, they have failed to define the party and failed to protect their constituents.

We see the same approach on impeachment: As a way to delay making a decision, Democratic leaders have insisted on waiting for the special counsel, Robert Mueller, to deliver his report. But now the investigation is at risk, because Mr. Whitaker could prevent the special counsel’s team from reaching a just conclusion or even releasing its findings to the public.

The current, Republican-led Congress could have already taken action to shield Mr. Mueller or to put Mr. Trump in check. It still can. If it does not, House Democrats must prepare subpoenas, to be issued as soon as they take over, to ensure that the public learns the truth uncovered by the special counsel, and call on his team to testify under oath in public hearings.

Should the establishment refuse to give up conventional orthodoxy and take up impeachment proceedings when the new Congress convenes, freshmen members — many of whom ran and won because of their promise to stand up to the president — must challenge the establishment and demand a say over the agenda. An overwhelming majority of people in this country elected them to hold this president accountable. There is no majority without them. That means no one has the votes for a leadership title without their support.

At a moment when just one-third of all Americans trust their government to do what is right, winning a majority has to mean much more than just frustrating Republican legislative goals and scoring debating points. Democrats must stand up for the safety of the American people and our entire democratic system.

We cannot allow this to be an argument about what Republicans will permit — it’s about demanding the truth and protecting the foundations of our free society. Anything less would mean abandoning the Constitution.

Tom Steyer is the founder of Need to Impeach and NextGen America.

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Opinion | Is Theresa May a Secret Genius?

LONDON — Prime Minister Theresa May of Britain is a woman widely scorned. For 17 months, ever since she lost her Conservative Party its majority in an unnecessary, vainglorious election, the news media has been speculating daily on how long this private, dutiful, diffident leader can last and when the bid to topple her will begin. As the national disaster that is Brexit looms frighteningly close, the woman in charge has appeared hopelessly buffeted by events, trapped between the implacable European Union and her own party’s venomous Euroskeptics.

The Brexit talks have been apparently paralyzed for weeks; half of Britain is aghast at the very real threat that we might crash out of the European Union with no deal, wrecking the economy and our relationships with our closest neighbors. The country is teetering on the edge of its worst crisis since World War II. But this time, Britain has declared war on itself.

Senior Conservative Party colleagues, exasperated with Mrs. May’s Brexit performance, sneer at her both openly and anonymously for being useless, obstinate, indecisive. “Lead or go” declared a cover story in The Spectator, an influential conservative magazine.

Behind the scenes, though, the tiny group of Mrs. May’s allies and advisers are telling a very different story. A deal with Brussels is imminent, and, they say, it will be on Mrs. May’s terms. Diplomatically delicate phrases will smooth over the biggest current obstacle to an agreement, the position of Northern Ireland. Mrs. May, these advisers say, has been steering a smarter path than outsiders can know, toward the least damaging Brexit that the politics will allow, eventually easing a deal through the House of Commons.

Her allies maintain that while Mrs. May has made some grievous tactical errors, she has been less naïve and incompetent than she appears. Rather than being the helpless victim of her party’s divides, she has been engaged in a stealthy operation to avoid confrontation with her rebellious right-wing colleagues in public, while outflanking them in private. Like Muhammad Ali in a comeback fight, she has chosen to absorb punches until the very last moment she can deliver her own.

Is Mrs. May really more of a Machiavellian fighter than a punching bag? Well, possibly. But even if these generous interpretations of the prime minister’s actions over the past two years are accurate, her strategy will still turn out to have been a dangerous mistake once Brexit finally arrives. Only brave leadership — not back-room games — can save Britain.

One senior politician described Mrs. May’s embarrassing predicament: “It looks like dithering, it’s not heroic, and you can’t boast about it until it’s done, but it’s practical,” he told me. “It’s been hellish,” another said. The divisions over Brexit left her “in an impossible position” from the beginning, this politician said, caught between enemies in her own party and a complex exercise in international diplomacy.

That has meant a strategy of caution and deception: adopting the Brexiteers’ hard-line rhetoric to start with, while knowing that compromises with the European Union would be inevitable; avoiding collective cabinet discussions in case they resulted in walkouts or leaks; not reacting to public humiliations like Boris Johnson’s attack on her Brexit plans as “crazy.” Her fear has been that if she opposed the Euroskeptics outright, they would revolt and replace her with a hard-liner.

Mrs. May is famously uncommunicative, secretive, averse to being challenged and cool toward her colleagues. Her sense of being besieged has encouraged those tendencies. “Her natural secrecy has been reinforced by political practicality,” said a person who advises the prime minister. She has a core group of six to eight people acting as advisers, and even some of those are unsure of her strategy because she keeps so much to herself. “Like talking to a brick wall; you get nothing back,” a senior Conservative said.

