If Treason Swung An Election, What Do We Do About It?

Ever since the news started trickling out that Trump and seemingly all of his associates have or had incredibly suspect ties to Moscow, I’ve been wondering … if Trump’s campaign committed treason, what the hell are we going to do about it?  Now that it appears Michael Flynn may have flipped on Trump, we should ask what the fallout would look like. Let’s assume, for purposes of argument, that 1) Donald Trump and his campaign coordinated with a foreign power to swing a US election, and 2) that action qualifies as treason. (I think it would, and you can read more about the current law of treason here.) There are two solutions to the problem that have been widely discussed in the Press and on social media. The first is to nullification of the election and the second is impeachment. I have already written on this blog that nullifcation is not warranted, and that rationale stands. Impeachment as a sole solution is also problematic. If Donald Trump committed treason by colluding with Russia as a means to assume power, every decision he has made as President could have been taken to serve the Kremlin’s interest in undermining American democracy. His entire Administration would be illegitimate, and must be expunged. If impeachment won’t solve all of the problems posed by a treasonous Trump, it’s up to us to figure out – is there a remedy?

He’ll have to be impeached, but that may not fix the problem

The trouble with impeachment is that it is a remedy for a personal criminal act, not a remedy to nullify the actions of a compromised President. Treason is explicitly mentioned as a basis for impeachment in Article 2 of the Constitution, so if Trump committed treason, he’ll get impeached. The problem is that impeachment would only remove Trump from office. That leaves all of his Executive Orders and federal appointments in place. If his appointees do not immediately resign, it would be hard to use impeachment to expunge Trump’s, and Russia’s, influence and decisions from the enormous executive bureaucracy.

Assuming Trump’s appointees do not immediately resign, in order to get the worst apples out of the executive, you would have to impeach not only Trump, but Pence, Sessions, Tillerson, and anyone else who may have participated in the conspiracy with Russia. Impeachment is a lengthy process. First, the House of Representatives, which acts like a Grand Jury, decides, on presentation of evidence, whether to impeach – or indict – the President or other executive officer for a criminal act. Second, the Senate conducts a trial. This process takes a while; Bill Clinton’s impeachment and trial took almost two months from beginning to end. Trying to impeach so many executive officers would take many months in which the legislature is not concentrated on the business of the public. That wouldn’t just be a scandal factory, it would impair the government’s ability to function.

No one anticipated this, so we don’t have an existing remedy

As importantly, even if Congress were able to impeach every conspirator, the problem remains: Trump set out to deconstruct the Administrative State and deliberately nominated departmental heads who will destroy their agencies (just look at the EPA). As with all of Trump’s decisions, we cannot know if he did so to serve Vladimir Putin’s ends. If I were Vladimir Putin, I would definitely want the US President to cripple all the institutions of American government. If Trump is proven to have colluded with Putin, there’s no reason to think he’d object to undermining our democracy. He’s been undermining it with his lies and conspiracy theories since he became the Birther in Chief. As the law currently stands, we cannot undo Trump’s actions unless the subsequent President chooses to do so. If Trump’s appointees did not commit a crime, and they will not resign, and the subsequent President does not fire them, we can’t get rid of them.

Clearly the drafters of the Constitution contemplated Presidential treason – it is the only crime mentioned in the Constitution, and it is a stated basis for impeachment. After all, these are the people who had to contend with Benedict Arnold. However, a situation in which a candidate for President could collude with a foreign power to disseminate propaganda, hack opposing political parties, and swing an election, thereby raising a specter of a foreign agent running the US government, could not have entered their minds. The technology did not exist to facilitate the type of treason Donald Trump and his associates could have committed. Impeachment isn’t enough; it could leave in place decisions and appointments designed to undermine American democracy and serve the interests of a power and a man – Vladimir Putin – who has declared his opposition to our system and values.

We need a mechanism for purging a Presidency acting on behalf of a hostile power

Should it emerge that Trump has committed treason, we need to purge his stench from the Executive. Congress will almost certainly impeach him and, if necessary, Mike Pence, and his appointees will probably resign, if they are not fired by the new President Ryan (who would be the strangest accidental President ever). However, I don’t think relying on the next guy’s discretion to reverse Executive Orders and fire cabinet appointees is an appropriate institutional protection for electing a real life Manchurian Candidate. One of the beauties of our system is its checks and balances, and we need a check for this situation. We can’t just rely on the next guy to do the right thing.

To restore faith in the Presidency as an institution, we need a mechanism to purge the acts of a President who assumed power through collusion with a hostile nation. As Director Comey said last Monday, this form of political warfare isn’t going away.  He expects the Russians to be back in 2018 and 2020. Currently, the 25th Amendment sets out quite clearly what happens when a President dies or is removed from office, and doesn’t provide for the invalidation of an Administration’s actions. I think it would promote confidence in the integrity of American government to establish a remedy for these circumstances, either through Congress, if it has that power, or through a Constitutional Amendment. We are in uncharted territory, and even if Trump has not colluded with Russia to the degree this argument supposes, if Russia remains determined to use non-military means to take down western democracies, we have to assume that someone else might. Trump is not the only rich, amoral narcissist in the country, and if Vladimir Putin dangles the Presidency in front of another one, who’s to say one of them wouldn’t take the bait?

 

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The Week Congress’s Credibility Got Trumped

The Trump Administration and its ally in Congress, Devin Nunes, have put yet more cracks in the foundation of American government. Nunes, a Republican Congressman from California, is the Chair of the House Intelligence Committee, which is supposed to oversee the conduct of the U.S. intelligence community on behalf of Congress. Nunes has always had close ties to Trump – he served on the transition team when Trump was preparing to take office. This week he did three things that showed he has greater allegiance to Trump than to the country or the truth. First, when Nunes received classified information related to the investigation into Trump’s possible collusion with Russian agents during the election, he showed that information to Trump, compromising the House’s oversight of intelligence agencies’ investigation. Next, he refused to show that information to the rest of the Committee, who require it in order to properly oversee the intelligence community. Finally, he cancelled a public hearing with individuals whose testimony will almost certainly be damaging to Trump. By compromising House oversight to protect Trump, Nunes has sown doubt among the American People and the world about whether the American government still has the functional ability to hold the President accountable.

