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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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.


Democracy Amid the Battle of the Oligarchs?

November 16, 2015

The Court recently decided that states can restrict campaign solicitation by judges but only judges. It left all the rest of its protections of economic privilege in place.

Inequality in the United States is making democracy increasingly unsustainable and unlikely. It also seems unlikely that Americans in sufficient numbers will rebel before it’s too late. The gun rights folk will, if anything, protect the current distribution of wealth, and enforce their prejudices. Liberals aren’t sufficiently united – there are race liberals, economic liberals, and big money liberals. That’s a big tent, not a movement. Conservatives believe in democracy in towns they control, and join the attack on giving the ballot to anyone else. They put institutions that they rule – specially chosen tribunals, faceless and ruthless markets – ahead of democratic government, hiding their contempt for democracy behind the claim that government, democratic government, is the problem. So behind all the hoopla of the Tea Party there is a real threat that this government of, by and for the people will perish from the earth.

Then what? At the turn of the last century democracy was rescued from abroad, by unrestricted immigration that turned into a tide of votes – organized by totally corrupt political parties but organized effectively. The corruption temporarily led the wealthy to put cleaning up government ahead of cleaning the pockets of the poor.

But here’s the point, when the wealthy and powerful take control of the whole shebang, political money, jobs, the media, only the wealthy can take it down. That means that democracy will return only when the wealthy battle each other – and when the Gods fight, the heavens rain fire.

What could start such a battle among the wealthy? Kevin Phillips wrote about the way that different national Administrations shifted wealth among sectors of the economy – from mining and manufacturing to oil and finance.[i] So one option is to take sides among the giants. We argue about football teams. Why not fight about who gets wealthy; maybe they can be sufficiently provoked to provide a little democratic space. Remember it was the kings of Spain and Portugal who restored democracy to their domains, not the Republican army.

Short of that, we could play for the patronage of the moneyed people, trying to figure out what little we can do for them so they will brush us the crumbs off their table. Welcome to the so-called democracies of Central and South America, often described as clientilistic democracies by political scientists. Democracies they are not. They are competing bands of hirelings and sycophants fighting for the right to root for the winning team and pick up the t-shirts, ball caps and plastic trophies of victory.

So are you on the oil, gas and pollution Koch brothers team? The casino team of Sheldon Adelson? The financial teams of Warren Buffet or George Soros? The electronics team of Bill Gates? Step right up ladies and gentlemen; it’s going to be a war of the Gods. There’ll be droughts, fireworks, earthquakes, and lots of blood, folks, so get yourselves on the right team.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to consolidation of tyranny as it did for the Romans.

Can we rally to save the planet and save democracy? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics (NYU Press 2016). He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. This commentary was broadcast on WAMC Northeast Report, November 10, 2015.

[i] Kevin Phillips, Wealth and Democracy (Random House 2002).


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