Tag Archives: corruption

Pardons and Their Limits

December 7, 2020 – 9:17 am

Throughout his administration, Donald Trump has tested the limits of presidential power. On his way out the door, he is testing the limits of the pardon power.

This week the Covid pandemic reached new heights and threatened to break America’s hospital system. The total number of American deaths will soon pass the number of combat deaths in World War II.

So of course the White House had not a word to say about any of that. Instead, the President’s attention was absorbed by more pressing problems: the continuing failure of his attempts to overturn the election he lost by seven million votes, and the criminal exposure he and various members of his family and his administration might face come January 21, when he no longer has the power to restrain the career investigators and prosecutors in the Department of Justice.

The first of the expected rush of lame-duck pardons was given to former national security advisor Michael Flynn. Signed the day before Thanksgiving, the text was only released last Monday. [1] Since then, Trump is reported to be discussing pardons for his children, up to 20 members and allies of his administration, and himself. [2]

All of that may yet come to nothing; Trump frequently is said to be thinking about some action that never happens (like releasing a healthcare plan). But given the approaching deadline, it’s worth considering what he can actually do.

Article II. The President’s power to pardon is established in Article II, Section 2 of the Constitution:

The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

That sounds pretty sweeping, but as so often is the case in constitutional law, nearly every word inspires entire articles of analysis. That said, there is one clear limit that just about everyone agrees on: “Offenses against the United States” means federal crimes only. So a presidential pardon won’t protect against prosecutions for violating state laws, or against civil lawsuits.

That’s relevant, because a lot of the post-presidency legal exposure faced by Trump and his family falls outside of his pardon power. He could, for example, try to pardon himself for the seven instances of obstruction of justice that the Mueller report found to be indictable. But if he is guilty of bank and tax fraud (as Michael Cohen has claimed), New York state laws have been violated, and the alleged misappropriation of funds contributed to the Trump Inaugural Committee is a civil suit.

Self-pardons. But that brings up the issue of a self-pardon, which is untested in American law because no previous president has ever tried such a thing. Examined naively, the Article II text would seem to support the idea; it just says “power to grant pardons” with no exceptions other than impeachment.

But North Carolina Law Professor Eric Muller has an interesting interpretation, which ought to appeal to the conservatives on the Supreme Court who claim [3] to believe in Originalism: He can’t find 18th-century usages of grant as a reflexive verb. In other words, one party “grants” something to another; but nobody ever “grants” something to himself.

in the time period from 1750 to 1800 … [t]ransitive uses of the verb—“grant me,” “grant him,” “grant her,” “grant us,” “grant you,” and the like, where the person receiving the grant is different from the person doing the granting—are all common. But reflexive uses, where the person doing the granting is also the person on the receiving end? All but nonexistent.

Leading to the conclusion:

Can Donald Trump pardon himself? Perhaps, but that’s not the question the Constitution requires us to ask. Can Donald Trump grant himself a pardon? The evidence, at least according to the text of the Constitution and its original meaning, says no.

Harvard Law Professor Lawrence Tribe made a similar point to MSNBC’s Lawrence O’Donnell, and added that Article II also stipulates that the President “shall take care that the laws be faithfully executed”. If presidents could pardon themselves, they would instead be exempt from all federal laws — something the Framers clearly did not intend. The King of England might be above the law, but the President of the United States should not be.

We know that the Framers did not bother saying that the president cannot grant himself a pardon, because no one in their right mind would have imagined otherwise.

Specificity. Another problem of constitutional interpretation involves the word pardon itself. What did the Framers think it meant? University of California Law Professor Alan Rappaport argues that the Framers would have seen a pardon as a very specific reprieve from a specific violation of the law.

Most importantly, the Framers would have understood that pardons must be issued for specific crimes. They were not intended to be broad grants of immunity, get-out-of-jail-free cards bestowed by presidential grace.

This would call into question the Flynn pardon, which mentions the specific crime he pled guilty to (lying to the FBI), but also claims to cover

any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

Can such a “broad grant of immunity” really be valid, when President Trump himself may not know exactly what crimes he has put beyond the reach of legal accountability?

The model for this pardon, and for similar pardons Trump is said to be planning for his family and associates, is President Ford’s pardon of former President Nixon, which granted

a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

Well OK, then: If Nixon’s pardon is valid, then Flynn’s should be also. But is Nixon’s pardon valid? It was respected, in the sense that nobody put Nixon on trial. But precisely because Nixon’s pardon was never challenged, no judge has ever ruled on its validity.

So if Flynn has committed some crime “related to the investigation of the Special Counsel”, but not specifically identified in his pardon, the next Attorney General will have the option to indict him for it. During the subsequent trial, Flynn could ask the judge to throw out the indictment, because he had already been pardoned. But that motion would have to make its way up to the Supreme Court, because there is no compelling legal precedent for a lower-court judge to cite.

Trump family members might find themselves involved in some similar proceeding. If, say, Don Jr. gets a pardon vaguely immunizing him from anything he may or may not have done, what happens if he is prosecuted for lying to the Senate Intelligence Committee?

If vague, sweeping pardons aren’t valid, Trump’s other option is to list the crimes his children and close associates might be prosecuted for. While this would quite likely be legally valid, it would essentially be an admission of guilt. Such pardons would start to resemble the truth-and-reconciliation model, where crimes committed by an outgoing regime are excused in exchange for a full accounting of them.

Can a pardon itself be a crime? Yes. In his Senate confirmation hearing, Bill Barr admitted that offering a pardon in exchange for false testimony, or for refusing to testify, would be obstruction of justice.

So while the pardon itself might be valid, the President might commit a new crime by granting it.

In his recent book Where Law Ends, Mueller investigation veteran Andrew Weissmann says that Trump’s public praise of Paul Manafort (in particular for refusing to “break” by cooperating with the Mueller investigation, in contrast to Michael Cohen, whom Trump characterized as a “rat“) amounted to dangling a pardon in exchange for his silence. George Packer’s review of Weissman’s book summarizes:

[Manafort’s] lies were encouraged by the president, who made sympathetic noises about Manafort with the suggestion that stonewalling might earn him a pardon. Trump’s pardon power was an obstacle that the prosecutors didn’t anticipate and could never overcome. It kept them from being able to push uncooperative targets as hard as in an ordinary criminal case.

Similarly, the Flynn pardon and the commutation of Roger Stone’s sentence could be interpreted as obstruction.

Side-effects of pardons. Even if Trump’s family and associates have valid pardons, Congress may decide that it wants to know what happened during the various events they might have been prosecuted for. (What exactly was Rudy doing in Ukraine, anyway? When Flynn talked to the Russian ambassador, what instructions, if any, had Trump given him?) So the pardon recipients might be called to testify before congressional committees.

If they are called, they will have no Fifth-Amendment rights to invoke, because they can’t be prosecuted for crimes that have already been pardoned. If they refuse to testify without invoking a valid privilege, they can be cited for contempt of Congress (which a Biden-appointed US attorney might see fit to prosecute). If they testify and lie, that would be a new crime not covered by their pardons.

Not the end of the story. Ordinarily, a pardon is the end of the story: You did something; you were accused and possibly convicted of it; but a pardon wiped the slate clean and the credits roll.

The pardons Trump is considering, on the other hand, might just be another link in the chain of events. Depending on what Biden’s appointments at the Department of Justice decide [4], investigations and prosecutions could still happen, and the Supreme Court would have some important decisions to make.

And whatever the courts decide, Congress could still investigate, and Trump’s various obstructions of justice could still unravel.

[1] Combined with the previous commutation of Roger Stone’s sentence, the Flynn pardon ties up one of the few remaining loose ends in Trump’s obstruction of the Mueller investigation. The only remaining loose end is Paul Manafort, who quite likely will get his own pardon soon. The 2016 Trump campaign connected to Russia in three main ways, and the Mueller investigation ran aground when it couldn’t get the cooperation of Manafort, Stone, and Flynn.

Paul Manafort was the head of the 2016 Trump campaign until he resigned under fire that August. His associate Konstantin Kilimnik turned out to be a Russian agent. Manafort passed campaign polling data to Kilimnik, for reasons that have never been explained.

The emails that Russia hacked from the Democratic National Committee were given to WikiLeaks. Trump associate Roger Stone appeared to have advance knowledge of what was in them and when they would be released. How the Russia-WikiLeaks-Stone-Trump pipeline worked has never been explained.

Michael Flynn was convicted of lying to the FBI about his conversations with the Russian ambassador during the Obama-to-Trump transition. Flynn and Jared Kushner reportedly were trying to set up a “back channel” to Russia that would circumvent US intelligence agencies. What that was for and what Trump knew about it has never been explained.

[2] Just a suggestion: Don’t forget Melania, Don. You do not want her flipping on you.

[3] I think Originalism is a rhetorical device they use when it’s convenient, not set of principles they actually believe. One key example: There is no way the Framers intended the Bill of Rights to apply to corporations.

[4] So far, Biden and Harris have been saying exactly the right things: Whether or not to prosecute Trump-administration crimes will be decided by the Justice Department, which will regain its independence from political meddling.

Our Justice Department is going to operate independently on those issues, how to respond to any of that. I am not going to be telling them what they have to do and don’t have to do. I am not going to be saying, go prosecute, A, B, or C.

Biden is even said to be planning to keep Christoper Wray as head of the FBI. If Wray’s FBI finds evidence of Trump-era crimes, Biden will not have his fingerprints on those reports.

By weeklysift | Posted in Articles | Comments (18)

This Week in Corruption

May 11, 2020 – 11:18 am

Even by the standards of a historically corrupt administration, this week stood out.

Corruption is an ongoing story in the Trump administration, dating way back to Trump’s refusal to release his tax returns or distance himself from his business empire. The Trump International Hotel, whose building is rented from the federal government, places Trump in the position of being both the renter and the landlord. His cabinet has been riddled with scandal and conflicts of interest. His impeachment by the House was essentially a corruption story, as he tried to extort a personal favor from Ukraine in exchange for doing his duty as president. And as the Senate considered his fate, he raised millions of dollars to re-elect the Republican senators standing in judgement over him.

This week, though, at least three serious corruption stories were current at the same time:

  • The Justice Department dropped its prosecution of former national security adviser Michael Flynn, who had pleaded guilty to lying to the FBI.
  • The recently-deposed director of BARDA (Biomedical Advanced Research and Development Authority) filed a whistleblower complaint alleging “cronyism” and political pressure to ignore the scientific merit of proposals — including (but not exclusively) proposals related to the current pandemic.
  • Tomorrow the Supreme Court will hear Trump’s claim of “temporary absolute immunity” that shields him and his business empire and business associates from any form of investigation.

But at the same time we can’t lose sight of the constant low-level corruption we’ve gotten used to. Like this tweet, in which Trump uses the same Twitter account in which he sometimes announces major government policy changes or personnel moves to promote the re-opening of his Los Angeles golf club. Or putting a crony in charge of the Post Office, which he has long been trying to pressure into raising rates on Amazon, as a way to strike back at Jeff Bezos for owning the Washington Post, which Trump feels mistreats him. Stuff like that happens almost every week.

Flynn. For months we’ve been expecting Trump to pardon Michael Flynn, his first National Security Adviser, who lasted only two weeks in the job before resigning; he had lied to Vice President Pence and to the FBI’s counter-intelligence investigation about his conversations with the Russian ambassador. Flynn pleaded guilty to the charge, and also acknowledged being an unregistered foreign agent while he was working as an adviser to Trump’s 2016 campaign. (Flynn famously led a chant of “Lock her up!” at the Republican Convention.) He later sought to withdraw his guilty plea and attack the Mueller investigation that indicted him. The judge had not yet ruled on that motion.

Pardoning Flynn would tie up one of the remaining loose ends in Trump’s obstruction of justice in the Mueller probe. But now Trump may not have to commit that particular impeachable offense, because Attorney General Bill Barr is trying to accomplish the same thing: Thursday the Justice Department has asked the judge to drop the indictment of Flynn, despite his guilty plea. Former Solicitor General Neal Katyal and fellow Georgetown law professor Joshua Geltzer write:

The Justice Department’s new position isn’t that Mr. Flynn didn’t lie — that couldn’t be its position, because he did lie, and he admitted in federal court that he lied. Instead, the new filing argues that it was wrong for the F.B.I. to interview him in the first place. Look carefully at who the villain becomes in that narrative: not Mr. Flynn for lying, but the F.B.I. for asking the questions to which he lied in response.

Barr’s move is worse than a pardon, as Jeffrey Toobin explains in the New Yorker:

A pardon would have been outrageous but within Presidential prerogative. Instead, the Justice Department manufactured a phony pretext to pretend that Flynn’s guilty plea was illegitimate.

