Trump’s Disloyalty

July 30, 2018

I’ve been chomping at the bit to get back to the studio to record but the surgeon said “Sit down, sit down, sit down, you’re splitting my stitches.” Well, I’m here at last.

Trump and a number of Washington Republicans think the FBI investigation of the connection between Russia and the Trump Administration was biased against Trump because FBI agent Peter Strzok believed that the American people should have rejected Donald Trump for president. Since a large share of FBI agents are Republican, one could have credited Strzok as keeping them honest with regard to Trump. But the problem with the Trumpians’ automatic conclusion of bias goes much deeper.

As Rehnquist and Scalia have written, it is almost impossible for otherwise qualified and intelligent people not to have opinions about important public matters. Certainly, if agents are automatically disqualied from investigations of those they oppose politically, there’d be few other than Trump supporters qualified to investigate. But the same logic would make them biased in his favor. Hence no one could be fair to Trump and America.

Trump carries that a step further by suggesting that Russian President Putin, the principal suspect for interfering with the American presidential election, should have a look at the details of the investigation and have his investigators help out. Wow. By Trumpian logic the objects of investigations should control what people discover about their behavior. It’s fine for Russians to control the FBI’s investigation of Russian activities in the U.S. but long time FBI agents should not have anything to do with the investigation if they have ever expressed an opinion.

This Trumpian view of human nature casts light on their own motives. People imagine motives in others that are familiar to them. Trump has turned his presidency into a series of infomercials for his properties. Many members of his family and Administration have similarly been using their offices for personal gain. Most recently, Scott Pruitt was forced out of office because he couldn’t take his hands off opportunities to use his position for personal gain. So I can understand why they’d see everything through the lens of self-interest and conclude that everyone is biased – to which we must add, including themselves.

The Founders understood that the devil lurks in the hearts of human beings without respect to wealth, class, heritage or learning. People, they understood, are subject to temptation. They anticipated that the highest offices of the land could, from time to time, be occupied by the most despicable people. Understanding that, they inserted the emoluments clauses in the Constitution to try to block foreign powers from offering rewards for selling out our country. And they inserted the impeachment clauses to provide a way to depose traitors and crooks from office.

We now have a person in the White House with private assets that reflect the patronage of foreign governments. He conducts foreign policy as a set of infomercials, making sure to play at his various resorts for all to see. His political fortunes may hinge on a single foreign power which used cyber warfare in an effort to install him in the White House. And he’s loyal to foreign powers.

The Republican Party is often called the G.O.P. The G.O.P. stood for the Grand Old Party that won the Civil War under Lincoln’s leadership. They fought for the Union and for principle. Too many current Republicans are loyal to Trump, but not to America. They have neither patriotism nor spine. They prefer to sell their souls rather than protect their country. There is nothing grand or even old about this party.

— This commentary was broadcast on WAMC Northeast Report, July 24, 2018.

 

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Are We Overplaying Our Hand?

May 29, 2018

I’ve tried to state these comments not in all or nothing terms but in more realistic degrees. My question is what happens to the extent that a country overplays its hand?

That the U.S. pulled out from the nuclear agreement with Iran, China, France, Russia, the United Kingdom, Germany and the United Nations Security Council means, first, that the U.S. will surrender some commerce and trade to Iran’s other trading partners and that some of the others will move to fill some of the gap. If the U.S. tries to assert secondary sanctions against companies based abroad that trade with Iran, that will certainly offend others of our trading partners, including the E.U. and its members. They are likely to conclude that they cannot allow the U.S. to determine their trading practices and rules. If so, they can look elsewhere. Some companies can decide that trade with the U.S. is unpredictable and decide to scale it back. In other words, one consequence of the pull out can be that the U.S. becomes a smaller, less attractive country to trade with and a less powerful international voice. We may want to isolate Iran but we might increase our own isolation instead.

I objected to the arbitration provisions of the Trans-Pacific Partnership because it gave too much power to corporations to free themselves from labor and environmental regulation – grounds of little interest to the Trump Administration. But when the U.S. pulled out of the Trans-Pacific Partnership, China stepped up to fill the vacuum. That’s a real cost that could have benefitted from continuing diplomacy rather than precipitate withdrawal. Insisting on having our own way can leave us celebrating our purity of principle but also isolated and irrelevant. And to the extent other countries can’t trust American politics and reach agreements with the U.S., America’s power and influence shrink.

