Disloyalty if not Treason

November 12, 2019

The U.S. was the world’s most powerful country when Trump took office. Though we couldn’t control everything, we influenced outcomes all over the world. Then Trump pulled us out of the Trans-Pacific Partnership, leaving China the dominant player in the Pacific. He withdrew from the multi-power nuclear agreement with Iran, leaving Iran to reorganize its nuclear ambitions to meet its new security situation. Bizarrely he keeps claiming Iran must abide by the agreement even as the founders of our country would have explained to him that breach by one party to an agreement terminates the other’s obligations to it. He withdrew from the Paris climate agreement, not only undermining the international effort to limit global warming, but undermining other countries’ willingness to count on American promises. And he withdrew from the Intermediate-Range Nuclear Forces Treaty with Russia, inviting Russia to restart the nuclear arms race.

He publicly questioned the value of the two major institutions formed to keep the Russians in check – the European Union which strengthened and unified Europe as a counterforce to Russia, and NATO, the military alliance between the U.S. and the European countries outside the Russian orbit, famously dubbed the “Iron Curtain” by Winston Churchill. He urged letting Russia back into the economic organization of major economies despite having been kicked out because of the Russian invasion of Crimea. He pushes Putin’s proposal that Ukraine virtually give Russia back its eastern provinces, the ones Russia had invaded until the West pushed back. And he has just invited the Russians back into Syria and a major role in the Middle East. In reality, Trump is being impeached because he keeps helping Russia.

I know there are people who call themselves super patriots who believe the US would be better off able to make its own independent decisions. What that means, of course, is that we will no longer have the trust and confidence of other countries who will no longer see us as reliable allies. When we do our best to isolate Iran, we think of it as a punishment, but when we do it to ourselves, it’s supposed to be a great advantage.

Yes, we think of ourselves as a superpower, but how much of the world can we take on alone? We didn’t win World War II alone. We certainly had the major role in the Pacific but those of us who lived through or studied the War, know that Russia did most of the fighting in Europe. So there is a large cost to isolating ourselves and convincing our allies that they can’t rely on us. If they can’t rely on us, then they can’t be reliable for us. They have to seek their own advantage.

In sum, Trump has enormously weakened America. It’s bad enough if he did it out of stupidity. But it’s disloyal if he did it for his own advantage. And since Russia can clearly be described as an enemy of the US, even though we’re not now making war against each other, we would be justified in calling that treason.

Let me suggest that you read and think about Art. III, sec. 3, of the Constitution:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Whether or not it fits the definition of treason, weakening America for the advantage of Russia and China is certainly disloyal. As Hamilton explained in The Federalist, the basis for impeachment is “the abuse or violation of some public trust.”[1] No abuse of public trust can be more serious than disloyalty to America for the benefit of a foreign power.

  • Broadcast on WAMC/Northeast Public Radio on Nov. 12, 2019

[1] Alexander Hamilton, James Madison and John Jay, The Federalist, No. 65 (Hamilton) at 396 (Clinton Rossiter ed., New American Library 1961); and see Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 chronicling the development of impeachment from English precedents through the Founding Era in America (Yale U. Press 1984).

 


The Seriousness of the Ukraine Meeting

October 1, 2019

Let’s clarify the problems with Trump’s conversation with Ukrainian President Volodymyr Zelenskyy.

First, restrictions on foreign contributions to American elections protect American control over our government. If foreign countries can influence American elections, they can deflect the benefits of American wealth and power for their own advantage and the disadvantage of the rest of us. Restrictions on foreign contributions to American elections also keep candidates’ and office-holders’ loyalties home. More than that, if a foreign country can influence American elections, it can undermine American national security, preventing us from responding to the dangers from abroad.

Second, American foreign policy should not be for sale for personal benefits to American presidents. Corruption is not just a minor flaw. It sacrifices public to personal advantage. Corruption means that politicians are shirking their duty to the public in order to gain benefits for themselves.  Numerous provisions are in the Constitution to help stop that misbehavior, including the emoluments clauses. Of all types of corruption, none can be more serious than disloyalty, making deals with foreign countries at the expense of the American public. That is a particular risk of presidential power, which is why the emoluments clause outlaws the president or any other office-holder from gaining any personal advantage in dealing with foreign powers. The Constitution does not permit the risk that the president might deflect American foreign policy for personal advantage.