The pretext is based on the recently released documents concerning the FBI’s preparation for the interview in which Flynn lied, which it claims shows the agents planning to entrap Flynn. Further, it claims that the investigation under which Flynn was interviewed — the FBI’s counter-intelligence investigation into possible collusion between the Russian government and the Trump campaign — had already concluded. The closing communication had been written, but not yet approved.

Consequently, the Justice Department motion holds

Mr. Flynn pleaded guilty to making false statements that were not “material” to any investigation.

This contention was disputed in the NYT Sunday by Mary McCord, who had been acting assistant attorney general for national security at the time. The Justice Department’s motion is in part based on an interview with her. She claims it has “twisted my words”.

But the report of my interview is no support for Mr. Barr’s dismissal of the Flynn case. It does not suggest that the F.B.I. had no counterintelligence reason for investigating Mr. Flynn. It does not suggest that the F.B.I.’s interview of Mr. Flynn — which led to the false-statements charge — was unlawful or unjustified. It does not support that Mr. Flynn’s false statements were not material. And it does not support the Justice Department’s assertion that the continued prosecution of the case against Mr. Flynn, who pleaded guilty to knowingly making material false statements to the FBI, “would not serve the interests of justice.”

Trying to dismiss the Flynn indictment echoes Barr’s previous corrupt move: his interference a few months ago in the sentencing of another obstruction-of-justice loose end, Roger Stone. (Interim US attorney for D.C. Timothy Shea signed off on both.)

The case was thrown into disarray last week when Attorney General William P. Barr overruled a sentencing recommendation by four career prosecutors, who then quit the case in protest. Mr. Barr said he decided on his own that the prosecutors’ request for a prison term of seven to nine years was too harsh. But his move coincided with Mr. Trump’s public complaints about the prosecutors’ recommendation and elicited widespread criticism that he had bent to the president’s will.

Similarly here, lead prosecutor Brandon Van Grack withdrew from the case Thursday, apparently so that he would not have to submit the request to withdraw Flynn’s indictment.

What happens next in the Flynn case is not clear. It’s up to the judge whether or not to accept Barr’s motion to dismiss, but ultimately what else can he do? If he allows Flynn to withdraw his guilty plea, then there would have to be a trial. But he can’t force the Justice Department to mount a prosecution.

The judge could hold a hearing on the dismissal motion, including asking Van Grack why he withdrew rather than present it. That might embarrass the government, but wouldn’t convict Flynn. He could dismiss the indictment “without prejudice”, which could allow a Biden Justice Department to pursue the case next year. Barr is asking for a dismissal “with prejudice”, which would prevent any future Justice Department from restarting the case.

Meanwhile, both Trump and Barr are hinting that reprisals are coming against the people who investigated the Trump/Russia connection. Barr said:

I mean, it’s not going to be the end of it. We’re going to get to the bottom of what happened. … We also are seeing if there are people who violated the law and should be brought to justice, and that’s what we have our eye on

and Trump said:

I wouldn’t be surprised if you see a lot of things happen over the next number of weeks. This is just one piece of a very dishonest puzzle. … [Flynn] was targeted in order to try and take down a president. I hope a big price is going to be paid. A big price should be paid. … It’s treason.

Now, Trump says a lot of things that never go anywhere, they just sound good to him in the moment. But he could also be planning some kind of show trial against someone like James Comey.

I’ll give the last word to Steven Hall, the retired CIA Chief of Russian Operations:

I’m no lawyer, so I won’t comment on Flynn from that perspective. But I was an intel officer, and I can tell you there are serious counterintelligence issues. Flynn should never have a clearance again.

And another thing: I’ve met with many foreign intel chiefs, most of whom at one point or another expressed admiration for American rule of law. Some begrudgingly. It’s going to be much harder now to make the case for that, and as a result, the US has been weakened.

Dr. Bright’s complaint. The part of Dr. Rick Bright’s whistleblower complaint that got headlines was the conflict over hydroxychloroquine that seems to have been the immediate cause of Bright losing his directorship. But the complaint is worth reading in full as a horror story. The part that I found most agonizing happened in January, as Bright tried to get his superiors (Trump political appointees) interested in procuring more N-95 masks.

Secretary Azar and Dr. Kadlec responded with surprise at Dr. Bright’s dire predictions and urgency, and asserted that the United States would be able to contain the virus and keep it out of the United States. Secretary Azar further indicated that the CDC would look at the issue of travel bans to keep the virus contained. Dr. Bright responded that virus “might already be here. We just don’t have the tests to know one way or the other.” Dr. Bright’s comments were met with skepticism and were clearly not welcome. … As a result of the critical concerns raised by Dr. Bright in the January 23, 2020, meeting with Secretary Azar, HHS leadership excluded him from the next COVID-19 meeting, even though the agenda listed Dr. Bright as a participant.

He had similar frustrations over Covid-19 tests, swabs, reagents, syringes, and just about everything else that we now wish the government had prepared better. But the administration had bet all its chips on keeping the virus out of the country, and didn’t want to draw attention to the possibility that it might get in.

There is, of course, nothing inherently corrupt about lack of foresight and bad decisions, even if those bad decisions get many people killed or infect healthcare workers with a deadly virus. But Bright also tells a series of stories in which some drug company employs John Cherici as a consultant, and then Clerici deals directly with Assistant Secretary for Preparedness and Response Kadlec, who puts pressure on BARDA to ignore the recommendations of its scientists.

from approximately the spring of 2017 through the date of his involuntary removal as Director of BARDA, HHS leadership pressured Dr. Bright and BARDA to ignore expert recommendations and instead to award lucrative contracts based on political connections and cronyism. Dr. Bright repeatedly clashed with Dr. Kadlec and other HHS leaders about the outsized role played by John Clerici, an industry consultant to pharmaceutical companies with a longstanding connection to Dr. Kadlec, in the award of government contracts.

Bright’s complaint does not explain exactly what the deal with hydroxychloroquine was: Did somebody stand to make a lot of money, or was Trump’s prestige the thing at stake? (Bright may not know.) But for whatever reason, Bright was under pressure to sign off on a protocol that would make hydroxychloroquine “available for the treatment of COVID-19 outside a hospital setting and without close physician supervision” — despite the lack of scientific evidence of the drug’s effectiveness and concerns about its safety.

Absolute immunity. Remember Stormy Daniels? That whole scandal seems almost quaint now, being about nothing more serious than illicit sex and campaign finance laws. No deaths, no undermining of US foreign policy or the rule of law, no hundreds of millions of dollars, no Russians choosing our president for us. But Michael Cohen is in jail, in part because his pay-off of Daniels on Trump’s behalf constituted an illegal campaign contribution.

An issue that was never resolved in Cohen’s trial is whether the Trump Organization reimbursed Cohen for those illegal campaign contributions, and how it reported those expenses on its tax filings. The Manhattan District Attorney Cyrus Vance Jr., a county official, appears to be investigating whether any New York state laws were violated. In the course of his investigation, he subpoenaed eight years of Trump’s personal and corporate tax returns. The subpoena was issued not to Trump, but to his accountants.

Trump has sued to block that subpoena, arguing not only that he is personally immune from indictment under state as well as federal laws, but that he cannot be investigated either. Law professors Claire O. Finkelstein and Richard W. Painter explain in the New York Times:

Mr. Trump claims that a president has “temporary absolute immunity,” meaning he cannot be criminally investigated while in office. Indeed, in oral argument before the U.S. Court of Appeals for the Second Circuit in New York, his lawyers said that if the president were to shoot someone on Fifth Avenue, he could not be investigated or indicted until after he left office.

Apparently, this immunity also extends to any underlings at the Trump Organization who might have fudged the business records, as well as to his accountants.

Finkelstein and Painter do a pretty good job laying out how Trump’s claims contradict what the Supreme Court held in the Nixon tapes case and in the Paul Jones case. George Conway (Kellyanne’s husband) wrote of the briefs in the Paula Jones case. He explains that while a President may have a variety of immunities when he is acting in his official capacity, what he does as a private individual — like pay off troublesome porn stars before taking office — is not protected.

The law seems clear, so the corruption question moves to the Supreme Court, which begins hearing the case tomorrow: Will its five partisan Republican justices enforce the law against a Republican president? Or will they find some way to twist the law to give him what he wants? If they do, Finkelstein and Painter warn, the Republic is in real trouble.

If the justices endorse this extreme view, they will make it impossible to hold this president, and all future presidents, answerable in courts for their actions.

Conway seems confident that the Court will “teach the lesson” that the President is not above the law. But even if it doesn’t, I’m not that worried about future presidents, at least not if they’re Democrats. The five Republican justices are perfectly capable of reversing themselves once a Democrat takes office.

By weeklysift | Posted in Articles | Comments (3)

Trump Is Still Eating Souls

April 27, 2020 – 11:56 am

I really don’t want to talk about injecting Clorox, but I kind of have to.

To start with: Don’t do it. Disinfectants work by killing living things. You are a living thing. Complete the syllogism.

With that out of the way, the thing to focus on here isn’t that Trump said something monumentally stupid Thursday. He does that; it’s usually not quite this bad, but he says stupid things fairly regularly. On the whole, I think I’d rather have him saying incredibly, ridiculously stupid things rather than run-of-the-stupid-mill things — like that you should take dangerous drugs that haven’t been tested yet — because fewer people are likely to believe him and do harmful things to themselves or others. (Though apparently some did believe him this time too.)

No, the really scary thing about the inject-disinfectant story is what happened next. DHS Undersecretary William Bryan (who had just talked about the effectiveness of sunlight and bleach in killing coronavirus on surfaces — not inside the body) was still standing near the podium, and Dr. Deborah Birx was sitting a few feet away, and neither jumped in to protect public health by telling people not to do what the President just suggested.

Within a minute or two, Bryan was asked a question by a reporter, and he didn’t backtrack to tell people not to inject themselves with bleach. Even later, when a reporter specifically asked “But I — just, can I ask about — the President mentioned the idea of cleaners, like bleach and isopropyl alcohol you mentioned. There’s no scenario that that could be injected into a person, is there? I mean —”, Bryan said “no” in a deflecting way, not calling it out.

No, I’m here to talk about the findings that we had in the study. We won’t do that within that lab and our lab.

In other words: “No, that’s not my department”, not “No, that’s a really bad idea.” Later, on Fox News, Birx did this bit of spin.

When [President Trump] gets new information, he likes to talk that through out loud and really have that dialogue and so that’s what dialogue he was having. I think he just saw the information at the time immediately just before the press conference and he was still digesting that information

Assume that’s true for a second: It’s still political malpractice. Imagine any previous president “digesting information” about a crisis on national TV in real time. Picture George W. Bush — not my favorite president — digesting what his generals are saying about Iraq and spitballing whatever crosses his mind. “Couldn’t we just nuke them? We’re going to wargame that, right?”

I can only assume that both Bryan and Birx have made the same calculation: Protecting public health is less important than protecting the President’s fragile ego. Admitting that Trump said something stupid is a good way to get fired — and then maybe no one in the administration would care about public health.

And so Bryan and Birx have been corrupted by the soul-eating process James Comey described a year ago: First you don’t interrupt when Trump lies about trivial things like his inauguration crowd. Then you give in to peer pressure and flatter him in public.

Next comes Mr. Trump attacking institutions and values you hold dear — things you have always said must be protected and which you criticized past leaders for not supporting strongly enough. …

It bothers you, at least to some extent. But his outrageous conduct convinces you that you simply must stay, to preserve and protect the people and institutions and values you hold dear. Along with Republican members of Congress, you tell yourself you are too important for this nation to lose, especially now. … Of course, to stay, you must be seen as on his team, so you make further compromises. You use his language, praise his leadership, tout his commitment to values.

And then you are lost. He has eaten your soul.

By weeklysift | Posted in Articles | Also tagged | Comments (9)

Economies Aren’t Built to Stop and Restart

March 23, 2020 – 10:23 am

As of this morning, Republicans and Democrats in Congress still hadn’t agreed on a stimulus/bailout package for the economy. (Global markets are once again plunging this morning.) The parties agree on the need for extra government money, and even seem to agree on the size ($1.8 trillion). The remaining issues are who gets the money and what kinds of strings should be attached to it.

It’s far too easy to jump straight into the partisan back-and-forth of the issue — and we’ll get to that — but first I’d like to review why government intervention is needed in the first place.

It starts with a simple truth: Modern capitalist economies are supposed to be perpetual-motion machines. They’re never supposed to stop, and so there is no obvious way to restart them.