Democracy generally depends on compromise. When people refuse to compromise, they lose the ability to reach a policy that the country can pursue successfully. We pursued a policy of containing communist countries for more than 50 years and it succeeded because the two parties preferred to work together than make a political issue out of that strategy. Republicans like to credit Reagan, but it was initiated under Truman, in line with the recommendations of George Kennan, and followed by Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan and Bush – presidents from both parties. These men were too wise and honorable to follow or reject policies because someone else started it. The ability to reach a consensus across party lines meant that it was stronger than party and America was strengthened as a result.

Some people who portray themselves as patriots want the U.S. to act independently of what other countries and international organizations want. But it’s questionable whether that’s actually patriotic because ignoring real world constraints runs us up against walls of resistance and sacrifices too much. The U.S. has about 1/23 of the world’s population. Running the other 22/23rds by sanctions, threats and intimidation is a heavy lift, likely to backfire. Wisdom comes harder. But it is important.

  • This commentary was broadcast on WAMC Northeast Report, May 22, 2018.

The Legacy of Barack Obama

January 3, 2017

Barack Obama has been one of our most decent and intelligent presidents. I’ll miss him. Instead of simplification and slogans, Obama explained the complexities of everything from medical treatment to foreign policy. Instead of shooting from the hip, he studied problems carefully and reached mature, intelligent decisions.

But what will stick?

Starting with foreign affairs, Obama got most of the boots off Muslim lands. When Obama took office in 2008 we had close to 200,000 soldiers in Iraq and Afghanistan. Now we have about 15,000 troops, combined, there and in Syria.

ISIS seems to have refocused on Europe but that’s still a problem for us. Europeans’ objectives are compatible with our own, so they are crucial allies, unlike the Russians. But Europe confronts many times more refugees than we do, with backlash and threats to democracy in several countries. American action in Syria added to the refugee flow, but much resulted from revolutions independent of us. More American militarization in the Arab world would inflame the refugee crisis and increase the terrorism directed at us.

Terrorists are fueled by militarization; nations are much more vulnerable to our military – that’s the difference between defeating Saddam Hussein, having him executed and trying to remain there. Trump may talk tough, but will he be fool enough to wade back into those trouble waters?

In Guantanamo, fewer than 60 prisoners remain of the nearly 800 who were imprisoned there.

Republicans dislike the Iran nuclear deal but so far they’ve nothing to show for their fears. Objections from the other signatories may prevent Trump from disavowing it. This may be the first real test of whether Trump has any grip on reality.

At home, Republicans have been yelling for years that they will tear Obamacare down the first chance they get. But their friends in the insurance industry will howl if they do, especially if Republicans leave features Americans like – a guarantee that you can get insurance, coverage for pre-existing conditions, tax credits for small businesses, etc. So it’s not clear what they’ll actually do. Obama took his health care plan from Mitt Romney’s Republican plan. I can think of improvements to the left of Obamacare, but not any that are more consistent with Republican free-market philosophy. Republicans are in a pickle.

Obama got a small stimulus soon after taking office. Terrified it might actually work, Republicans fought to keep it small. Obama’s stimulus worked, slowly, satisfying the cynicism of Congressional Republicans willing to hurt the country in order to make Obama look bad.

Dodd-Frank financial regulation still stands, reigning in a financial system that gambled with everyone else’s money and made a large number of us much worse off.

Obama nominated Sonia Sotomayor and Elena Kagan to the Supreme Court. One has become the conscience of the Court, the other quieter and more conciliatory. Together, they’ve made a the Court much more fair. The future depends on how long Ginsburg lives and how long Trump is in office. The difference Ginsburg, Breyer, Sotomayor and Kagan made could disappear in a heartbeat.

So, there’s a lot to celebrate in what Obama did or tried to accomplish. But I have real fears of what could be done in the effort to discredit him instead of making things better for the people of America.

— This commentary was broadcast on WAMC Northeast Report, January 3, 2017.


Cautionary Tales From Other Populist Regimes

November 30, 2016

This is a post from Kim Lane Scheppele, at Princeton University, which is chillingly accurate, as Kim usually is, and which I am re-posting with her permission from the lawcourt and conlawprof listservs:

While we’re on the subject of learning a lot from regimes that have been in this difficult place before, I recommend this powerful piece by Turkuler Isiksel, assistant professor of political theory at Columbia (and former LAPA fellow at Princeton):   https://www.dissentmagazine.org/blog/trump-victory-regime-change-lessons-autocrats-erdogan-putin .  She watched Turkey fall under the control of a populist autocrat who won democratic elections and sees some of the same danger signals in the US.   A summary:

Confidence in the exceptional resilience of American democracy is particularly misplaced in the face of today’s illiberal populist movements, whose leaders are constantly learning from each other. Trump has a wide variety of tried and tested techniques on which to draw; already, he has vowed to take pages out of Putin’s playbook. Defenders of liberal democracy, too, must learn from each other’s victories and defeats. Below are some hard-earned lessons from countries that have been overrun by the contemporary wave of illiberal democracy. They could be essential for preserving the American republic in the dark years to come.

