Im-Politic: So Far, Milley’s Sure Acting Like He’s Guilty of Treason

Tags

25th Amendment, Bob Woodward, China, Constitution, Defense Department, Donald Trump, election 2020, Im-Politic, Jen Psaki, Joint Chiefs of Staff, Mark Milley, military, Pentagon, Peril, Robert Costa, treason, Washington Post

I’d bother to advise General Mark Milley to lawyer up – fast – except I can’t imagine that even Johnnie Cochrane (Google “O.J. trial”) – ultimately could get the Chairman of the Joint Chiefs of Staff off the hook for treason charges if claims made by an upcoming book on the Trump administration’s final months are true. Worse, the President of the United States seems just fine with such behavior from the person who’s both the top military advisor to the chief executive and to the Pentagon.

It should go without saying that Milley, as with every other American, deserves a presumption of innocence. But his behavior since the publication of excerpts from Peril, by Washington Post correspondents Bob Woodward (of Woodward and Bernstein Watergate fame) and Robert Costa decidedly resembles that of someone who’s guilty as sin.

As stated by another Post reporter, according to Woodward and Costa, Milley called his Chinese counterpart last October 30 and told him, “General Li, I want to assure you that the American government is stable and everything is going to be okay.”

Allegedly, Milley continued, “We are not going to attack or conduct any kinetic operations against you.” (With this phrasing, Milley for some reason might have been trying to exclude cyber-attacks from his promise.) 

And here’s the key passage: “If we’re going to attack, I’m going to call you ahead of time. It’s not going to be a surprise.”

Again, if true, any number of aspects of this phone call could be shocking and disgraceful for any number of reasons centering around the possibility that the General shattered the principles of civilian control over the military by taking an unauthorized initiative with major implications not only for U.S. national security but overall U.S. foreign policy as well.

And whether Milley was completely freelancing or not, the notion that former President Trump’s dangerously unstable state of mind excuses this behavior is utterly unacceptable. The Constitution’s 25^th Amendment lays out procedures for dealing with situations like this, and none of them were invoked before Milley picked up the phone.

Worse, keep in mind that Milley made the first of two phone calls to Beijing was made October 30, before Election Day and well before Trump set off alarm bells with his behavior in the voting’s aftermath. In addition, if Milley really believed that Trump would order an unprovoked attack on China, his own sanity needs to be questioned.

Even if you fear that a Trump victory last November would have freed him to make all manner of reckless decisions, there’s no reason to think that China would have been placed in any danger unless Beijing set the stage for war by, say, invading Taiwan. In fact, one of the most common (however bizarre, given the massive tariffs and damaging sanctions he’d imposed) criticisms of the former President’s China policy at the time was that in order to preserve his 2020 trade deal with the People’s Republic, he’d been treating China and especially its dictator Xi Jinping with kid gloves. The Biden camp itself was making this accusation as late as last September.

But none of Milley’s supposed offenses compare with the claim that he told China’s top military officer that if Trump decided to strike, he’d warn the Chinese. Talk about providing “aid and comfort” to an enemy – a centerpiece of American law’s definition of treason. And from a real world standpoint, what if Milley got wind of such plans a few days before the attack was scheduled? Would he have given the Chinese that much warning? Which would have given them a chance to launch their own preemptive strike? How do you think that would have worked out?

Further, what if Milley was simply worried that Trump might try this, with no concrete evidence, or less-than-conclusive evidence? Just because he thought Trump was crazy. Would he have warned China in this circumstance? Who can tell?

For these reasons, the Woodward-Costa claims are so jaw-dropping that you’d expect an innocent Milley to deny them specifically and indignantly – with wording on the order of “I never told General Li or any other Chinese official that I would warn them about an impending U.S. attack.” If I was him, I’d threaten a slander suit, too, if the authors didn’t recant (and probably even if they did).

Milley, however, hasn’t done anything close. The only statement issued (and not by him, but by his spokesman) ignored the charges. And almost as interesting, his allies in the government haven’t denied these charges expressly, either, when speaking (anonymously, of course) to other journalists. Most disturbing of all, White House Press Secretary Jen Psaki issued similar remarks yesterday – which must mean that Mr. Biden himself isn’t interested in getting to the bottom of this crucial matter.

The good news is that soon, neither the President nor the General may have a choice. On September 28, Milley’s scheduled to testify (under oath, natch) before the Senate Armed Services Committee on the Afghanistan debacle. You can be sure that the Woodward-Costa charges will come up, too. And if Milley deides to keep playing footsie, don’t be surprised if you see an attorney at his side – and even counseling him to take the Fifth.

Im-Politic: A Solution to the Big Tech Misinformation/Censorship Quandary

Tags

algorithmic amplification, antitrust, Big Tech, censorship, competition, Constitution, Facebook, free expression, free speech, Im-Politic, internet, journalism, Mainstream Media, misinformation, monopoly, news media, Section 230, social media, tech, Twitter

Don’t look now (a heckuva way to begin a piece of writing!), but I may have come up with one solution to the incredibly complex and just as important national dilemma over regulating how gargantuan social media platforms like Facebook and Twitter handle Americans’ speech rights.

First, let me stipulate that I’m anything but an expert on the Constitution, law and regulation of any kind (except maybe in the international trade field), or technology of any kind. But maybe I know enough to have produced a plan that’s outside-the-box enough to break the various legal and political and philosophical logjams that have left the nation with a status quo that seems to satsify no one, but that’s anchored in reality.

