Shutting Down The Government Isn’t Just Stupid, It’s Ineffective

Donald Trump has decided that now is the time to withhold funding for Obamacare subsidies for millions of low-income Americans if he doesn’t get funding for his border wall. This is a typically asinine and pointless move on his part; for once, Democrats and Republicans in Congress seem to have been on their way to achieving a mutually beneficial deal without creating widespread collateral damage. Democrats’ reaction to this news was to promise they will shut down the government if funding for Trump’s border wall is included in the budget. No matter which party you support, this political brinksmanship with the basic functions of government has got to stop. If we were talking about a gross, unconstitutional threat to democracy like internment camps, there might be an argument in favor of a shutdown, but we’re not. We are talking about Trump insisting on pettily defunding a duly enacted federal program without repealing it, and the Democrats insisting on withholding funding for a stupid, pointless, expensive border wall that millions of Americans explicitly voted for. The integrity of the core institutions of government is more important than any policy goal. Holding the government hostage over partisan policy preferences erodes the structure of our Republic. More importantly, from a politician’s perspective, none of the shutdowns in the past 25 years benefited the fanatics who were responsible.

Newt Gingrich is a despicable megalomaniac and his gambit failed

Now, there were government shutdowns before Newton Leroy Gingrich came along, but they were in the order of 1-3 days. Even the first shutdown in 1995 wasn’t inconsistent with this history.  It lasted about 5 days.  However, Gingrich’s shutdown of 1995-1996 was a precedent-setting piece of political warfare that totally failed to achieve its goals. Gingrich initiated a standoff with Bill Clinton over which numbers Clinton had used to create his budget (Gingrich wanted him to use the Congressional Budget Office). Clinton, having produced a plan designed, as requested, to balance the budget in 7 years, refused to go back to the drawing board. On this basis, Gingrich shut down the government for 21 days. The American people were not impressed. Afterward, Republicans simply caved, and accepted Clinton’s proposal. The fact that the shutdown came after Gingrich felt snubbed during a ride on Air Force One did not help his reputation or make the shutdown more effective. Nevertheless, 17 years later, Republicans thought they’d have another crack at the shutdown strategy.

The Tea Party fell on its face trying to defund Obamacare

In 2013, the most fanatical tea party advocates in the House of Representatives advocated defunding Obamacare, since they did not have the ability to repeal it.  Over the summer of that year, tea party activists sent a barrage of phone calls and letters to members of Congress, demanding a government shutdown if Obamacare was not defunded. Senator Ted Cruz spoke for 21 hours on the Senate floor about his beliefs regarding shutdown. These developments forced even relatively moderate Republicans into going along with the party’s ideologues. Accordingly, the Republican House of Representatives shutting down the government for 17 days because it refused to fund the President’s signature domestic policy achievement. The shutdown ended when the Republicans were forced, due to widespread voter disapproval, to fund Obamacare. To add insult to injury, they were also compelled to raise the debt ceiling, or amount of debt the US government is able to repay, a particular bugbear of theirs during the Obama years. The shutdown was a total failure.

A failed strategy that damages government institutions is no strategy at all

It’s time to stop the madness. These ideological shutdowns don’t work! In this case, Congress seems to be working together, and Trump needs to stay out of it. Perhaps Trump is laboring under the delusion that he will get a popularity bump like Bill Clinton and Barack Obama did when the opposing party shut down the government. The trouble is, both of those men were trying to compromise with fanatics in Congress, not trying to insert poison pills into the negotiation at the eleventh hour. The Democrats seem to think taking a page out of the fanatics’ playbook is a great idea. It isn’t. In the last 25 years, Congress has never gotten its way from a shutdown. In our current political environment, I am vehemently opposed to drawing false equivalencies between the Democratic Party and the GOP under Trump. That said, if Congress fails to fund the government and shuts it down, I wish a pox on both their houses.

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Why Are We Still Arguing Over Reproductive Rights? The Problem With Roe v. Wade

Once again, Republican lawmakers are taking aim at the reproductive rights of American women. Assaults on Planned Parenthood don’t really make any sense – its primary purpose is to provide its patients with contraception and sexual health screening, and it’s the only provider in a lot of urban and rural communities. Planned Parenthood’s mission isn’t all that controversial. For all the prudishness expressed by many on the religious right, no one actually wants an outbreak of HIV or untreatable gonorrhea in rural and urban America (even Mike Pence). The only reason the Republican party is attacking contraception and women’s health organizations is because some Planned Parenthood clinics and many other sexual health clinics perform abortions. The “moral majority” just can’t seem to get at Roe v. Wade itself – yet. Social conservatives have allied themselves with judicial conservatives, who have a constitutional objection to Roe, for 40 years, and they aren’t likely to stop attacking reproductive rights unless the split in the legal community is resolved – which is highly unlikely.