Third, it’s against the law. Federal statutes prohibit candidates for federal office from accepting contributions from foreign nationals.[1] That applies to the president and everyone else. They should be responding to American, not foreign, incentives. And the Constitution, though written in eighteenth century language, underscores that prohibition. It forbids any “person holding any office or profit or trust under … [the United States], without the consent of the Congress, [to] accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” In other words the president could not accept anything from the Ukrainian President individually or from his government.[2]

This whistle-blower complaint, about selling American foreign policy to a foreign government for personal advantage, is about disloyalty, about selling American “security assistance to Ukraine.” No president in American history has been as corrupt as Donald Trump. Since he took office, Trump has been determined to use his position to advance his personal financial interests. And before Donald Trump, no president in American history has ever been found guilty of putting American interests up for sale for personal advantage.

Let me end with a word to Trump’s supporters, both in and out of government. This is not a time when you can simply dismiss what everyone else sees and knows, indeed what the majority of America understands. The consequences are just too serious. Supporting a man whose corruption and foreign allegiances are so obvious is the most disloyal thing you can do short of pulling the trigger. It’s time to wake up and discover what the rest of the world knows.

[1] 52 U.S.C. 30121(a).

[2] U.S. Const., Art. I, sec. 9, par. 8.


Corruption Overwhelming America

August 20, 2019

This commentary was drafted in anger when I learned that pig farmers are refusing to allow inspections to look for the microbes that are killing people. Upton Sinclair’s The Jungle exposed the filth of the meat-packing industry in 1906 and led directly to the Pure Food and Drug Act and the creation of the FDA, the Food and Drug Administration. Now they want to undo a century of relatively clean food by claiming regulation is bad – yes, particularly bad for filth in the food industry.

This country’s reputation for honesty and responsibility long gave us a huge market edge. American institutions check on errors and misbehavior. That drove our legal and corporate culture. Now we’re inviting the world to ditch its confidence in us, and inviting each other to be cynical about business and political claims, threatening our economic power and democratic system.

Everyone has a reason why you can’t check on them. China is more honest about their meat than our pig farmers. Police refuse to allow information to be made public about their behavior because the people might realize who is trustworthy and who isn’t. The President denies Congress’ authority to get information from him. Even George Washington turned papers over. Trump is the first President since Richard Nixon to refuse Congress his tax information, lest the American people get an honest look at his economic behavior, bankruptcies and unreliability.

Republicans lump everything under the title of regulation and, making no distinction, claim all regulation is bad. Regulation is a problem because they might have to take responsibility for the poisons they want to emit, the toxins and dangerous bugs in the food they want to sell us, and the financial shenanigans they use to fleece us of our money. No one has the right to poison or injure anyone else. That’s irresponsible at best, legally tortious and probably criminal.

The so-called Supreme Court authorizes corporations to force us into arbitration with arbitrators the corporations choose so that the arbitrators are only beholden to the corporations, and anyway, they have no power to cure corporate misbehavior. Heaven forbid corporations should have to own up for their sins. Why should they – no one else does.

We have fussed about the bribery rampant in other countries because it prevents law from working to produce decent and proper behavior that justifies reliance. Preventing investigations is almost as bad. We’re now allowing corporate and political America to behave like the Mafia where there is only accountability for hurting each other – the purpose of the organization is to fleece the public, impose protection rackets, and, where people object, kill. In this complex world it is increasingly difficult to protect yourself from dishonest business.

But the President does it – shouldn’t we follow his example? He failed to fire Mueller but he fires everyone else who might insist on honesty and accountability. Now he’s now moving federal agencies halfway across the country to encourage the staff to quit rather than relocate. What a step forward.

There’s a stench in the White House but who’s left to complain? Too many corporate officers can no longer be watched because Trump destroyed the civil service. Who’s to complain about what they do?

 


Impunity of the men on top?

July 12, 2018

The news has just announced that Alain Kaloyeros has been convicted on all counts. What he was convicted of doing was steering contracts to friends/supporters of Andrew Cuomo. That’s infuriating. Did Cuomo favor projects that went to his friends? That would have put everyone in a position where they had to break the law to be treated decently by the governor. And of course someone else gets the rap. I’m disgusted.

By the way, did the same thing happen when Trump removed Preet Bharara as the United States Attorney for the Southern District of New York? Since shortly after he was dismissed, we have heard nothing more about Bharara’s investigation of Fox. Coincidence? A subsequent US Attorney understanding who butters his bread? Or was he appointed because he and Trump had an understanding?


Impeachment for Corruption

April 14, 2018

We’ve discussed how impeachment organizes the disparate issues surrounding Donald Trump. We’ve focused on the poor political prospects of presidents who faced impeachment and the poor prospects of those presidents’ parties. We’ve examined the history of the constitutional language, especially “high Crimes and Misdemeanors.” We found that a major purpose of the language was to enable Congress to stop corruption in its tracks. Corruption of public officials was a major target of impeachments in both England and America, leading to our constitutional text.