Trump got egg on his face at last week’s Intelligence Committee hearing

On Monday, March 20, the Donald had a really bad day. Ever since his bizarre tweets on March 4, 2017, alleging that President Obama had wiretapped him during the election and transition, most Americans have been expecting confirmation that there was no basis for Trump’s allegations. That confirmation came in a hearing before the House Intelligence Committee last Monday. The mission of the House Intelligence Committee is to oversee the conduct of the United States Intelligence Services. Basically it is a check on the President’s use of spooks, and so it fell to the Committee to investigate whether there was any truth to Trump’s ridiculous claims. Both FBI Director James Comey and NSA Director Admiral Mike Rogers testified unambiguously that there was no evidence supporting an Obama wiretap. Additionally,  they revealed there is an investigation into whether Trump and his associates colluded with Russian operatives to swing the election. That second revelation, in particular, should have been a cause for significant bipartisan concern. The FBI’s counterintelligence division is investigating a sitting President and his associates for collusion with a foreign power. Of course, that’s not how it went.

Republicans tried to help Trump, and politicized intelligence oversight in the process

In a move that seems to be the new normal, Republican members of the Committee tried to cover up yet more disproven Trumpian allegations by redirecting the topic of the hearing. They refused to acknowledge the problem of Russian interference in the election, instead focusing exclusively on the issue of the intelligence leaks that led to the resignation of former National Security Adviser Michael T. Flynn (for lying about communications with the Russian Ambassador).  At one point, Representative Trey Gowdy even suggested Director Comey should be locking up journalists. It had the pointless, destructive effect of politicizing the issue of intelligence leaks – now most people either think Russian interference is a problem or they think leaks are a problem. In reality, both of these problems are serious and both are the jurisdiction of the House Intelligence Committee. However, their gambit was unsuccessful; the Press still reported widely that Trump had invented a fictitious wiretap and is under investigation. Then their Chairman stepped into the breach.

Devin Nunes abandoned his duty in order to act as a Trump surrogate

On Wednesday, Nunes evidently changed his tune on leaks, as he took leaked classified information regarding Trump associates and walked directly into Trump’s office and gave it to him. He refused to share the information with his associates on the Committee. Then he walked out to the Press and told them that he had information that Trump associates were surveilled “incidentally” during the Obama Administration. Trump said that he feels “vindicated” by this new information, but here’s the thing: this information isn’t new. “Incidental surveillance” refers to information collected about American citizens because they communicated with individuals, such as agents of foreign governments, who are already under surveillance. We already knew this happened.  That’s how we know Michael Flynn talked to the Russian Ambassador! So, in sum, Devin Nunes handed Trump classified information, the details of which are unclear, and then walked out to the Press and used old news to imply that Trump had been right about wiretapping. The only credible interpretation for this behavior is that Nunes was trying to help Trump save face. Nunes himself said he felt he had a “duty” to share the information with Trump because he was taking “heat” in the media. He has completely disqualified himself.

The Committee is now permanently compromised, and cannot investigate Trump

The Committee’s credibility is gone. On Friday, Nunes abruptly canceled an open hearing at which former acting Attorney General Sally Yates, who informed the White House that Flynn lied about his communications with Russia’s Ambassador, was supposed to testify. The hearing was also supposed to include testimony by President Obama’s Director of National Intelligence and CIA Director. In light of Nunes’s defense of Trump earlier in the week, neither the media nor  his colleagues believed he cancelled the hearing for objective reasons. As Rep. Schiff said, “the chairman will either need to decide if he’s leading an investigation into conduct which includes allegations of potential coordination between the Trump campaign and the Russians, or he is going to act as a surrogate of the White House. Because he cannot do both.” It is important that any investigation into Trump’s ties to Russia has credibility, and it is now almost impossible for Congress, or at least the House of Representatives, to produce findings that the country and the world can accept as a conclusive and objective consideration of these issues. It’s time to open an independent investigation into Trump’s ties to Russia. To do otherwise will continue to erode our institutions to a degree that might make them unsalvageable, even if Trump ends up making an undignified and involuntary exit.

Trump’s Threat To NATO, Or Why Churchill Is Spinning In His Grave

Since the beginning of his campaign, it’s been clear that Donald Trump is, at best, skeptical of the role NATO plays in the modern world. He has called it obsolete. He has claimed, falsely, that other countries owe the United States money for its operation (the issue isn’t paying into NATO, it’s each country agreeing to increase funding of their own militaries, which they are all doing). So it seemed like a relief when Donald Trump met with Angela Merkel last Friday, and pledged his support for NATO. Today, we found out that, as usual, he was lying. Rex Tillerson, the US Secretary of State, is going to skip an important NATO summit in favor of a visit to a certain Russian cartoon villain. I’m not sure if he could have designed a bigger slap in the face to our allies if he tried (of course it’s possible he was trying). Currently, NATO is presenting a united front against Russian aggression in Eastern Europe. If the United States abandons its allies, there will be no impediment to Vladimir Putin picking off and absorbing the countries of Eastern Europe one by one. You may be asking, why should I care? The answer is war. You should really care about war in Europe.

Russia has been on the march for 10 years, and shows no sign of stopping

Vladimir Putin has a Napoleon complex, and he’s really cranky about his Soviet Empire being taken away. The Baltic states, Latvia, Estonia, and Lithuania, used to be part of the Soviet Union.  Once they gained independence, they decided democracy was their jam, and they joined both the EU and NATO. Dear old Vlad isn’t happy about this, and they aren’t the only countries displeasing him. He has already begun an effort to re-take Ukraine and Belarus. He invaded Georgia, another former Soviet state. He has also made aggressive moves toward Poland, by putting banned missiles on their border (there is a tiny slice of Russia between Poland and Lithuania, that used to be part of Germany before it started the last European war). In short, Putin has provided all kinds of evidence that he will stroll into other countries and co-opt them if he doesn’t think he’ll face significant resistance. And let’s face it, poor Poland has been invaded enough.

