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).

 


Trump’s Claimed Strengths Are Empty Boasts

June 25, 2018

Trump’s behavior offends liberals’ deepest values. They are aghast at his having babies ripped from their mothers’ hands and sometimes even their breasts so their mothers can be hauled away to immigrant detention centers without their infants and children. Liberals were distraught by Trump’s neglect of Puerto Rico after Hurricane Maria, and they attack the Trump Administration for systematically unleashing corporate abuse of workers, consumers and those of us downwind or downstream the poisons they unload. Liberals condemn Trump’s preference for trade wars over respectful treatment of long-time allies like Canada and the E.U., with which the U.S. had fruitful trade relations. And they deeply resent his attack on the fundamental values on which American democracy was formed: his encouragement of racism, and his preference for dictators, among many others.

I think Trump is also vulnerable to a very different criticism, that his so-called strengths are empty boasts revealing a naked emperor beneath. Trump claims great negotiating skills. He told us that his real estate experience demonstrated the negotiating skills that he would use in office. But it’s an empty boast.

In office he hasn’t even been able to work with his own party. Their only significant legislation was the tax bill at the very end of the year, and his other legislative success has been getting some of the most embarrassing nominees confirmed. Otherwise he hasn’t been able to reach agreement with his own party on immigrants, and on DACA, or Deferred Action for Childhood Arrivals. In many areas he has had to act by executive order because he can’t agree with Congress despite Republican control of both houses. But Trump says he is a great negotiator.

Just back from a meeting with Kim Jong-un, Supreme Leader of North Korea, Trump boasts of a record breaking agreement to de-nuclearize the Korean peninsula. There is however no language of agreement to parse, no details, no schedule, no promise that wasn’t made to prior American presidents, no agreement on inspection or verification. What he got instead was a photo-op. In other words, he has produced much less than President Obama got from Iran in an agreement Trump has repeatedly denounced. But Trump says he is a great negotiator.

Obama’s pivot to Asia produced the Trans-Pacific Partnership, a multi-national agreement among countries ringing the Pacific: Australia, New Zealand, Malaysia, Brunei, Singapore, Vietnam, Japan, Chile, Peru, Mexico, Canada, and United States. When president Trump pulled us out, the others continued to work together. There were objectionable pro-business provisions in the agreement but Trump made no effort to improve them. Instead, he removed the U.S. from the negotiations and the agreement, and facilitated China’s increasing dominance in the pacific region. Still, Trump says he is a great negotiator.

Mexico has not agreed to build a wall, as he promised. Trump unilaterally imposed tariffs on some imports saying they would protect American business and that there would be no trade war, but there already is.  The international response to Trump’s tariff increases has been retaliation both from former allies, like Canada, Mexico and Europe, and from adversaries like China. There are no countries left to join us to bring pressure on countries causing problems. The last time this kind of tariff contest roiled international waters was in the late 1920s, giving way to the Great Depression and to World War II. But Trump says he is a great negotiator. Thank you, Mr. Trump.

Trump’s claim of negotiating skills is an empty boast intended to conceal his weakness, his unwillingness to negotiate and complete incompetence at it. His lack of skill is a scandal.

— This commentary was broadcast on WAMC Northeast Report, June 19, 2018.


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.

On Corporate Privilege – Have They No Shame?

April 21, 2015

In a legal system which holds corporations responsible for virtually nothing, corporate power, hypocrisy and the wall of corporate shame keep growing.

Corporations put clauses in consumer contracts that make suing them useless and impossible. They make us sign those contracts for most of what we buy from the modern economy. The Supreme Court says OK on the fiction that we don’t have to sign the so-called agreements. As far as the Court is concerned, all we have to do is opt out of the economy and then no corporation can bother us.[1] If a dispute ever gets to a hearing, it is heard by arbitrators chosen by the corporate sellers.

Industry groups repeatedly argue that they have to put such abusive provisions in their contracts or they couldn’t give us a good deal. In other words, when people are down, their mortgages underwater, corporations should just keep kicking – they’re really just doing it for us.

That’s bad enough for people who are just trying to be treated fairly. But corporations have been getting the privilege of trashing rules protecting us from toxins and pollutants in favorably disposed forums. These are so-called investor-to-state dispute settlement or ISDS clauses in international trade agreements. Corporations can attack any rules that will cost them money, which of course means all regulation is vulnerable. Like the domestic arbitration clauses that the U.S. Supreme Court has blessed, “These challenges are not heard in a normal court but instead before a tribunal of private lawyers,” as the Alliance for Justice and many prominent attorneys have told Congress.[2]

There’s already an ISDS clause in the North American Free Trade Agreement, or NAFTA.[3] Corporations are trying to keep the ISDS mechanism in trans-atlantic agreements that multi-nationals will use against food and environmental laws here and in Europe, claiming they restrict free commerce.[4] Cecilia Malmstrom, the European Union’s trade commissioner, responded “We want the rule of law, not the rule of lawyers.”[5]

Describing the terms of the 12-nation trade accord for a Trans-Pacific Partnership for which Congress is considering fast track authority for President Obama, Jonathan Weisman wrote in the Times that it would “allow foreign corporations to sue the United States government for actions that undermine their investment ‘expectations’ and hurt their business,” using the business friendly ISDS procedure.[6] Once again that is poised to protect multinational corporations from food, health and environmental regulation.

In D.C., the coal industry is trying to convince the U.S. Supreme Court to block the Environmental Protection Agency from going ahead with procedures for strengthening rules preventing toxic emissions of mercury.[7]

Here at home, toy industry groups are suing against efforts of Albany County to ban the sale of toxic toys, with such poisons as lead, mercury and arsenic, claiming it’s a violation of the Constitution and federal statutes.[8]

Business repeatedly claims regulation isn’t necessary because they are honorable and we can trust them and the economy. But their choice of legal targets make clear what they really believe.

No one has the right or privilege to put toxins in us, in our air, water, or our kids’ toys. Have they no shame? It’s time we had a government, all of whose branches respected the rights of the rest of us.

— This commentary was broadcast on WAMC Northeast Report, April 21, 2015.

[1] See American Express Company v. Italian Colors Restaurant, 133 S. Ct. 2304, 2313 (2013) (Kagan, dissenting); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006).

[2] Letter over the signature of many well-known law professors and sent by the Alliance for Justice to congressional leadership, available at http://org2.salsalabs.com/o/6539/p/dia/action3/common/public/?action_KEY=19342.

[3] NAFTA ch. 11.

[4] REUTERS, EU Seeks Solution to Keep Arbitration in U.S. Trade Deal, March 18, 2015, 12:22 P.M., http://www.nytimes.com/reuters/2015/03/18/business/18reuters-eu-usa-trade.html.

[5] Id.

[6] Jonathan Weisman, Trade Pact Seen as Door for Suits Against U.S. New York Times, March 26, 2015, at B1, available at http://www.nytimes.com/2015/03/26/business/trans-pacific-partnership-seen-as-door-for-foreign-suits-against-us.html.

[7] Editorial, Dirty Coal at the Supreme Court, New York Times, March 23, 2015, at A20, available at http://www.nytimes.com/2015/03/23/opinion/clean-air-act-and-dirty-coal-at-the-supreme-court.html?emc=edit_tnt_20150323&nlid=47098180&tntemail0=y.

[8] Matthew Hamilton, Industry contests toxic toys ban, Albany Times Union, April 17, 2015 at A1.


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