In addition, the thoughts below were prompted by a very stimulating panel discussion involving genuine experts in all these fields that took place this past weekend at a wide-ranging policy conference held by the Intercollegiate Studies Institute. (I spoke on a separate panel on China.) So my ideas aren’t coming from completely out of the blue.

The nub of the problem is that Americans across the political spectrum are furious with the platforms’ speech policies, but for radically different reasons. Those to the left of center blast them for posting what they view as misinformation. Their conservative counterparts claim that right-of-center views are too often censored – typically because they’re bogusly accused of spreading misinformation.

All sides seem to agree that the platforms’ practices matter greatly because, due largely to their algorithmic amplification powers, they have such power to turn material viral that they’ve achieved the massive scale needed to become a leading  – and often the leading – way in which Americans receive news, opinion, and other forms of information that affect politics and public policy. But towering obstacles stand in the way of pretty much every proposal for reform advanced so far.

For example, their status as private companies would appear to block any move to empower government to influence their speech practices. Antitrust specialists disagree strongly as to whether they’re now monopolistic or oligopolistic enough under current or even proposed legal standards to warrant breaking up. The companies themselves of course deny any such allegations, and contend that if they needed to downsize, they wouldn’t be able to compete effectively around the world with foreign counterparts – especially those from China. Some have proposed turning them into public utilities, but opponents call that a great way to stifle any further innovation.

So here’s my idea: Turn the platforms into a new type of entity that would be subject to a new body of regulation reflecting both the distinctive importance of free expression in American life and the distinctive (and indeed predominant) role that the platforms now play in enabling individuals and organizations both to disseminate material, and (stemming from an aspect of free expression rights that’s often overlooked, but that’s now unquestionably vulnerable due to the main platforms’ sheer scale and reach) to reach their potential audiences. One possible name: Electronic Speech Companies (ESCs).

As history demonstrates, there’s nothing unusual about the federal government organizing private business into different categories for tax purposes, and there’s nothing unusual about government at any level regulating such businesses with an unusually heavy hand because of their outsized role in providing vital goods and services. That should be clear from the long-established policy of creating utilities. So I don’t see any Constitutional problems with my idea.

I agree that government’s price-setting authority over utilities can stymie innovation. But ensuring that these entities don’t curb free expression any more than (legally) necessary (see below) wouldn’t require creating such authority. I’d permit these ESCs to charge whatever they want for their services and to make money however they like (including selling users’ personal information – which does raise problems of its own, but which are unrelated to the speech issue). As currently required by the controversial Section 230 provision of the Communication Decency Act of 1996, they wouldn’t be able to disseminate any content that’s already illegal under federal criminal law, intellectual property law, electronic communications privacy law, or (most recently) criminal and civil sex trafficking law.

I’d also make them subject to current libel law – which means that plaintiffs would need to prove that false and defamatory information had been spread maliciously and knowingly. Could this rule mean that now-incredibly clogged U.S. courts would become more incredibly clogged? Sure. So let’s also set up a separate court system to handle such cases. Since a dedicated tax court system already exists, why not?

Frivolous suits could be reduced with “loser pays” requirements for court costs. The Big Tech defendants would doubtless still hold a huge advantage by being able to hire the very best legal minds and driving those costs up by dragging out proceedings. But a number of legal non-profits have emerged over the years to help the little guys and gals in these situations, so maybe at least the potentially most important and promising suits wouldn’t be deterred by financial considerations.

What the ESCs wouldn’t be permitted to do is bar or delete or modify any content, or any users, on misinformation grounds. Advocates of continuing to permit and even further encourage or require such practices argue that the platforms’ vast scale requires greater discretionary and often required authority along these lines in the name of any number of good causes – election integrity, public safety, national security, etc. (See, e.g., here.)

But three counter-arguments are more persuasive to me. First, I can’t imagine developing any legal definition of misinformation (as opposed to libel or other well-established Constitutional speech curbs) that would be genuinely neutral substantively and that therefore wouldn’t be easy to abuse massively – and to the great detriment of our democracy’s health, due to the platforms’ scale.

Second, that’s no doubt why such regulations have absolutely no precedent in U.S. history, despite past periods and instances of intolerance dating from the passage of the Alien and Sedition Acts of 1798.

Third, if the ESCs are going to be held liable for disseminating etc misinformation, what excuse will there be to maintain protection for the rest of the news media? I’ve spent much of my multi-decade career in policy analysis finding instances that would unmistakably qualify. Not that ongoing and arguably worsening conventional media irresponsibility is any cause for complacency. But would a government remedy for such an intrinsically nebulous offense really result in a net improvement?

Individual victims of ESC censorship would, however, need remedies for these forms of cancellation, and as with libel and slander, a special court system could handle accusations, using the aforementioned provisions aimed at leveling the legal costs playing field. The Justice Department could file its own suits, too, and some seem likely if only because its own inevitable political sympathies are bound to shift as power in Washington changes hands over time. This prospect, moreover, should help keep the ESCs on their best behavior.

The big danger of my proposal, of course, is that misinformation would keep appearing and metastasizing online, and spreading like wildfire offline due to the ESCs’ extraordinary reach. That can’t be a healthy development. But it’s surely an unavoidable development for anyone valuing any meaningful version of free expression and its crucial corollary – the marketplace of ideas. For empowering a handful of immense ESCs to restrict misinformation threatens to narrow greatly and even fatally the competitive essence of this marketplace.