Right now, though, we’re in a situation where much of the US (and global) economy needs to stop. To prevent (or perhaps just slow) the spread of the COVID-19 virus, people need to stay home and stay away from all but a handful of other people. So industries that depend on gathering people together (sports, bars and restaurants, live entertainment, conventions, schools, retail malls) need to come to a halt. Industries that depend on travel (airlines, hotels, tourism) need to stop as well. If a factory employs a large number of people at the same location and and has them touch a lot of the same objects, it has to stop. Services in which practitioners touch their clients (barber shops, beauty salons, massage therapists) or enter people’s homes (cleaners, dog-walkers) or invite people to enter their homes (music teachers) have to stop.

How long? We’re not sure. Probably until summer. Maybe longer.

Then what?

There are basically two problems, or rather one problem relating to two kinds of entities: people and businesses. How do they survive until things start up again?

Our models for thinking about economic dislocations like this are natural disasters like hurricanes, floods, or earthquakes. But none of those models quite fit, because the economic infrastructure hasn’t been damaged. There are still plenty of places to live in America and plenty of foods to eat. The fields, mines and factories are still there. Nothing needs rebuilding, we just need to survive until the virus is gone and then restart. But how?

People. Long before COVID-19 got started, studies had revealed that about half of American households live paycheck-to-paycheck. Around 40% would have had trouble coming up with $400 to cover some surprise expense. Now that the economy is pulling back to just food and healthcare, large numbers of those people will be without paychecks until summer (or maybe fall).

They don’t make it without some kind of help. Some of them could rely on family or friends, but many couldn’t. And what if those families and friends are financially stressed at the same time? After all, American society is economically stratified: Rich people tend to know rich people, and people on the edge tend to know people on the edge.

The problem, as I said above, isn’t a shortage of stuff. It’s that people can’t earn money to pay for the stuff they need. Somebody needs to collect or create enough money to get them through and figure out a way to distribute it. The federal government is really the only institution set up to do that.

Businesses. If you’re a minimum-wage worker, the business that employs you — whether it’s a corner restaurant or a giant manufacturer like Boeing — seems incredibly rich. And it probably is, as long as the perpetual-motion machine of the economy keeps running. But American business, large and small, runs on debt. Debt requires interest, but in normal times a successful business generates plenty of revenue to cover that interest.

Very few businesses, though, are set up to survive without revenue for even a fairly short amount of time. Nobody has a plan for that, because it wasn’t supposed to happen. Economies don’t just stop.

But now large chunks of the economy are stopping. The problem shows up first in businesses that have a lot of debt and are supposed to generate a lot of revenue. Airlines, for example, borrow to buy their planes. (And banks or bond investors are happy to lend them the money, because an airliner is good collateral — as long as airlines go bankrupt one at a time and aren’t all looking to sell off their planes simultaneously.) On a smaller scale, restaurants rent their space, and may rent their fixtures as well.

Both Delta and Joe’s Diner have employees — pilots and cooks, respectively — they really can’t afford to lose. Restarting will be tricky if they have to go out and find new ones quickly. So even if you don’t have anything for them to do in the meantime, you really want to maintain their employment somehow.

Add all that up — rent, interest, and some kind of salary to essential employees — and a business runs out of capital in a hurry. I’ve seen an estimate that the airlines will all be bankrupt by May, and Boeing is likely to go down with them. That’s likely just the beginning. The auto companies can’t operate their factories. And if enough large and small businesses can’t repay their loans, banks will go under. We saw in 2008 how far the ripples of a banking collapse can spread.

So this crisis may have started as a health crisis, but it quickly turns into a financial crisis. And we know from 2008 how hard those are to solve.

Preserving business preserves inequality. Imagine that we get to October and COVID-19 is gone — there’s a treatment of some sort, or maybe the infection has just run its course. The government has pumped out enough money to keep everybody eating and living somewhere, so the 99% of the population that survives is ready to go back to work.

But where do they go? A few companies — Amazon, maybe, and possibly the big grocery chains and internet providers — have actually prospered. Others (Apple, for example) had big cash hoards that kept them going. But the majority of business have gone belly-up. Eventually, the market would probably sort that out. New businesses would arise to fill the demand for air travel or hotel rooms or meals out or whatever. But it could be a long painful process.

The alternative is that the government could keep businesses going the same way that it kept people going. It could float big low-interest loans or buy stock or just write checks. So all the businesses survive, and are ready to rehire people at the same time that people are ready to go back to work.

There are two problems with that scenario. First, it’s an awesome amount of money, and (since we don’t know when the pandemic ends) nobody has a good estimate how much we’re talking about. And second, the government would not just be preserving the workplaces of workers, it might also be preserving the fortunes of rich people. There’s good reason to want the economy to be in a position to restart, but why does it have to restart in the same place?

That was what was so unpopular about the bailouts of 2008-2009. Government money didn’t just save the financial system, it saved the banks and the bankers who arguably had crashed everything to begin with.

This time around, you can already see the problem with the first bailout candidates: the airlines and Boeing. The airlines go into the crisis short of cash because they spent it all on stock buybacks. Robert Reich isn’t having it:

The biggest U.S. airlines spent 96% of free cash flow over the last decade to buy back shares of their own stock in order to boost executive bonuses and please wealthy investors. Now, they expect taxpayers to bail them out to the tune of $50 billion. It’s the same old story.

Boeing entered the crisis in a weakened state because of safety problems with the 737 Max. The company cut corners and airplanes crashed. If they’d won that gamble, the profits would have stayed with the company and its shareholders. But they lost it, and now they need to be bailed out with public money.

And those are just the companies that need help right away. Once we establish the pattern of bailing out big companies hurt by the virus, how do we say no to the companies that run out of money in June or August? How much will that take?

There’s also a too-big-to-fail problem again. The main proposal for helping small business is via government loans. The proprietor of a dog-walking service in Philadelphia doesn’t see the sense of that:

We have no idea what sort of landscape we will return to when this is all over. Will we come back to 90% of our previous business if this ends in two months? If this goes on for four months, will 50% of our clients be laid off themselves and unable to rehire us? If this goes for a year, will we have any clients or employees left? Will we have to start from scratch with nothing but our reputation?

Two weeks ago, a bank would not underwrite a loan without a clear business plan. Right now, none of us can do any sort of business forecasting for what our revenue is going to look after this Covid-19 pandemic recedes, but we’re being told to take out loans. That is not sound business advice. It’s the government passing the buck to the very job creators that employ millions of Americans.

But a major employer like Boeing will probably get free money, not just a loan.

The corruption problem. The most efficient way to distribute whatever cash the government sets aside for bailouts is to have a simple process overseen by a single person. In the current proposal, that person would be Treasury Secretary Steve Mnuchin.

The problem, though, is that a streamlined process is open to corruption. Maybe WalMart gets bailout money because its owners support conservative causes, and Amazon doesn’t because Jeff Bezos owns the Washington Post. Or maybe Amazon does get money, but not until after the Post starts covering the Trump more favorably. (That’s a bad example, because neither WalMart nor Amazon is likely to need bailing out, but you see the point.)

That would be a disturbing possibility in the best of times, but it’s particularly troublesome with the current administration and its history of self-dealing. The gist of the Ukraine scandal was that Trump is willing to use the powers of his office to gain unfair political advantages. How can he (or a Treasury Secretary who has shown no ability to say no to him) be trusted to dole out large sums of money?

And while we’re at it: If the hotel industry ultimately gets a bailout, won’t a chunk of that money go straight to the Trump Organization? How can we trust the Trump administration to judge fairly the amount of public subsidy the President’s business needs?

The Warren principles. That’s why Senator Warren has put forward eight principles that would control bailouts:

  • Companies must maintain payrolls and use federal funds to keep people working.
  • Businesses must provide $15 an hour minimum wage quickly but no later than a year from the end
  • Companies would be permanently banned from engaging in stock buybacks.
  • Companies would be barred from paying out dividends or executive bonuses while they receive federal funds and the ban would be in place for three years.
  • Businesses would have to provide at least one seat to workers on their board of directors, though it could be more depending on size of the rescue package.
  • Collective bargaining agreements must remain in place.
  • Corporate boards must get shareholder approval for all political spending.
  • CEOs must certify their companies are complying with the rules and face criminal penalties for violating them.

The legislation Majority Leader McConnell is trying to push through the Senate doesn’t fulfill those conditions. In particular, it includes $500 billion for Secretary Mnuchin to distribute with very few strings attached. Paul Krugman had already criticized such a proposal in advance:

as Congress allocates money to reduce the economic pain from Covid-19, it shouldn’t give Trump any discretion over how the money is spent. For example, while it may be necessary to provide funds for some business bailouts, Congress must specify the rules for who gets those funds and under what conditions. Otherwise you know what will happen: Trump will abuse any discretion to reward his friends and punish his enemies. That’s just who he is.

According to Politico:

the language drafted by Senate Republicans also allows Mnuchin to withhold the names of the companies that receive federal money and how much they get for up to six months if he so decides.

So if he were to simply hand a few billion to the Trump Organization in mid-May, no one need hear about it until after the election.

By weeklysift | Posted in Articles, This Week's Challenge | Also tagged | Comments (23)

Accelerating Corruption and Autocracy

February 24, 2020 – 10:48 am

Ever since he came down the escalator pledging to protect us from Mexican rapists, Donald Trump has shown corrupt and autocratic tendencies. Before long, he was leading chants about locking up his political opponents, welcoming Russian help in his campaign, encouraging his supporters to be violent, profiting off of campaign events, and saying that he would only accept the election results “if I win“.

Since taking office, he has funneled public money into his private businesses, continued building his wall without a Congressional appropriation, refused all demands for financial transparency and Congressional oversight, obstructed the Mueller investigation, assembled the most corrupt cabinet since Nixon, lied many times per day, and repeatedly expressed his envy of dictatorial regimes like North Korea and China.

But the authoritarian drift has definitely accelerated in the three weeks since every Senate Republican but Mitt Romney voted to let Donald Trump remain in office, despite proven abuses of power. As Atlantic’s Adam Serwer puts it, Trump’s acquittal marked “the end of the Trump administration, and the first day of the would-be Trump Regime.” Think about what we’ve seen since the Senate’s abdication of its constitutional role in controlling would-be autocrats.

A purge of “disloyal” officials. The disloyalty here is not to the United States, but to the person of Donald Trump.

Lt. Colonel Alexander Vindman, for example, has behaved exactly as an officer should: When something about Trump’s Ukraine call seemed odd to him, he reported his concerns up the chain of command. When Congress subpoenaed him, he appeared and testified honestly. For this, he was not just fired, but escorted out of the White House like a criminal. His twin brother, who played no role in the impeachment hearings, was also fired just out of vindictiveness. (Fortunately, the Army has refused Trump’s suggestion that Lt. Col. Vindman be investigated and disciplined.)

Other people who are now gone: Ambassador Bill Taylor, Ambassador Gordon Sondland, Ambassador Marie Yovanovich, Undersecretary of Defense John Rood, and Deputy National Security Adviser Victoria Coates. They join everyone in the FBI who had any connection to the original Russia investigation, most of whom were purged long ago: James Comey, Andrew McCabe, Peter Strzok, Bruce Ohr, and Lisa Page, as well as the Justice Department leadership that refused Trump’s pressure to shut the investigation down: Jeff Sessions and Rod Rosenstein.

The purge is expected to continue throughout the administration. (See below for purges at the Office of the Director of National Intelligence.)

Interference in the Stone trial. It’s important to understand what Roger Stone (along with Paul Manafort and Michael Flynn) represents: the last loose ends in the obstruction of the Mueller investigation. (One of the obstruction-of-justice claims explored in Part II of the Mueller Report was that Trump engaged in witness-tampering with Manafort, including hinting at a pardon.)

Stone was the Trump campaign’s link to WikiLeaks and from there to the Russians who hacked Democratic computers. Manafort was the campaign’s link to Russian oligarch Oleg Deripaska, and from there to Russian intelligence. Flynn’s relationship with Russian Ambassador Segei Kislyak (in particular why Flynn and Jared Kushner approached him about creating a “back channel” to Russia) has never been explained. These men are not just Trump’s “friends”, they’re his accomplices.

In the Stone case, Trump (through Bill Barr) reversed the prosecutors’ sentencing recommendation (causing all four prosecutors to withdraw from the case rather than participate in political corruption of the processes of justice), attacked the judge, and attacked a juror. He didn’t stop Judge Amy Berman from sentencing Stone to 40 months in prison, but he did set up his justification for a post-election pardon, along with pardons of Flynn and Manafort. This would send a clear message to anyone else who could testify against Trump: Keep your mouth shut and the boss will take care of you.

Notice what has been missing from Trump’s defense of Stone: acknowledgment of the fact that he’s guilty. Stone lied to Congress to protect Trump, and he threatened a witness who could expose that lie. A jury of his peers unanimously found that Stone’s guilt had been proved beyond a reasonable doubt.

