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?

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Stop Dumping All the Risks on Blue Collar Workers

June 5, 2018

I have been thinking about all the blue-collar workers who believed that Donald Trump would do a great deal for them.

We often talk about the risks that entrepreneurs face but capitalism does its best to outsource risk to blue-collar workers. If there are environmental problems, poisons in the air or water, blue-collar workers and their children will be the first to become sick – they are the canaries in the coal mines. But the irony is that they are also the first to be affected by any attempt to remedy the situation. Prohibitions may force their workplaces to shut down or lay them off.

Liberals often respond by saying that new methods will create jobs. But blue-collar workers have good reason to assume that any jobs created will probably be for other people. Liberals also argue that the proper method for creating jobs is with public works, renovating American infrastructure, etc. But who’ll get the infrastructure jobs? And even more important, no one has been able to promise those jobs. Obama tried but Congress blocked much of what he wanted to do. Trump promised a huge infrastructure program but he put it in the budgets of the states, not his own budget. In effect American politics has not been able to deliver on that jobs promise for the people whose jobs are at risk.

Other relief programs are more automatic: Except for Puerto Rico, we regularly protect people flooded by major storms even when they should have known better than to build on flood plains. The farm program, whatever its shortcomings, protects farmers with formulas that can be calculated in advance. Unemployment insurance is statutory but often grossly inadequate. Social security and Medicare have been reliable though they have become political footballs. Obamacare still exists despite Republican attempts to kill it. But you can’t feed and house a family on medical care. The earned income tax credit comes annually after April 15.

All of this suggests political winners and losers – we like some folks and we don’t trust others with whatever we might do for them. Government has not been willing to become the employer of last resort, so that there are always jobs and wages, although some candidates are urging it now. A negative income tax has been deemed too expensive. And Trump has spent huge tax dollars on enriching the super rich instead of reducing or eliminating the payroll tax in order to encourage hiring more workers for jobs that pay well. There’s lots that could be done if we have the will.

The result is that our political system has not been willing to care for workers. They are not the only ones our politics has left to hang in the breeze. Our unwillingness to insist on decent, honest and ethical behavior for everything from payday lending to mortgage loans, from manufacturing to toxic waste, leaves masses of people at risk, unable to protect themselves or their families.

We need statutes that protect all workers when employers reduce their workforce. Protections need to be reliable so that people don’t have to fear for their jobs when they demand safe working conditions and decent contractual terms that don’t shift all the risks to the people who are most vulnerable and least able to protect themselves. We need reliable worker protection so that people needn’t fear for their jobs when we demand safe products and safe byproducts of business activity. We need to rethink how we protect American workers so that they don’t become the losers whenever we try to improve the American environment and working conditions for everyone.

— This commentary posted by WAMC on their website on June 5, 2018 but the audio was pre-empted by the Pledge Drive. It was broadcast in its usual spot the following week on WAMC Northeast Report, June 12, 2018.


IRAN, the Nuclear Agreement and Donald Trump

May 8, 2018

America sees itself as altruistic and believes we should be trusted because we proved it in World War II. But, in 1953, Americans in the Embassy in Tehran helped engineer a coup d’état against the democratically selected Prime Minister of Iran. Persians admired us for our power but hated what we had done.

Americans did not understand that history when, during the Iranian Revolution of 1979, Persians stormed the Embassy and made hostages of the staff. That breached international law and was very hurtful for those involved but it was brought on by the memory that the earlier coup was managed from the Embassy. Now we both had reason to hate each other.

But the subsequent history is more interesting than the popular stereotypes. Diplomatic relations and even cooperation between Iran and Israel as well as major trade ( including Iran supplying oil in exchange for Israeli weapons and ballistic missile technology) lasted long after the Islamic Revolution and persisted despite Ahmadinejad’s hateful rhetoric. America and Iran continued cooperating about many Middle Eastern issues despite the effort of a succession of American presidents to isolate Iran.

Isolation threatened Iran. The religious division of the Middle East between the Shia, principally in Iran, and the Sunni, dominant everywhere else, provide opportunities for politicians to whip up animosities when it suits their purposes – much as Trump has whipped up animosities over racial differences and guns to dangerous levels. To stay on good terms with most of its neighbors, Iran supported Sunni positions on Palestine.