Throughout U.S. history, Americans have relied on these dynamics, and the common sense of the public, to crown as winners the best ideas and the benefits they bring, and declare as losers those that have either caused or threatened serious dangers. Is anyone out there prepared to deny seriously that the results, though imperfect, have been historically excellent, that the potential for improvement remains just as impressive, or that any alternative yet proposed looks superior? If not, then I hope you’ll consider this ESC plan at least a promising framework for ensuring that these digital giants don’t become the ultimate arbiters.

Im-Politic: Looking Backward and Forward on Trump and Trumpism

Tags

cancel culture, Capitol Hill, Capitol riots, China, climate change, Congress, Conservative Populism, Constitution, Democrats, election 2016, election 2020, election challenge, Electoral College, establishment Republicans, Hillary Clinton, identity politics, Im-Politic, Immigration, impeachment, incitement, insurrection, Joe Biden, Josh Hawley, left-wing authoritarianism, mail-in ballots, nationalism, Populism, Republicans, sedition, separation of powers, tariffs, Ted Cruz, Trade, trade war, Trump, violence

(Please note: This is the linked and lightly edited version of the post put up this morning.)

The fallout from the Capitol Riot will no doubt continue for the foreseeble future – and probably longer – so no one who’s not clairvoyant should be overly confident in assessing the consequences. Even the Trump role in the turbulent transition to a Biden administration may wind up looking considerably different to future generations than at present. Still, some major questions raised by these events are already apparent, and some can even be answered emphatically, starting off with the related topic of how I’m viewing my support for many, and even most, of President Trump’s policies and my vote for him in both of his White House runs.

Specifically, I have no regrets on either ground. As I’ll make clear, I consider Mr. Trump’s words and deeds of the last few weeks to represent major, and completely unnecessary, failures that will rightly at least tarnish his place in history.

All the same, legitimate analyses of many developments and resulting situations need to think about the counterfactual. Here, the counterfactual is a Trump loss to Democratic presidential nominee Hillary Clinton in 2016. And I’m confident that her presidency would have been both disastrous in policy terms (ranging from coddling China to moving steadily toward Open Borders immigration policies to intervening militarily more often and more deeply in numerous foreign conflicts of no importance to the United States) and heatedly divisive in political terms (because of her grifting behavior in fundraising for the various supposedly philanthropic initiatives she started along with her husband, former President Bill Clinton; because of her campaign’s payment for the phony Steele dossier that helped spur the unwarranted and possibly criminal Obama administration investigation of the Trump campaign; and because of intolerant and extremist instincts that would have brought Identity Politics and Cancel Culture to critical mass years earlier than their actual arrivals).

As for the worrisome events of the last several weeks:

>As I’ve written, I don’t regard Mr. Trump’s rhetoric at his rally, or at any point during his election challenges, as incitement to violence in a legal sense. But is it impeachable? That’s a separate question, because Constitutionally speaking, there’s a pretty strong consensus that impeachment doesn’t require a statutory offense. And since, consequently, it’s also a political issue, there’s no objective or definitive answer. It’s literally up to a majority of the House of Representatives. But as I also wrote, I oppose this measure.

>So do I agree that the President should get off scot free? Nope. As I wrote in the aforementioned post, I do regard the Trump record since the election as reckless. I was especially angered by the President’s delay even in calling on the breachers to leave the Capitol Hill building, and indeed the entire Capitol Hill crowd, to “go home.” In fact, until that prompting – which was entirely too feeble for my tastes – came, I was getting ready to call for his resignation.

>Wouldn’t impeachment still achieve the important objective of preventing a dangerously unstable figure from seeking public office again? Leaving aside the “dangerously unstable” allegation, unless the President is guilty (as made clear in an impeachment proceding) of a major statutory crime (including obstruction of justice, or incitement to violence or insurrection), I’d insist on leaving that decision up to the American people. As New York City talk radio host Frank Morano argued earlier this week, the idea that the Congress should have the power to save the nation from itself is as dangerously anti-democratic as it is laughable.

>Of course, this conclusion still leaves the sedition and insurrection charges on the table – mainly because, it’s contended, the President and many of his political supporters (like all the Republican Senators and House members who supported challenging Electoral College votes during the January 6 certification procedure) urged Congress to make an un-Constitutional, illegal decision: overturning an election. Others add that the aforementioned and separate charge not includes endorsing violence but urging the January 6 crowd to disrupt the certification session.

>First, there’s even less evidence that the lawmakers who challenged the Electoral College vote were urging or suggesting the Trump supporters in the streets and on the lawn to break in to the Capitol Building and forcibly end the certification session than there’s evidence that Mr. Trump himself gave or suggested this directive.

>Second, I agree with the argument – made by conservatives such as Kentucky Republican Senator Rand Paul (often a Trump supporter) – that authorizing a branch of the federal government unilaterally to nullify the results of elections that the Constitution stipulates should be run by the states is a troubling threat to the Constitutional principle of separation of powers. I’m also impressed with a related argument: that sauce for the goose could wind up as sauce for the gander.

In other words, do Trump supporters want to set a precedent that could enable Congress unilaterally to overturn the election of another conservative populist with something like a second wave of Russia collusion charges? Include me out.

>Further, if the Trump supporters who favored the Electoral College challenge are guilty of insurrection or fomenting it, and should be prosecuted or censured or punished in some way, shouldn’t the same go for the Democrats who acted in the exact same ways in other recent elections? (See here and here.) P.S. Some are still Members of Congress.

