#don mcgahn

[mostlysignssomeportents]

Capitalists hate capitalism

As the Marxist agitator Adam Smith once said, “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”

Smith understood that capitalists hate capitalism. They don’t want to compete with one another, because that would interfere with their ability to raise the prices their customers pay and reduce the wages they pay their workers. Thus Peter Thiel’s anticapitalist rallying cry, “competition is for losers,” or Warren Buffett’s extreme horniness for businesses with “wide, sustainable moats.”

These anti-capitalist capitalists love big government. They love no-bid military contracts, they love ACA subsidies for health insurance companies, they love Farm Bill cash for Cargill and Monsanto. What they don’t love is markets.

Case in point: pharma giant Merck. The Inflation Reduction Act (IRA) includes a provision that allows Medicare to (finally) start (weakly) negotiating the prices it pays for (a tiny handful of) drugs. If you’re scratching your head and wondering if you understood that correctly, let me assure you, you did: the US government is currently prohibited from negotiating drug prices when it bargains with pharma companies.

In other words: Medicare simply pays a pharma companies — whose products build on billions in publicly funded basic research, whose taxes are reduced by billions in research credits, whose patents are backstopped by billions in enforcement — whatever it demands.

To do otherwise, you see, would be socialism. Markets are “efficient” because they “discover prices” through bidding and selling. In the case of publicly purchased drugs, the price that Uncle Sucker “discovers” is inevitably “a titanic sum” or possibly “add a couple more zeroes, wouldya?”

Enter the IRA. Starting in 2026, Medicare will be permitted to negotiate the price of ten (10) drugs. The negotiations will use the prices of other drugs from the dysfunctional, monopolized market as a starting point and go up from there. The negotiations go on for three years, and there are multiple stages where pharma companies can hit pause with court challenges:

https://prospect.org/health/2023-05-11-regulators-bungling-drug-price-reform/

The system will not consider the prices that Medicaid or the VA (which are allowed to bargain on prices) pay. Nor will it consider the prices that other governments pay — the US is alone in the wealthy world in offering the anticapitalist price-taking posture when dickering with the pharma companies.

But this isn’t enough for Merck. They are suing the Biden administration over the IRA’s drug pricing plan, arguing that it is an unconstitutional taking under the Fifth Amendment:

https://www.cnbc.com/2023/06/06/merck-sues-biden-administration-over-medicare-drug-price-negotiations.html

Merck is represented by Big Law firm Jones Day, who made their bones by representing the RJ Reynolds from smokers with lung-cancer, arguing that the smoking/cancer link wasn’t scientifically sound. That’s not the only fanciful argument they put before a judge: Jones Day also represented Trump in his attempts to overturn the 2020 election (they also hired Trump’s counsel Don McGahn as he exited the White House’s revolving door).

As Ryan Cooper writes for The American Prospect, Merck’s argument is that the “fair market” value of its drugs can only be discovered if its single largest customer — Medicare — simply pays whatever Merck demands of it:

https://prospect.org/health/2023-06-08-merck-negotiating-drug-prices-unconstitutional/

They explicitly denounce the idea that a powerful buyer should use its market power to extract price concessions from sellers like Merck: “leveraging all federal insurance benefits (amounting to over half of the prescription drug market) to coerce companies to abandon their First and Fifth Amendment rights is a quintessential unconstitutional condition.”

Rebutting this argument, Health Secretary Xavier Becerra said, “negotiating for the best price is as American as apple pie. Since when is competition in this American system a bad thing? Why should we be the patsies around the world and pay the highest prices for medicines?”

The irony here is that Merck itself is a very powerful buyer. Whether negotiating commercial leases, raw materials or wages, Merck is ruthless in extracting the lowest prices it can from its suppliers. The company attained its massive scale the old fashioned way: buying it. By drawing on its nearly limitless access to the capital markets, Merck bought out dozens of its competitors:

https://mergr.com/merck-acquisitions

Anticapitalist investors funded these acquisitions in the expectation that Merck would be able to use its market dominance to pay suppliers less, charge customers more, and use some of the resulting windfall to corrupt and bully its regulators so that it could buy still more companies, charge still higher prices, and impose crushingly low prices on still more suppliers.