America stood back while Iran and Iraq fought a brutal war in the 1980s but then defeated Iraq under Presidents George H.W. and George W. Bush. Since Iraq had been Iran’s major antagonist, its defeat at the hands of the U.S. was a great gift to Iran and destabilized the power relations in the Middle East. Meanwhile Iran continued seeking rapprochement with the U.S. and offered to be helpful to the U.S. in our conflicts in the area, but no president was willing to talk until Obama. Obama had larger goals, to get Middle Eastern disputes out of the way while addressing problems in Asia.

Trump’s current effort to scuttle the multi-power agreement with Iran plays out stereotypes while sending terrible signals with ominous consequences:

  • Since US intelligence and military leaders and every involved head of state except the current U.S. President thinks Iran obeyed the terms of the agreement, what could count as obedience?
  • If obedience to the terms of the agreement doesn’t count, why should any country reach agreements with the U.S.?
  • If the U.S. terminates agreements at will, what is the value of diplomacy?
  • If the U.S. rides roughshod over non-nuclear countries, then nations need a nuclear capacity to hold us off.
  • And if diplomacy with the U.S. is a sterile enterprise, is war better? The origin of the Joint Agreement was European concern over the possibility of yet another war in the Middle East. Are we back to that?

Iran has become an American boogey-man, and too many think we look weak if we even talk with them. Israel’s concern has been to avoid letting any other country play a significant role in American thinking about the Middle East. That’s a recipe for trouble. It substitutes pure power for diplomacy and respectful negotiation. In fact, Iran has been anything but a loose cannon and has shown both the capacity and the willingness to resolve conflicts among us, provided that Iran be consulted and treated respectfully regarding Middle Eastern events. Only in a respectful climate can Iran play the constructive role we claim to want.

But Donald Trump wants an enemy for the political benefits. Risking the lives and safety of American and other men, women and children so Trump can look tough is a cynical abuse of his office. And if it misfires, we’ll be counting more body bags and amputees.

— This commentary was broadcast on WAMC Northeast Report, May 8, 2018.


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.


Impeachment – The Legal Question

April 3, 2018

For the past two weeks we’ve talked about how impeachment changes the issues surrounding Donald Trump and the political impact of prior impeachments in America. Now we turn to the constitutional language: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[1]

Well before the Constitution was written, impeachment began as a wide-open power of the British House of Commons to prosecute people in the House of Lords. But the Commons largely limited themselves to statutory crimes so that the House of Lords would be more likely to convict.

Crossing the waters, colonial legislatures limited themselves to the behavior of public officials. Legislative impeachment of anyone other than public officials would encroach on the job of courts and give legislatures too much power over citizens at large. Impeachment, however, became an important tool in the colonists’ battle with the British Crown.

On independence, legislatures limited themselves to action that affected public duties or danger to the republic. The new governments were to be constrained by rules of fair dealing. Elections did not provide a sufficient check either against mob rule or official chicanery. And public officials were not entitled to dismantle the separation of powers among legislative, executive and judicial departments with separate and complementary duties.

By the time the Constitution was written, the basic elements of impeachment in the thirteen states were unethical conduct that endangered the public or the republic. Statutory penalties were for courts to adjudicate. Political penalties, like removal from office, would still be appropriate for impeachment even for statutory crimes. Impeachments prosecuted in that period included corruption, like bribery, breach of public trust like using powers for personal advantage or to injure others, misuse of power such as bullying private citizens, and undermining the republican character of government with its careful divisions into executive, legislative and judicial powers.

In the Convention, a committee suggested that officials could be removed “for neglect of duty, malversation, or corruption.” Malversation, somewhat redundantly, meant “improper or corrupt behavior in office.”  Before they could vote on it, another committee brought to the floor a proposal that officials could only be impeached for “treason or bribery.” George Mason believed that was much too narrow, and on September 8, 1787 he suggested adding maladministration as an additional ground. His proposal was defeated, but in response, he proposed the language we now have, “high crimes and misdemeanors,” and it passed. “Misdemeanors” had been mentioned but once during the Convention and only in the context of crimes at sea. A widely consulted legal text of the era, however, defined misdemeanor as “smaller faults and omissions of less consequence than ‘crimes.’” That definition seems broader than “maladministration” and could easily encompass “neglect of duty, malversation, or corruption.”[2] But then why were those terms taken out? In The Federalist, Hamilton explained that the grounds of impeachment came from “the abuse or violation of some public trust,”[3] essentially supporting Mason’s approach. Their view quickly became standard.