>Rather than engage in this kind of What About-ism, and help push the country further down the perilous road of criminalizing political behavior and political differences, I’d much rather consider these challenges as (peaceful) efforts – and in some cases sincere efforts – to insert into the public record the case that these elections were marred by serious irregularities.

>How serious were these irregularities? Really serious – and all but inevitable given the decisions (many pre-pandemic) to permit mass mail-in voting. Talk about a system veritably begging to be abused. But serious enough to change the outcome? I don’t know, and possibly we’ll never know. Two things I do know, however:

First, given the thin Election 2020 margins in many states, it’s clear that practices like fraudulent vote-counting, ballot-harvesting, and illegal election law changes by state governments and courts (e.g., Pennsylvania) don’t have to be widespread. Limiting them to a handful of states easily identified as battlegrounds, and a handful of swing or other key districts within those states, would do the job nicely.

Second, even though I believe that at least some judges should have let some of the Trump challenges proceed (if only because the bar for conviction in such civil cases is much lower than for criminal cases), I can understand their hesitancy because despite this low-ish bar, overturning the election results for an entire state, possibly leading to national consequences, is a bridge awfully far. Yes, we’re a nation of laws, and ideally such political considerations should be completely ignored. But when we’re talking about a process so central to the health of American democracy, politics can never be completely ignored, and arguably shouldn’t.

So clearly, I’m pretty conflicted. What I’m most certain about, however, is that mass mail-in ballots should never, ever be permitted again unless the states come up with ways to prevent noteworthy abuse. Florida, scene of an epic election procedures failure in 2000 (and other screwups), seems to have come up with the fixes needed. It’s high time for other states to follow suit.

As for the politics and policy going forward:

>President Trump will remain influential nationally, and especially in conservative ranks – partly because no potentially competitive rivals are in sight yet, and possibly because Americans have such short memories. But how influential? Clearly much of his base remains loyal – and given his riot-related role, disturbingly so. How influential? Tough to tell. Surely the base has shrunk some. And surely many Independents have split off for good, too. (See, e.g., this poll.) Perhaps most important, barring some unexpected major developments (which obviously no one can rule out), this withering of Trump support will probably continue – though the pace is tough to foresee also.

>The Republican Party has taken a major hit, too, and the damage could be lasting. In this vein, it’s important to remember that the GOP was relegated to minority status literally for decades by President Herbert Hoover’s failure to prevent and then contain the Great Depression. Those aforementioned short American memories could limit the damage. But for many years, it’s clear that Democratic political, campaigns, and conservative Never Trumper groups like the Lincoln Project, will fill print, broadcast, and social media outlets with political ads with video of the riot and Mr. Trump’s rally and similar statements, and the effects won’t be trivial.

>What worries me most, though, is that many of the urgently needed policies supported and implemented by the Trump administration will be discredited. Immigration realism could be the first casualty, especially since so many of the establishment Republicans in Congress were such willing flunkies of the corporate Cheap Labor Lobby for so much of the pre-Trump period, and Open Borders- and amnesty-friendly stances are now defining characteristics of the entire Democratic Party.

The Trump China policies may survive longer, because the bipartisan consensus recognizing – at least rhetorically – the futility and dangers of their predecessors seems much stronger. But given Biden’s long record as a China coddler and enabler, the similar pre-Trump views of those establishment Republicans, and their dependence on campaign contributions from Wall Street and offshoring-happy multinational companies, important though quiet backtracking, particularly on trade, could begin much sooner than commonly assumed. One distinct possibility that wouldn’t attract excessive attention: meaningfully increasing the number of exemptions to the Trump China and remaining metals tariffs to companies saying they can’t find affordable, or any, alternatives.

>Much of the political future, however, will depend on the record compiled by the Biden administration. Not only could the new President fail on the economic and virus-fighting fronts, but on the national unity front. Here, despite his reputation as a moderate and a healer, Biden’s charge that Republican Senators Ted Cruz and Josh Hawley have used Nazi-like tactics, and race-mongering comments accusing law enforcement of handling the overwhelmingly white Capitol Rioters more gingerly than the racial justice protesters earlier this year represent a lousy start. And as his harsh recent rhetoric suggests, Biden could also overreach greatly on issues like climate change, immigration, and Cancel Culture and Identity Politics. Such Biden failures could even shore up some support for Mr. Trump himself.

>How big is the violence-prone fringe on the American Right? We’ll know much more on Inauguration Day, when law enforcement says it fears “armed protests” both in Washington, D.C. and many state capitals. What does seem alarmingly clear, though – including from this PBS/Marist College poll – is that this faction is much bigger than the relatively small number of Capitol breachers.

>Speaking of the breachers, the nature of the crimes they committed obviously varied among individuals. But even those just milling about were guilty of serious offenses and should be prosecuted harshly. The circumstances surrounding those who crossed barriers on the Capitol grounds is somewhat murkier. Those who knocked down this (flimsy) fencing were just as guilty as the building breachers. But lesser charges – and possibly no charges – might be justifiable for those who simply walked past those barriers because they were no longer visible, especially if they didn’t enter the Capitol itself.

>I’m not security expert, but one question I hope will be asked (among so many that need asking) in the forthcoming investigations of the Capitol Police in particular – why weren’t the Capitol Building doors locked as soon as the approach of the crowd became visible? The number of doors is limited, and they’re anything but flimsy. The likely effectiveness of this move can be seen from an incident in October, 2018 – when barred Supreme Court doors left anti-Brett Kavanaugh protesters futilely pounding from the outside when they attempted to disrupt the new Supreme Court Justice’s swearing in ceremony. Window entry into the Capitol would have remained an option, but the number of breachers who used this tactic seems to have been negligible.