I just came back from Chile, where I gave some lectures on the creeping advance of illiberal constitutionalism around the world.   People there asked me how Trump could have been elected in the US, and I showed them this data:  Nearly one quarter of young Americans no longer believe in democracy and since 9/11, faith in the way America is governed has plunged to all-time lows (raised slightly in election years when Obama was elected, but then plunging back again):

[Her first chart, which I cannot copy here, from the World Values Survey, shows older Americans very supportive of our system of government but dissatisfaction rising among younger age groups at twice the rate here as in Europe. Her second chart, from Gallup, shows dissatisfaction rising and from 1972-2013.l

These are danger signals that should have alerted us earlier to the possibilities of Trump.    I might add that very similar danger signals appeared before the election of other populist autocrats of both left and right:  Putin, Erdogan, Orbán, Kaczynski, Correa, Chavez.

There’s a clear pattern here.  First people lose faith in the system.  Then they vote to break it.   And when the new leader decides to trash the constitutional system, he is cheered on by those who want change at any price.   When people wake up to the damage done, it is too late because their constitutional system has been captured.

What I’m worried about — and what Turku Isiksel also observes — is that these populist autocrats learn from each other.   Trump’s affinity for Putin has gotten the most attention, but we should also note that Trump has been exceptionally friendly with Erdogan while Michael Flynn, his new national security advisor, has been knee-deep in ties to the Turkish government (see https://www.bloomberg.com/view/articles/2016-11-17/why-turkey-s-erdogan-is-so-happy-about-trump-s-victory and http://www.nytimes.com/2016/11/20/world/europe/turkey-flynn-erdogan-gulen.html .  In addition, Trump has struck up a friendship with Hungarian “illiberal democrat” Viktor Orbán (see http://www.reuters.com/article/us-usa-trump-hungary-idUSKBN13K0ON  and http://www.theatlantic.com/international/archive/2016/11/trump-putin-nato-hungary-estonia-poland-orban/508910/ ).    All of these illiberal leaders have borrowed autocratic techniques from each other (as my new research project shows).   The techniques have to be adapted anew to each constitutional system that is “cracked” in illiberal ways, but the techniques are not at all dependent on ideology and therefore can be used by regimes of very different political flavors.     (And just to clarify here, I’m not objecting to conservative governments, but to illiberal ones that no longer believe in checked and balanced powers or in the rotation of power from one party to another.)

What is striking about the new autocrats is how legal they are and how they borrow the worst practices from the best countries to shut down the democratic opposition.  For example, Russia’s notorious NGO law that requires all NGOs to report foreign support and register as foreign agents is modeled on the 1938 Foreign Agents Registration Act (FARA) of the US.      ( See the Venice Commission expert report on the Russian NGO law including an analysis of the Russian government’s claim that it was copying FARA at p. 9-10:  http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)025-e .)   After Hungary lowered the judicial retirement age to get rid of the top tier of judges in 2012 so they could replace them with appointees of their own political flavor, Mohamed Morsi did the same in Egypt.   How many of us have argued for fixed terms of judges or fixed judicial retirement ages in the US?   Imagine if those proposals were to gain ground as a political movement just now?     Several populist autocrats in Latin America have added a line-item veto to their powers, which effectively neutralizes parliamentary compromises, erases any hard-won traces of parliamentary opposition, and strengthens the dictatorial powers of the president.  But don’t some American reformers still want the line-item veto – even now?  Just see how that works in Latin America, and be very afraid.    In short, many proposals to reform the “broken” American system have already been used by populist autocrats to consolidate their power through constitutional capture, and we should be very wary of the particular proposals that will be made by a president-elect who has already proposed to govern outside the Constitution as we know it.

If you think constitutional capture can’t happen in the US, then you didn’t know how unlikely autocracy seemed in these other countries before it occurred.    But as Jack Goldsmith has recently argued:  libertarian panic may be the best weapon we have against awful things to come:   https://lawfareblog.com/libertarian-panic-unlawful-action-and-trump-presidency because it at least means we are paying close attention.