Why is Europe vulnerable if the US abandons NATO?

The thing about aggressor nations is, they only respond to the threat of overwhelming force. In a cost benefit analysis, no country is going to conclude that a war to expand territory is worth it if there is little likelihood of success or if that war will be too costly in blood and treasure. This is why mutually assured destruction was such an effective policy during the Cold War. The Soviet Union and the United States maintained first strike capability, and had a policy of launching all of their nukes should the other country upset the territorial status quo. No country is going to upset the status quo if it means turning their nation into a nuclear wasteland. American military power has been protecting Europe since 1945; without it, they are all vulnerable. We used to keep an arsenal of tanks in Germany, but they have mostly been removed, and Putin’s conventional capabilities outmatch NATO’s. Now, you can argue that the European powers should have replaced those conventional weapons, but they didn’t, and what they “should” have done will be irrelevant if Russian tanks roll into Latvia. So the reality is, the only thing left protecting NATO allies from Russian aggression is the American nuclear umbrella (Britain and France also have nuclear weapons, but they probably don’t have enough to deter Russia). That deterrent is dependent on a US President’s willingness to use it. President Obama already eroded the world’s confidence that the US President would use nuclear weapons by suggesting the United States adopt a no first use policy. Now, given Trump’s coziness with Russia, what would Putin have to fear?

Despite its vulnerability, NATO and the EU can’t just let their members get invaded

Pretty much all countries between the Ukrainian/Belarussian/Russian border are EU and/or NATO members who used to be part of the Soviet Union or client states of the Soviet Union. This includes Latvia, Lithuania, Estonia, Poland, Hungary, Romania, Bulgaria, Slovakia, and the Czech Republic. That’s a huge chunk of the EU, and the military powers of Europe, Britain, France, and Germany, can’t just let Putin dismember the second largest economic trading bloc in the world. Nor can they desert their allies (they are not, ahem, the NATO member with a history of that moral flaw). The EU/NATO may be outgunned by Russia, but it still has three of the ten most powerful militaries in the world, in France, Britain, and Germany, and it will not let aggression against member states go unanswered. Trump’s clear intention to elevate a Russian alliance and devalue NATO is not only stupid and destructive, it is also a moral failure. Even the smaller countries of Europe, like Poland, have assisted America’s missions in Afghanistan and, in the case of Poland and Britain, even Iraq. They’ve bled for us, how dare we refuse to bleed for them? Most importantly, Trump’s policies could spell the end of the international institutions that have prevented the carnage of war in Europe for over 70 years.

The end of Churchill’s vision for European (and world) peace

Winston Churchill is the father of the post-WWII consensus that developing international alliance and institutions can prevent war. Along with Franklin Roosevelt, he wrote the  Atlantic charter, the founding document of the United Nations, outlining the guiding principles for a future without war. The above link goes to a NATO page because the Atlantic Charter is also considered a founding document of NATO, which was created to protect democracies from authoritarianism. Churchill’s legacy also includes the EU itself (his “United States of Europe”) and the European Convention on Human Rights, which is Europe’s equivalent to the US Bill of Rights. He realized that if economic integration, military alliance, and a common commitment to the same human rights bound the countries of Europe together, they would stop murdering each other every 20-30 years. Lord knows the UN, EU, and NATO have their flaws, but they have achieved one of their architects’ central objectives – staving off war in Europe.

Churchill, who has half American, also believed in the greatness and goodness of the United States, and in its role in preventing another World War. The US has certainly fallen down on the job of ensuring peace for the entire world – it has unquestionably caused its share of wars. However, it has played its part in ensuring that the wealthiest, most powerful militaries in the world have not dragged it into a technologically advanced orgy of destruction. Churchill’s vision has worked, and there is no earthly reason it won’t continue to do so. So when you ask yourself why it’s such a bad idea to have a re-set with Russia and a little distance from NATO, you’re really asking yourself this: whom do I trust with the fate of the world, Winston Churchill or Donald Trump?

Who’s afraid of Neil Gorsuch? If he’s a Scalia originalist, he might be useful

Today the Senate began confirmation hearings for Neil Gorsuch, Donald Trump’s nominee for the Supreme Court. Putting aside the important controversy over the blocked nomination of Merrick Garland, the Democrats have to figure out a test for whether to let this guy on the Court, or to filibuster. The senior Democrat on the Senate Judiciary Committee, Senator Diane Feinstein, has said she intends to press Gorsuch on issues such as abortion rights, gay rights, and the environment. I think she has the wrong idea. This nominee won’t be the deciding vote on those matters. She should really be trying to figure out whether Gorsuch, who is frequently called an originalist, is an originalist in the mold of Justice Scalia. Scalia may have been personally conservative, but his legal originalism made him a staunch defender of the rights of criminal defendants. If a Trump nominee has to fill that seat, better to have one who will protect Americans against increasingly intrusive law enforcement. A standard conservative Justice isn’t likely to do that. This nominee won’t be the swing vote on core liberal issues like gay rights and abortion, so if Gorsuch shares Scalia’s views on the 4th Amendment, Democrats should get him on the Court as fast as they can.

No Trump nominee for Scalia’s seat can threaten marriage equality, reproductive rights, fair housing, or affirmative action – yet

As President Obama famously said, elections have consequences, and no Trump nominee is going to be a pro-choice, environmentalist, civil rights activist. Neither a standard conservative nor an originalist is going to support all of our environmental laws – they don’t like Executive power (at least if it doesn’t involve the military). Nor are they likely to protect abortion rights, marriage equality, fair housing or affirmative action. However, the new Justice will not be the deciding vote on any of the above issues – Anthony Kennedy will, just as he has been since 2005. Kennedy has a fairly abysmal, though not uniformly negative, environmental record, but he often votes with the Court’s “liberals” on social issues. Kennedy has written every gay rights opinion since 1996, and he is not likely to abruptly undo his own legacy. He has also written or joined opinions in favor of abortion, fair housing, and affirmative action.  As long as Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy are alive and on the Court, these rights are not under threat. If we’re looking for a way to distinguish between an acceptable Trump nominee and an unacceptable one, those core liberal issues shouldn’t be decisive, both because no Trump nominee will vote with liberals on them, and because the legal status quo is not in danger.