The IRA’s drug-bargaining provisions are extraordinarily weak. When they were first mooted in 2021, I talked about how Democrats were caving on muscular drug price controls that would benefit every American (except a handful of pharma shareholders):

https://pluralistic.net/2021/11/18/bipartisan-consensus/#corruption

They did so despite wild, bipartisan support for imposing price discipline on Big Pharma, and ending the 300% premium Americans pay for their drugs relative to their cousins abroad. 95% of Democrats support strong price controls; so do 82% of independents — and 71% of Republicans:

https://www.rwjf.org/en/library/research/2021/11/healthcare-affordability--majority-of-adults-support-significant-changes-to-the-health-system.html

No one believes Big Pharma’s scare stories about how this would kill R&D: 93% of Americans reject this idea, including 90% of Republicans. They’re right — nearly all US basic pharma R&D is directly funded by the federal government, with pharma companies privatizing the gains:

https://khn.org/news/article/public-opinion-prescription-drug-prices-democratic-plan/

Despite the fact that really whipping the shit out of Big Pharma would be both popular and good for America, the Dems’ final version of pharma bargaining is a barely-there nothingburger where ten drugs will become slightly cheaper, after the next federal election. This is called “political realism” and it’s a fantasy.

The idea that limiting drug controls to the faintest, most modest measures would make them easier to attain was obvious nonsense from the start, and Merck’s anticapitalist lawsuit proves it. Merck will settle for nothing less than total central planning — by Merck. For Merck, the role of the federal government is to wave through a stream of mergers culminating in Merck’s ownership of every major drug; patent extensions for these drugs to carry them into the 25th century and beyond, and unlimited sums paid for these drugs on Medicare.

Given all that, there would have been no downside to the Dems passing an IRA that subjected the drug companies the same modest, commensense, market-based discipline we see in Canada, or the UK, or France, or Germany, or Switzerland.

But that’s not the IRA we got. Instead of defending a big, visionary program in court, the Biden admin is facing down Jones Day and Merck to defend the most yawn-inducing, incrementalist half-measure. What a wasted opportunity.

If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/06/09/commissar-merck#price-giver

[Image ID: A caricature of a businessman with a money-bag for a head and a stickpin bearing the Merck logo, standing atop a pile of bundled $100 bills. At the bottom of the pile, a frowning, disheveled Uncle Sam offers up a $100 bill.]

Image: Flying Logos (modified) https://commons.wikimedia.org/wiki/File:Over_$1,000,000_dollars_in_USD_$100_bill_stacks.png

CC BY-SA 4.0 https://creativecommons.org/licenses/by-sa/4.0/deed.en

[darkmaga-returns]

Attorney General is a supremely important position in any administration, as he heads the legal arm of the government. Without a strong legal team many programs and initiatives would simply get bogged down. The Trump transition has put Mark Paoletta in charge of DoJ for the transition period, and that will presumably include input into choosing and vetting candidates for the AG position. He has thrown down the gauntlet to DoJ employees in a lengthy tweet. Before reproducing that tweet, however, you need to know who Mark Paoletta is:

Mark Paoletta is an American attorney who served in roles in the first Donald Trump administration. From January 8, 2018, to January 20, 2021, Paoletta served as general counsel of the Office of Management and Budget (OMB).

Paoletta is a close friend and associate of Supreme Court Justice Clarence Thomas and his wife … He helped participate in Justice Thomas's successful confirmation to the Supreme Court in 1991. Following the January 6 United States Capitol attack, Paoletta represented Ginni Thomas' interactions with the United States House Select Committee on the January 6 Attack. Throughout his legal career, Paoletta has specialized in representing clients in congressional investigations.

On January 5, 2017, Paoletta along with then Vice President-elect Mike Pence, Reince Priebus, Steve Bannon, and Don McGahn helped Donald Trump vet Judge Neil Gorsuch to fill the vacant seat on the Supreme Court.

None of that explicitly tells you what Paoletta’s policy views are—he has, after all, mostly filled positions in which it’s his duty to provide legal support for the president’s policies, not come up with policies on his own. On the other hand, based on his overall profile and associations, the WaPo can probably be forgiven for characterizing Paoletta as “a hard charging conservative.” Here’s his tweet:

Mark Paoletta @MarkPaoletta

President Trump was elected by the American people to carry out his agenda, which includes:

Securing the southern border, mass deportations of illegal aliens (beginning with rapists and murderers), surging resources to process immigration/asylum claims to clear out backlog and end widespread abuse of the asylum system, ending automatic citizenship for children of illegal aliens, and taking federal actions to prevent sanctuary cities from obstructing federal immigration enforcement,