What an extraordinary irony if one of the worst days in American history mightn’t have even happened had one of the simplest and most commonsensical type of precaution not been taken.

Im-Politic: The Case Against (Another) Impeachment

Tags

25th Amendment, Capitol assault, Capitol riots, Constitution, election 2020, election challenge, election integrity, Im-Politic, impeachment, incitement, Joe Biden, Mike Pence, Mitch McConnell, obstruction of justice, Trump, Trump rally

These last few days have been a great example of the adage that timing is everything. I was in full politics mode early this week because of the run-up to the eagerly and anxiously anticipated Georgia Senatorial runoff elections on Tuesday, and therefore decided to post Wednesday morning on the likely (and indeed eventual) results and the impact of the Democratic sweep on Republican Party politics.

I put up the post in the very early afternoon, and then almost immediately afterwards came the assault on the Capitol Building. Ordinarily, I’d have followed up with commentary on that outrage on Thursday or Friday. But as known by RealityChek regulars know, I focused instead on the new official U.S. foreign trade figures that came out on Thursday and the official U.S. jobs report issued Friday. In part I wanted to spend my time away from politics because I was trying to think of something original to contribute to the torrent of thoughts and emotions that followed the Capitol chaos, but also because to such an extent I’m an economics type, and the economy and its various problems haven’t gone away.

So it wasn’t until late-ish Saturday afternoon, as the news continued its own assault, that I’d collected my thoughts and reviewed the available evidence sufficiently to start writing on what has emerged as the question of the moment: What should the American system of government do about President Trump? More specifically, since (reportedly, at least) Vice President Mike Pence has ruled out using the Constitution’s 25th Amendment to remove the President from office (and rightly, in my view), should Mr. Trump be impeached again? 

My answer: No.  Let him to serve out his term. But before making the case for that course, here’s one idea suggested by a friend yesterday (and that I subsequently found out also has been suggested here and here): Mr. Trump’s best option for Mr. Trump would be resigning as part of a deal in which new President Mike Pence would pardon him, and thereby shield him from prosecution for any crimes he might have committed as President (more on which below).

Such a pardon would still leave Mr. Trump vulnerable to civil and criminal indictments by state and local law enforcement authorities (described here). But even though there are no signs that President-elect Biden wants to pursue the possible Presidential offenses, foreclosing this option entirely would clearly leave Mr. Trump much better off than leaving it open.

As for impeachment, it’s important that Mr. Biden hasn’t yet endorsed such an effort. But he hasn’t opposed it, either. I hope he will, for the following reasons:

>The Senate trial that would follow an affirmative vote by the Democratic-controlled House of Representatives would further deepen and enflame national passions that clearly are more than deep and enflamed enough already, thank you very much.

>Reportedly, Republican Senator Mitch McConnell of Kentucky, who is still the upper chamber’s majority leader, has sent out to his colleagues a schedule for a possible trial that serves as a reminder that, under existing Senate procedures, no such event could even start until January 19 – the day before Inauguration Day – without the consent of all sitting Senators. Since the President retains fairly substantial support from the Republican side, this means that the Senate vote required to approve the impeachment would take place after Mr. Trump has left office – an action that could easily be portrayed as one of pure vengeance, and that would further intensify political divisions.

>At least as important, for those claiming to be worried (as they should be) about the possibility of hostile foreign powers moving to capitalize on U.S. political turmoil, a full impeachment and trial would significantly lengthen this window of danger. It’s true that America’s adversaries have held back so far, but why increase the odds of a crisis, especially after the President is gone from the White House?

>Similarly, a full impeachment process would represent a major and completely unnecessary distraction for the federal government at a time when major distractions, even leaving aside national security considerations, are exactly what America doesn’t need right now. In case you’ve forgotten, a second (or third?) CCP Virus wave is still mounting, the economy remains in the toilet, and even with a major new stimulus/relief bill, months more of widepread suffering for many individuals, households, and businesses seems certain.

You don’t need to believe that the Trump administration excelled at dealing with the pandemic’s arrival to recognize that the previous impeachment effort preoccupied the attention of both the Executive and Congress for many critical weeks. Would the likely benefits of indicting President Trump and then seeking to remove him from office (at a Senate trial that would certainly take place after Inauguration Day) really outweigh the risks? And outweigh them significantly? Even though my belief has always been that any political leader or government worth its salt needs to be able to handle multiple challenges at once, I can’t see the wisdom of adding unnecessary challenges.

>One argument for impeachment and conviction is that the latter would prevent the dangerously unstable Mr. Trump from ever again holding public office at any level. That’s an understandable goal for those viewing the outgoing President as an incorrigible menace to America’s democracy and way of life. But even for such Never Trumpers, is it a goal consistent with democratic principles?

I’d answer “Yes,” if smoking gun-type evidence existed for Trumpian offenses. But as explained further below, based on what’s currently public knowledge, I don’t see a viable case. And in its absence, shouldn’t the final verdict on the President’s political future be left up to the American people? Don’t opponents trust in the electorate’s judgment? And in their ability to keep Mr. Trump away from official power-wielding via politics?