What is an originalist and why aren’t they regular conservatives??

An originalist is a judge who believes the Constitution (and all other laws) should be interpreted not just using the text of a law, but also using the historical evidence indicating the original intent of the people who passed the law.  Sounds pretty logical, right? The truth is, all judges believe that the original intent of a law is important to its interpretation. The difference between most judges and originalists, is that most judges think that in 2017, it’s hard to justify using the exact intent of someone writing a law in 1790 – in other words, that James Madison couldn’t have imagined how the 4th Amendment, which protects us against unreasonable searches and seizures, might apply to drones. Originalists believe they are obligated to follow the original intent of the framers. This can bring them into conflict with judges who are conservative and, for instance, just want to give law enforcement latitude to enforce public safety, even if it chips away at the original intent of the Bill of Rights.

Where could an originalist clash with Trump?

If Justice Scalia is any indication, they could clash on the rights of criminal defendants. Trump has promised to deport millions of undocumented immigrants, many of whom have American children, and it has not been uncommon for American citizens to get caught up in immigration raids. Moreover, Muslim Americans have been subject to greater harassment under Trump’s regime, and his “law and order” message has caused immense concern about increased harassment of minority communities. The original Bill of Rights was highly protective of the rights of arrestees, and Justice Scalia consistently voted for a broad interpretation of their rights during his tenure on the Court.

If Gorsuch is anything like Scalia, he’ll be mighty skeptical about efforts to skip into someone’s home without a warrant. Scalia wrote a blistering dissent against the use of DNA swabs without a warrant. He also wrote majority opinions prohibiting the use of infrared to detect marijuana growing operations in a home; monitoring of GPS without a warrant; using drug sniffing dogs near a home without a warrant; and searches of arrestees’ phones and cars without a warrant. Scalia likewise ensured that criminal defendants had their 6th Amendment right to confront their accusers and cross-examine them, and have a jury, rather than a judge, determine any increase in criminal penalty. Seems to me that it wouldn’t be terrible to have that kind of guy around if a President implements a massive deportation program or sends federal agents into cities.

So is Gorsuch a friend of the criminal defendant?

It looks like he may be. He has ruled in favor of criminal defendants in some controversial cases, including a case in which he threw out a conviction for child pornography, which is not a thing many conservative judges would do. His record on the 4th Amendment is also more helpful than on a lot of other legal issues, because lower court judges get to make independent determinations more often than in other areas of the law, because law enforcement technology is changing so rapidly. So given that the Democrats aren’t about to get a judge they love, I think they should make their decision based on Gorsuch’s opinions on the rights of criminal defendants. Why not accept a nominee likely to reject some of Trump’s more autocratic tendencies? Besides, in Trump’s America, being a criminal defendant could be an increasingly common experience.

 

Stop Knocking Free Trade and Wash Your Socks

By Cottage Pie

Free trade is the engine that powers the modern world.  We see cheap production of goods in East and Southeast Asia, which raises the standard of living in developed and developing countries.  The financial industry can push cash and funding across borders in the blink of an eye, funding business operations and enabling startups around the world.  We transport food efficiently from the field to the plate in days, preventing rot and loss, which was previously widespread, especially in socialist countries  Free trade makes goods and services available for with greater variety and better quality at a lower price than our ancestors could have imagined.

At the same time, in the West, cheap goods, efficient use of food, and startup cash benefit us by raising our standard of living and making sure even those in poverty have basic essentials, such as a refrigerator, telephone, and oven.  Overseas, our neighbors stop going to war with each other because prosperity leads to peace.  The European Union’s predecessor, the European Economic Community, was part of Winston Churchill’s vision for a post-war Europe partially because it established free trade among Western European countries, but largely to prevent recurrent wars.  When countries trade freely with each other, they don’t shoot at each other.  Have you seen German tanks roll into Paris lately? Of course, Trump went and screwed it all up.

The G20 finance ministers’ meeting, a semiformal organization of the 20 largest economies’ fiscal managers, met over this weekend and backed away from their long-standing commitment to free trade.  Historically, up to last year, the finance ministers committed to resist all forms of economic protectionism (of course the US and EU conveniently ignore this promise in the realm of agricultural subsidies).  But Treasury Secretary Steve Mnuchin, as the American delegate, led a battle against this declaration.  Mnuchin watered down the language in the ministers’ statement to say countries will “strengthen the contribution of trade to our economies.” This policy is just plain wrong.

“The new U.S president, who has promised to put “America First,” has made no secret of his disdain for multilateral trade deals that he says have treated America unfairly. He insists the only solution is to bring manufacturing jobs back. Trump and Mnuchin are wrong. Not only do trade deals treat America fairly, they help Americans.”

Not much is manufactured in the United States anymore and this is a success, not a failure.  Service economies accommodate lower start-up costs, more flexibility for labor to move amongst employers, and safer positions.  And shipping manufacturing to robots and overseas benefits Americans of all stripes.  From the card swipe at the gas pump to telephone banking, increased efficiency allows Americans to get things done better, faster, and cheaper, without substantial cost of jobs.  Today, a car costs less, as a percentage of income today, than in 1970, and is safer, cheaper to operate, with better amenities.  But the real power of automation and trade is where it helps at home.

For instance, you can buy a cheap washing machine from Mexico for only $300 (in 2017), at well under one percent of the annual income.  And the availability of that washing machine is what makes a lot of American progress possible. The washing machine frees up a household member to work, teach the children, and perform other tasks, at very little cost.  Protectionist policies, such as increased taxes on foreign goods, will just drive up the cost of these goods, and others made abroad, like makeup, furniture, and food.  This only hurts those at the margins.

Those affected most, like the rest of Trump’s policies, are Trump’s voters.  This is no different from the result from killing the Affordable Care Act.  Those hit hardest by the change are those who voted for it.  Those who are teetering on the edge of poverty right now will be pushed over the poverty line, and into a level of income inequality we haven’t seen since the 1920s.  Keeping trade open and flowing will do the most for American workers and it is the government’s job to ensure that what we import is safe.  Beyond that, the government should be promoting sales of American goods and services abroad, to ensure that free trade works for all.

