All Criticism of Trump Cannot be Fake News, and what his claim implies

August 10, 2018

I keep looking for things we can say to Trump’s supporters that just might wake them up. Here’s a very basic one.

President Trump has repeatedly told us that all criticism of him is fake news. That can’t be right. No one is infallible. No one. Because it can’t be right, his claim drives these conclusions:

First, we have to tell the difference between what the President says that is true and what the president says that is false. It cannot be either all true or all false.

Second, the claim is an attempt to pull the wool over our eyes. If we can’t look or see criticism, then we lose the ability to tell truth from fiction.

Third, just take a cold hard look at this without fear or favor one way or the other – blocking our view of criticism is the first technique of dictators. It insulates them from resistance. One of the first things Trump did in office was to look into pulling the license of the main broadcast news stations. That would have powerfully insulated him from criticism and scared many critics into silence.

Once that happens the consequence for the rest of us can be catastrophic. Dictators, including Vladimir Putin, Trump’s mentor, don’t look out for our welfare once they no longer have to. Silencing or discrediting all criticism of them as fake gives them the ability to take aim at everything you care about, everything that stands in their way, and to claim whatever they want – personal wealth, and the power to reward all those who will bow to their will. That is the dictator’s game: command enough power to silence all dissent and force everyone to do their bidding.

We’ve repeatedly kicked out politicians that disappointed us. The objective of all autocrats is to discredit democracy, a free press and honest elections, so there is little chance of their being kicked out. The men and women we’ve been calling the greatest generation gave their all to protect what America’s founders bequeathed us. Putin’s and Trump’s attacks on a free and critical press and their discounting any threat to honest elections undermine our commitment to democracy. The real answer to the flaws of democracy is the dedication of Americans, winners and losers, to democracy’s principles.

I’ve never met Trump and claim no way to know for sure what is in his heart. But as a lawyer, I know from professional experience, that the most convincing people you will ever meet are the con men. We can’t read their hearts. We have to gauge the risk from their actions and claims. Lambasting the press categorically, as if all the men and women, young and old, who are toiling to get the facts, can never get anything right, is a sure way to protect what should not be protected.

Let me end with a book pick. In The Plot to Destroy Democracy, Malcolm Nance looks at the facts with the cold, calculating eye of a man who has spent his life in American national intelligence. Based on Russian purposes, institutions and behavior, he concludes that the Russians are deliberately threatening our democratic system. Democracy threatens the impunity of autocratic rulers to kill, torture and steal from their own people in order to protect their own power and maximize their own wealth. Regardless of collusion, conspiracy or disloyalty, the combination of Russia’s and Trump’s attacks on the fundamentals of democracy clear the path for tragedy. And our crucial response will be what we do leading up to the elections and at the polls.

— This commentary was broadcast on WAMC Northeast Report, August 7, 2018.

 

 

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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?


Should We Have a New National Constitutional Convention?

July 11, 2017

There have been calls for a new national constitutional convention. They are generally cast as calls for a convention to do something specific, rather than open-ended authority to propose changes. There is an argument about whether those calls fit the constitutional definition of state initiated calls for a convention and what such a convention might do, But clearly many states think they are valid and have proposed a new convention. Indeed such calls may be only a few states shy of the required two-thirds of the states, depending on how many calls are deemed valid. So I think we should talk about it. I’ll spare you the technical argument and focus on the issues.

It should be noted that small states have disproportionate voting power in the amendment process because it is based on the number of states agreeing to amendments, not the number of votes in the states which agree.

Conservative proposals to amend the Constitution suggest that they’d use a national convention to repeal the Supreme Court’s decisions on social issues like abortion, marriage, gay rights, religion, prayer, flag desecration and segregation. And some conservative proposals would cripple the national government with states’ rights amendments, like a balanced budget amendment, repeal of the income tax, mandatory revenue sharing, and letting states veto increases in the national debt. Other conservative efforts have included reinstituting state legislative selection of U.S. Senators, and reversing progress on school integration.

Liberals can use conservative proposals to scare liberal state legislatures away from calls for a new national convention, or they can try to scare conservative state legislatures off with liberal proposals.

Liberals proposals focus on equal rights and equal votes such as the Equal Rights Amendment, abolition of the electoral college, full representation for the District of Columbia,  and overturning Citizens United. There’ve been calls to abolish the death penalty. Liberals should also fight for a Black Lives Also Matter Amendment to hold public officials responsible for the harm they do and overturn exemptions and immunities that leave decent, unarmed Americans lying dead on our streets with no one “responsible.” Liberals should fight to remove rules that allow prosecutors to ignore constitutional obligations of fair play, rules that  immunize them from any responsibility for vicious and discriminatory behavior.