As for the Wednesday events themselves, and the issue of the President’s responsibility and the case for other instances of criminality during the last weeks of his presidency (which Constitutionally can be prosecuted once he’s out of office):

I watched the entire video of his speech to the rally that morning and have now examined the transcript. The only phrasing I heard that could even by the wildest stretch of the imagination be considered “incitement” was the President’s single use of the word “fight” and statements like “We’re just not going to let that [a final Congressional certification of the Electoral College vote] happen.”

In addition, on December 20, the President sent out this tweet: “Statistically impossible to have lost the 2020 Election. Big protest in DC on January 6th. Be there, will be wild!”

I agree with Fox News talker – and generally strong Trump supporter – Tucker Carlson that these remarks were “reckless,” because national passions are running so hot. But terrible judgment alone is almost never criminal according to both common sense and the American legal system.  

Further, the above remarks were accompanied by Trump statements like “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard”; and ”[W]e’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country”; and “We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

In other words, the only explicit instructions or advice or whatever you want to call it given by Mr. Trump to the crowd entailed peaceful, not violent, behavior. And anyone seizing (in isolation) on the use of “fight” needs to ask themselves if they’ve never heard a politician exhort his followers with that verb? Or characterize a campaign as a “battle”? That’s why the only reaction justified by the “fight charge” is “Oh, please.” The same goes for his claim that neither he nor his followers should ever accept the election results. That’s a far cry from recommending that they commit violent acts.

Regarding the December 20 tweet – which was sent out weeks before the Capitol attack – the “wild” reference was clearly meant as a description of the anticipated rally scene, and used to convey boisterousness, excitement, etc. Good luck contending in a court of law that this amounted to a request or demand to act in an out-of-control, much less illegal, manner, and using it as a basis of an incitement charge.

>Arguments have also been made that the President’s phone calls to the Georgia state officials and especially his January 2 declaration that he “just wanted to find 11,780 votes” amounted to solicitation of election fraud or participating in a conspiracy against people exercising their civil rights.

Ironically, though, one of the President’s best defenses harkens back to one of Special Counsel Robert Mueller’s explanations for why there was no airtight case for charging Mr. Trump with obstruction of justice based on the evidence he uncovered in his probe of the so-called Russia collusion scandal: The President arguably had no criminal or corrupt intent because he genuinely believed he was being framed. Similarly, Mr. Trump’s phone call was motivated by a sincere belief that the election had been stolen. (See Volume II, p. 89 here.)

The election fraud etc argument is also ironic because of all the pre-Capitol riots talk of indicting the President for obstructing justice based on the Mueller probe’s findings. Even Mueller wasn’t terribly confident about Mr. Trump’s culpability on this score.

The only caveat to this analysis that needs to be kept in mind is that the standards for determinations of guilt in civil law suits are lower than for criminal prosecutions.  So in principle, those kinds of legal avenues are plausible, and convictions might obtained in at least some cases – even though these procedings won’t do wonders for the cause of reasonable national unity, either. 

But overall, just as genuinely good options are usually awfully difficult to find during hot messes like that which the United States faces now, options that satisfy everyone or even a majority of Americans will be scarce at best, too. So permitting the Trump presidency to come to as normal a possible end seems the best of an unsatisfactory lot – provided of course that new news shocks don’t shake up an already disturbingly settled national scene over the next ten days.

Im-Politic: VP Debate Questions That Should be Asked

Tags

1619 Project, African Americans, Barack Obama, Biden, budget deficits, CCP Virus, censorship, China, Confederate monuments, Constitution, coronavirus, COVID 19, education, election 2020, Electoral College, filibuster, Founding Fathers, free speech, healthcare, history, history wars, Im-Politic, inequality, investment, Kamala Harris, Mike Pence, national security, Obamacare, police killings, propaganda, protests, racism, riots, semiconductors, slavery, spending, Supreme Court, systemic racism, Taiwan, tariffs, tax cuts, taxes, Trade, trade war, Trump, Vice Presidential debate, Wuhan virus

Since I don’t want to set a record for longest RealityChek post ever, I’ll do my best to limit this list of questions I’d like to see asked at tonight’s Vice Presidential debate to some subjects that I believe deserve the very highest priority, and/or that have been thoroughly neglected so far during this campaign.

>For Vice President Mike Pence: If for whatever reason, President Trump couldn’t keep the CCP Virus under control within his own White House, why should Americans have any faith that any of his policies will bring it under control in the nation as a whole?

>For Democratic candidate Senator Kamala Harris: What exactly should be the near-term goal of U.S. virus policy? Eliminate it almost completely (as was done with polio)? Stop its spread? Slow its spread? Reduce deaths? Reduce hospitalizations? And for goals short of complete elimination, define “slow” and “reduce” in terms of numerical targets.

>For Pence: Given that the administration’s tax cuts and spending levels were greatly ballooning the federal budget deficit even before the virus struck, isn’t it ridiculous for Congressional Republicans to insist that total spending in the stimulus package remain below certain levels?

For Harris: Last month, the bipartisan Congressional Problem Solvers Caucus unveiled a compromise stimulus framework. President Trump has spoken favorably about it, while stopping short of a full endorsement. Does Vice President Biden endorse it? If so, has he asked House Speaker Nancy Pelosi to sign on? If he doesn’t endorse it, why not?

For Pence: The nation is in the middle of a major pandemic. Whatever faults the administration sees in Obamacare, is this really the time to be asking the Supreme Court to rule it un-Constitutional, and throw the entire national health care system into mass confusion?