Pardons for money. Corrupt Illinois Governor Rob Blagojevich got the attention, but the most obviously corrupt of Tuesday’s pardons was tax evader Paul Pogue, whose family has contributed over $200K to the Trump Victory Fund. Criminal financier Michael Milken was pardoned after a request from billionaire Nelson Peltz, a Milken business associate who had just hosted a Trump fundraiser that netted the campaign $10 million.

Pardons to maintain a corrupt network. Jeffrey Toobin pointed out the authoritarian flavor of the other Tuesday pardons:

Authoritarianism is usually associated with a punitive spirit—a leader who prosecutes and incarcerates his enemies. But there is another side to this leadership style. Authoritarians also dispense largesse, but they do it by their own whims, rather than pursuant to any system or legal rule. The point of authoritarianism is to concentrate power in the ruler, so the world knows that all actions, good and bad, harsh and generous, come from a single source. …

In this era of mass incarceration, many people deserve pardons and commutations, but this is not the way to go about it. All Trump has done is to prove that he can reward his friends and his friends’ friends.

Trump’s pardons did not percolate up through the Justice Department’s Pardon Attorney. They all had some personal connection to Trump or his circle of friends and donors. Blagojevich, for example, was a contestant on “Celebrity Apprentice”, and his wife pleaded for his pardon on Fox News shows Trump is known to watch. (It’s worth noting that there is no doubt about Blagojevich’s guilt. We have the tapes.) Bernard Kerik was a crony of Rudy Giuliani.

All the beneficiaries of Trump’s mercy were convicted of the kinds of white-collar crimes Trump’s people might commit themselves. That was the point, Sarah Chayes (who covered Afghanistan for more than a decade) explained in “This Is How Kleptocracies Work“:

In return for this torrent of cash and favors and subservience, those at the top of kleptocratic networks owe something precious downwards. They owe their subordinates impunity from legal repercussions. That is the other half of the bargain, without which the whole system collapses.

That’s why moves like Trump’s have to be advertised. … Trump’s clemency came not at the end of his time in office, as is sometimes the case with such favors bestowed on cronies and swindlers, but well before that—indeed, ahead of an election in which he is running. The gesture was not a guilty half-secret, but a promise. It was meant to show that the guarantee of impunity for choice members of America’s corrupt networks is an ongoing principle.

Threats to the rule of law. The Justice Department had retained some measure of independence until Bill Barr became attorney general. Trump’s first attorney general, Jeff Sessions, shared Trump’s policy goals, but respected internal procedures for maintaining the rule of law. For example, he recused himself from the Russia investigation because of his own connection to the Trump campaign — a move which angered Trump and for which Sessions was never forgiven.

But Barr has made a number of moves in the Justice Department to shield Trump from investigation and intimidate his enemies. The best summary I’ve found is by Marcy Wheeler:

  • The Stormy Daniels hush-money investigation sent Michael Cohen to prison, but all the follow-up evaporated after Barr took over at DoJ. Cohen claimed he worked under Trump’s instructions, and that the Trump Organization reimbursed his illegal campaign contribution. But those leads have been dropped.
  • SDNY seems to be slow-walking its investigation into Rudy Giuliani’s Ukraine shennanigans, now that a new US attorney has been appointed. The head of the neighboring Eastern District of New York has been put in charge of Ukraine-related investigations that SDNY had been pursuing.
  • A new US attorney in D.C. has led to a “review” of investigations there, including cases involving Michael Flynn and Erik Prince.
  • Barr assigned Connecticut US attorney John Durham to investigate the origins of the Trump/Russia investigation. Anyone tempted to investigate further Trump wrongdoing now knows that they risk becoming targets themselves.
  • Barr tried to stop the Ukraine whistleblower’s account from reaching Congress, and did not recuse himself even though he is mentioned in the complaint.

Tightening control of the intelligence services. Like the Justice Department, the intelligence services maintained their independence when Dan Coates was Director of National Intelligence, and the subsequent acting heads had failed to bring them under control.

As a result, occasionally conclusions unfavorable to Trump have made it to Congress or the American public: Russia did help elect Trump in 2016. North Korea is not denuclearizing. ISIS is not defeated. Trump may not like to hear such facts, or to allow the American public to know them, but the whole point of having intelligence services is to correct the leadership’s misperceptions.

The most recent example was a February 13 briefing to House leaders of both parties, in which Shelby Pierson, an aide to then-acting DNI Joseph Maguire, reported that Russia was repeating its 2016 interference in the 2020 election process, again for the purpose of electing Trump.

You might expect an American president to react to such news by giving Vladimir Putin a stern warning to back off — as Bernie Sanders did when told that the Russians might be working to help him win the Democratic nomination. But no: Trump welcomed Russian help in 2016, sought to extort Ukrainian help with the 2020 election, and seems to welcome further Russian help now.

The intelligence report did make him angry, but at the intelligence services. He dismissed Maguire and replaced him with Richard Grenell, who has no intelligence background whatsoever. In a Washington Post column, retired Admiral William McRaven lamented Maguire’s fate:

in this administration, good men and women don’t last long.

In a different article, the WaPo quotes a former director of the National Counterterrorism Center:

Nothing in Grenell’s background suggests that he has the skill set or the experience to be an effective leader of the intelligence community. … His chief attribute seems to be that President Trump views him as unfailingly loyal.

As Ambassador to Germany (a position he still holds), Grenell was noted for his identification with right-wing parties like Alternative for Germany. (US ambassadors typically avoid such partisan interference in the politics of our NATO allies.) The German news magazine Der Spiegel couldn’t get an interview with Grenell, so it interviewed more than 30 sources including “numerous American and German diplomats, cabinet members, lawmakers, high-ranking officials, lobbyists and think tank experts.”

Almost all of these sources paint an unflattering portrait of the ambassador, one remarkably similar to Donald Trump, the man who sent him to Berlin. A majority of them describe Grenell as a vain, narcissistic person who dishes out aggressively, but can barely handle criticism. … They also say Grenell knows little about Germany and Europe, that he ignores most of the dossiers his colleagues at the embassy write for him, and that his knowledge of the subject matter is superficial.

Oh, by the way, Grenell used to work for a corrupt Moldavian oligarch, but didn’t register as a foreign agent. Under any previous administration, he wouldn’t be able to get a security clearance.

Grenell in turn has ousted the #2 intelligence official, Andrew Hallman, replacing him with Devin Nunes staffer Kashyap Patel, who is known for promoting pro-Trump conspiracy theories. More personnel changes are expected.

The NYT reports that Grenell has “requested the intelligence behind the classified briefing last week before the House Intelligence Committee where officials told lawmakers that Russia was interfering in November’s presidential election and that President Vladimir V. Putin of Russia favored President Trump’s re-election”.

This move recalls how Vice President Cheney abused intelligence during the Bush administration: By “stovepiping” raw intelligence to his own office rather than letting it pass through the analytic process, Cheney was able to manipulate conclusions that favored the policies he preferred, most notably the invasion of Iraq.

Summing up. If you don’t follow US government closely, you may not see the problem. After all, the President is in charge. Why shouldn’t the people under him do what he wants? Isn’t that how it always works?

It isn’t, and there are good reasons why it doesn’t. One problem — you might fairly say it was THE problem — the Founders were trying to solve when they wrote the Constitution was how to control executive power. Unfettered executive power quickly becomes dictatorship, and the rights of the People are then only as safe as the Dictator allows them to be.

For that reason, power was divided among the three branches of government, so that Congress and the Courts would be able to hold the President in check. Congress got the power of the purse and the power of oversight, both of which are now in jeopardy.

Subsequent to the Founding, executive power has also been controlled through the professionalization of the various departments, each of which balances political control by the President with its own inherent mission. So the Justice Department takes its policy from the President, but pursues the departmental mission of justice. The intelligence services try to find truth, the EPA protects the environment, the CDC defends public health, the military safeguards our country and its allies, the Federal Reserve balances economic growth against the threat of inflation, and so on. For the most part, presidents have known when to keep their hands off.

Until Trump. More and more, Trump makes everything political. There is no truth other than the story Trump wants to tell. There is no mission other than what Trump wants done.

Students of authoritarianism have been warning us about his dangerous tendencies since he first began campaigning. But, as Rachel Maddow noted Friday night, we are well past the time for warnings. “The dark days are not ‘coming’,” she said. “The dark days are here.”

By weeklysift | Posted in Articles | Also tagged , , | Comments (11)

He’s not going to stop on his own

September 23, 2019 – 11:43 am

If Democrats put off impeachment until Trump does something worse, he’ll do something worse.

This week’s biggest news story unfolded slowly, and we still don’t have it all.

Flouting the law. Early in the week, the story centered on yet another example of the Trump administration flouting the law: On August 12, a whistleblower in the intelligence community filed an official complaint, which the the IC’s inspector general (Trump appointee Michael Atkinson) found to be “a credible urgent concern” on August 26. Invoking that phrase legally requires the Director of National Intelligence (acting DNI Joseph Maguire, who got the job after Dan Coats was let go; on July 28 Trump tweeted that Coats would leave on August 15) to pass the complaint on to the House and Senate Intelligence Committees. But he did not do so.

House Intelligence Chair Adam Schiff wrote to Maguire on September 10:

In an unprecedented departure from past practice, you have not transmitted the disclosure to the Committee, nor have you notified the Committee of the fact of the disclosure or your decision not to transmit it to the Committee. Instead, in a manner neither permitted nor contemplated under the statute, you have taken the extraordinary step of overruling the independent determination of the [Intelligence Community Inspector General] and preventing the disclosure from reaching the Committee.

He followed this up with a September 13 letter, which appears to be a response to the DNI’s refusal to produce the complaint. This letter accuses the DNI’s office of

a radical distortion of the statute that completely subverts the letter and spirit of the law, as well as arrogates to the Director of National Intelligence authority and discretion he does not possess.

The DNI’s action

raises grave concerns that your office, together with the Department of Justice and possibly the White House, are engaged in an unlawful effort to protect the President and conceal from the Committee information related to his possible “serious or flagrant” misconduct, abuse of power, or violation of law.

The letter concludes with a subpoena to deliver the complaint by September 17, or to appear before the committee to explain why on September 19. Maguire refused to do either one.

Mr. Schiff told CBS that Mr. Maguire had told him he was not providing the complaint “because he is being instructed not to, that this involved a higher authority, someone above” the director of national intelligence, a cabinet position.

That “higher authority” can only be the President.

What the complaint is about. Up to that point, no one — including Schiff or any other members of Congress — knew anything about the substance of the complaint, or why it was worth breaking the law to suppress. But then details began to leak out.

Wednesday the Washington Post reported that the complaint involved a conversation Trump had with a foreign leader.

Trump’s interaction with the foreign leader included a “promise” that was regarded as so troubling that it prompted an official in the U.S. intelligence community to file a formal whistleblower complaint

Naturally, pundits speculated about Vladimir Putin, but Thursday the New York Times reported that the complaint involved Ukraine, and included “other actions” beyond just a phone conversation.

Thursday night, Trump’s personal lawyer Rudy Giuliani let the cat out of the bag in an interview with CNN’s Chris Cuomo. It kind of has to be seen to be believed. Rudy claimed CNN won’t cover Obama/Biden scandals in Ukraine, but when Cuomo asked for the proof Giuliani says he’s assembled, he yelled, “I’m not going to give you proof!” Later in the interview he repeated that refusal and explained “You’re the enemy!” Giuliani kept on yelling:

You won’t cover it! But you want to cover some ridiculous charge that I urged the Ukrainian government to investigate corruption! Well I did, and I’m proud of it!

Just that fast, it goes from a “ridiculous charge” to something he’s proud to have done.

Friday, the Wall Street Journal reported

President Trump in a July phone call repeatedly pressured the president of Ukraine to investigate Joe Biden’s son, according to people familiar with the matter, urging Volodymyr Zelensky about eight times to work with Rudy Giuliani on a probe that could hamper Mr. Trump’s potential 2020 opponent.

Yesterday, Trump admitted he talked to Zelensky about Biden and his son, but insisted there was nothing improper in the call. However, so far he has refused to release the transcript. (As he so often does when he’s trying to deflect criticism, he says he’s “considering” releasing it. He considers a lot of things that never happen — sitting down with Robert Mueller, for example.)