American service jobs, from finance to education and Internet to health care, are the critical jobs that improve the quality of life for all of us. There is more than enough to go around as long as we commit, as a country, to providing education and training to everyone who needs it and ensuring that basic needs, such as healthcare, are met for every citizen. If we can help our citizens participate in the economy, we can sell these same services not just to our fellow countrymen, but to everyone in the world for generations to come. The global economy has worked to our advantage and it will continue to do so, if we let it.

Killing the New Deal, Or Who Doesn’t Love a Hooverville?

Last month, Steve Bannon told an audience at the Conservative Political Action Committee that the Trump Administration’s objective is to deconstruct the Administrative State. That sounded pretty terrifying at the time, but it was unclear how exactly they intended to do that, other than appointing patently incompetent leaders at federal agencies. Now that Paul Ryan’s healthcare plan and Donald Trump’s budget have been unveiled, it’s clear that the real target of the Trump Presidency is the idea that government should play a role in citizens’ welfare. They want to kill Franklin Roosevelt’s New Deal, and we should all be ready to fight them, because even if the New Deal ain’t perfect, we definitely do not want the old one.

The old deal made America pretty great for business, but pretty bad for people

FDR was not the first President to try to pass laws to protect public safety – his cousin Theodore, leader of the Republican Progressive movement, holds that distinction. However, prior to the Great Depression, the Republican Party was heavily dominated by an extreme brand of economic conservatism that rejected all regulation of the economy, even to preserve public safety. The Conservative Supreme Court led the way, ensuring that Progressives were unable to make many of the real reforms they wanted. The Court read a “right to contract” into the Constitution, and from 1897 to 1937, it knocked down efforts to establish workers’ rights. A few things they found unconstitutional include: limiting work hours to 60 a week, ensuring the right to join a labor union, regulating child labor, taxing employers who hire children, mandating a minimum wage, and regulating the coal industry. By the 1920s, the activism of the Court was supported by the election of Calvin Coolidge, who believed that government should deregulate industries and stay out of the economy, while instituting low taxes for the wealthy.  Although Coolidge presided over a period of prosperity (partially fueled by Woodrow Wilson’s wartime spending) wealth inequality was so extreme that half of Americans lived below the subsistence level. Sound familiar? It should. And just as our deregulation efforts from 1980 to 2008 unleashed the worst parts of Wall Street and crashed the economy, Coolidge’s policies helped cause the Black Monday crash of 1929 and bring on the Great Depression.

The New Deal wasn’t just new programs, it was a new concept of government

Franklin Delano Roosevelt inherited a demoralized, dysfunctional country, and he had a clear plan to fix it. Building on the Progressive movement led by his cousin Theodore, he set out to establish a regulatory structure that could protect citizens from the economic, environmental, and personal consequences of capitalism. When we talk about liberalism today, we are talking about New Deal liberalism, which is the idea that capitalism is the right system, but only if it is properly regulated to curb its excesses. This notion of regulating business to promote public safety and equalize opportunity is really the core of the New Deal. It passed the Fair Labor Standards Act, which established a national minimum wage and national labor standards, as administered by the already existing Department of Labor. It established agencies like the FDA (in its modern iteration), the Federal Housing Administration, or FHA, which grew into the Department of Housing and Urban Development, the Securities and Exchange Commission, which regulates Wall Street, the National Labor Relations Board, to protect union activity, and the Social Security Administration. It is these agencies, along with the EPA and structures of Lyndon Johnson’s Great Society, which built on the New Deal, that Donald Trump has targeted with his budget.

You may wonder how, when faced with the same Supreme Court philosophies that hampered the Progressives, FDR managed to pass all of these laws. Well, he threatened to pack the Court with three additional liberal Justices. Somehow, the Court reconsidered the whole right to contract idea, and started playing ball. Many Republicans accused FDR of being a dictator, and that accusation wasn’t out of left field. These changes were radical, and FDR did not pussy foot around – he imposed his will on everyone. His core Conservative opposition opposed both his tactics and his theory of how government should work, but they had virtually no power to block his initiatives, because after the Court-packing plan, all three branches of government belonged to the Democrats.

Conservatives have been waiting to unmake the New Deal for 85 years*

The Calvin Coolidge adherents didn’t evaporate because FDR got elected four times. Instead, they became a dedicated group of ideological purists hiding in a corner of the Republican Party. Conservative opponents of the New Deal formed a large part of the  America First Committee, and the eventual leader of the wartime and post-war Conservative movement, Senator Robert A. Taft of Ohio, opposed American intervention in WWII. As a result, they were disfavored by many Republicans after the war.  The Truman and Eisenhower years saw an emphasis on moderation and a relative lack of distinction between the parties (indeed, in 1952 both parties asked Eisenhower to run). However, in the tumult of the 1960s, with the rise of the civil rights movement, movement Conservatism made a comeback. In order to take over the Republican party, Conservatives made an alliance with segregationist Dixiecrats and, in the 1970s, socially conservative evangelical Christians to create the coalition that elected Ronald Reagan in 1980. Reagan certainly began deregulation and tax cuts for the wealthy, but he did not give the Conservative movement the extreme change it wanted. In the end, he was willing to compromise. Now the Conservative movement has its chance; Trump, who does not appear to care about any sort of ideology, seems willing to sign anything Congress sends him. It’s going to be a challenge. To return us to pre-New Deal America, Conservatives are going to have to remove all of the checks on corporate power designed to protect us… and then convince us we like it.

There are still moderate Republicans, and only they can stop this

Conservatives in the Calvin Coolidge mold have only gained dominance in the Republican Party in the last 8 years. It is really the Tea Party movement that brought them to power. That isn’t long enough to wipe out the moderate Republicans who still think regulations for public welfare are a good thing, and, more importantly, that swift and radical change is a bad thing. Disliking radical change is pretty much the definition of a moderate. In order to combat this disaster, it isn’t enough to rely on Congressional Democrats, who have relatively little power at the moment. If you really want to stop the deconstruction of the Administrative State, write to Lisa Murkowski of Alaska, and Susan Collins of Maine, and Rob Portman of Ohio, and Lindsey Graham of South Carolina, and John McCain of Arizona. With the election of Trump and a Congress led by Ayn Rand devotee Paul Ryan, the Conservative movement has finally gained enough power in the Republican Party to get its wish list. If we do not stop them, they will undo 85 years of American progress, and we can’t just look to our own “team” to get in their way. If you want to save the New Deal, call a Republican.