For Harris: Would a Biden administration offer free taxpayer-financed healthcare to illegal aliens? Wouldn’t this move strongly encourage unmanageable numbers of migrants to swamp U.S. borders?

For Pence: President Trump has imposed tariffs on hundreds of billions of dollars’ worth of Chinese exports headed to U.S. markets. But U.S. investors – including government workers’ pension funds – still keep sending equally large sums into Chinese government coffers. When is the Trump administration finally going to plug this enormous hole?

For Harris: Will a Biden administration lift or reduce any of the Trump China or metals tariffs. Will it do so unconditionally? If not, what will it be seeking in return?

For both: Taiwan now manufactures the world’s most advanced semiconductors, and seems sure to maintain the lead for the foreseeable future. Does the United States now need to promise to protect Taiwan militarily in order to keep this vital defense and economic knowhow out of China’s hands?

For Pence: Since the administration has complained so loudly about activist judges over-ruling elected legislators and making laws themselves, will Mr. Trump support checking this power by proposing term limits or mandatory retirement ages for Supreme Court Justices? If not, why not?

For Harris: Don’t voters deserve to know the Biden Supreme Court-packing position before Election Day? Ditto for his position on abolishing the filibuster in the Senate.

>For Pence: The Electoral College seems to violate the maxim that each votes should count equally. Does the Trump administration favor reform? If not, why not?

>For Harris: Many Democrats argue that the Electoral College gives lightly populated, conservative and Republican-leaning states outsized political power. But why, then, was Barack Obama able to win the White House not once but twice?

>For Pence: Charges that America’s police are killing unarmed African Americans at the drop of a hat are clearly wild exaggerations. But don’t you agree that police stop African-American pedestrians and drivers much more often than whites without probable cause – a problem that has victimized even South Carolina Republican Senator Tim Scott?

For Harris: Will Biden insist that mayors and governors in cities and states like Oregon and Washington, which have been victimized by chronic antifa violence, investigate, arrest and prosecute its members and leaders immediately? And if they don’t, will he either withhold federal law enforcement aid, or launch such investigations at the federal level?

For Pence: Why should any public places in America honor Confederate figures – who were traitors to the United States? Can’t we easily avoid the “erasing history” danger by putting these monuments in museums with appropriate background material?

For Harris: Would a Biden administration support even peacefully removing from public places statues and monuments to historic figures like George Washington and Thomas Jefferson because their backgrounds included slave-holding?

For both: Shouldn’t voters know much more about the Durham Justice Department investigation of official surveillance of the Trump campaign in 2015 and 2016 before Election Day?

For both: Should the Big Tech companies be broken up on antitrust grounds?

For both: Should internet and social media platforms be permitted to censor any form of Constitutionally permitted speech?

For Pence: Doesn’t the current system of using property taxes to fund most primary and secondary public education guarantee that low-income school children will lack adequate resources?

For Harris: Aren’t such low-income students often held back educationally by non-economic factors like generations of broken families and counter-productive student behavior, as well as by inadequate school funding – as leading figures like Jesse Jackson (at least for one period) and former President Obama have claimed?

For Pence: What’s the difference between the kind of “patriotic education” the President says he supports and official propaganda?

For Harris: Would a Biden administration oppose local school districts using propagandistic material like The New York Times‘ U.S. history-focused 1619 Project for their curricula? Should federal aid to districts that keep using such materials be cut off or reduced?

Now it’s your turn, RealityChek readers! What questions would you add? And which of mine would you deep six?

Im-Politic: The Supreme Court Mess II

Tags

Antonin Scalia, Constitution, diversity, Federal Reserve, identity politics, Im-Politic, Joe Biden, Robert Bork, Ruth Bader Ginsburg, Senate, Supreme Court, term limits, Trump

Since the Supreme Court Mess that I analyzed yesterday really is a Supreme Court Mess and not simply a Ruth Bader Ginsburg Mess, today let’s dive right into problems with how Americans deal with the top of the federal government’s judiciary branch other than the means of picking the late Justice’s replacement.

First and maybe most obvious comes an inconsistency in the position of the Democrats and especially of their presidential nominee this year, former Vice President Joe Biden. From that party and candidate comes the insistence that it’s wrong for President Trump to choose a new Justice so close to the November election because it could strap the country with a new Justice and Court line-up that flout the popular will that would be revealed by a Biden win on major policy issues (like abortion or the future of Obamacare).

Leaving aside the (clear un-) Constitutionality of this position, it’s not entirely unreasonable. But it would become much stronger substantively, and much less vulnerable to charges of hypocrisy and pure partisanship, if Biden enabled voters to assess their actual Supreme Court-related choices at least as clearly as Mr. Trump has with the list of Ginsburg replacement possibilities he’s released. Biden has promised that he’d put forward an African American woman (though maybe not this time?). But which ones is he considering (if it is this time)? He hasn’t told us. So the criterion of fairness should oblige him to release his own list ASAP, to permit voters to weigh the alternatives fully. After all, even if they don’t like any of the Trump candidates (which the President has subsequently announced will be restricted to women), Americans might like Biden’s choices even less.

The second problem, though, has precisely to do with the identity politics of Supreme Court nominations that both Biden and the President are practicing. Not that I have any inherent objection to another female Justice or the first African American female Justice. But these announcements raise any number of divisive questions that Americans could do without in these divisive times. Just a few examples:

>During the Obama years, there was much talk that the Court needed an Asian-American Justice. (Full disclosure: Denny Chin, the federal appeals court judge mentioned here, is a college friend.) So many valid reasons were cited (e.g., they’re “the fastest growing population of color in the country, with a voting electorate expected to double in the next 25 years”). Exactly when, therefore, did this proposal become obsolete? And why?