The Founders were very concerned about corruption. One constitutional clause barred public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State,” and a second clause barred presidents from receiving any emoluments other than pre-determined compensation from the U.S. or any state. They couldn’t accept gifts. And they couldn’t accept other benefits, emoluments, including as pay for service. We have elaborate laws about gifts to public officials. They cannot, they must not accept pay as public officials for what they have to do anyway. Judges are generally quite scrupulous. When my classmate, Judge José Cabranes, officiated over a wedding for our son, I asked other judges what I could do in response. They told me anything I did, even though we are old friends, had to be minimal. Justice Sandra Day O’Connor wrote a chapter for a book I edited years ago. I arranged for all the contributors to share whatever royalties the book produced. Justice O’Connor was adamant that she would not take a cent – we put her share of the royalties into a scholarship fund instead. And you may not know that when foreign officials do bring presents to American public officials, the American officials are required to turn those presents over to be warehoused for use in public offices but not given to any public official to keep privately.

There were reasons that the Founders were so concerned. One source of the American Revolution had been the colonists’ anger at all the perks and goodies heaped on officials appointed by the Crown, and the colonists also reacted to the airs those officials put on. But the problem goes much deeper into economic and patriotic reasons. Opportunities steered toward public officials act like a tax on trade as other businesses have to struggle all the harder for business. Opportunities steered toward public officials distort the market because business doesn’t go to the best, but rather to the powerful. The economies of countries where those practices are common do much worse than those free of that kind of corruption. Until recently it’s not been a problem here.

The patriotic problem is loyalty. People perceive that doing business with Trump or his enterprises is more likely to win Trump’s favor and therefore affect American policy. They perceive it because it is ordinary human behavior to bless those who bless us. But it is precisely wrong for a president – their job in the White House is to pursue the best for America, not the best for their own businesses. No one asks presidents to impoverish themselves. I believe Truman was the last to retire without a presidential pension. And they can put their assets in a blind trust as presidents have been doing for some time now so that they do not know and can’t tell what will be better for their business or who has benefitted their assets. Trump has done the opposite. No blind trust. No disclosure of his taxes or the businesses reflected on them. And he blatantly steers business to his own resorts and enterprises.

That’s about the president’s welfare, not the people’s. Corruption has no place in the White House and should be the first article of impeachment. To paraphrase his own language: Dirty Donald; lock him up.

— This commentary was pre-empted by the Facebook hearings but included on the WAMC blog, April, 2018.


Is America For Sale? Is Trump Motivated to Sell Us Out?

June 20, 2017

Two lawsuits have now been filed over Trump’s violation of the emoluments clause.[1]

Emoluments is an eighteenth-century word rarely heard before Trump became president. It’s a rare president who ever came into office with assets that could motivate him to sell us out. And still rarer the president who refused to give up all interests in such investments. But Trump has refused to sell his assets or put them in a blind trust. His assets therefore are at risk here and abroad and their value is closely related to Trump’s dealings with foreign powers and domestic corporations and investors.

Foreign governments understand how to press his buttons. Like any lobbyist who curries favor with those in power, these governments understand that they may get better treatment if they patronize his enterprises. China granted numerous trademarks and other business advantages to Trump enterprises. Officials from China and many other countries use his hotels, lease or buy facilities from him, dine at his restaurants and thereby shift substantial amounts of money to him as well as help him publicize his Mar-a-Lago resort in Florida. All of this has raised the market value of Trump’s properties as all these foreign and domestic supplicants want to show Trump how they can feather his nest.

Now Trump has reversed positions he took during the campaign and his first weeks in office toward his foreign and domestic business partners and authorities. He reaffirmed the one-China policy, and backed off China’s expanding control over the South China sea. Trump abandoned his criticism of Saudi Arabia, and fell solidly behind it in a dispute with Qatar, where the U.S. has its largest regional base. Trump consistently excludes Saudi Arabia from his immigration bans though Saudis have dominated the terrorist events of the past two decades.

Was that because it was good for America or because foreign governments and officials gave him the rights he wanted for his enterprises abroad. With Trump we can never know.

The name for Trump’s behavior is corruption. Corruption includes using public power to gain personal wealth or profit, or accepting benefits that could lead a public official to take action contrary to the public interest. It’s almost impossible to prove a bribe – I’ll do this for you if you give me that. Politicians, lobbyists and other supplicants avoid the language of a deal and let the quid pro quo be inferred and implied. Numerous federal, state and local statutes prohibit public officials from accepting anything of value precisely because the quid pro quo is never stated but  always understood.