 

* The summary in this section is taken from the excellent Rule and Ruin by Geoffrey Kabaservice.  Kabaservice, Geoffrey M. Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party, from Eisenhower to the Tea Party. New York: Oxford University Press, 2012.

“America First” is A Morally Bankrupt Philosophy And It Always Will Be

Donald Trump has adopted the slogan of the 1930s movement that supported systemic anti-Semitism and opposed both material and military support of our allies during World War II. Unfortunately, he and his most extreme adherents have also adopted the nativism and prejudice associated with the slogan. They are selling a sort of white nationalism that, by definition, excludes the 38% of Americans who are not non-Hispanic white people. This exclusionary, repugnant form of identity politics was displayed yesterday by Steve King of Iowa, a member of Congress, when he asserted that Europe and America cannot “restore our civilization” (read: white people) with “someone else’s babies.” I think his, and others’, attempt to associate America with its white citizens is symptomatic of a widespread confusion, both on the right and on the left, about what this country is and whom it represents. In light of the resurgence of nationalist ideas, we all have to ask ourselves: what does it mean to be an American?

It sure as hell doesn’t mean resurrecting the America First Committee

The America First Committee was built around a refusal to provide aid and assistance to our allies, no matter how desperate their situation (and Britain’s situation in 1940 was about as desperate as it gets). It advocated that the United States remain neutral after the Nazis conquered Poland, the Netherlands, Belgium, Norway, and France. As Britain stood alone, refusing to make accommodation with Hitler, the America Firsters and their allies in Congress consistently blocked President Roosevelt’s efforts to provide materials to their blockaded ally. These are the people who listened to FDR’s great “Arsenal of Democracy” speech, which advocated using American manufacturing power to help democracies fight Fascism, and concluded that the best option was, in his words, “crawling into bed and pulling the covers over [their] heads.” It is worth it to imagine what the world would look like today if, in 1939, the United States had committed to standing with Britain and France against Hitler, rather than passing a Neutrality Act,and declaring its intention to abandon its alliances.  I would hazard a guess that the progress of WWII would have looked very different, had it happened at all.

The America First Committee was also characterized by virulent anti-Semitism during a time when the Jews of Europe were being deported to be murdered by the the millions. Its executive committee included Henry Ford, an inveterate anti-Semite, and Avery Brundage, the head of the Olympic Committee in 1936, who prevented two Jewish runners from participating. America First’s anti-Semitism was best exemplified by a speech by Charles Lindbergh, the most prominent America Firster, who essentially dismissed interventionists as intellectuals and Anglophiles (America Firsters were very anti-intellectual), and suggested that Jewish dominance of “motion pictures, our press, our radio and our government” was the biggest danger to the country. He argued this enabled the Jews to spread pro-war propaganda, and said that supporters of intervention were victims of this propaganda.Their anti-semitism was a part of their nativism.  They were selecting an Other of whom many Americans were skeptical, and blaming the Other for President Roosevelt’s desire to support America’s allies.

Nativism did not help the United States, but it was a useful tool for its enemies. Both the Nazis and the Soviet Union sought to use the America Firsters as a means to keep the United States from checking their imperial ambitions. Vladimir Putin seems to have been reading his history books; his support for Donald Trump’s isolationist movement echoes that of his Russian predecessors. Trump’s vision for America has a lot in common with the America First movement’s nationalist policies, from protectionism, to isolationism, to its vulnerability to manipulation by hostile powers. Far from making America great again, he has abandoned the liberal principles that have made America great.

Being American means living by our founding principles, at home and abroad

America is not just a nation of immigrants; it was the first nation to be founded on ideas. To be an American is to unify with others from different backgrounds around our ideals, among them that everyone has the right to life, liberty, and the pursuit of happiness. How else are a bunch of immigrants supposed to get along? It is essential to our integrity to live by those ideals at home and abroad. It is not enough to believe that an American citizen has those rights. If we are going to be real Americans, we have to believe that everyone has those rights. By that I do not mean that we should enforce our ideals on other countries through military force – that has been a foolish and disastrous idea. However, cutting foreign aid, which the Trump Administration intends to do, is tantamount to saying “I believe in human rights, but only for me.” Foreign aid isn’t charity, it is diplomacy. It fosters positive relations with countries and is an investment in their peaceful development. It benefits us as well as them, both from an economic and a reputational perspective.

I do not say this because I am the sort of unreconstructed globalist who believes America has a greater responsibility to an Ethiopian farmer than to a Michigan steel worker. The United States government has a responsibility to ensure that the bounty of this country is accessible to everyone, and that every American starts life with an equal opportunity to succeed. However, wealth and opportunity are not a pie – they grow as people and nations rise up to participate in the marketplace of ideas. So the real question is, when you say we should put America first, which America do you mean? If you mean putting American values first, and living by them, that’s a great philosophy. If you mean embracing economic protectionism, white nationalism, and turning all focus inward at the risk of compromising those values, well, the title of this post says it all.

Vive la France! How emulating the 2002 French runoff election could save the West

With the French general election approaching, I’d like to talk about a time when the French people set an example for all of us who believe the West can’t afford to descend into petty nationalism. Now, as an American educated in Britain, I can’t resist a good round of froggy-taunting, so lauding the Gauls is a little unnatural for me.  But as funny as it was when Bart Simpson called them cheese-eating surrender monkeys, I’ve got to admit that their cheese is delicious and we will probably have to let the surrender of 1940 go at some point (though obviously not yet).  More importantly, while we Americans were munching on Freedom Fries and petulantly pouring excellent wine into storm drains, the French people saved their Republic (5th time’s the charm!) from a nationalist anti-semite by the name of Jean-Marie Le Pen. They did it by uniting around the only remaining rational candidate, the conservative Jaques Chirac, no matter what party they belonged to. Every citizen of a western democracy, including French voters today, should be thinking about ways we can emulate them, and unite around core principles to resist Donald Trump, Vladimir Putin, and the nationalism he is supporting all over Europe.