By now we seem to know this much: On July 25, Trump talked to new Ukrainian President Volodymyr Zelensky, pressuring him to investigate a story (largely unsupported by facts, as Chris Cuomo lays out) that as Vice President, Biden pressured Ukraine to fire a prosecutor who had investigated his son. [2]

On August 30, Trump was reported to be considering withholding $250 million in military aid that Congress had appropriated for the Ukraine (which badly needs the aid because it is under persistent attack from Russia, which has already taken Crimea from Ukraine). On September 1, Mike Pence met with Zelensky in Warsaw. Schiff’s letter demanding the whistleblower complaint is September 10, and aid to Ukraine is released on September 12.

We still don’t know what “other actions” the complaint talks about.

Now let’s connect the dots. Those are all just facts; now I start to speculate. It appears that Trump tried to coerce Ukraine into taking action that would help his re-election campaign.

This would be an unprecedented abuse of power. Constitutionally, presidents have sweeping power over American foreign policy, but using that power to extort partisan political favors from foreign countries is an enormous breach of trust.

However, this also would be entirely consistent with everything we know about Trump. One character trait that has been consistent all through his administration is that he can’t compartmentalize. He can’t keep his government trips separate from his campaign rallies. His people can’t keep their political campaigning separate from their taxpayer-supported jobs. He can’t separate his business from his administration, or his family from his government. He can’t keep from blurting out secrets when he talks to the Russian ambassador.

Each previous president has understood the distinction between his person and the office he held. Each has understood that the power of the presidency is a trust from the People of the United States, to be used for the benefit of the nation. Sometimes presidents have crossed that line — for example, by bringing a foreign issue to a head when they needed a distraction from a domestic issue that was going badly for them — but they all knew the line was there.

Trump simply doesn’t grasp this. He is the President, so the power of the presidency is his, to do with as he likes. Sometimes that might be for the benefit of the nation (as he understands it), but he may also use that power to enrich himself and his family, cover up his mistakes, reward his friends, or strike at his enemies. And if, as in this case, the opportunity to get a partisan advantage from a foreign power presented itself, I doubt he would see anything wrong with pursuing it. One purpose of foreign aid is to make other countries do what the president wants, and this president wants Ukraine to investigate Joe Biden.

What should be done? First, no one should give Trump the benefit of the doubt on this, because he’s the one withholding information. If the whistleblower complaint [1] is as laughable as he says, he could just instruct DNI Maguire to release it so we can all enjoy the joke. If his conversation with Zelensky is as “perfect” as he says, he can release the transcript for us all to admire.

But if he won’t reveal those pieces of evidence, it’s probably because they don’t support his version of events. We all know this from childhood: If somebody stole the candy, and there’s one boy who won’t take his hands out of his pockets, you can bet that those hands are chocolate-stained.

Second, Politico’s legal affairs columnist Renato Mariotti makes an excellent point: It’s important not to try to shoehorn this abuse of power into the definitions of more typical crimes.

If what Trump is accused of doing is true, it is a kind of corrupt conduct that the criminal system is not equipped to handle. Labeling his behavior with criminal terms such as bribery and extortion not only misunderstands the statutory language, it gives Trump and his supporters ammunition with which to defend themselves, making impeachment—the proper constitutional remedy for presidential corruption—harder to achieve.

We have seen this happen already with the Russia investigation: Criminal conspiracy became the standard of judgment, and when Mueller didn’t find proof beyond reasonable doubt of Trump’s participation in that conspiracy (perhaps because his obstruction of justice worked), Trump could crow about “no collusion”. What Mueller did establish — that Trump knew about and welcomed an attempt by an enemy nation to get him elected — would have sunk any previous administration. But because winking at a foreign dictator’s attack on our democracy is not an indictable crime, Trump could claim “total exoneration“.

Trump and his defenders are already trying to spin things the same way in this case, by claiming that no explicit quid-pro-quo came up in the Zelensky conversation. (Trump’s near-simultaneous blocking of military aid Ukraine desperately needs was just a coincidence.) Quid-pro-quo would be a key element of a bribery or extortion charge, but it misses the point here. Mariotti continues:

Labeling Trump’s alleged conduct as “bribery” or “extortion” cheapens what is alleged to have occurred and does not capture what makes it wrongful. It’s not a crime—it’s a breach of the president’s duty to not use the powers of the presidency to benefit himself.

That kind of breach is what impeachment is for, and “No one should expect law enforcement to act if our elected representatives are unwilling to do so.”

Impeachment politics. It’s important to recognize that this is just another in a long series of impeachable offenses. If the evidence turns out to be what as it seems now, this may be the most flagrant violation yet, but it’s far from the only one.

  • The Mueller Report collected evidence of seven instances of obstruction of justice. (It examined ten possible obstructions, but found that three of them failed to include all three elements in the definition of obstruction.) Mueller himself refused (because of DoJ policy) to conclude that the president had committed a crime, but literally hundreds of former federal prosecutors have signed a statement saying that the evidence in the Mueller Report would be enough to indict Trump if DoJ policy did not forbid indicting a sitting president.
  • Trump’s business relationships with foreign countries and foreign governments violate the Constitution’s Emolument Clause. (Again, the reason we don’t have more complete information about this is that Trump is withholding it. Until he releases his tax returns and other relevant documents, he doesn’t deserve any benefit of the doubt.) So far, Democrats have left this violation to the courts, but that is not the proper jurisdiction. Oversight of the Executive Branch is a fundamental congressional responsibility. The primary issue is abuse of power, which is a political judgment, not a legal one.
  • Trump’s self-dealing — using presidential power to channel public money into his businesses, as well as getting government entities to do PR for his properties — is another abuse of power.
  • His stonewalling of Congress’ legitimate oversight authority — claiming ridiculous privileges, refusing subpoenas, and flouting laws requiring the administration to turn over documents — threatens the constitutional separation of powers.
  • His declaration of a phony emergency and subsequent pilfering of money to build his wall threatens the constitutional separation of powers.

As I’ve explained before, impeachment is not just about crimes, it can also be Congress’ only way to defend our system of government and maintain its status as an equal branch, if the President refuses to respect that equality. We’re at that point now.

The objection to impeachment among House Democrats isn’t that there is no case, it’s that the politics are wrong: The majority of voters aren’t there yet; some purple-district Democratic congresspeople might lose their seats if they vote to impeach; bringing impeachment to a vote and failing might be worse than doing nothing; likewise, impeaching Trump only to see the Senate acquit him might be counter-productive.

Nate Silver sums up this point of view:

I don’t understand how impeachment serves as more effective deterrent against impeachable conduct when the opposition impeaches even when it would politically benefit the president to do so (& he’d remain in office). That actually incentivizes impeachable conduct, in fact.

But Elizabeth Warren sees it differently:

A president is sitting in the Oval Office, right now, who continues to commit crimes. He continues because he knows his Justice Department won’t act and believes Congress won’t either. Today’s news confirmed he thinks he’s above the law. If we do nothing, he’ll be right.

What tips me over to Warren’s point of view is that this is not going to stop. Trump will push until he finds the line that Congress will defend. If that line hasn’t been reached yet, then he’ll push further.

Up until now, I have argued against those who worry that he’ll lose the election and refuse to leave office. And if the election happened today, I still think the system would stand against that usurpation. But if standards are allowed to continue eroding, who can say where they will be by November 2020 or January 2021?

Even Nancy Pelosi seems to recognize the seriousness of this moment:

I am calling on Republicans to join us in insisting that the Acting DNI obey the law as we seek the truth to protect the American people and our Constitution.

This violation is about our national security. The Inspector General determined that the matter is “urgent” and therefore we face an emergency that must be addressed immediately.

If the Administration persists in blocking this whistleblower from disclosing to Congress a serious possible breach of constitutional duties by the President, they will be entering a grave new chapter of lawlessness which will take us into a whole new stage of investigation.

Republicans. Democrats hesitate to pursue impeachment because they expect Republicans to refuse to defend the Republic and the Constitution against a president of their own party.

So far, for example, Mitt Romney is the only Republican in Congress who has expressed even a slight concern about either the flouting of the whistleblower law or the abuse of power allegedly described by the suppressed complaint. And his mildly expressed tweet is unlikely to make the White House quiver in fear.

If the President asked or pressured Ukraine’s president to investigate his political rival, either directly or through his personal attorney, it would be troubling in the extreme. Critical for the facts to come out.

My attention is focused on North Carolina Senator Richard Burr, the Republican who chairs the Senate Intelligence Committee. DNI Maguire’s refusal to release the whistleblower complaint is snubbing Burr in the same way that it snubs House Intelligence Chair Schiff. Will he roll over and accept that diminishment of his authority? Up until now, the Senate committee has been less partisan than the House committee. His Democratic counterpart, Senator Warner of Virginia, seems to express bipartisan confidence:

Senator Mark Warner of Virginia, the top Democrat on the Senate intelligence panel, said on Thursday that he and the committee’s Republican chairman, Senator Richard Burr of North Carolina, also expected both the inspector general and acting director to brief them early next week and “clear this issue up.”

We’ll soon see if that confidence is justified. If Burr demands to see the complaint, then things get interesting.

But in any case, if the Democratic majority in the House won’t move forward with impeachment, Senate Republicans will never be put on the spot. It may be true that they will respond in a corrupt and cowardly way. But if the question is never put to them, they don’t have to expose their corruption and cowardice.

Above all, Democrats need to ask themselves: If the abuse doesn’t stop here, with Trump pressuring a foreign leader to dig up dirt on his major rival, where will it stop?

[1] One important point is often getting shuffled aside: When government officials leak information to the press, critics ask why they didn’t do things “the right way”, by going through the official whistleblowing process. By all accounts, this whistleblower has done everything according to the proper legal process, and so far it is not going well: The complaint has not reached Congress, and it appears that the DNI has not protected his identity. The Justice Department (which has no role in the official process) has been consulted, and quite possibly the White House as well.

People throughout the government are watching. What many of them are learning, I suspect, is that if they know about wrongdoing, their only effective choices are to keep quiet or go to the press. I’m sure the Washington Post would be doing a better job of getting the complaint heard while protecting the whistleblower’s identity.

[2] The short version of the context is that Biden was one of many people pressuring Ukraine to get rid of the corrupt prosecutor, for a variety of reasons unconnected to Biden’s son. The dismissed prosecutor also claims that his Biden investigation had already concluded (without charges) before he was fired.

By weeklysift | Posted in Articles | Also tagged , | Comments (14)

What makes Donald Trump so smart?

June 3, 2019 – 9:26 am

Trump wants to believe, and wants us to believe, that he’s very intelligent.
But what kind of intelligence is he talking about?

When Donald Trump first described himself as an “very stable genius” — and was roundly ridiculed for doing so — I figured it was just one of those unfortunate phrases that sometimes slip out in the back-and-forth of social media. (I hate to think what a close inspection of my Facebook activity log would turn up.) But when he chose to repeat it just a week or so ago, it became clear that he really means it. Apparently “extremely stable genius” is part of the self-description that bounces around inside his head.

He also puts a lot of stock in the intelligence of others, or at least in its lack: Many of his insults directed at others target their intellect. Recently he tweeted that North Korean dictator Kim Jong Un had called Joe Biden a “low-IQ individual”, a comment that made him smile. (Kim’s assessment of Trump himself as a “dotard” is apparently long forgiven.) Politico notes:

In recent years, Trump has accused Rep. Maxine Waters (D-Calif.), actor Robert De Niro, Washington Post staffers, former President George W. Bush, comedian Jon Stewart, Republican strategist Rick Wilson, MSNBC host Mika Brzezinski, and Rick Perry, now his energy secretary, of having low IQs.

Back in 2013 he tweeted:

Sorry losers and haters, but my I.Q. is one of the highest -and you all know it! Please don’t feel so stupid or insecure, it’s not your fault.

Apparently, though, not everyone does know it. (According to CNN’s Anderson Cooper, Trump claiming that everyone agrees with him is a tell that he’s lying.) Rex Tillerson called him a “fucking moron” and Jim Mattis said he had the understanding of “a fifth or sixth-grader”. Numerous other high-ranking Trump appointees (John Kelly, Steve Mnuchin, Reince Preibus, H. R. McMaster) have referred to him as an “idiot”, with former economic advisor Gary Cohn adding that he is “dumb as shit”.

You might imagine that insults like this naturally fly back and forth in a high-pressure environment like the White House. But I haven’t come up with a comparable example from the previous administration, where someone who worked closely with President Obama claimed he had below-average intelligence. Maybe I’ve just forgotten.

How to prove you’re smart. Trump could of course settle all this by releasing an IQ test, the way that he has often demanded that others (Barack Obama and Elizabeth Warren come to mind) release personal information to prove their claims. He could also support his “stable genius” claim by releasing stellar grades, or pointing to some singular academic honor (like Bill Clinton and Pete Buttigieg can point to their Rhodes scholarships, or Barack Obama his presidency of the Harvard Law Review).