Trump’s Tax Returns

October 4, 2016

Let’s talk about Trump’s secrets, what he doesn’t want us to know about. Not secrets that may not exist – like his secret plans to deal with ISIS, North Korea or unemployment. Those might be secret as he claims because there’s a problem in revealing them. Or they might be secret because there’s nothing to reveal, they don’t really exist – but calling them secret makes it sound OK. No I mean secrets we can be quite sure really do exist – his tax returns.

The Federal Rules of Civil Procedure suggest what we can infer from his absent tax returns – returns filed by many honest presidential candidates, Hillary Clinton included. Federal Rule 37 (b) is titled “Failure to Comply with a Court Order.” When a litigant doesn’t comply with an order to produce records, a federal court can effectively decide the case against the recalcitrant party, or, among other options [quote]:

(i) direct[] that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;

(ii) prohibit[] the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence

Let’s put that in English. A Court may order that failure to produce evidence is an admission that the facts are what the other party says they are.

So by this standard what can we assume that the failure to release his returns means?

The New York Times noted that: “He is running for the White House partly as a business wizard,” and asked “is he really as rich and talented as he boasts?” Mr. Trump’s tax returns might disclose that he is bankrupt, far from the billionaire he claims to be, that, contrary to his chest pounding assertions, Mr. Trump is a financial fool with little to show for his shenanigans. Is it fair to take that as proven by the standards courts use for undisclosed evidence?

The New York Times asked: “Has he truly no conflicts of interest in Russia, whose computer hackers he has bizarrely invited to spy on Hillary Clinton, his campaign rival?” And Media Matters adds that Mr. Trump’s tax returns “could show Trump’s ties to Russia.” They could show that Russia is bankrolling his campaign, that Trump has an enormous conflict of interest in his dealings with a foreign adversary. Indeed, would they show that Trump is disloyal, a Russian agent? Is it fair to take that as proven by the standards courts use for undisclosed evidence?

They might disclose that Mr. Trump has defrauded many other people by misrepresenting his assets. Is it fair to take that as proven by the standards courts use for undisclosed evidence?

They might disclose that Mr. Trump has failed to pay his taxes, engaged in tax fraud, pays less than Hillary does or that he has parked his money abroad. Is it fair to take that as proven by the standards courts use for undisclosed evidence?

They almost surely will disclose that he has a secret he doesn’t want us to know because it will destroy his public image and his claim to people’s votes in November.

Trump’s failure to produce his tax returns is not the minor side-show he tries to make it. It gets to the fundamental fact that he is all sound and fury, a loudmouth, with nothing to offer, nothing to sell but empty boasts.

Or should we use his language and start talking about “crooked” Donald?

— This commentary was broadcast on WAMC Northeast Report, October 4, 2016.


Trump’s Audience

August 23, 2016

Behind Trump’s remarks and his imperviousness to criticism is the audience he’s after.

Trump charges that this election is rigged because his audience doesn’t like who can vote. One can respond that elections have been rigged by the Court since it stopped the count in Florida to make Bush president, but that misses Trump’s and his audience’s objection. The Court has unleashed the full contents of corporate treasuries, tightened the screws on union finances, encouraged states to exclude African-Americans from the voting booths and supported gerrymandering so that Republican controlled legislatures could rig elections against Democrats. Those decisions rigged the election in Trump’s favor. But for his audience, rigging the election means including what some still call Fourteenth Amendment citizens. They object that the first sentence of the Fourteenth Amendment makes everyone born here citizens, especially Blacks and browns.

Trump’s inconsistency on foreign policy is also because of the audience he wants. While claiming Democrats are weak on foreign threats, Trump also wants to withdraw from NATO which has held the Russians at bay for over half a century. And he has told us that he would consider not coming to the aid of an attacked NATO member. Never mind speculating whether he’s a wimp, a loudmouth, or a Russian agent. The important question is who’s his audience and why? Actually extremists have imagined international conspiracies that only they can believe in. Trump clearly wants their support. That leaves the rest of us wondering whether they would be center stage if he won. Making international conspiracies the number one villain helps explain Trump’s admiration for Vladimir Putin, and his invitation to Russia to hack into the computers used by a Secretary of State. One points out in vain that’s an invitation to foreign espionage. Trump got his message across; he’s with the fringe, the conspiracy theorists, and the people with lots of hate.

Then there’s Trump’s comment that Second Amendment people might have a way of dealing with Hilary and her judicial nominees if she is elected. When questioned about those remarks Trump responded that he was just kidding. Besides, he said maybe. No advocacy there. He wasn’t trying to get anyone killed. But why did he do that?