Restoring law and order across our country, including rescuing our cities from mob violence and left-wing soft on crime prosecutors,

Immediately stopping the lawfare and persecution of political opponents that is unprecedented in American history and destroying our democracy,

Granting pardons or commutations to January 6th defendants and other defendants who have been subjected to politically-driven lawfare prosecutions and sentences,

Abolishing DEI in government and taking action against those companies and universities that engage in racial discrimination,

Protecting Americans’ right to speech, religion, and the Second Amendment,

Protecting religious liberties, including investigating and prosecuting the horrific antisemitism ripping through this country,

Protecting parents’ rights from irreparable transgender surgeries and procedures on minor children, and investigating those who have pushed this on minor children;

Paving the way for an energy boom and American Energy Golden Age,

And holding accountable those who weaponized their government authority to abuse Americans.

[protoslacker]

You remember “Russia, if you’re listening” and the flood of social media disinformation. But you’ve never heard the strands of Putin’s attack on the 2016 election tied together like this.

lolgop at Ball of Thread on Apple Podcasts. 1 | By the nuts: Russia's attack on the 2016 election

After reading about the jury returning convicting Trump of 34 felony counts, I felt a bit shaky about how well I've pieced together a story in my own mind. I searched for "Don McGahn" a Republican FEC Commissioner who then became an attorney for Trump. Following the links, I was quickly in the weeds.

This Podcast isn't about Trump's trial and conviction. But it's really good at connecting the campaign finance crimes within the larger picture of corruption.

[mourning-again-in-america]

was trying to figure out how the hell Alina Habba ended up in TrumpWorld, looks like she went to the same law school as Don McGahn

[usnewsper-politics]

Judge Blocks Trump's Gag Order on McGahn, Protecting Constitutional Rights #DonMcGahn #GagOrder #housejudiciarycommittee #subpoena #Trumpadministration

[cavenewstimes]

Donald Trump's White House Counsel Has One Main Job—And He's Failing At It

Don McGahn in the lobby of Trump Tower in New York on January 9, 2017Albin Lohr-Jones/DPA through ZUMA Press Battle disinformation: Register for the complimentary Mom Jones Daily newsletter and follow the news that matters. Donald McGahn, like all White House counsels who have actually served before him, has a broad portfolio however one basic charge: to keep his manager, the president of the…

[shahananasrin-blog]