Or he could demonstrate his intelligence to us directly, by speaking to the American people about difficult subjects and impressing us with the clarity of his thought. Barack Obama used to do that. I’ve often come away from an Obama speech feeling like I had learned something, and understood some topic in a way I never had before.

He could show an ability to think on his feet. He could submit to unscripted questions from voters or journalists. And rather than go off into a word salad of free association, he could answer those questions with facts (that are actually true) and insights the questioners hadn’t anticipated. I have attended a bunch of New Hampshire townhall meetings in the last few presidential cycles and watched politicians do this, some more skillfully than others. John McCain was brilliant at fielding whatever question anyone wanted to throw at him, even after he had been on his feet for hours. So was Chris Christie. I didn’t have to agree with their conclusions to appreciate their intelligence.

Obama could even face an audience of enemies and answer whatever questions they raised. He once went to  retreat of the House Republican caucus and owned the room. They couldn’t touch him. The best evidence that they knew they were beaten is that they never invited him back.

A different kind of smart. But maybe I look for that kind of evidence because I don’t define smart the same way Trump does. Maybe my notion of intelligence is self-serving: I was good at tests and classes, so that’s what I look for. I’m good with words and explaining things, so that’s how I want intelligence to be judged.

But maybe when Trump looks in the mirror, he sees a different kind of smart.


The best evidence that he does comes from a 2016 debate with Hillary Clinton. Clinton suggested that Trump doesn’t release his tax returns because

maybe he doesn’t want the American people, all of you watching tonight, to know that he’s paid nothing in federal taxes, because the only years that anybody’s ever seen were a couple of years when he had to turn them over to state authorities when he was trying to get a casino license, and they showed he didn’t pay any federal income tax.

Trump didn’t dispute Clinton’s claims, but spun them in a positive direction: “That makes me smart.”

To me, that suggests a whole different vision of human intelligence and its uses. Maybe life is a game where we’re all trying to gain advantages over each other. And anybody can claim an advantage they deserve. Millions of Americans, for example, avoid paying taxes by being poor; that’s not very smart. But claiming an advantage you don’t deserve, like not paying taxes when you’re rich — you have to be pretty smart to do that.

As soon as I understood that simple notion, I began to appreciate Trump’s genius. Once you know what kind of intelligence you’re looking for, you can see it all through his life.

Avoiding military service is smart. Risking your life is not smart at all, especially if there are other people who can serve in your place.

Trump avoided the draft during the Vietnam War by getting a medical deferment based on having bone spurs on his feet. But are those bone spurs real? The daughters of the (now dead) podiatrist who signed off on the bone-spur claim believe their father made the diagnosis as a favor to Trump’s father. “Elysa Braunstein said the implication from her father was that Mr. Trump did not have a disqualifying foot ailment.”

Democratic candidates Pete Buttigieg and Seth Moulton are simpletons by comparison. They could have avoided risking their lives in Afghanistan and Iraq without faking anything; all they had to do was not volunteer. But like many people less smart than Trump, they try to make the issue about him rather than them. Buttigieg said:

If you’re a conscientious objector, I’d admire that. But this is somebody who, I think it’s fairly obvious to most of us, took advantage of the fact that he was the child of a multimillionaire in order to pretend to be disabled so that somebody could go to war in his place.

And Moulton put it like this:

I don’t think that lying to get out of serving your country is patriotic. It’s not like there was just some empty seat in Vietnam. Someone had to go in his place. I’d like to meet the American hero who went in Donald Trump’s place to Vietnam. I hope he’s still alive.

As with so many controversies, Trump could easily clear this up: He could release x-rays of his feet.

Stiffing your contractors is smart. In 2016, USA Today documented hundreds of examples of Trump refusing to pay for work he had hired individuals or contracted small businesses to do. (YouTube lets you watch several of his contractors tell how they were short-changed.)

Michael Cohen’s testimony backed up USA Today’s reporting:

Some of the things that I did was reach out to individuals, whether it’s law firms or small businesses, and renegotiate contracts after the job was already done, or basically tell them that we just weren’t paying at all, or make them offers of, say, 20 cents on the dollar.

Vox summarizes the tactic:

The basic Trump method, established as far back as his Atlantic City casino days, goes like this:

  • First, Trump contracts with someone to do some work for him.
  • Second, the work gets done.
  • Third, Trump does not pay for the work.
  • Fourth, the people Trump owes money threaten to sue him.
  • Fifth, Trump offers to pay a small fraction of the sum they originally agreed on.

The person Trump owes money to is now faced with an unattractive choice. He can accept 20 or 30 percent of what he is owed right now. Alternatively, he can hire a lawyer and fight out a lawsuit that might take months or years. Since Trump is rich and has lawyers on his staff, it’s nothing to [him] to fight an extended legal battle. And since Trump is the one not paying the bill, delay is inherently in his favor.

If you’ve ever had work done for you, you probably paid the money you agreed to. That’s because you’re not as smart as Donald Trump.

Choosing the right parents is smart. The reason Donald became rich isn’t that he’s a great businessman, it’s that his father Fred was a great businessman — and a brilliant tax evader. (That apple didn’t fall far from the tree.)

Last October, the New York Times published its research on how much Donald got from Fred: at least $413 million, “much of it through tax dodges in the 1990s”.

The most overt fraud was All County Building Supply & Maintenance, a company formed by the Trump family in 1992. All County’s ostensible purpose was to be the purchasing agent for Fred Trump’s buildings, buying everything from boilers to cleaning supplies. It did no such thing, records and interviews show. Instead All County siphoned millions of dollars from Fred Trump’s empire by simply marking up purchases already made by his employees. Those millions, effectively untaxed gifts, then flowed to All County’s owners — Donald Trump, his siblings and a cousin. Fred Trump then used the padded All County receipts to justify bigger rent increases for thousands of tenants.

Dealing with Russian oligarchs is smart. According to Foreign Policy,

By the early 1990s [Trump] had burned through his portion of his father Fred’s fortune with a series of reckless business decisions. Two of his businesses had declared bankruptcy, the Trump Taj Mahal Casino in Atlantic City and the Plaza Hotel in New York, and the money pit that was the Trump Shuttle went out of business in 1992. Trump companies would ultimately declare Chapter 11 bankruptcy two more times. When would-be borrowers repeatedly file for protection from their creditors, they become poison to most major lenders and, according to financial experts interviewed for this story, such was Trump’s reputation in the U.S. financial industry at that juncture.

The money for the Trump Organization’s comeback came mostly from overseas, and particularly from Russia, where the fall of the Soviet Union had created new billionaires who didn’t trust the Russian legal system and so wanted to get their money out of the country. The Center for American Progress investigated the many business ties between the Trump Organization and Russian oligarchs.

After the fall of the Soviet Union, it was vital to get the money out of Russia without a trace, stashing it away from the prying eyes of tax agencies or law enforcement. Clandestine transfer was particularly critical if that money represented proceeds of a crime. Foreign real estate soon emerged as a preferred safe harbor.78 And because the Trump Organization reportedly had a reputation for not asking too many questions, Russian money flowed into Trump’s properties. … In September 2008, Donald Trump Jr. famously boasted of the Russian money “pouring in” and then observed that, “Russians make up a pretty disproportionate cross-section of a lot of our assets.”84

CAP’s Moscow Project goes into more detail:

Some of the individual deals have attracted attention, most notably the Russian fertilizer magnate Dmitry Rybolovlev’s 2008 purchase of one of Trump’s mansions in Palm Beach. He paid a reported $95 million for it—$53 million more than Trump paid for it four years earlier. The transaction has received scrutiny from investigators, particularly because, though Trump justified the price increase by claiming he had “gutted the house” and spent $25 million on renovations, there were few apparent alterations. Such rapid and unexplained increases in price are frequently cited as red flags for money laundering through real estate.

It’s worth noting that the overall Florida real estate market had crashed between 2004 and 2008. Not many Florida property owners were smart enough to double their money during that period.

Trading in your wives is smart. Trump’s brilliance is not restricted to the business world. That whole “forsaking all others” and “till death do you part” thing is just another example of a contract that smart people can wriggle out of. Only suckers grow old with their first spouses, watching their bodies sag and wrinkle with age.

Ivana may have been a 28-year-old model when Trump married her in 1977, but by 1992 she was over 40 and had given birth to three Trump children. Her body was a depreciated asset by that point, so Trump moved on to Marla Maples, who he had met in 1989 when she was 25, and began a relationship with well before his divorce from Ivana. Trump and Maples then divorced in 1999, possibly because he had started dating 28-year-old Melania in 1998.

This short account leaves out his various affairs unrelated to marriage, like Stormy Daniels and Karen McDougal, as well as the women he has bragged about “grabbing by the pussy“.

At 72, is he done trading for newer models? Melania will turn 50 in 2020, a milestone no previous Trump wife has ever reached.

Employing undocumented immigrants is smart. American workers and green-card holders may have a lot of virtues, but they’re expensive and have a tendency to insist on their rights, all of which is very inconvenient for a business trying to make a profit.

Naturally, then, Trump’s clubs and golf courses have a long history of employing undocumented immigrants. It’s a win-win thing.

Angulo learned to drive backhoes and bulldozers, carving water hazards and tee boxes out of former horse pastures in Bedminster, N.J., where a famous New Yorker was building a world-class course. Angulo earned $8 an hour, a fraction of what a state-licensed heavy equipment operator would make, with no benefits or overtime pay. But he stayed seven years on the grounds crew, saving enough for a small piece of land and some cattle back home.

Now the 34-year-old lives with his wife and daughters in a sturdy house built by “Trump money,” as he put it, with a porch to watch the sun go down.

It’s a common story in this small town [in Costa Rica].

Other former employees of President Trump’s company live nearby: men who once raked the sand traps and pushed mowers through thick heat on Trump’s prized golf property — the “Summer White House,” as aides have called it — where his daughter Ivanka got married and where he wants to build a family cemetery.

“Many of us helped him get what he has today,” Angulo said. “This golf course was built by illegals.”

Cheating people who trust you is smart. The image Trump has consistently presented, particularly in The Art of the Deal, is of a brilliant businessman who received relatively little help from his father or Russian oligarchs, but made billions through his own remarkable abilities.

Who wouldn’t want to learn the secret tactics and techniques of such a successful money-maker? That was the premise of Trump University, a series of workshops and courses available to anybody who believed in the story Trump told about himself. The ads said:

He’s the most celebrated entrepreneur on earth. . . . And now he’s ready to share—with Americans like you—the Trump process for investing in today’s once-in-a-lifetime real estate market.

It was a con, one aimed not at bankers or other real-estate moguls or the government, but at “Americans like you”.

Jason Nicholas, a sales executive at Trump University, recalled a deceptive pitch used to lure students — that Mr. Trump would be “actively involved” in their education. “This was not true,” Mr. Nicholas testified, saying Mr. Trump was hardly involved at all. Trump University, Mr. Nicholas concluded, was “a facade, a total lie.”

Retirees and other folks who couldn’t afford to lose the money were encouraged to max out their credit cards to pay Trump U’s fees. After all, one of Trump’s get-rich secrets was to use other people’s money.

If he hadn’t been elected president, Trump might have stalled the lawsuits from his marks students long enough to get them to settle for far less than the $5 million profit he’s estimated to have made off them. But after the election he decided he needed to make this potential scandal go away, so he settled for $25 million.

Sometimes it’s smart to let the smaller con go so you can pursue the bigger con.

Profiting from public office is smart. Previous presidents have either put their investments in a blind trust or moved them into non-conflicting vehicles like treasury bonds. No law forced them to do this, it was just a political norm that they assumed voters cared about.

It took someone as ingenious as Trump to realize that voters actually don’t care, or that they’ll get used to conflicts of interest that occur on a massive scale.

This effect is similar to the Big Lie technique developed in Germany before World War II: Ordinary people tell little lies, so they’re well practiced at spotting them. But a big lie requires the kind of audacity that ordinary people lack. Since they can’t conceive of telling such a lie, they assume there must be some truth behind it. As one German leader put it: “It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously.”

Same thing here: Ordinary people understand small-scale cheating, so they’ll get upset if a politician hires an illegal immigrant as a nanny, for example. But if a president spends over $100 million of public funds on golfing at his own properties — more or less just transferring money from the Treasury into his own pocket — it goes right past them. They’ll care if contributions to a Clinton charity might get you an appointment with the Secretary of State, but if $200,000 paid directly to the President gets you membership in a club he visits almost every weekend, and might result in an ambassadorship, or even put you in a position to run a major government agency, it is so bold that people assume it must be OK.

Ditto for the people who contribute to Trump’s campaign: A big chunk of their contribution goes straight into his pocket, because the campaign is run through Trump properties. Since he became the 2016 nominee, Republican Party events have also largely been moved to Trump properties, generating a considerable profit. It’s right out there in the open, so it can’t be corrupt, can it?