Politicians have reasons for what they say. He was seeking support from precisely those people who could imagine using guns that way. Surely some would just like to have violent dreams. But some are more likely to act on dreams like that when encouraged by people like Trump, and will understand his words as a call to violent action, action that undermines democratic self government.

Beyond whether Trump should be expected to talk like a responsible adult, is the question whether we have the responsibility, whatever our politics, not to enjoy such language, responsibility not to reward it, but to stand tall for the real America, the America that claims to believe in law and order and in self government that celebrates our ability to disagree without threats, assaults and murder.

Trump makes statements like that because he has an audience for it. If most of that audience has the maturity and the loyalty it claims, it must be prepared to turn against candidates who misuse it. Supporters of gun rights must believe that gun owners have an obligation to act and speak responsibly and to keep political and racial hatreds away from trigger fingers.

— This commentary was broadcast on WAMC Northeast Report, August 21, 2016.

 


Suckers for Trump

May 31, 2016

Let me begin by reminding you of Trump’s claims,[1] and end with some questions.

“I’m totally pro-choice” he declared and then took it back: “I’m pro-life” and told MSNBC that “there has to be some form of punishment” for a woman who has an abortion, later modified that only the doctor should be responsible. Plus he supported Planned Parenthood, and defunding them.

Remember the poor woman in Providence whose house was taken under eminent domain? “Eminent domain is wonderful” he told Fox News, and within a month told another outlet, “I don’t like eminent domain.”

He told CNN “I’m an environmentalist,” but tweeted “Global warming is a total, and very expensive, hoax!”

He once “support[ed] the ban on assault weapons and … a slightly longer waiting period to purchase a gun.” but “I don’t support it anymore.” Now he says he’s “the strongest person running in favor of the Second Amendment.”

In 2000 he said “We must have universal health care” but his campaign website read “It is not enough to simply repeal this terrible legislation,” and says he’d substitute “free market principles” on health care.

On taxes, in 2015 he described his tax plan as “a big tax reduction, including for the upper income.” On May 5 he told CNBC “I am not necessarily a huge fan of” cutting taxes for billionaires.

It’s not clear who Trump likes as people. First he refused to denounce the Ku Klux Klan and other white nationalists supporting him. Under fire he reversed course but many white supremacists, including David Duke, continue to support Trump. He’s blown hot and cold on refugees: “on a humanitarian basis, he said, “you have to” take in Syrian refugees. But now he wouldn’t. “I love Hispanics!” he tweeted on Cinco de Mayo, pictured with a taco bowl. Except of course that he wants to build a wall and send them all back to Mexico.

Donald thinks military policy is a cinch, “It would take an hour and a half to learn everything there is to learn about missiles. … I think I know most of it anyway.” He waffles on whether he would trust the Russians or not. He liked NATO, the North Atlantic Treaty Organization, which unites Europe and the U.S. militarily. “I see NATO as a good thing” he said recently but six days later decided “NATO is obsolete.”

The Middle East befuddles him. He supported invading Iraq. and crowed that “It looks like a tremendous success” but four days after that said, “The war’s a mess.”

He supported fighting in Libya: “Qadhafi in Libya is killing thousands of people, nobody knows how bad it is, and we’re sitting around, we have soldiers, all over the Middle East, and we’re not bringing ‘em in to stop this horrible carnage. … We should go in, we should stop this guy, which would be very easy and very quick.” But he said later, “I never discussed that subject.… We would be so much better off if Qadhafi were in charge right now.”

What are we supposed to make of Trump’s contradictions and about-faces? Does the adjective he uses endlessly to describe Hillary fit Trump better? Does he know what he’s talking about? I’m more interested in how we decide what he’s for? He’s inviting people to buy their own dreams. Whatever you’re for, he wants you to think he is too. Selling people their own dreams is a great sales tactic. It’s natural to believe others think like us. But if we guess wrong, who wants to be Donald’s sucker?

— This commentary was broadcast on WAMC Northeast Report, May 31, 2016.

[1] Clips collected on http://www.politico.com/magazine/story/2016/05/donald-trump-2016-contradictions-213869;  Michael P. Lynch, Truth, “Politics and the Power of Contradiction,” New York Times, May 8, 2016, at SR2, available as Michael P. Lynch, Trump, Truth, and the Power of Contradiction, http://www.nytimes.com/2016/05/08/opinion/sunday/trump-truth-and-the-power-of-contradiction.html?_r=0; “A Trump Sampler: His Changing Views,” New York Times, May 8, 2016, on page SR2, available at http://www.nytimes.com/interactive/2016/05/08/sunday-review/a-trump-sampler-his-changing-views.html.


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