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.

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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.

 

Terrorist Whack-a-Mole and the Illusion of Safety

We need to stop throwing that old Ben Franklin quote about liberty and security at each other, and not just because Ben Franklin wasn’t talking about privacy rights.  When the Right advocates a new domestic security policy, the Left trots it out.  When the Left proposes new gun restrictions, the Right trots it out.  The fact that both “teams” are using the same argument against one another indicates neither has ideological consistency about either liberty or security.  The arguments about border security on the Right and guns on the Left are about which illusory solution each team reaches for to feel like they can control the uncontrollable. They are also not about radical islamism or white nationalism or mental health.  They are about fear of the unknown and the false notion that the government can protect us from each other.

Our security apparatus only creates an illusion of security

The Right’s big bête noire is “radical islamic terrorism,” and many are willing to sacrifice significant liberties (like the right against wireless search and seizure) and accept illiberal policies at home to play terrorist whack-a-mole.  Putting a pin in the discussion of how many moles we’re whacking abroad, it’s important to note that the security measures taken within the US, while designed to make people feel safer, don’t really achieve much more than that.

The TSA is the best and biggest example of a completely pointless security agency.   It is ineffective and reactionary.  The TSA was created in response to 9/11, and has succeeded only, as far as I can tell, in annoying passengers by trying to make sure they aren’t replicating tactics used by previous would-be terrorists. (Really?  We’re still taking off our shoes?)  These measures do not provide an effective screening program. TSA has a 95% failure rate in detecting explosives and weapons in luggage.  It may make people feel like they are safer, but it does not actually prevent anyone from getting on an airplane and blowing it up.

Likewise customs and border patrol displays selectively rigorous (usually *highly* profiled) vetting designed to make the public feel safe.  In airports, where most people see customs agents, they are able to conduct pretty thorough screening.  There are also crossings on the Mexican border that have significant screening. However, CBP is also responsible for all of our ports, 12,383 miles of coastline, a 5,525 mile border with Canada, and an approximately 2,000 mile border with Mexico.  Trump’s solution to this is to build a wall with Mexico.  This makes absolutely no sense.  For one thing, given that terrorism is one of the justifications given by the Right for this policy, it is worth noting that more terrorists enter the US from Canada than from Mexico.  Moreover, where there is an existing border wall in San Diego, the border patrol has found 30 tunnels in the last 10 years.  Trump’s wall is not going to keep radicalized terrorists out. It is not functional, it is psychological.

Fertilizer not butter

When domestic terror attacks occur, whether they are committed by white nationalists as in Charleston or Denver, or radicalized Muslims in Orlando or San Bernadino, the Left starts talking about guns.  They gin up mental health legislation trying to prevent access to guns, they talk about how their gun policy would have prevented the mass shooting (questionable at best), and explain how the NRA is preventing the US from eradicating terror attacks. This is complete nonsense.

Now I’m not suggesting that background checks and smart guns and any number of precautions are bad or that they will not help keep domestic abusers from buying guns or toddlers from shooting their friends. I am saying that they are not going to stop isolated, angry, disaffected humans, usually young men, from seeking out extreme ideologies or using violence to attack personal or ideological “enemies.”  It’s hard to predict who will be radicalized in this way, so immigration bans aren’t going to fix it.  These people won’t necessarily go to a psychologist, so mental health restrictions won’t always catch them. The ideologies vary, from Elliot Roger, the misogynist who blamed women for his pain, to Dylann Roof, who blamed black Americans, to Omar Mateen, who trained his hate on LGBT Americans.  The profile remains the same.

People with this radicalized profile are the same across the West, and there is no reason to believe removing guns from the equation is going to stop them.  The 7/7 bombings in London did not use guns.  Anders Breivik’s 2011 attacks in Norway did use a gun, but he used a car bomb too.  Attackers in Nice and Berlin have begun driving trucks into crowds of people as a means of inflicting terror.  The Columbine shooters created bombs as well as using guns, as did James Holmes. Tim McVeigh, the deadliest domestic terrorist in US history, used fertilizer to blow up a federal building.  Fertilizer.  Are we going to ban that too?  Radicalized individuals will find a way to inflict violence if that’s what they want to do.  This solution is no more narrowly tailored to address the problem than border walls.

There is no such thing as safety

Americans have never been able to understand, probably because of our oceans, that the world is dangerous, the government cannot completely stop that, and terrorists are just one of life’s dangers. When we had one large terrorist attack, we cracked down on our own citizens, invaded two countries, pissed off the entire world, and stuck ourselves with a really big tab.  It doesn’t have to be that way.