This degree of isolation leaves Mrs. May cut off from the insights that she needs for Britain to avoid calamity. Furious and frustrated politicians, experts, diplomats and business leaders have been blocked, sidelined or ignored when they have tried to brief the prime minister on the catastrophic complexities of Brexit. Even those she listens to rarely hear what she thinks. They often deduce it from how she acts afterward.

By being so silent, Mrs. May has not made the case for the Brexit deal she wants. Even if she gets Brussels to agree to it, it will fail unless she can get the cabinet and members of Parliament to back it — not by secrecy and shrewd bluffs, but by full-throated advocacy and persuasion.

And that is the fatal flaw in Mrs. May’s punching-bag strategy. She needs support she has not bothered to build. Ever since taking power in 2016, she should have been telling Britain the truth: The Brexit you hoped for is undeliverable because it promised a fantasy. The Brexiteers lied to you. We cannot have all the benefits of the European Union and none of the costs. We must compromise or face disaster.

Even some of Mrs. May’s close supporters say privately that her deal cannot survive. If it reaches the House of Commons, which must approve any Brexit agreement, many Conservative Euroskeptics will rebel, and not enough of the opposition will step in to save her. There will be uproar, chaos, talk of a second referendum and fears of “no deal.”

This situation was never inevitable. It is the product of an overcautious leader’s fundamental misjudgment of her party’s politics. Mrs. May has always been stronger than she thought; she had defeated the Brexiteers to become prime minister, and none, despite all their sniping and plotting, has had the backing to replace her since. A more courageous leader would have argued publicly for the least disruptive Brexit from the start, persuading a divided country to follow her, avoiding the immense damage we have already inflicted on our businesses, our international reputation and our relationship with our alienated, exhausted European Union partners.

Mrs. May has been inadequate, but she was the best her party could agree on. “Would anyone else step up?” an insider asked. “Everyone wants her job after March,” when Britain is set to leave the European Union. “No one else wants it now.”

Jenni Russell (@jennirsl) is a columnist for The Times of London and a contributing opinion writer for The New York Times.

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Opinion | How AT&T Fooled the Federal Judiciary

HBO has long been the crown jewel of American television. It was HBO, in the 1990s and 2000s, that kick-started the golden age of television, funding and running shows like “The Sopranos” and “The Wire.” And it is HBO that still captures broad audiences with shows like “Game of Thrones.”

So it’s disheartening to see this venerable institution of pop culture wielded as a weapon by AT&T — HBO’s new owner since the blockbuster merger in June between AT&T (a telecommunications giant) and Time Warner (a media giant). Last week, HBO went dark for both DISH and DISH-Sling, the main competitors to DirecTV and DirecTV Now, AT&T’s television services. This brazenly anticompetitive strategy does not portend a happy future for the viewing public, or for HBO itself.

At the risk of saying “we told you so,” it was widely predicted before the merger that AT&T would use HBO and other Time Warner media properties in just this way. When the Justice Department sued (unsuccessfully) to block the merger last year, its case was premised on the idea that AT&T would use its ownership of such properties to hurt its rivals in telecommunications. And now it is doing so.

Post-merger, AT&T has the means and the incentive to raise prices on valuable content (like HBO or the coverage of the N.C.A.A. “March Madness” basketball tournament) for cheaper, “unintegrated” telecom competitors that have been saving consumers money. If its rivals refuse to pay up, it can withhold the content entirely, diminishing them as competitors.

Defending its proposed acquisition of Time Warner in federal court in the spring, AT&T declared, swore and promised that it would never use Time Warner’s media properties as leverage against its rivals. The acquisition was all about “vision” and a “new AT&T” — a company that would be able to better compete with the content creation and distribution abilities of upstart powerhouses like Amazon and Netflix.

At trial, AT&T’s chief executive, Randall Stevenson, was asked if AT&T might use its ownership of content like HBO to raise prices or otherwise undermine its telecom competitors. Under oath, he answered that the premise was “absurd.”

But what looks absurd now is the reasoning of Judge Richard Leon of United States District Court in Washington, who took Mr. Stevenson’s bait, hook, line and sinker. Sitting as judge and jury, Judge Leon seemed to buy AT&T’s self-serving testimony, ignoring or dismissing the warnings of most people in the industry. He concluded that AT&T was merely attempting to retool itself for the 21st century, not looking for a structural advantage.

To reach that conclusion meant neglecting some basic economics. Presented with a clear demonstration by the economist Carl Shapiro of how AT&T’s bargaining power would increase after the merger, Judge Leon opted to assume that AT&T was not interested in profit maximization.