He also profits from foreign governments and US companies who want to get in good with him: They are major patrons of the Trump International Hotel and Trump World Tower. The favors they want come from Trump the President, but the payments go to Trump the businessman.

A related issue is corruption throughout the administration. If one cabinet secretary is corrupt, he or she will stand out and be a scandal. But if nearly all of them are, the story is too big for the public to comprehend.

Changing your beliefs is smart. When Trump was breaking into New York society as the son of a new-money upstart, it was a good idea to profess New York ideas. In 1999, for example, he told Meet the Press:

Well, I’m very pro-choice. I hate the concept of abortion. I hate it. I hate everything it stands for. I cringe when I listen to people debate the subject. But, you still, I just believe in choice.

In the past, he also has supported gay rights and even trans rights. Over time, though, all that has vanished as he has harmonized his views with the Evangelical Christians who form a large part of his base.

Picture it: If you had been a pro-choice, pro-gay-rights, Bible-ignorant, twice-divorced libertine so comfortable in your debauched image that you can joke in public about incest with your daughter, would it have occurred to you that you could become the darling of the religious right? Could you have pulled that transition off?

That takes a kind of genius most of us can’t even imagine.

What about you? If you are a Trump supporter and look too closely at Trump’s ex-wives, Trump U students, or the pro-choice and LGBTQ people who trusted him, you might have a disturbing thought: At some point in the future, he might be able to gain some advantage from double-crossing you too.

Would he do that? Well, ask yourself this: Wouldn’t that be the smart thing to do?

By weeklysift | Posted in Articles | Also tagged | Comments (16)

Impeachment: On second thought …

April 29, 2019 – 11:20 am

Just as I was turning against impeachment, Trump changed my mind.

Last week I re-examined my prior standards and determined that removing Trump from office was a job for the voters, not for the impeachment process. That judgment went against my inclinations, but my purpose in writing down general standards last summer (long before I knew what the Mueller investigation would find) had been precisely that: to keep me from warping my standards to match the facts available.

The logic behind my conclusion was that impeachment needs to be a forward-looking process, not a backward-looking one. (I hadn’t put it that concisely until just now, but that really is the gist of it.) When presidents have done bad things, most of the time the right solution is to wait for the term to expire and elect somebody else, then prosecute the ex-president for any crimes. Impeachment shouldn’t be a form of punishment, but rather a break-glass-in-case-of-emergency option. You impeach not because a president is guilty, but because leaving him or her in office is dangerous.

That’s why treason and bribery are the crimes explicitly mentioned in the Constitution: If the president is under the control of some foreign power or wealthy paymaster, that’s dangerous. The country can’t wait for the next election, not because of what the president has done, but because of what the president might do between now and then.

As you might imagine, my model didn’t look kindly on the Clinton impeachment. I understand why some people would be outraged or embarrassed by the sexual revelations in the Starr Report, and might have wanted to punish Clinton in some way. But by no stretch of the imagination was it dangerous to leave him in office, and in fact the country did just fine after the Senate failed to remove him.

From that point of view, Mueller’s failure to find evidence of Trump conspiring with Putin was the key point. Leaving in power a president who was beholden to a foreign dictator would be precisely the kind of situation that impeachment is meant for. Mueller did find considerable evidence of Trump obstructing justice, and I hope both that the voters will take that seriously and that he’ll be prosecuted for it after he leaves office. But it’s not the same kind of emergency.

That said, I don’t think the Mueller Report is the final word on Trump’s culpability. I think we still need to know whether he is being financially influenced by Moscow, Saudi Arabia, China, or private interests in the US. And with regard to the other scandals of the administration, from Stormy Daniels to the widespread corruption in the cabinet to Jared’s clearance, Congress should be acting to collect information for the 2020 voters, who, if they are doing their duty by our founding principles, will resounding kick Trump out of office. (If they don’t, we’ve got bigger problems that just a bad president.)

So it’s very disturbing that Trump is once again upping the stakes: The Washington Post’s Steve Vladeck summarizes:

Trump, characteristically, seems to be taking the sort of fight most of his predecessors have had with the legislative branch and making the stakes far greater — and the possible damage far worse — than ever before.

The administration’s emerging position appears to be that Congress does not really have the power to investigate the president, at least not when one chamber is controlled by his political adversaries, even if whatever information it seeks might eventually be used in an impeachment proceeding. That’s a deeply disturbing argument, and one that, if successful, would tilt the separation of powers, perhaps irrevocably, toward the executive branch.

And the NYT’s Charlie Savage went into detail:

On Wednesday, the Justice Department said a civil rights division official, John Gore, would defy a subpoena to testify on Thursday about its addition of a citizenship question to the census. This week, White House lawyers indicated that they would tell the former White House counsel Donald F. McGahn II and other former officials not to comply with subpoenas for their testimony, a person familiar with the legal strategy said.

Mr. Trump has also sued to block a congressional subpoena of his accounting firm, Treasury Secretary Steven Mnuchin missed a deadline to turn over Mr. Trump’s tax returns to lawmakers and the former head of White House personnel security, Carl Kline, ignored a subpoena ordering him to appear for a deposition about overriding recommendations to deny security clearances.

Together, the events of the week made clear that Mr. Trump has adopted a strategy of unabashed resistance to oversight efforts by the House — reveling in abandoning even the pretense of trying to negotiate accommodations and compromise with the institution controlled by his political opponents.

“The president is attempting to repeal a congressional power of oversight that goes back to the administration of George Washington,” said Charles Tiefer, a former longtime House lawyer who is now a University of Baltimore law professor. He said “the comprehensiveness and intensity of this presidential stonewalling” exceeded anything he had seen in his 40-year career.

In other words, he wants to stop Congress from collecting information that would help the voters make their judgment about him and his administration, or that could reveal additional avenues for impeachment. And that changes the game: If the president interferes in this way, he’s preventing not just Congress from doing its job, but the voters as well. If that’s allowed, then the idea that removing Trump is the voters’ job falls apart — and once again, impeachment becomes necessary.

That thought sent me back to look at “What is impeachment for?” again. My fourth legitimate reason for impeachment is:

Congress has no other way to protect itself or the judiciary from presidential encroachment. This is not explicitly stated anywhere in the Constitution, but constitutional government doesn’t work otherwise. Congress necessarily relies on the executive branch to carry out the laws it passes. Presidents famously find loopholes that allow them to do things they want and avoid doing things they don’t want. But if a president ignores clear laws or disobeys direct court orders, Congress has to have some way to preserve the powers of the legislative and judicial branches of government. Waiting for the next election isn’t good enough, because (once the pattern is established) the next president might usurp power in the same way. Impeachment is the ultimate arrow in Congress’ quiver.

That’s the situation we seem to be in at this moment. If Trump won’t submit to the same level of congressional oversight that all previous administrations have allowed, that’s reason to impeach.

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Mueller by Gaslight

April 1, 2019 – 8:52 am

Last Monday, Special Counsel Robert Mueller’s report had only been finished for a few days, and Attorney General Bill Barr’s first letter to Congress had only come out the day before. All through this process, I’ve been urging patience over speculation, so my initial impulse was to give Barr the benefit of the doubt, at least for a little while. After all, he was promising to do the right thing:

[M]y goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.

His second letter, written Friday, fleshed that out a little.

I anticipate we will be in a position to release the report by mid-April, if not sooner.

In between, though, Trump and his supporters have gone on a scorched-earth victory lap. First he claimed a vindication that so far is not supported by the available facts,

No Collusion, No Obstruction, Complete and Total EXONERATION. KEEP AMERICA GREAT!

He went on to demand revenge against the enemies who supported investigating the President’s dubious relationship with Russia in the first place.

Congressman Adam Schiff, who spent two years knowingly and unlawfully lying and leaking, should be forced to resign from Congress!

Trumpists in Congress — who said nothing when Schiff’s predecessor Devin Nunes ran the House Intelligence Committee in a thoroughly partisan manner — joined in:

Republicans in Congress and the White House are calling for Rep. Adam Schiff to resign his position as the Chair of the House Intelligence Committee. The president and his supporters say Schiff perpetuated a false narrative about Trump and his potential illegal activities.

At a rally in Grand Rapids Trump listed his enemies — Schiff, Jerry Nadler, the media — and led a chant of “Lock them up!“. Lindsay Graham, who chairs the Senate Judiciary Committee wants to investigate the people who investigated Trump:

We need a special counsel to look at the potential crimes by the Department of Justice — the FBI — regarding the Clinton e-mail investigation and the Russian investigation against Trump early on.

Trump also wants revenge against the media.

So funny that The New York Times & The Washington Post got a Pulitzer Prize for their coverage (100% NEGATIVE and FAKE!) of Collusion with Russia – And there was No Collusion! So, they were either duped or corrupt? In any event, their prizes should be taken away by the Committee!

(MSNBC’s David Guru examined how the NYT and WaPo reporting holds up: pretty well, it turns out.)

The Trump campaign sent out a memo asking networks to blacklist critics of the administration:

“Moving forward, we ask that you employ basic journalistic standards when booking such guests to appear anywhere in your universe of productions,” the memo read. “You should begin by asking the basic question: ‘Does this guest warrant further appearances in our programming, given the outrageous and unsupported claims made in the past?‘”

The memo, written by communications director Tim Murtaugh, lists Sen. Richard Blumenthal (D-Conn.), Rep. Adam Schiff (D-Calif.), Rep. Jerrold Nadler (D-N.Y.), Rep. Eric Swalwell (D-Calif.), Democratic National Committee Chairman Tom Perez and former CIA Director John Brennan.

And all this is based on what exactly? A four-page letter written by an attorney general that Trump hand-picked for this purpose. And that letter itself may not say as much as it seems to.

Barr’s summary. In general, as facts trickled out of the Special Counsel’s office during the last two years, I have tried to avoid tea-leaf reading. I figured that there would eventually be an actual report that said things clearly. I stuck to that policy last week, and did not do a word-by-word analysis of Barr’s letter. But if Trump and his supporters are going to get this far ahead of the facts, and to try to bully various players in our political system into actions based on their extreme interpretation of Barr’s letter, then I think it would be irresponsible to let those interpretations own the field until Barr sees fit to release some version of Mueller’s actual report.

So what exactly did Barr say?

The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 presidential election. As the report states: “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

I think it’s rational to assume that Barr is being a good servant to his master here: Assuming that what this passage says is true at all (always a major concession when dealing with the most dishonest administration in my lifetime), it reads Mueller’s report in the way most favorable to Trump’s interests. And it does not say “no collusion”. It says that Mueller could not prove that the Trump campaign and the Russian government were directly conspiring. But was Roger Stone part of the Trump campaign? Was Russian oligarch (and Paul Manafort’s former employer) Oleg Deripaska part of the Russian government? What if WikiLeaks was a middleman, conspiring on the one hand with Russia and on the other with the Trump campaign?

In other words, the quote could mean what Trump wants it to mean: that Mueller found the accusations of collusion entirely baseless. Or it could mean that Mueller found a lot of suggestive and suspicious evidence, perhaps better than 50/50 evidence, but no smoking gun — at least not one that would stand up in a criminal trial — that could be tied all the way back to Trump in one direction and Putin in the other. We won’t know which is closer to the truth until we can read the full report.

The second part of Trump’s claim — “no obstruction” — has nothing to do with Mueller. Barr writes:

The Special Counsel did not draw a conclusion — one way or the other — as to whether the examined conduct [of the President] constituted obstruction. … The Special Counsel states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” … Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

Again, not a clean bill of health, just a statement that the evidence is insufficient to prove a crime in court, at least in Barr’s mind, though not necessarily in Mueller’s. (If Rod Rosenstein really does agree with Barr’s conclusion, I’d like to hear him say so himself, rather than let Barr put words in his mouth.) And if that’s the most favorable-to-Trump interpretation possible, then I have to agree with George Conway (Kellyanne’s husband):

Americans should expect far more from a president than merely that he not be provably a criminal.

To conclude this section: Nothing in the information currently available would justify making Schiff resign, rescinding the Pulitzers of the Times and Post, investigating the investigators, letting the Trump campaign write a media blacklist, or locking up any Trump critic. If Trump thinks the full Mueller report contains such information, well, release it and then we’ll all see.

Why the delay? Which brings up the question of why no one can see the report yet. (Alex Cole pointed out how typical this is: “Donald Trump is: 1) ‘a billionaire’ but you can’t see his taxes 2) ‘a genius’ but you can’t see his grades 3) ‘exonerated’ but you can’t see the report.)