I’ll never forget the first time I visited London in 1996 – there was a bomb threat in the Tube.  No one panicked.  Everyone just went about their day.  Likewise, on the day of the 7/7 bombings, when I called to check on friends, they were amused I felt the need to call, and said that they, like the rest of the city, were in a pub.  100+ years of terrorism by the IRA taught people they shouldn’t allow fear to affect their lives. As long as we allow our ideological teams to rile us up and entrench us in our camps fixating on islamist terrorism and border security on one hand, and white nationalism, mental health, and guns on the other, we will never find any kind of solution.

The government cannot prevent radicalization with security measures or gun restrictions.  In fact, both will probably create more anti-government radicals like Tim McVeigh. Americans have to let go of the idea of George W. Bush’s War on Terror.  The War on Terror is a war on disaffected, isolated, angry people, and we are never going to run out of them. They will never stop using violence to frighten people unless it stops working. The more we pursue them, the more they proliferate. When you whack one mole, another one is going to pop up. Our only solution is to stop being afraid.

Trumping the Courts: the Judicial Voodoo of Court Authority

This weekend, the 9th Circuit Court of Appeals (one step below the Supreme Court) refused to lift the stay, issued by a judge in Seattle, of Donald Trump’s Executive Order banning citizens of seven Muslim countries from entering the US. If the Trump Administration does not accept the 9th Circuit’s decision, we could be in real trouble.  The problem is, since the first federal court order came down on January 28th, the Trump Administration has not always obeyed, and Trump himself tweeted “the opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” This indicates the President does not respect court authority, and that is very concerning.

You may be asking yourself why Trump ignoring federal courts is such a problem.  Here’s why: like voodoo, the federal courts only have power if we think they do. Sounds funny, right?  Courts have the right (and duty) to say what the law is if someone brings a case in front of them.  However, federal courts have no ability to force the other branches of government to follow their ruling. They can knock down an act of congress or a Presidential Executive Order, but their decision is only as powerful as the President or the States’ willingness to follow it.

Barring one temper tantrum by Andrew Jackson and a dispute by Abraham Lincoln in the middle of the Civil War, the Presidents have been pretty faithful about following court rulings, so we can’t look there to get an idea what might happen if federal courts get Trumped. However, to understand how big a deal this would be, we can look back a little over 60 years to see what kind of havoc ensued when the Supreme Court struck down racial segregation throughout the US  and the segregated states refused to implement its decision. (As an aside, it is not my intention to trash the South.  I love the South. It’s just really hard to write about constitutional crises and pretend y’all haven’t created some whoppers.)

Here’s what should have happened if each branch of government had done its job: the Court issued a ruling, so each state legislature would have taken every segregation or “Jim Crow” law off the books, integrated the schools and other public institutions, and gone on with its normal business.

Here’s what actually happened: the South rebelled against the ruling.  President Eisenhower had to send in 101st Airborne to let 9 kids go to school; President Kennedy had to federalize the Alabama National Guard to let two kids register for classes at the University of Alabama; and the federal courts, including the Supreme Court, issued order after specific order telling the States how to desegregate. This was a real constitutional crisis that threw the balance of power among government institutions completely out of whack.

Kind of like an injured brain, when one part of government stops working, the other parts adjust to compensate. In the case of desegregation, the Court was in an impossible bind:  the fact that the South was refusing to end segregation was a constitutional crisis in and of itself. Remember, federal court authority is like voodoo, and if the Court did nothing, no part of government would follow future decisions. So the federal courts did the only thing they could do- they started issuing specific desegregation orders to cities and towns and school districts, forcing school districts to use busing, for instance. Figuring out how to desegregate wasn’t really the courts’ job, but no one else was doing it. So to sum up, by ignoring the Court’s authority, the relevant States caused the federal government to send in the military to get kids to go to school, caused massive social upheaval, threw off the entire balance of power in government, and weakened States’ rights, which they have, of course, been complaining about ever since.

That was what happened when a few States ignored the Supreme Court. In that scenario, the President, the Congress, and the federal courts were all working together to force the States to cave.  If Donald Trump ignores the Supreme Court, I’m not sure the American Republic can recover, because no one will stop him fast enough to prevent permanent damage to the balance of power. The scary thing about the President of the United States is that the power of his office has expanded to reach almost every part of American life. Unlike the States, if the President ignores the Court, we can’t send in the 101st Airborne. We have only one last line of defense: Congress. Yup, we are relying on Paul “Von Papen” Ryan to put country over party and impeach Trump. Anyone wanna take bets on that happening?