Unfortunately, there is every reason to think AT&T will keep using HBO and other media properties as weapons in the industry. The more it raises prices or withholds content, the more it either harms its rivals or gains new customers for itself. It’s a win-win situation made possible by the merger’s integration of content and content delivery.

Nor should we ignore the effects of AT&T’s anticompetitive tactics on the nature of the content created by HBO and its other media properties. After all, the more people there are who watch HBO, the more effective HBO is as a weapon for attacking other telecom companies and pushing people into becoming AT&T or DirecTV subscribers. This creates an incentive for AT&T to refashion HBO into a network that aims for the widest possible audience — as opposed to its traditional emphasis on quality.

Is it a coincidence that AT&T recently shut down the enormously popular FilmStruck subscription-streaming service from WarnerMedia (as Time Warner is now named), which gave viewers access to the best of Turner Classic Movies and Criterion Collection films? Or did FilmStruck fail the crucial test of providing sufficient leverage?

Given the new and concrete evidence that AT&T does plan to use HBO in an anticompetitive fashion, state and federal government ought not sit on the sidelines. The Justice Department has already appealed Judge’s Leon’s merger approval, and while judicial review is generally confined to the record of the case, the court of appeals might remand the case for more fact-finding or cite AT&T’s post-merger conduct as evidence of the errors in Judge Leon’s economic reasoning.

Meanwhile, it is not too late for a state to bring an antitrust lawsuit to undo the merger, based on the new evidence. The most obvious candidate is New York, where HBO is headquartered, and where Letitia James, the attorney general-elect, might want to prove her bona fides.

Whoever takes the lead, there is simply no calculation in which the use of HBO as an anticompetitive weapon is good for the future of America — for its telecom industry, its customers or its TV shows.

Tim Wu (@superwuster) is a law professor at Columbia, the author of the forthcoming book “The Curse of Bigness: Antitrust in the New Gilded Age” and a contributing opinion writer.

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Opinion | Trump Is a Really Happy Loser

Wow, Jeff Sessions was gone before they finished counting votes in Arizona.

Do you think Donald Trump was trying to change the subject? Everybody knew he’d get a new attorney general after the elections, but we deserve to find out who won in Florida before we go back to 24/7 presidential pandemonium.

Next year’s class of Democratic freshmen in the House is going to be incredible, with a huge range of backgrounds, ages, races and interests. Truly I did not expect to live to hear that a four-term Republican congressman from Kansas was defeated by a gay Native American woman who used to be a mixed martial arts fighter.

Meanwhile, Trump was celebrating the probable defeat of the only Republican African-American woman in the history of the House of Representatives. (“Mia Love gave me no love and she lost!”)

The president’s main theme was that an election in which Democrats won control of the House was actually “very close to complete victory” for his team, thanks to his unceasing efforts to rally support. This was during an hour-and-a-half-long press conference. For aficionados of Trumpian rhetoric, the big question was how long it would take him to mention the size of his crowds.

Blink of an eye. (“We held a large number of campaign rallies with large, large numbers of people going to every one. To the best of my knowledge, we didn’t have a vacant or an empty seat.”)

Other presidents were moved by polls or policy papers, but for Trump it’s always about what makes the crowds yell loudest. If any multibillionaires are interested in underwriting a movement that would genuinely make America great again, they need to hire masses of people to show up every time the president gives a speech. Everyone would stand there stonily during the rants about immigration, then burst into raucous applause whenever he talked about lower prescription drug prices or accidentally muttered a phrase like “better schools.” The nation would be transformed.

Trump was in a benevolent mood on Wednesday — so much so that he got through the whole press conference without even once sniping about Hillary Clinton or Representative Maxine Waters. And Nancy Pelosi — he and “Nancy” were going to get along great. (“It really could be a beautiful bipartisan type of situation.”)

As long as there were no, um, investigations or subpoenas for a person’s private tax returns. Which are being audited!

Do you think the president and Congress could actually accomplish anything? There’s going to be a lot of talk about matters like health care reform. But you’ll notice any optimistic predictions usually wind up at road-building.

“The one issue that Leader Pelosi and I discussed this morning is where — where there could be a possible bipartisan agreement, would be something on infrastructure,” said Senate Leader Mitch McConnell.

McConnell added he was sure there would be “a lot of other things,” too. But he didn’t seem able to come up with any.

The moral is: Everybody loves pothole repair.

Before we leave the midterms behind, what was your favorite election outcome? I liked the one in Pennsylvania where Scott Wagner, the Republican candidate for governor, lost to the incumbent, Tom Wolf. Wagner was the guy who did a video warning his opponent to put on a catcher’s mask because “I’m going to stomp all over your face with golf spikes.”

Farewell, Scott. Gone but not forgotten.