The threat of nationalism came from voter disenchantment

In the Presidential election of 2002, the polls and the media predicted that there would be a simple contest between President Jaques Chirac and his socialist Prime Minister, Lionel Jospin. This seemingly locked-in result infuriated a lot of French voters (sound familiar yet, my fellow Americans?). As a consequence, the election had very low turnout by French standards, with fewer than 3/4 of voters participating, and the voters who did turn out registered their dissatisfaction with their choices.

Jospin, thought to be a shoo-in, didn’t make it into the runoff. One reason he did not was that far left candidates received protest votes. One candidate, described by the Guardian as an “unreconstructed Trotskyite” who wanted to dismantle parliamentary democracy, received 6.3% of the vote. French voters were mad, and the result was that one of the two candidates to emerge from the first round scrum was Jean-Marie Le Pen, the odious father of current National Front leader and Presidential candidate Marine Le Pen.

Political leaders put country over party

The first round of the 2002 election shocked and alarmed the world. Le Pen was so universally viewed as unfit, that no one had thought he could possibly get enough of the vote to be in the runoff. The socialist party, having suffered a devastating and confusing loss, had what I will always believe to be the correct reaction; current President and then party leader Francois Hollande said “we’ll do what we have to do because we are republicans and democrats” and told his members to vote conservative. Even though the socialists knew that helping Chirac would undermine their own chances in a coming election of Parliament, they understood that protecting the Republic itself was more important than one electoral victory, and helped him to the biggest landslide in French history. As the socialist finance minister said, “Le Pen’s score, for the honour of France, must be as low as possible.”

France, you got this

I think their willingness to unite to preserve the integrity of their Republic serves as an exemplar for how to beat back the rise of nationalism in every democracy.  When faced with Brexit and the rise of Trump, Britain and America, convinced this sort of thing could never happen to us, have failed utterly to combat nationalism.  We threw away our integrity as rational democracies through apathy and an inability to unite. The French, however, have always had a different kind of commitment to national honor and national reputation than either Britain or America, and they are deeply pragmatic (some would even say cynical).

Although we haven’t seen a lot of great news in this year of political destabilization, I think there’s a good chance that France will succeed where we failed. Next month, it is likely that Marine Le Pen, a right wing nationalist, and Emmanuel Macron, a centrist social democrat, will emerge as the runoff candidates for President of France. If the French take a page from their own history, perhaps the conservatives can do for France what the socialists did in 2002 – put country over party and vote for the sane guy to run the country. We all need to hope so, because the survival of the EU and other international institutions is in their hands. In a very real way, we all are.

The First Thing We Do, Let’s Kill All The Lawyers

The institution of the Public Defender is being killed off across America, and even in the whirlwind of lies that is the Trump Presidency, it is something we should all be deeply concerned about. There is nothing more important to a free society than the preservation of the Rule of Law, and in the United States, a crucial component of that is the zealous enforcement of the Bill of Rights against the state and federal governments. Public Defenders are probably the most practiced constitutional lawyers in the country.  They protect the 4th, 5th, 6th, 8th and 14th Amendment rights of over 80% of the criminal defendants. However, in recent years, chronic underfunding and mass incarceration have compromised Public Defenders’ ability to properly represent their clients. There are just too many clients and too little time to devote to each of them. This means that most Americans being accused of serious crimes are being deprived of their constitutional rights. That is a very dangerous thing, not just for criminal defendants, but for all of us, because when one of us is deprived of his constitutional rights, it erodes those rights for everyone. If we want to preserve the enforcement of the Bill of Rights, we need to restore the institution of the Public Defender.

Freedom ain’t free in modern America

The two big problems causing the Public Defender crisis are excessive prosecution in poor communities, especially for minor drug crimes, and chronic lack of funding by governments that see public defense as a low priority. The reason over 80% of felony defendants use court-appointed counsel (in cities this means Public Defenders, but in rural areas it can mean local lawyers) is that most felony defendants in the United States are poor. The reasons for this are many, and the subject of a different article, but the trend is consistent across the United States. It is therefore not surprising that the most severe crisis is occurring in the most incarcerated State in America, which is also one of the poorest: Louisiana.

One of the reasons that Louisiana incarcerates so many of its citizens is that it has extremely harsh drug laws. For instance, the current marijuana statute, which was loosened up in 2015, provides that someone found in possession of marijuana shall be imprisoned at hard labor for not more than ten years and have to pay a fine of less than ten thousand dollars. This gives hard-line judges a lot of leeway to penalize defendants. When those defendants do not have sufficient time with their lawyers, they can get undeserved and disproportionate sentences for minor crimes.  Even more worrisome is that they can be fined amounts they cannot afford, and end up in prison when they fall behind on payments.

The lack of adequate public defense means that the rich and the poor in Louisiana receive radically different treatment. Louisiana’s strict drug laws can be navigable for those who can pay, but for those who can’t, there’s no way out. In rural parishes, there often isn’t a full-time public defender at all. Attorneys take on that task as a part-time gig, and excess cases are often distributed by courts to local attorneys who have never tried a criminal case. This disregard is not accidental. While much of the public defense crisis in Louisiana and elsewhere is due to poor funding structures on both State and municipal levels (and in Louisiana’s case a billion dollar budget shortfall), it is also due to years of funding cuts. These cuts keep happening because most people don’t like Public Defenders, and they are perfectly happy to see that funding cut. They are wrong.