In his first letter, Barr listed two things he needed to redact before making the report public. His second letter expanded it to four things:

  • proceedings of a grand jury
  • whatever might compromise intelligence sources and methods
  • material that could affect “other ongoing matters”, which I take to mean open investigations
  • “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties”.

House Judiciary Chair Jerry Nadler has pointed out that these may be considerations that limit what can be released to the public, but they shouldn’t (and usually don’t) apply to Congress.

[R]ather than expend valuable time and resources trying to keep certain portions of this report from Congress, [Attorney General Barr] should work with us to request a court order to release any and all grand jury information to the House Judiciary Committee — as has occurred in every similar investigation in the past.

Similarly, the House Intelligence Committee routinely deals with intelligence sources and methods; there’s no reason to keep any part of the report secret from them on that account. Having seen how Mueller writes his indictments, I would be greatly surprised if information that could affect “other ongoing matters” hasn’t already been identified and segregated.

And then we come to the “reputational interests of peripheral third parties”. This looks like a black hole that could suck down anything Barr doesn’t want the public to know. Because who exactly are peripheral third parties? Trump family members? Anybody not specifically indicted? And I’m not aware of any widely accepted definition of “reputational interests”.

Since there really is no good reason that the report has been held so closely, I have to assume that the motive is political: to intimidate Trump’s critics, and so create a period during which Trump’s defenders would own the field. If during this period they succeed in bullying Democrats into silence, then perhaps they won’t have to release the report at all.

Don’t think nobody has thought of that. A recent poll showed that 40% of Republicans think that Barr’s letter is enough; nobody needs to see the rest of Mueller’s report. If Democrats got sufficiently intimidated, not releasing the report could be spun as a magnanimous gesture: There’s no need to embarrass Democrats further; let’s just move on.

And what about Barr’s promises? Well, these things have a way of evaporating if nobody insists on them. Remember when Trump was going to have a news conference to present the evidence that Melania came to America legally? Never happened. And who can count the number of times Trump said he was going to release his taxes?

The gaslighting hasn’t worked. For a few days, Barr’s first letter and Trump’s response to it threw Democrats for a loop: What if Mueller’s report really does totally vindicate Trump? What if it all does turn out to be a big nothingburger and we have to eat all the words we’ve said in the last two years? Do we really want to say more words, knowing that they might come back to us along with all the others?

But by mid-week I think a lot of people independently came to the same conclusion: If this report really did exonerate Trump, it would already be public. And the rush to judgment among Trump supporters has been a little too extreme. You don’t do that when you know that the slowly grinding mills are going to get you what you want.

Thursday, Republicans on the House Intelligence Committee read a letter asking Chairman Adam Schiff to resign, and Schiff was ready for them. He listed all shady stuff we know about Trump and Russia in a litany of “You may think it’s OK if …”. It went viral.

Since then, I think a lot of us have been in a mood to call Trump’s bluff: You think you’ve got the goods? Let’s see them.

It will all come out eventually. I suspect we will at some point see nearly all of the Mueller Report. It will come out, because the benefit of keeping it secret is fading: If it exonerates you, let’s see it. If we can’t see it, it probably doesn’t exonerate you.

Some parts of the public report may be redacted, and a few names of more-or-less innocent people may be replaced by the kind of placeholders that labelled Trump as “Individual 1” in the Michael Cohen indictment. But we will see it, and Congress will see it in its original form.

This is a testing period, where Trump’s people have been gaslighting us with their interpretation of the report we can’t see, and are floating the idea of keeping the report secret just to see if they can get away with it. In the end, I suspect, the public and the Democrats in Congress will stand firm, and Barr will magnanimously fulfill his promise. “See,” we’ll be told, “you’ve been getting all upset about nothing again. We said we’d release it, and here it is.”

However, the test is real. If they could get away with burying the report, they would. The first version Barr releases will probably be inadequate in one way or another, and the deadline for releasing it might slip further, just to see if anyone cares. But people care.

And when it does come out, the Adam Schiff approach is exactly right. “Does this evidence establish a crime beyond a reasonable doubt?” shouldn’t be the only question. We also need to ask: “Is this kind of behavior OK? Are we willing to accept that American democracy will look like this from now on?”

Inside the Trump bubble it will make no difference. Fox News has trumpeted that the Mueller Report clears Trump, and that conclusion will be allowed to stand after the report comes out, whether it is accurate or not. Anyone who dares to raise the issue will be treated as a traitor and drummed out of the community.

But for the rest of the country, I think the answer will be No. We don’t want our presidents getting elected this way. And once they’re in office, we don’t want them to behave in a way that makes us wonder if they’re loyal to a foreign adversary. That may or may not be a crime. But it’s not OK.

By weeklysift | Posted in Articles | Also tagged , | Comments (10)

This is why the Founders banned emoluments

October 22, 2018 – 10:39 am

If Congress were doing its job, we wouldn’t have to wonder who the President is working for.

Remember Helsinki?

It was just three months ago, in July. The President of the United States stood on a stage with Vladimir Putin and was abjectly subservient to him. On the subject of Russian interference in the 2016 election, he weighed the unanimous opinion of US intelligence agencies against Putin’s denial and sided with the foreign autocrat. Putin’s other bad behavior — the ongoing proxy war against Ukraine, poisoning of critics in the UK, human-rights abuses at home — led to nary a whisper of criticism from the supposed Leader of the Free World. Trump blamed “both sides” for the poor state of US/Russian relations, and in a subsequent interview, he questioned whether the US would really go to war to defend a NATO ally like Montegnegro from Russian aggression.

If there had been any doubt that Trump was in Putin’s pocket, Helsinki ended it.

This week we saw something similar happen with Saudi Arabia.

The shifting Saudi explanations. In the weeks since the expatriate Saudi journalist (and Virginia resident and Washington Post contributor) Jamal Khashoggi disappeared into the Saudi consulate in Istanbul on October 2, the Saudi Arabian government has put out a series of narratives, each as preposterous as the last.

  • First they claimed Khashoggi left the consulate alive (and yet somehow evaded the Turkish cameras that saw him enter). Saudi officials even expressed concern about his well-being and said they were trying to find him.
  • When the Turkish government published the names and images of the Saudi agents who came to Istanbul to kill Khashoggi, the Saudis denounced “baseless allegations”. They threatened to respond to any international action against them “with a bigger one“.
  • Then they allowed that Khashoggi might be dead, but if so, it was the work of “rogue killers” who somehow murdered him inside the consulate and disposed of his body without any legitimate Saudi officials noticing.
  • The latest story is that the killing was essentially an accident: The Saudis just wanted to “return” Khashoggi to the Kingdom, i.e. kidnap him. But he struggled, one of the kidnappers got him in a chokehold, and he died. The body was then disposed of by a “local collaborator”, so the Saudis don’t know what happened to it.

Above all, the narratives insist that whatever was done to Khashoggi had nothing to do with Crown Prince Mohammad bin Salman (MBS), who Khashoggi had been especially critical of, and whose known associates seem to be the murderers.

The Trump echo chamber. Through this all, Trump has been giving his best Helsinki performance, repeating Saudi talking points as if he were working for them and not for us. King Salman’s denial of involvement, he said, was “very, very strong“. (In Helsinki, “President Putin was extremely strong and powerful in his denial.”) “Maybe these could have been rogue killers. Who knows?” (“Who knows?” is also a standard element when Trump wants to defend someone. He projects a reality where it’s impossible to know anything and all scenarios are equally likely. The hacker who hit the DNC computers “could be somebody sitting on their bed that weighs 400 pounds, OK?“) He compared MBS to Brett Kavanaugh, who (in Trump’s mind) was also wrongly accused.

In an interview with The Washington Post Saturday, Trump backed off only a little, acknowledging that the Saudi government’s stories “are all over the place”, but standing by MBS and continuing to repeat the latest Saudi talking points, without worrying about the now-abandoned talking points he repeated only a few days ago.

There is a possibility [MBS] found out about it afterward. It could be something in the building went badly awry. It could be that’s when he found about it. He could have known they were bringing him back to Saudi Arabia.

and insisting that there’s no way to really know.

Nobody has told me he’s responsible. Nobody has told me he’s not responsible. We haven’t reached that point. I haven’t heard either way.

Why? After Helsinki, Americans were left to wonder what exactly had turned Trump into such a puppet. Does Putin have kompromat to hold over his head? Is Trump paying his debt from 2016? Or does the debt go back further, to the Russian money that had come to Trump’s rescue when no one else would fund him? The explanations were suggestive, but still speculative.

This time, though, we don’t have to speculate, because Trump has told us himself:

“Saudi Arabia, I get along with all of them. They buy apartments from me. They spend $40 million, $50 million,” Trump told a crowd at an Alabama campaign rally in 2015. “Am I supposed to dislike them? I like them very much.”

Trump has downplayed his conflict of interest, tweeting: “I have no financial interests in Saudi Arabia.” But Noah Bookbinder of Citizens for Responsibility and Ethics in Washington points out how misleading that denial is: Saudi money still makes its way into his pocket, whether his interests are “in” Saudi Arabia or not.

In 2017, Saudi lobbyists spent $270,000 to reserve rooms at Trump’s hotel in Washington. The kingdom itself paid $4.5 million in 2001 to purchase a floor of Trump World Tower and continues to pay tens of thousands in annual common charges to Trump businesses for that property (the total of which could be up to $5.7 million since 2001, according to one estimate). In the past year, as bookings fell overall, Trump’s hotels in New York and Chicago reported a significant uptick in bookings from Saudi Arabia. And a major factor in a recent increase in revenue for the Trump International Hotel and Tower in Manhattan was that Saudis accompanying the crown prince during a recent visit stayed there, as The Washington Post has reported.

Jared Kushner, Trump’s point man for the Middle East and someone MBS has described as “in my pocket“, has also often sought Saudi funding for his real estate ventures.

Trump has tried to paint his own mercenary interests as the nation’s mercenary interests, weaving together a fanciful story of a $110 billion arms order that will create American jobs. But the money Trump has received (and continues to receive) is real.

He has also tried to paint the Saudis as allies that we must stand by (as a counterweight to Iran). But Trump freely criticizes more important allies, like Canada and the other NATO countries. And Senator Lindsey Graham, who is also an Iran hawk, isn’t protecting MBS. The Saudis, he says, “need us more than we need them”.

This is the most in-your-face move by a Mideast ally outside — maybe ever. To kill a man in a consulate in a foreign country, extrajudicial killing, shows contempt for the relationship. I would like to punish those involved. The Global Magnitsky Act would put punishment, sanctions on the individuals that had a hand in this.

And I find it impossible to believe that the crown prince wasn’t involved. So, go after him and his inner circle. Save the alliance. I don’t mind military sales, but I cannot do business with the current leadership. MBS, he’s done to me.

Emoluments and Congress. Even if you find the support-our-arms-customer or support-our-ally-against-Iran motives credible, you will never be sure that Trump’s real motive isn’t to keep raking in Saudi cash. Trump himself may not know for sure which motive is most compelling.

That’s why the Founders put this clause into the Constitution:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

This is not an innocent-until-proven-guilty thing: No one needs to prove that an officer of the United States government has engaged in quid-pro-quo bribery with a foreign power. It’s not necessary to identify precisely what the officer did for the foreign power, that the action wouldn’t have been done anyway, or that the gift or payment he or she received wasn’t totally innocent. What matters is only that the emolument was paid.

The point is clear: The loyalty of officers of the US government needs to be beyond question.

As the clause says, the only thing that makes an emolument legal is “the Consent of Congress”. (In a famous motivating case, Congress allowed Benjamin Franklin to keep a jewel-encrusted snuff box he was given by the King of France.) Congress is supposed to police this concern. But the current Republican majority simply does not want to know whether Trump is doing anything wrong. It has not passed any resolution consenting to the money Trump’s businesses receive from the Saudis or any other foreign government. Neither has it condemned these emoluments, or even held hearings on them. It just doesn’t want to know.

Stymied from taking any direct action, Democrats in Congress have signed on to a lawsuit attempting to enforce the Emoluments Clause through the federal courts. That case is moving forward, and a judge recently agreed that they have standing to sue. But this lengthy legal process is a far cry from the checks and balances the Founders imagined.

Remember in November. There are many different reasons to want a change of leadership in Congress. (I’ll outline a number of them next week.) But for the long-term health of the Republic, the biggest is that Congress has a constitutional role to play, and it is failing in that role. Blatantly unconstitutional things are happening in the Trump administration, while Congress averts its eyes.

It should be a bipartisan desire that the President work for the American people, and not for foreign princes or presidents. The fact that even this most basic issue has become partisan is a measure of just how far the Republican Party has fallen.

By weeklysift | Posted in Articles | Also tagged | Comments (4)