Whether Trump’s motives are pure or disgusting, he is in fact showing everyone how private advantage can be extracted from public office and laying America open to corruption. In many countries you get no help from government officials without bringing ever more costly “presents” to them. Trump’s behavior threatens to extract our energy and innovation for the benefit of Trump, his family and friends. That’s the essence of corruption and corrupt governments reduce their peoples to beggars.

This country worked hard to ensure an honest, dedicated, civil service. Despite all the jokes about government employees, our civil service has been the envy of most of the world. All of us will pay for Trump’s private empire.

— This commentary was broadcast on WAMC Northeast Report, June 20 2017.

[1] Citizens for Responsibility and Ethics In Washington v. Donald J. Trump, U.S.D.C., S.D.N.Y., Jan. 23, 2017, https://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2017/01/23140054/CREW-DJT-Final.pdf and District of Columbia v. Trump, US.D.C., D.Md., June 12, 2017, https://www.nytimes.com/interactive/2017/06/12/us/politics/100000005161070.mobile.html. And see Jackson Diehl, China and Saudi Arabia have seduced Trump into being their sweetheart, Washington Post, June 11, 2017, https://www.washingtonpost.com/opinions/global-opinions/china-and-saudi-arabia-have-seduced-trump-into-being-their-sweetheart/2017/06/11/d4001330-4c67-11e7-a186-60c031eab644_story.html?utm_term=.dae3f8d62c7a, Sui-Lee Wee, Trump Adds More Trademarks in China, New York Times, June 14, 2017, B5, available at https://www.nytimes.com/2017/06/13/business/trump-china-trademarks.html, and David Marsh, Trump’s China First Policy, MarketWatch, June 6, 2017, http://www.marketwatch.com/story/trumps-china-first-policy-2017-06-06.

 


Beyond Channeling Money

August 9, 2016

This is the sixth and last in a series on Money in Politics

Money finds ways to influence the political system despite our efforts to prohibit or replace it. It’s like a balloon that bulges wherever it can, or water that finds any path to cause trouble. Limits on contribution and gifts matter. But prohibitions aren’t enough. They just force politicians to spend more time looking for money and find ways around the limits. Even public funding for election campaigns isn’t a magical solution that will banish every problem in a puff of public green.

There are many problems we can solve to improve the rules of self-government. Employees deserve some protections. Employers can and some do pressure workers, make them go to some candidates’ talks, or give them work to do in political campaigns. Employer requests are hard to resist for fear of demotion, or other damaging consequences. We restrict sexual invitations to workers to avoid subtle or not-so-subtle intimidation. For similar reasons, employees deserve political protection on the job.

Still, we need more than prohibitions and public money. Parties were once the people’s answer to the power of money. Without parties, the wealthy and well-connected would rule. Parties were promptly corrupted, so Americans adopted primaries. Primaries shifted power to individual candidates and their organizations, and shifted power from the center of the voting population to majorities of primary voters, who tend to be much more extreme. That offers what Barry Goldwater, in his losing 1964 presidential bid, called “a choice, not an echo.” But it can also polarize politics and create a politics that almost nobody wants.

Most important for the future is how we prepare ourselves. We’ve been telling each other since the Revolution that we need an educated public. Unfortunately, many schools no longer educate people in relevant ways. We graduate students who have little idea who or how government is run, what our history is, or any understanding of the economic and social issues of our time. We complain that immigrants will not respect our ways, but leave the majority of natural-born Americans ignorant of how America came to be America. We need to do better.

What I see as truly encouraging is that this election has drawn many people into politics out of a real sense of public duty. I remember earlier waves like those that Adlai Stevenson, John Kennedy, Ronald Reagan, the civil rights and feminist movements drew into politics. I hope those of you whom Hillary, Bernie and Obama drew into politics will stay active and not become discouraged because all our dreams cannot be achieved quickly. I hope you’ll enjoy mixing with others door to door, in community meetings, house parties, barbeques, and otherwise staying in touch with the people.

I do think we can make life better. I don’t think we should expect a political heaven on earth. A large part of politics is about resolving differences of perspective, interests and needs – many of them legitimate on all sides. It’s not just about getting things done. It’s also about disagreement, conflict and compromise. Few of us ever get complete victories, and probably shouldn’t. But finding decent solutions to problems that divide people is also the challenge and one of the truly honorable tasks of democratic government.

— This commentary was broadcast on WAMC Northeast Report, August 9, 2016.


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