Republican Representative Paul Gosar won re-election in Arizona. He’s the Tea Party favorite who’s called for Justice Department officials to be tried for treason. (Jeff Sessions: the one that got away.) But Gosar became nationally famous only when six of his siblings made an ad begging voters to support his opponent.

Too bad that didn’t work. But at least Gosar will now be known forever as the Congressman Whose Family Ran Against Him.

In several states voters gave thumbs-up to expanding Medicaid under the Affordable Care Act. In Idaho, retiring Republican Gov. Butch Otter called it an “Idaho-grown solution.” Perhaps this makes you think of Obamacare as some kind of potato, but I’m bringing it up since this may be my last excuse to mention the name Butch Otter in a column.

Farewell, Gov. Butch Otter! On the brighter side, Florida is once again sending Representative Ted Yoho back to Washington. And thanks to voters in Utah, there will be new opportunities to discuss the fact that once, long ago, Senator-elect Mitt Romney drove to Canada on a family vacation with the dog strapped to the roof of his car.

The big question now is whether we should wait until after the holidays to start discussing the election in 2020. Is Beto O’Rourke going to go on a long vacation or will he start looking really available before Thanksgiving? Does Cory Booker ever take vacations? Did anybody notice Elizabeth Warren and Bernie Sanders won new terms this week?

Do you think any Republicans will try to run against Trump? John Kasich is certainly making himself look available. And what’s Jeff Sessions going to do with the rest of his life?

So much to do, so little time to obsess about it.

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Gail Collins is an Op-Ed columnist, a former member of the editorial board and was the first woman to serve as Times editorial page editor, from 2001 to 2007. @GailCollins Facebook

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Opinion | A Better Way to Vote? Just Look to Canada

To the Editor:

Another election with voters around the country experiencing long lines, broken-down voting machines and inadequate polling places. I can order a new sponge, have it delivered within three hours, and receive a paper and electronic receipt. In this election some people stood in line for more than five hours to cast their ballot, and in states without a paper trail, they had no way of verifying their vote.

Why can’t we apply a delivery system as fast, smooth and efficient as buying a sponge to voting? Surely, buying a sponge is less important than my vote?

Wilhemina Condon

To the Editor:

As usual, I have read your election coverage dumbfounded at the difficulty people have with exercising their right to vote. In Canada, we have something called Elections Canada. It is a nonpartisan organization that sets the district boundaries and establishes how and where people vote. There is no political interference in this process.

So gerrymandering never happens and people (even homeless people) can easily exercise their right to vote. Additionally, there are none of those pesky voting machines. In Canada, you get a piece of paper with a bunch of names and boxes. You put an X in the box of your chosen candidate with a pencil and voilà, you’re done. It is also amazingly efficient.

We usually know the results of the election within an hour of the polls closing on the west coast. Even if you don’t get rid of those machines, it is past time that the United States established a nonpartisan organization to administer elections. To do less is to threaten democracy.

Jane McCall
Delta, British Columbia

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Incredibly rare albino raccoon found in Tennessee backyard

An incredibly rare albino raccoon was captured in Tennessee after the trash panda did what the masked animals typically do: wreak havoc in a family’s backyard.

The rare, colourless raccoon was captured late last month after a family in Collierville called company Alpha Wildlife to trap whatever animal was knocking over furniture and getting into bird feeders in their backyard.

Alpha Wildlife co-owner Matthew Caldwell told USA Today he and his partner responded to a call to investigate what sort of animals they were dealing with. The men had a pretty good idea after noticing paw prints that resembled a raccoon on a glass table and deck railings. So, they set up two live traps and left the property for the night.

The following morning, Caldwell said he received a surprising text from his client.

“”Have you ever seen an albino raccoon?” Caldwell said of the message. “I said ‘not in person.’”

Caldwell and business partner David Parrish headed back to the property to find an albino raccoon in one trap, and a typical coon in the other.

“It’s extremely rare,” Caldwell told WREG Memphis. “They say you have a better chance of getting struck by lightning than seeing one of these animals.”

Some reports suggest albinism occurs in mammals in one of every 10,000 births while Caldwell suggested albino raccoons are far less common.

“It was definitely thrilling, I guess you could say,” Caldwell told USA Today. “Some wildlife biologists say one in every 750,000 raccoons are albino. I’d say that’s fairly rare.”

Parrish told WREG he was “a little taken aback” when he first saw the trapped animal.

“I’ve seen albino possums, seen albino deer,” he said. “Never seen an albino raccoon. And for this one to be as big as it is, it’s just kind of a shock.”

Parrish estimated the albino trash panda (the slang term used to describe the critters nowadays) to be about two or three years old.

Alpha Wildlife released both raccoons back into the wild at a state park, north of the county.

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