It is the legal controversy, not the moral one, that has created Roe’s destructive power in our politics, because social conservatives know they can attack Roe by appointing the right people to the Court. Many perfectly rational judges and lawyers, whether they personally support abortion rights or not, are skeptical about the constitutional theory Roe was based on. In finding a right of privacy inherent in the 14th Amendment, the Court revived one of the most controversial theories of constitutional law in American history and based women’s reproductive rights on that unstable foundation. Basically, we’re fighting to protect the right of poor women to have access to pap smears because it did not occur to the men writing the seminal case on women’s rights that the case was about the equal protection of women’s rights at all.

About that right to privacy …

So here’s the thing: a woman’s right to have an abortion is based on a right to privacy that the Constitution does not explicitly grant.  That right, as applied in Roe, is read into the 5th and 14th Amendments, which say that no citizen shall be deprived of life, liberty, or property without Due Process of law. The Court says that the right of a woman to procure an abortion before her fetus becomes viable – when it could live outside the womb – is part of the “liberty” interest the State can’t take away from her. This act of reading into the “liberty” interest is called “Substantive Due Process” (I have never heard a good explanation why). On one hand, that seems completely logical. What could be more important to liberty than the right to control one’s health and bodily function? On the other hand, many lawyers and judges are very wary about reading rights into the “liberty” interest of the Due Process clause, because doing so is associated with one of the ugliest chapters of Supreme Court history.

I mean, why shouldn’t a kid work 70 hours a week?

In the late 19th and early 20th centuries, the Supreme Court went to quite a bit of trouble to protect the property rights of the wealthy at the expense of the huddled masses of 12 year olds apparently yearning to breathe some free factory air. The Court concluded that the “liberty” interest of the Due Process clause included a right to contract. In a series of decisions knocking down labor laws, including a federal law regulating child labor, the Court concluded that the individual’s right to contract was more important than the government’s interest in ensuring corporations were not abusing and killing its citizens. This era of pro-property rights Court decisions is called the Lochner era, after one of its most famous cases. This line of cases was finally overruled in 1935, and it is among the most clear and destructive examples of “activist judging.” So when Roe was decided in 1972, reading rights into the “liberty” interest in the Due Process clause, Substantive Due Process had long been a constitutional hot potato. It is favored by some Justices for its flexibility in adapting an 18th and 19th century document to the modern world and disfavored by others for its past and potential future abuses. The problem with basing Roe on substantive Due Process is that whether you agree with it or not, there are popular and valid legal arguments against it. The debate about reproductive rights isn’t going away because there are a lot of lawyers and judges who, whatever they think of abortion, are very wary of this line of reasoning.

What’s wrong with a little Equal Protection for the ladies?

The weird thing about Roe v. Wade is that it could have been decided on a much more solid foundation: the Equal Protection clause of the 14th Amendment. Had the decision been founded on that basis, some judges might have questioned whether abortion rights are an Equal Protection issue, but no one questions whether the right to Equal Protection of the laws exists. Moreover, it’s easy to prove that reproduction places a burden on half the population that does not exist for the other half. With many women acting as heads of household, it seems a pretty obvious argument that restricting their right to control reproduction effectively restricts their right to pursue their life goals and provide for their families in competition with men, who cannot get pregnant. Few, if any, judges would contest today that the clause applies to the rights of women. Indeed, the argument against the Equal Rights Amendment was and is that women are protected by the Equal Protection Clause. It seems unlikely Roe would have remained so profoundly controversial if it had been decided on that basis.

So why are we still arguing over reproductive rights? Because the men evaluating the importance of a woman’s right to terminate a pregnancy spent a great deal of time evaluating the medical history and implications of termination, but very little time evaluating whether an abortion could impact a woman’s ability to determine her future, as any man would expect to do. Ruth Bader Ginsburg has said that she wishes the first reproductive rights case had been that of a young female Air Force Officer who, when she became pregnant in Vietnam, was given the choice of terminating the pregnancy or leaving the service. Ginsburg thinks this illustrates the fact that the issue is a woman’s choice, not the mechanics of abortion. I agree. At the time Roe was decided, it was only two years after the Equal Protection clause had been applied to women for the very first time. The world might be quite different if abortion rights had been decided a few years later. However, all speculation about how Roe could have been decided is an intellectual exercise; it is unlikely substantive Due Process is going anywhere. As with all important civil rights cases, Roe v. Wade has other precedents built on top of it, most importantly (in my opinion) the entire line of gay rights cases involving sexual privacy and marriage. So ladies, when the next Supreme Court seat opens up, grab your gay friends and protest for all you’re worth, because all of our rights depend on it.

 

 

 

Trump’s Syrian Reversal: A 180 Is The Wrong Angle For Diplomacy

This week Syrian President Bashar Al-Assad gassed his civilians with a nerve agent, and, Donald Trump, in a total reversal of his policy toward Syria and its ally, Russia, bombed the airfield Assad used to do it.  Some of the reactions in the Press have been pretty ludicrous, with Fareed Zakaria  even calling Trump “Presidential” for bombing the airfield, and others have been serious.  However, even though many pieces have noted that Trump’s unpredictability has now entered the international stage, most have not thoroughly explained why a swift reversal of policy is the most dangerous part of Trump’s airstrike. The issue is not whether Trump is a hawk or a dove on Syria, or whether or not he is friendly to the Russians; the issue is whether Trump has established a policy at all. If Donald Trump does not create and announce a policy for how the American government will interact with Syria, Russia, or any other country, that nation cannot rely on current diplomatic norms to prevent conflict. Trump broke the stability of international diplomacy by reversing his stance on Syria virtually overnight and failing to adopt a new one. If Trump does not develop and act on real, thoughtful policies in his international relations, it can and will have consequences for all of us.