Public Defenders are the heroes of the legal profession

Public Defenders spend every day thanklessly defending your rights and mine, working long hours, often at great personal cost, for very little pay. Why do I say they are defending our rights? Because we all have the same rights as Americans, and they are only real if they are enforced when they are inconvenient and unpopular. Public Defenders use the Constitution and other laws to make sure the police are not, say, pulling random people over on the road for no reason (which would be a violation of the 4th Amendment). Now, maybe the Public Defender is defending a guy who turned out to have a pound of heroin in her car, but if she gets that arrest thrown out, it means that next week, when you get pulled over and improperly searched with a loose Adderall in your car and no prescription bottle, your lawyer can say “Judge, we had a case like this last week and this arrest was illegal, just like that one.” Our legal system operates on precedent, and it is good for all of us to make sure that the people trying most of the cases have the time to sit and focus on each case. They make sure all of our rights are not being thrown out the window.

Lawyers make sure we are a nation of laws

The title of this blog post, which is common lawyer joke, is often taken out of context. The line comes from Shakespeare’s Henry VI, Part II, and it is delivered by a would be revolutionary imagining what he will do as soon as he overthrows the government. He’d kill all the lawyers, because they are the people who make everyone else play by the rules. That basically makes us the know it all tattletales of the community, but it is important to have watchdogs to hold everyone accountable. It is the role of the Public Defender to hold the government accountable on behalf of the people and they should be celebrated for it. More importantly, they should be adequately funded. If you’re interested in making a difference, New Orleans Public Defender’s office has recently had to stop taking new felony cases because their funding shortage is so extreme. I have linked to the donation page below, and if you want to support the residents of the most populous city in the most incarcerated State in the Union, I urge you to donate.

Should the Supreme Court nullify the Election?

With every day that Donald Trump drags the federal government further into chaos, his opposition tries to think of ways to remove him without relying on Congress.  As Democrats, liberals, and progressives, it has become second nature for us to turn to the Court to protect our rights, so it is not surprising that some petitioners have asked the Court to solve this problem. Some less than reputable “news” organizations on the Left , like Occupy Democrats and Politicususa (yes, we resisters have our own fake news),  have recently reported that the Supreme Court has “advanced” a petition to nullify the results of the election.  Now, the Supreme Court hasn’t “advanced” anything, and the petitioners’ legal argument is pretty meritless, but it is still worth asking: should we be looking to the Court to save us from Trump?

The answer is: absolutely not. For one thing, the Court lost a hell of a lot of credibility when it installed George W. Bush as President in Bush v. Gore, and a repeat won’t improve anything. For another thing, the ongoing Russia investigations involve the Trump campaign’s collusion with Russia to influence voters and spread disinformation, not hack the actual mechanics of an election. The remedy for criminal conspiracy to hack the DNC is to kick the criminals out of office, not nullify an election that was properly conducted. We can’t expect the Court to repeat its Bush v. Gore mistake and nullify an election when it was the American people, not the electoral process, that were hacked by Russia.

In the interest of self-preservation, the Court can’t touch this

The Court really screwed the pooch the last time it helped picked a President, and it behooves us all to avoid asking the Justices to do it again. To recap Bush v. Gore, there were manifold voting irregularities in the State of Florida during the 2000 election, and the Gore campaign, behind by about 500 votes, asked for recounts in several parts of the state. The George W. Bush campaign tried to stop the recounts, and there were conflicts between the Republican Secretary of State for Florida, who worked for Jeb Bush, and the Democratic Supreme Court of Florida, sending the suit up and down the state courts and to the US Supreme Court.  Ultimately, the case ended in the Supreme Court for a second time, and the Court stopped all recounts, in one of the most controversial decisions in recent history. This decision was widely seen as an example of unelected judges imposing their personal political opinions on the electoral process. Justice Sandra Day O’Connor, the swing vote on the case, has said the Court shouldn’t have taken the case.  Justice Stephen Breyer has said that it damaged the Court’s credibility, though not permanently. Preserving Court credibility is crucial for anyone interested in resisting Trump. It is against our interests as opponents of the Administration to ask the Court to compromise itself.

Even if the Court would hear it, there isn’t a good case for nullification

There are two major problems with the idea of judicial nullification of Trump’s election based on Russian hacking.  The first problem is that the Russians didn’t hack the electoral process; they hacked the people voting in the electoral process. The second problem is that voters don’t elect the President of the United States, Electors do. Those Electors are supposed to be the stopgap against demagogues hoodwinking the people into bad decisions.

The Russian government did not hack the hardware or processes of the election in the states, like voting machines, computers, or other data management tools.  The legal process of counting votes appears to have proceeded properly in all fifty states and the District of Columbia. By hacking the DNC and John Podesta’s e-mail account, Russia attacked a private political organization and a private citizen’s personal e-mail account, and disseminated controversial information that targeted the decisionmaking of individual voters.  Russia hacked us, the American public, not the legal process.

The Court can’t nullify an election based on the fact that voters believed Russian propaganda.  The Founders did predict that voters might be influenced by demagogues, or even by disinformation. Fake news and airing dirty secrets ain’t new, and Tom Jefferson would swear to you those Election 1800 broadsheets about Sally Hemmings were libel! James Madison et. al. created the much maligned Electoral College to act as a check on uninformed democracy. Despite wide-ranging discussion of so-called faithless electors turning the election for Hillary Clinton, the Electors cast their votes largely as expected, and we got Donald Trump. Unless someone produces evidence that Russia actually interfered with the mechanics of voting -changing the tallies, inventing voters, or stuffing ballot boxes – the Court can’t nullify anything.

Trust the Constitution, support the Press, and impeach Trump for his lies

The Justices don’t need me to tell them not to take this case – I’d bet my bottom dollar they will not. However, I do think it’s important to think about why the rest of us shouldn’t be asking them to in the first place. The Constitution lays out one remedy for removing criminals from executive office: impeachment. Currently, the Press is digging for every connection Trump has to Russia, every lie, every dirty trick, and hopefully his tax returns. There is a profusion of leakers in the intelligence community and the Executive. The path is clear – we need to amass as much information as possible, help the legitimate Press expose Trump and his cronies, and take back Congress in 2018. We, as Americans of both political parties, have done enormous damage to our Republic in the past by pushing one branch of government to impinge on the authority of another to achieve our ends. The Court is the only branch of government consistently acting as a check against Trump. We should not ask it to compromise itself because we are scared of Paul Ryan and the Turtle.