These very different visions reflect both core moral commitments of each side and tactical considerations. Neither liberals nor conservatives accept the bona fides of each others’ proposals. Worse, competing interpretation of the provisions of the Constitution for calling a new convention could deepen conflict over the legitimacy of whatever a convention produced. And I doubt we’d end up with a better country.

Nor does the problem ends there. The original substitution of the Constitution for the pre-existing Articles of Confederation “illegally” ignored the rules for change spelled out in the Articles. So suppose populous states now similarly announced they were forming a government to go into effect when a majority of the public agrees – a possibility with some academic support. By contrast to continued conservative admiration for Confederate traitors who made war on the U.S., that would be a relatively honorable route toward a new Constitution.

But the larger point is that a conservative attempt to make major changes followed by a strong liberal response could br dangerous. Competing constitutions once led to violence in Rhode Island and in Kansas. Violence, as we’ve been discovering in many countries in recent decades threatens democracy whenever armed groups refuse to put down their arms.

So I’m not confident that a new convention would improve the Constitution, solve problems among or unite us. I don’t think it’s a good direction to travel.

— This commentary was broadcast on WAMC Northeast Report, July 11, 2017.

 


The Courts Stand Up for Impunity

June 27, 2017

In one of the last cases to be decided this term of Court, the Supreme Court described the death of Sergio Hernandez as “a tragic cross-border incident.”[1] Indeed. I want to make clear that I care deeply about this case. Several friends and I helped write an amicus brief to the Court about it.[2]

Sergio Hernandez was 15 years old. The Court continued, “According to the complaint,” which the Court must accept as true at this early stage of the proceedings, “Hernandez and his friends were playing a game in which they ran up the embankment on the United States side [of the Mexican border], touched the fence, and then ran back down.” Border Patrol Agent Mesa caught and detained one of Hernandez’ friends but “Hernandez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert” between the c ountries. At a distance – the Court wasn’t precise but the culvert was up to 270 feet wide – Agent Mesa shot and killed Sergio Hernandez though the Agent was in no danger.

Notice the issues that the District, Appellate and Supreme Courts have been “struggling” with.

First, the Court had to deal with whether the Constitution itself authorizes a remedy when Congress has not provided one for the violation of constitutional rights. In other words, do our rights exist at the pleasure of Congress? That’s known technically as the Bivens question.

Second, do foreigners have any constitutional rights or may American officials kill them at pleasure? The Court of Appeals had decided that Sergio had no rights under our Constitution.

Third, even if Sergio’s rights were violated, did the Agent have “immunity … from civil liability.” They would have immunity if “their conduct ‘does not violate clearly established … constitutional rights.” So the fourth question is whether killing foreigners across the border violates any clearly established rights?

Along the way the Court commented that some of the issues in the case  are “sensitive and may have consequences that are far reaching.” Sounds like the Court was thinking about foreign relations. The Bible just says “justice, justice shalt thou pursue.”[3]

The Court finished by noting that the case “result[ed] in a heartbreaking loss of life” but thought the Court of Appeals should think about those issues before the Supreme Court reached any final resolution about the issues in the case:

  • whether foreigners have any rights that American officials are bound to respect;
  • whether there is any remedy for murder;
  • whether murder by a government official is a clear violation of a constitutional right?

Abroad, and we use the same term when describing behavior in other countries, people who are protected from any responsibility for the harm they do are described as having impunity. It does not describe freedom. It describes lawlessness, in countries run for crime bosses and rapacious masters.

Think now about shootings of Americans in America by police officers, shootings of Americans with their backs turned, with their hands up, with their house keys in their hands. Are we now a nation with impunity? Does freedom still live here or are too many people here forced to bow, scrape and beg those with the power to kill. If there are people who, in the language of Dred Scott, have “no rights which … [American officials are] bound to respect,”[4] does that mean that they and we are treated like the slave in Dred Scott?

[1] Hernandez v. Mesa, U.S. Sup. Ct. No 15-118, decided June 26, 2017.

[2] Brief for Amici Curiae Legal Historians in Support of Petitioners in Hernandez v. Mesa, U.S. Sup. Ct. No 15-118.

[3] Deut. 16:20.

[4] Dred Scott v. Sandford, 60 U.S. 393, 407 ((1856).


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