Diplomatic norms depend on well researched policies and consistent public stances

Governments, laws, and international norms exist, at their most basic core, to resolve most conflicts before they arise and keep people from killing each other. Diplomacy is usually incredibly boring, but it exists for a reason. A policy about how one country wants to interact with another provides a roadmap for where conflict might arise. Some fights may be inevitable, but the diplomatic norm of producing policy and taking public stances on contentious issues – then sticking to those stances – ensures that conflict will not be unpredictable. It enables each party to try to think of solutions before bombs start flying.

A great example of using announced policy to avoid conflict is the US government’s One China policy, a delicate balancing act if ever there was one.  In order to have diplomatic relations with the People’s Republic of China, all countries must cut off relations with the island of Taiwan, because China considers Taiwan to be part of one Chinese nation. Taiwan, the Republic of China, is the remainder of China’s former democratic (though horribly corrupt) government, which was allied with the US and Britain during WII, and which the US has promised to defend. To navigate this conflict, the US only has diplomatic relations with Beijing, but it continues to sell arms to Taiwan, and have informal connections there, and it maintains its obligation to defend Taiwan should China attack it.  The US was able to hammer out a workable compromise because both it and China had all their cards on the table. The US isn’t prevented from violating the One China policy, or attacking China, it’s just less likely to do so because all of the potential consequences have been mapped out. Nothing in life is certain, but developing, announcing, and sticking with well thought out diplomatic policies goes a long way toward limiting the uncertainty that often causes conflict.

Trump upended diplomatic norms on Syria with a rapid reversal

On its face, Trump’s airstrike seems like the sort of proportional military response Syria and the Russians should have expected. So why didn’t they? The answer is, Trump’s Secretary of State and UN Ambassador publicly announced a policy that the US is not interested in intervening in the Syrian civil war. On March 30, Secretary of State Rex Tillerson told reporters that Assad’s status as President “will be decided by the Syrian people.” The same day, UN Ambassador Nikki Haley said “our priority is no longer to sit there and focus on getting Assad out.” I think it would be excessive to suggest that they were saying they do not care about the Syrian people, but they were certainly saying that they are not interested in intervening to oust Assad.

On April 4, video footage of the gas attack emerged and was reported. White House Press Secretary Sean Spicer read an obligatory letter of condemnation for the attacks and then told the press that he would not ask Assad to step down and not acknowledging the reality of power in Syria would be “silly.”  This seemed to be a continuation of the announced policy of non-intervention. Then came the reversal. On April 5, Trump announced, without specifics, that he was changing his mind on Assad because Assad killed “innocent babies.” On April 6, Tillerson announced that Assad would have no role in governing the Syrian people, and that Trump was considering a “serious” response. That night, Trump bombed the Syrian airbase. Trump performed a 180 degree turn on the issue of whether to intervene in Syria, a Russian ally, in 48 hours. He has yet to announce its new stance on how the US, its allies, or anyone else should proceed in Syria.

Trump’s rapid change in Syria policy made ALL diplomacy unpredictable … and therefore dangerous

I think each nation is looking at the shocking reality we Americans have been experiencing every day on an individual level: “I have no idea what this person is going to do or say today and his choices affect my safety.” Our allies have ample reason for concern, and there are a lot of countries with whom the United States has fraught relationships. Every country, ally or antagonist, has to make its decisions with the possible actions of the US Government in mind. We are everywhere, and they need to rely on the American Government to be predictable. Sadly, the only clearly discernible policy in this mess appears to be “if I see dead babies on CNN I will bomb whoever did it.”  The fate of the Syrians gassed by their government is tragic, but so is the fate of the many Yemeni children dying of starvation and war right now. There are a whole lot of people who have killed babies in the Middle East, intentionally or incidentally, including Donald Trump. Bombing all of them will make a parking lot, not a solution. Now, we are facing off with the world’s second largest nuclear power over a conflict Trump didn’t care about 6 days ago. Fingers crossed Russia doesn’t bomb any preschools – it might end up on CNN.

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?

 

Trump’s Russian Roulette: we’ve got the cover-up, but where’s the crime?

The circumstantial evidence that Donald Trump, his campaign, his family, and his businesses have unsavory ties to Russia has grown to near-undeniable levels. Still, criminal offenses have yet to be uncovered. Currently, the Trump Administration’s only crime is lying by Michael Flynn and Jeff Sessions about non-criminal communications with Russian Ambassador Sergei Kislyak. Now, the news that Jared Kushner and disgraced former National Security Adviser Michael Flynn met with Kislyak together suggests Flynn’s interactions with Russia were undertaken with Trump’s knowledge.  When a leader runs Play #7 in the Dictator’s Playbook: Let a Henchman Take the Fall, the involvement of multiple close advisers almost always means that the leader was involved in the relevant high jinks. The problem with calls for impeachment and consistent comparisons to Watergate is that Watergate started with an actual crime committed by Nixon’s associates; when it comes to Trump and Russia, his henchmen are behaving as if he is covering something up, but we don’t know what it is, or how we could possibly prosecute it.