The larger point is that the Founders sought a method to protect the republican character of the Constitution, enable the legislature to stop corruption, and to make sure that the president would faithfully execute the laws, respect the rights of citizens and obey the checks on official power built into the Constitution and principles of republic government. That forms the basic understanding of what the impeachment clause was designed to accomplish, and why some presidents would need to be impeached. Proposed articles of impeachment should be compared to those great purposes.

— This commentary was broadcast on WAMC Northeast Report, April 3, 2018.

 

 

[1] U.S. Const., Art. II, §4. Strictly speaking, impeachment refers to the charges voted by the House of Representatives for trial in the Senate. Removal is the result of conviction by the Senate. Art. I, §2, ¶5 and §3, ¶6.

[2] See Records of the Federal Convention of 1787, vol. 2 at 550 (Max Farrand, ed., Yale U. Press, 1966); Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (Yale U. Press 1984).

[3] Alexander Hamilton, James Madison and John Jay, The Federalist, No. 65 (Hamilton) at 396 (Clinton Rossiter ed., New American Library 1961).


The Don in Giovanni

November 30, 2016

Hi folks,

I don’t usually tell stories, but sometimes an ancient story seems to have contemporary relevance.

We know the character I’m thinking about as DON Juan. In Italian it is DON Giovanni, the title character of a Mozart opera. Don is an honorific title. Like some people with whom we share this world, DON Giovanni is a braggart. Leporello, his servant sings “Mille et tres” – in English, “a thousand and three.” Leporello counts the women all over Europe that DON Giovanni has dishonored – six hundred and forty in Italy alone; two hundred thirty-one in Germany; a hundred in France; ninety-one more in Turkey. And in Spain, oh in Spain already one thousand and three. Leporello adds that these girls came from all ranks of society – girls from the city and the country, maidservants, and noble women, members of the aristocracy. DON Giovanni uses different lines for women of every hair color, shape and weight.

The first half of the opera is light-hearted. Peasants dance in preparation for the wedding of Zerlina and Masetto. But DON Giovanni sends Masetto off with a combination of claims that everything will be fine because he, the DON, is a nobleman, plus thinly veiled threats with his sword. Then the DON dangles enticements before Zerlina. Zerlina sings “I would, but I would not.” I remember seeing a young couple sing that duet on the lawn at Chautauqua – I can no longer remember their names but never forget how well that Zerlina sang, coquettish but embarrassed at her own desire, completely understanding Zerlina’s predicament. Zerlina knew that this nobleman might be insincere, merely to dishonor her, but finds herself unable to resist. That first Act ends with others, who know and resent the DON’s tricks, rescuing Zerlina. DON Giovanni comments that the Devil is playing with him.

The second half of the opera is quite different. DON Giovanni has escaped those angry with him and taken refuge in a graveyard near the statue of the character known in italian as il Commendatore, commemorating a man killed by DON Giovanni, and the father of one of the noblewomen who has rescued Zerlina. An inscription at the base of the statue demands vengeance. There in the graveyard, the statue speaks, warning DON Giovanni he is near the end. Cool and fearless, DON Giovanni invites him to dinner. Sure enough, il Commendatore appears at dinner as a white shrouded statue – we could call him a ghost – demanding repentence. DON Giovanni refuses to repent, claiming he fears nothing. They scream at each other, “Repent;” “Never;” “Repent;” “Never.” Like the Donald we have to live with, the DON that was Giovanni [quotes] “loved” women too much to regret dishonoring them.

Mozart, often thought of as writing music that ranges from merely pretty to soaringly beautiful, grabs musical lightning from the Lord and hurls it at DON Giovanni, pulling him down and taking him to Hell.

Mozart’s opera ends with the characters in chorus making clear that is exactly where the DON belongs.

— This commentary was broadcast on WAMC Northeast Report, Nov. 29, 2016.


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