[ad_1] WASHINGTON — Former President Donald Trump's top lawyer put it bluntly when speaking at a conservative conference five years ago: The goal was to name judges who would help further the administration's deregulation agenda."There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin," White House counsel Don McGahn said onstage at the Conservative Political Action Conference in 2018.That plan is bearing fruit. The Supreme Court’s new nine-month term starts Monday, with three major cases shaped by Trump-appointed judges that could hobble federal agencies already on the docket.The process started when, among other things, prospective Trump nominees were probed about their views on federal agency authority as their records were scrutinized for expertise on the issue, something previous administrations had not done, McGahn said. He cited Justice Neil Gorsuch, then recently appointed to the Supreme Court, as an example of what the White House was looking for.Long after Trump has left office, his judges and justices are making their mark just as McGahn predicted, serving as participants, liberal critics say, in what Trump adviser Steve Bannon called the "deconstruction of the administrative state."In all three cases now before the Supreme Court, Trump-appointed judges were involved in lower court rulings that teed up the legal issues for Supreme Court review. The court’s conservative majority has repeatedly shown its willingness to limit bureaucratic authority.Brianne Gorod of the left-leaning Constitutional Accountability Center said there had been a "long-standing multifaceted conservative attack on the administrative state" that includes two elements.The first is to find suitable plaintiffs to bring the challenges.The second is to ensure there are "judges on the bench who will be receptive to those arguments,” she said.McGahn did not respond to messages seeking comment on how Trump’s approach has fared.Trump made judicial appointments a priority, with the acquiescence of the Republican-led Senate. He appointed 54 appeals court judges and 174 district court judges, as well as three Supreme Court justices. President Joe Biden, aided by a now Democratic-controlled Senate, has followed Trump's lead in trying to fill judicial vacancies as quickly as possible, with considerable success.The Supreme Court hears oral arguments Tuesday in the first of the three regulatory cases currently on the docket. Consumer Financial Protection Bureau v. Community Financial Services Association of America threatens the federal agency that was established to protect consumers from unlawful financial services practices. At issue is whether the mechanism allowing the agency to be funded directly by the Federal Reserve instead of a specific congressional appropriation is unconstitutional.The challengers are represented by Noel Francisco, who served as solicitor general under Trump and, like McGahn, works for the Jones Day law firm. Francisco did not respond to a request for comment.In another case yet to be scheduled, Securities and Exchange Commission v. Jarksey, the justices will consider whether to curb the power of the SEC to bring enforcement actions for securities violations.Finally, the court in Loper Bright Enterprises v. Raimondo will weigh whether to overturn a landmark ruling from 1984 that gave federal agencies leeway to interpret the law when the statute is not clear. It was Gorsuch's critique of that ruling, when serving as an appeals court judge, that helped put him on Trump's radar as a possible Supreme Court nominee.In both the CFPB and SEC cases, the Biden administration is appealing decisions against the government issued by conservative judges on the 5th U.S. Circuit Court of Appeals. In the Loper Bright case, which concerns a challenge to a fishing regulation, the U.S. Court of Appeals for the District of Columbia Circuit, which has a majority of Democratic appointees, ruled in favor of the government.In the CFPB case, all three judges — Don Willett, Kurt Engelhardt and Cory Wilson — were appointed by Trump. The decision against the agency was unanimous. Previously, District Court Judge Lee Yeakel, appointed by President George W. Bush, had ruled for the agency.The Jarksey decision, also by the 5th Circuit, included an all-Republican-appointee panel with one judge, Andrew Oldham, appointed by Trump. The other judges, Jennifer Elrod and Eugene Davis, were appointed by President George W. Bush and President Ronald Reagan, respectively. Davis dissented from the ruling that went against the agency. That case went directly to the appeals court, so there was no district court ruling.in Loper Bright, the appeals court was split 2-1 in ruling in favor of the agency. The majority consisted of Democratic appointees: Judge Sri Srinivasan, appointed by President Barack Obama, and Judge Judith Rogers, appointed by President Bill Clinton. The dissenter was a Trump appointee, Judge Justin Walker. The district court had ruled in favor of the agency in a decision issued by a Democratic appointee, Judge Emmet Sullivan.The 5th Circuit in particular, which has six Trump appointees among its 16 active judges, has a reputation as a favored place for conservative activists and Republicans to bring legal claims.The court includes judges who are "both extreme enough and aggressive enough to issue really kind of astonishing decisions," said Greg Lipper, a lawyer who filed a brief backing the CFPB.Jenn Mascott, a professor at George Mason University law school who filed a brief backing the challenge to the CFPB, pushed back on that assessment, saying that cases are shaped more by the people bringing them and their lawyers than the judges themselves."I really think it's the litigants shaping the claims. They decide what claims to bring. They face the action by the regulatory bodies," she said.There would not be so many cases taking aim at regulatory decisions if federal agencies were more restrained in wielding their power, she added."A lot of what we are seeing now is responding to the very broad actions taken by presidents and agencies under both parties," Mascott said. "I don’t think, no, that the process is particularly political."This article was originally published on NBCNews.com [ad_2]

[posttexasstressdisorder]

Just a few tidbits before McGahn testifies tomorrow!  It’s all coming out now.

[liberalsarecool]

Add Don McGahn to the pile.

Add Don McGahn to the pile.

[s-leary]

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,” Jackson wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States. Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.

[...]

“To make the point as plain as possible, it is clear to this Court ... that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist,” Jackson wrote. 

[dragoni]

Not good news for those who have defied their subpoena to testify; Mike Pence, Mick Mulvaney, Mike Pompeo, Rudy Giuliani, Rick Perry — John Bolton.😂

Will Adam Schiff subpoena Trump? #WalterReed 2

U.S. District Judge Ketanji Brown Jackson ruled that McGahn, who played a major role in former special counsel Robert Mueller’s report focused on Russian interference in the 2016 campaign, must appear before Congress in response to the subpoena, but can assert legal privileges during his testimony.

❤️ Judge Jackson ⚖️

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings,”

“This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

“Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.”

“Moreover, as citizens of the United States, current and former senior-level presidential aides have constitutional rights, including the right to free speech, and they retain these rights even after they have transitioned back into private life.” 

“To make the point as plain as possible, it is clear to this Court ... that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist” 💣