Watergate and Russiagate have a lot of similarities . . .

Both scandals started with attacks on the DNC. The DNC has got to get its act together on the security front. In 1972, Tricky Dick and his (apparently quite poorly trained) henchmen kicked off the Watergate scandal by getting caught in flagrante delicto bugging the DNC offices in the Watergate hotel. In 2016, the Democratic primary and general election were thrown into turmoil, much to the detriment of the ultimate democratic nominee, by the hacking and leaking of private DNC e-mails. Its offices were apparently bugged again as well.

The immediate culprit indicated a larger conspiracy. While it took much longer to link the President and his men to the burglary and its perpetrators, it was quickly discovered that one of those men was a security consultant for the Republican Party. Likewise, in 2016, three days after the first DNC e-mails were released by Wikileaks, analysts had already discovered the DNC servers were hacked by individuals using a Cyrillic keyboard in Moscow.

The sabotage was undertaken in favor of the Republican candidate. In October 1972, the Washington Post reported the FBI’s conclusion that the Watergate break-in was part of a widespread campaign of political sabotage undertaken on behalf of the Committee for the Reelection of President Nixon. Mr. Trump has received a similar assist, if from a different actor. In December 2016, 17 US intelligence agencies concluded that Vladimir Putin ordered Russian operatives to hack the DNC in order to get Donald Trump elected.

Henchmen have lied about their contact with conspirators. In the Watergate scandal, the first lying henchman to be unmasked was John Mitchell, former US Attorney General and the Director of Nixon’s reelection campaign. Mitchell initially denied that the campaign had anything to do with the Watergate break-in, and was contradicted by evidence found by the FBI and Washington Post (See above link to the Post’s chronology of Watergate). Obviously the dominos fell from there. Dominos seem to be teetering among Trump’s cronies. Michael Flynn had to resign for lying about his communications with Kislyak, and now Jeff Sessions has had to recuse himself from future investigations as penance for his fibbing.  The problem is, both mens’ actions, while somewhat irregular, weren’t illegal. We only see a cover up because they are acting like they are conducting a cover up (which makes them pretty terrible conspirators).

But it’s the differences that count . . .

Russia changes the ballgame. The involvement of a hostile foreign power makes Russiagate a whole different animal from Watergate or any other Presidential scandal. Watergate started with a petty, prosecutable crime committed within the jurisdiction of the United States. Within a couple of months the authorities had hard evidence linking Richard Nixon’s reelection campaign to the burglary.  After that, reporters and the FBI just had to prove the intuitively obvious notion that someone in the White House knew about the crime. Nixon’s henchmen went to jail for obstructing justice in association with a burglary.  They were covering up a simple crime. Russiagate is not going to be that simple.

Russian hacking won’t take Trump down. Starting at square one, to do anything about Trump’s ties to Russia, we would need to impeach, and for impeachment, we need a “high crime or misdemeanor.” The impeachment of Bill Clinton for perjury and obstruction of justice actually sets the bar for what constitutes a “high crime or misdemeanor” pretty low. However, we only know about one crime so far: the hacking of the DNC, and we know that was committed in Moscow by the Russian government or agents thereof. In order to prosecute Trump or any of his advisers on that charge, we would have to prove that they knew about it and conspired to enable it in some fashion, or covered it up afterward. This seems improbable.  Vladimir Putin does not need the Trump campaign to figure out how to hack a server, nor does Wikileaks need help leaking it. On top of that, in order to prosecute Trump and his henchmen for a crime committed by a foreign government, a prosecutor would pretty much have to prove treason, and that seems like a stretch, given that the hack was against the DNC, a private political organization, not the US government.

How do we get a conviction for Russiagate? We may not. This may just be a seedy association that looms over the administration like a bad smell.  For all the strange praise of Putin and lying henchmen, the very diligent Press has yet to find any concrete favoritism or quid pro quo granted to Russia (though with time, Trump may be foolish enough to supply one). The Steele dossier (the one with the peeing prostitutes) alleged that a Trump adviser was bribed with 19% of the Russian Rosneft corporation in exchange for the US lifting sanctions on Russia and its oligarchs, but there has been no quid pro quo, so no one has done anything provably wrong – yet. We know the Trump Organization has extensive financial ties to Russia, but can’t prove it. However, I think financial misconduct is where to look for a cover up. A group of legal scholars has filed a suit demanding that Trump open his books.  If and when that lawsuit succeeds, we will be able to follow the money, and if there is anything we know, it’s that Trump has been extremely shady with money his entire career. Like Al Capone, I think Trump’s horrible financial practices are most likely to bring him down, whether he is conspiring treacherously with Russia or not.

 

 

Don’t laugh about “Terror” in Sweden: the results are anything but funny

It never helps to dismiss apparently ridiculous statements from the Trump Administration.  As this blog has previously asserted, they are not as ridiculous as they seem. Donald Trump made what appeared to be a hilarious gaffe during his campaign-style rally in Melbourne, Florida on Saturday. While discussing the difficulties faced by some European countries due to their acceptance of significant number of refugees, Trump implied that there was a refugee-related terrorist incident on Friday, February 17 in Sweden. There wasn’t.  However, that does not matter.  As hilarious as this statement may have seemed to Trump’s detractors, his supporters now believe that the media, which Trump is trying to discredit, is concealing a terrorist attack in Sweden. I would suggest to you that, like the Bowling Green Massacre, this lie, whether it was a mistake or not, contributes to the Trump Administration’s use of Muslims as a Scapegoat to unify his supporters and conceal his incompetence and ignorance of how government works.

The Courts have revealed that Trump can’t deliver

Trump’s scapegoating of Muslims is nothing new.  He famously called for a ban on all Muslims entering the United States. He called for a national registry of Muslims in the United States, including Muslim Americans. It spoke to the not insubstantial percentage of Americans who genuinely fear terrorism from abroad. However, Trump’s plans to unify the country against the threat of “Radical Islamic Terrorism” have been stymied by the Federal Judiciary.  The Executive Order on Immigration banning entry to the US for citizens of 7 Muslim nations didn’t work for anyone.  For Americans who value constitutional rights, the rollout was a disaster and the Order was, at best, overbroad.  For Trump’s supporters, it failed to fulfill a campaign promise to exclude foreign Muslims from the US.

When in doubt, point the finger!

Trump’s, and his lieutenants’, instinct to point the finger when things don’t go their way is pretty consistent with the behavior of Dictators past and present. As this blog has stated elsewhere, active use of scapegoating tends to be inversely proportional to a would-be autocrat’s success.  In other words, if he’s delivering on his policies, no scapegoats are necessary! If he’s not, he’s got to direct the public’s attention elsewhere. Let’s look at an example:

Good old gestating Dictator Nicolás Maduro of Venezuela came up against this very problem last year.  Oil prices were tanking. Inflation was soaring.  Homicides were up. No one was happy with him. What is an autocrat to do? Well, Maduro discovered that three border agents had been ambushed by two men on a motorcycle.  Within hours, this incident, which was not organized and didn’t kill anyone, had become a paramilitary attack, justifying a crackdown on Columbian “smugglers and drug dealers” throughout Venezuela. Of course this crackdown turned into the mass persecution of ordinary Columbians resident in the country, but that is not the point of this article.  The point is that Maduro did it in order to refocus public attention on an unpopular scapegoat in order to distract them from his failures as a leader.

Trump is playing the same game

Trump’s fictional Swedish refugee terrorist is the third fake terrorist the Trump Administration has invented in a single month. First, Kellyanne Conway gave us the Bowling Green Massacre.  Then Sean Spicer told us there was a terror attack in Atlanta.  Now we hear there was a refugee related terror attack in Sweden!  These could all be misstatements, as the White House says. I just don’t think it’s likely that all of them are. Lies this big tend to have a target.  Is it more plausible that Trump and his lieutenants are repeatedly misstating the nature or location of terror attacks, or is it more likely they have discovered that these lies are politically advantageous for them? We already knew that the majority of Trump supporters believe the Bowling Green Massacre actually happened. Now we know they believe an attack happened in Sweden.  The only real question is, exactly what political purpose does this serve? The answer is, they help the Trump Administration scapegoat Muslims in order to misdirect the public, and it’s one of the oldest tricks in the book.

 

The [Free Press] is not the Enemy of the American People, but it still might not be able to stop Trump.

Yesterday afternoon, Donald Trump tweeted “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!” This is a turning point in Trump’s criticism of the Press. It is no longer just unfair to him, it is our collective enemy. We knew it was coming.  All the signs were there. Throughout the campaign Trump claimed he was running against a “rigged press.”  His supporters adopted a powerful and despised German term, the “Lügenpresse” or lying press, to describe the news outlets that brought down Richard Nixon.  Since his inauguration, he has called those same outlets “Fake News.” Yet still, even if it isn’t surprising, it is still shocking that Donald Trump, as an American President, is running Play #4 in the Dictator’s Playbook, and acting to discredit the Free Press as an institution of our democracy. Here’s what we can expect, the good, the bad, and the ugly.

The Good

The American Press is pretty resilient, and at its best it has been heroic. Recently, our major news outlets have been running down every lead they can to hold Washington accountable, and they have been careful to substantiate each new bombshell story.  But for the Press to be most effective, reporters aren’t the only people who have to demonstrate heroism.  The great thing about our current situation is that we have an ample supply of the secret ingredient to Press effectiveness – whistleblowers .  From the unexpectedly bold National Park Rangers to the many members of the intelligence community leaking to the Press, the material is there for brave reporters and leakers to expose the Trump Administration.

People on the inside of a corrupt and dangerous administration are the ones who have to expose it, and that is happening. The reams of information seeping out of the executive branch have provoked comparisons to Nixon White House during Watergate.  It’s a great comparison, and it’s important to remember that Woodward and Bernstein could not have become Woodward and Bernstein without Deep Throat (Mark Felt) and their many other informants.    The New York Times and the Washington Post, in particular, have been delivering the hard, unbiased, factual reporting they delivered during the Pentagon Papers and Watergate stories.  They are rising to the occasion.  The problem is, 20 years of the scandal-ridden, unfocused 24 hour news cycle started discrediting the press corps before Donald Trump ever put on a red cap.

The Bad

On the day Trump took office, the credibility and effectiveness of the Press was already in pretty bad shape. This problem started before “fake news.” In fact, I would argue that fake news only took hold because the public had already lost faith in the Press. This loss of faith is dangerous, as any possible impeachment scenario will likely rely on evidence discovered by the Press. Two primary factors have left us in a position where the Press is one of two institutions that can hold the Republic together, but it may lack the credibility and effectiveness to do so.The first is the 24 hour scandal cycle, which dulls the public’s ability to separate a real threat from a minor political misstep and the second is the media’s alienation of individuals on the Left, Right, and Center of the ideological spectrum.

The first problem is that the salacious details of Bill Clinton’s sex life started a new Press paradigm of  seeking out and manufacturing scandal.  Gotta keep those ratings up! We impeached a President because he perjured himself over a blowjob.  The Press reported George W.Bush’s use of cocaine as if it were a major scandal.  Howard Dean whooping at a rally brought down his campaign.  To some extent, during Bush’s second term, the scandal manufacturing slowed down because actual scandals about the invasion of Iraq and Hurricane Katrina emerged, but the public as a whole paid less attention to the severity of those problems because every “scandal” was reported with the same seriousness and severity.  This got even worse under Obama.  The IRS “scandal” went on for months and the Benghazi reporting went on for years.  The public becomes numb to endless outrage.

The second problem is that since the 90s, almost everyone on the ideological spectrum has lost faith in the Press.  In the scandal industrial complex the news has become, people with different ideological beliefs want to pick the scandals they hear about.  The Right hasn’t trusted mainstream outlets since the Drudge Report broke the story of Monica Lewinsky’s blue dress. During the Bush Administration, the Left began to seek out media that would report on issues like Bush’s attacks on gay rights and abortion.  Finally, the center lost faith in the Press when, during the run up to the Iraq war and invasion, it traded its integrity for government approved access, and failed to expose the Bush Administration’s use of faulty evidence to lead the American People into a costly war, the consequences of which are still haunting us.  The Press put itself in its present position. As Radiohead says, you do it to yourself.

The Ugly

If the Press is or becomes truly discredited, and Trump really wants to seize power, he will likely act to limit its ability to disseminate information.  For some would-be Dictators this takes the form of legally rescinding the freedom of the Press, as Hitler did in the Reichstag Fire Decree of February 1933.  Others restrict content by opening a state media outlet, as Vladimir Putin did with RT, or purchasing hostile media while requiring transmission of government statements, as Nicolás Maduro has done in Venezuela.  Often, emerging autocrats muzzle the Press by simply murdering journalists, as Putin has unquestionably done. Knowing that Trump admires and consistently defends Putin casts Putin’s tactics vis-à-vis the Press in an alarming light. It is not inconceivable that Trump sees Putin’s tactics as a model. However, the Ugly hasn’t happened yet, and until it does, we have to read, support, and share reliable, fact based articles from reputable sources like the New York Times, the Washington Post, the Wall Street Journal, and the Economist. In a very real way, the ability of the Press to hold Trump accountable, as it did Nixon, depends on each of us, and our willingness to believe that it can.

 

Flynngate and Impeachment: Lots of smoke, but no fire

No one loves a good round of Schadenfreude more than I do, but the enthusiastic talk of impeachment surrounding the demise of National Security Adviser Mike Flynn is a tad premature. Flynn’s abrupt resignation in the wake of revelations that he lied about his communications with the Russian Ambassador, Sergey Kislyak, before taking office, has undoubtedly concerned Democrats, the intelligence community, and some Republicans.  Hopefully, this incident has refocused them on finding out whether any crime has been committed by Trump or his lieutenants with regard to Russia (or anything else).  However, according to what we currently know, it does not provide grounds for legal action against Flynn or Trump.

What we know as of February 14

Let me give a quick recap of how we got to Flynn’s resignation: During the transition, the Obama Administration imposed sanctions on Russia in retaliation for its hacking of the DNC and individuals associated with the Democratic Party. Shortly thereafter, Mike Flynn spoke to Ambassador Kislyak on several occasions, and questions arose in the Press about whether they discussed Obama’s sanctions. On January 15, then Vice President-Elect Mike Pence told CBS that Flynn had not discussed sanctions with Kislyak. On January 26, Acting Attorney General Sally Yates told the White House Counsel there was evidence that Flynn did speak with Kislyak about sanctions. On February 9, the Washington Post reported that Flynn had lied to Pence about the content of his conversations, and Trump denied he had any knowledge of it. On February 13, Flynn resigned his post, essentially stating that he unintentionally excluded the full content of his communications with Kislyak when briefing Administration officials. On February 14, the New York Times reported that Trump had known about Flynn’s misconduct for at least two weeks.

Why Flynn’s actions probably are not criminal

Neither I nor anyone else outside the intelligence community can say for sure whether any of Flynn’s actions are criminal, because we do not yet know the content of those conversations.  However, we do know that the only statute applicable to the facts as we know them, is the Logan Act of 1799, and that it probably won’t be applied in this case.

The Logan Act, frequently raised in political infighting, has only seen one indictment in 218 years, when, in 1803, a farmer advocated the creation a new western state allied with France. Since then it has been thrown around a lot: Ronald Reagan suggested using it against Jesse Jackson and Speaker of the House Jim Wright; Congressman Steve King suggested using it to limit Speaker Nancy Pelosi’s international travel; and it was widely argued that when 47 Republican members of Congress wrote a letter to Iran trying to sink the Obama Administration’s nuclear deal, they violated the Act. The Logan Act is a political football, and Flynn’s actions don’t seem sufficiently severe to inspire prosecutors or Congress to use it as anything else.

Although Trump was not yet President and Flynn not yet his adviser, Flynn’s conversations took place after a valid election, and it is normal for transitional administrations to talk to foreign leaders. The DOJ has said it is unlikely to bring criminal charges. Frankly, it would be shocking if they did.  Even when Richard M. Nixon, who definitely had a copy of the Dictator’s Playbook on his bedside table, sent a representative to sabotage the Vietnam peace talks during the 1968 presidential campaign, neither he nor any of his associates were prosecuted. This is not a law to hang our hopes on.

Where there’s smoke, there is fire … somewhere

There is definitely something rotten in the State of Trumpmark.  We may not be able to indict Michael Flynn or impeach Donald Trump for Flynn’s conversations with Russia, but there is a lot of circumstantial evidence of some sort of misconduct.  In addition to the many examples of Trump’s bias toward Vladimir Putin, the New York Times reported today that Trump’s aides regularly spoke to Russian Intelligence operatives during the course of the campaign. Hopefully, this will lead to further investigation by the Press, Congress, and the intelligence community into whether prosecutable crimes were committed.  Until then, we need to hold our guns on impeachment talk.  This is like building any criminal case.  We have to find evidence Trump and his associates violated the law. We cannot afford to jump at every plume of smoke we see.  We have to go find the fire.

 

Free Speech and Civil Disobedience, or how we should stop worrying and learn to love the fire hose

It’s time to talk about the purpose of peaceful protest in a democracy.  I have noticed that on social media and in some articles like this one, advocates of resistance to the Trump Administration are failing to distinguish between two types of protest: lawful protest, and civil disobedience.  The difference is not semantic; they are distinct tools with distinct impacts. The purpose of protest in democracy is both to convince those in power that there is overwhelming support for a cause, and to persuade one’s fellow citizens that the cause is just and they should support it. To achieve that purpose, a resistance, like the military, needs individual campaigns, each with an objective, a strategy, and tactical resources. Among our most powerful tactical resources are lawful protest and civil disobedience, and we need to employ them effectively.

The Difference between Lawful Protest and Civil Disobedience

Lawful protest is planned in coordination with the local government, and is intended to obey local laws and ordinances. The Supreme Court has consistently allowed restrictions on speech based on the time, place, and manner of the speech, including restrictions on blocking traffic and sidewalks, harassment, and loud noises. This means that although local government cannot pass laws affecting the content of your speech, they can pass laws requiring permits for large gatherings that will interfere with traffic and the business of other citizens.  In contrast, Civil Disobedience involves deliberately disobeying a law, usually peacefully, in order to protest government action or injustice.

How is Lawful Protest most Effective?

Two great examples of permitted lawful protest are the March on Washington for Jobs and Freedom, and the Women’s March on Washington.  The first obviously had a significant historical impact and is talked about to this day; I suspect the impact of the second will fade with time, no matter how many people participated.  There are two primary differences between the two: 1) the March on Washington had a specific goal – to obtain a civil rights act from Congress and to help oppressed African Americans get jobs, and 2) it had a very disciplined and controlled message.

The March on Washington stuck to its goals and its message.  It talked about jobs and civil rights.  Its leaders forced John Lewis to edit out “militant” sentences in his speech.  It opened the march to all allies who supported its specific objectives. Indeed, Malcolm X criticized it in his Message to the Grassroots for refusing to demonstrate black anger and for allowing white people to participate (female speakers were also excluded, probably for less lofty reasons).   Then, when it concluded, the leaders went directly to the White House to speak to the politicians to whom they had just proven popular support for their positions.

In contrast, the Women’s march had no concrete objective, and the opposite of a controlled and focused message.  Instead of communicating a purpose, it focused on ensuring every issue affecting every woman in America was heard.  Consequently, although politicians did participate, they were not pressed to pursue any specific policy to achieve the goals of the assembled people.  They were simply presented with a policy platform pretty much lifted off the Democratic Party’s books.  The Women’s March did a great job of irritating the hell out of Donald Trump, and that’s a great start, but future protests need to aim to achieve a concrete result. For a template, we can look to the original March.

How is Civil Disobedience most Effective?

Civil Disobedience is most effective when the disobedient citizen peacefully presents himself  to suffer a disproportionate response by those in power. People don’t like watching other people get abused, and the public is usually, if not always, able to identify a disproportionate response.  Some Americans may have initially dismissed the Standing Rock Sioux and their supporters as trespassers, but people took notice when the police used water hoses in 28 degree weather. Obviously, this tactic was also used extensively and to great effect by the Civil Rights Movement of the 1960s, and was a huge agent for convincing middle America that it, through the government, must act.  These images are part of our national consciousness now: dogs and fire hoses being turned on unresisting people walking down a street in Birmingham;  marchers being beaten for walking across the Edmund Pettus bridge in Selma; Rosa Parks refusing to sit at the back of the bus.  That kind of suffering makes a lasting impact.

Unlike legal protest, civil disobedience often requires sacrifice. You have to put your personal needs aside in favor of the greater goal. It requires time in jail.  It requires harassment and sometimes physical assault.  And to be most effective, the protester cannot resist. It is probably the most powerful tool available to convince our fellow citizens that the government is wrong, and we are right, because it makes them see government through our eyes.  You can watch a nonresistance training video from the Student Nonviolent Coordinating Committee (SNCC) here.

How to Protest in Trump’s America?

There are going to be a lot of causes we can support with lawful protest and civil disobedience in the coming months and years.  Going forward, we need to focus one protest campaign against each unconstitutional or unlawful overreach by the Trump Administration, because if we focus each campaign on a specific violation of law, we can mobilize across the ideological spectrum.  We will not succeed if we impose an ideological test on resistance. If constitutional conservatives agree that there should not be a religious test on Muslim immigration, work with them.  If a pro-life feminist group believes that access to contraception is essential to the equal protection of America’s women, work with them.  And if Donald Trump orders the executive branch to disobey a federal court order, work with every single American – evangelical christian or radical socialist – who is afraid of losing a functional branch of government and put a human barrier between Trump and his objective. Like the protesters and lawyers in airports across the country have sought to do in response to the Muslim ban. Massive protests and acts of civil disobedience are powerful tactical tools, and in this era of perpetual outrage, the fire hose is our new best friend.

Calling People Nazis: walk softly and carry a big example

I think at this point everyone is familiar with Godwin’s law, or the idea that “as an online discussion grows longer, the probability of a comparison involving Hitler approaches.” Lots of people love comparing their opposition to Hitler. We certainly saw plenty of Obama posters with tiny mustaches during the rise of the Tea Party, and the Left definitely called George W. Bush a fascist on more than one occasion. The problem is, the comparison is now incredibly commonplace, and has therefore lost a lot of its potential impact.  Up until now, when people called each other Nazis, what they really meant was “your guy is the most evil guy to run a country ever.”Now that we have an Administration that is actually acting like Nazis, everyone who thinks Trump is a genuine threat to our Republic needs to be selective about comparisons and use real examples.

Obviously I do not personally have a problem with calling, for instance, Steve Bannon a Nazi.  I am writing a Dictator’s Playbook almost exclusively based on Nazi tactics because I think the Trump Administration has been running some of those plays.  However, I think it’s important to explain why we are making these comparisons.  When people hear “Nazi” or “Hitler” they think of the murder of 13 million people.  I don’t think anyone is saying Trump is going to murder 13 million people (although it’s worth noting that the Final Solution was actually a “solution” to a failed deportation program – chew on that for a second).  The important comparison here is to the Nazi Party’s tactics from 1932-1935.  That is when they destroyed a constitutional republic.  Even if Hitler had lost power in ’34 or ’35, Germans still would have had to go back to the drawing board and create a new system of government.  That is the concern with the Trump Administration.  That it will so undermine our constitutional regime that we will lose the institutions we have valued for over 200 years.

So, when you call someone a Nazi, talk about how they intentionally scapegoated marginalized groups, undermined their political opposition, played the victim, discredited the press, co-opted or removed judges, created an extrajudicial  prison system to undermine courts and lawyers, used violence to intimidate political opponents and keep the people afraid, and lied to justify administration objectives (all of which are soon to be added to the Dictator’s Playbook).  Explain that the significance of the Nazis isn’t just the horror they inflicted on the Jews or the rest of Europe; it’s that they produced a template for how to turn a literate, informed, democratic society into the enablers and supporters of a deranged dictatorship.  Fake news isn’t new people – between 1933 and 1944 Germany went from 4,700 newspapers to 1,100 newspapers.  The Nazis shut down opposition papers, and everyone else stopped talking about politics or fell in line.  So walk softly unless you have a big example, because we can’t let that happen to us.