>Regarding the Biden pledge to nominate an African American woman, that would move the Court’s makeup closer to the gender composition of the entire U.S. population, so this promise can be justified by the goal of making the Court “look like America.” (So would the President’s promise to choose a woman whose race or ethnic background he hasn’t specified.) But an African American woman would bring the number of African Americans on the Court to two (along with Clarence Thomas). Since they amount to only some 13 percent of all Americans, they’d be way over-represented.

>The same outcome would result from if Mr. Trump picks Cuban-American federal appeals court judge Barbara Lagoa from Florida. She’d be the second Latino woman on the Court (along with Sonia Sotomayor). But that decision would create another over-representation situation (though not one as sizable as those for African Americans, at least in the early part of a Biden administration). And what about Latino men? They’d remain completely shut out. How come?

Again, I agree broadly with the idea that the leadership ranks of major American institutions, especially public, but also private, should be diverse enough in terms of all the major population categories to make sure that the widely varying experiences of these groups contribute to decision-making. In my view, that’s a major plus, since the idea of objectively optimal policies or practices is impossibly naive, and because the choices made by public institutions are bound to affect different groups differently.

But although all these stakeholders deserve a say, when diversity – and especially specific diversity formulas – become explicit, you unfortunately enter a world in which the kinds of potentially ugly identity politics-related questions just mentioned tend to come to the fore, and vital issues of merit tend to move to the rear.

As a result, though doing so is somewhat hypocritical, certain kinds of fictions do serve important purposes. So I hope that from now on, diversity promises for public appointments at least become less explicit, and the results become the product of informal political pressures and other considerations. (Privately owned institutions should be able to do whatever they want within the bounds of anti-discrimination laws. Even so, diversity can benefit them, too, since especially in the case of businesses, they’re trying to win and keep customers, and diverse leadership ranks are likely to provide important insights into appealing to various population groups.)

The third big part of the Supreme Court Mess: The American political system clearly has moved way too far away from the crucial idea that, since elections matter, Presidents have the right to appoint whoever they wish to fill positions the Constitution entitles them to fill unless their choices are flagrantly incompetent, or utterly dismissive of Constitutional and ther legal standards, or ethically or criminally compromised. If Senators simply don’t agree with nominees on legitimate Constitutional and legal controversies – too bad.

Thankfully, this idea isn’t completely dead. For example, three Democrats did vote to approve Trump Supreme Court nominee Neil M. Gorsuch in April, 2017. At the same time, three isn’t much. Vastly more encouraging: In August, 1993, Ginsburg was confirmed by a 96 to 3 vote (one Senator abstained), which means that plenty of Republicans supported here even though she surely wasn’t their legal and Constitutional cup of tea.

At the same time, Republicans controlled the Senate when Gorsuch was considered, and Democrats enjoyed a majority when Ginsburg came up. So a better example of this ideal would be the 1990 vote in favor of David H. Souter. He was a George H.W. Bush nominee, yet won the nod of a Democratic Senate – in a 90-9 landslide. (This time, one Senator didn’t vote.) 

Or was it? After all, Souter arguably received this margin precisely because his views on major subjects were so unknown – largely because his lower court opinions and other legal writings were so plain vanilla or so scarce or both. As widely (and convincingly) supposed, Souter (and his supporters) had learned the big lesson of the failed nomination of Robert Bork: Don’t leave a conspicuous “paper trail.”

Bork, whose bid for the Court failed in 1987, was rejected by a Democratic-controlled Senate largely because his prodigious writings were so controversial. His reputation as a Watergate-era villain surely didn’t help, either.

But were Bork’s views so out of the mainstream, as his opponents charged? Just a year earlier, another doctrinaire judicial conservative nominated by President Ronald Reagan – Antonin Scalia – was elevated to the Court. And he won unanimously. (Two Senators didn’t vote.)  But that year, Republicans ran the upper chamber.

As a result, it’s easy to conclude that the tradition of “Borking” is very much alive, and that overly political Supreme Court nomination fights will continue for the time being.

The final big aspect of the Supreme Court mess: This drift away from the respect for legitimate presidential prerogatives no doubt results from both the prominent role the Court has played in deciding issues (like Obamacare) that elected politicians should be figuring out, and this prominence, and the towering stakes thereby created, in turn stem from the lifetime nature of Court terms. In other words, once a Justice is confirmed, he or she can serve literally for decades, and for just as long decisively influence policy decisions that shouldn’t be legalized.

Therefore, although I’m super-hesitant to support Constitutional changes in response to developments that are probably transient, I fear that the too often vicious and hyper-partisan nature of American politics is here to stay for the foreseeable future.  Therefore, I’d support at least considering an amendment that would limit the Justices’ terms.  One possible model: the Federal Reserve, another government body that’s supposed to be shielded from politics, and whose seven Board members serve for fourteen years, and whose Chair and Vice Chair are limited to four (although this curb doesn’t count against their Board service).

Not that I love the Fed’s degree of autonomy.  But the temperature of national politics clearly needs to be lowered to safer levels, and term limits on the increasingly supremely powerful Supreme Court are the best place to start I can think of.     

Im-Politic: The Supreme Court Mess I

Tags

Antonin Scalia, Barack Obama, Biden Rule, conservatives, Constitution, Democrats, election 2020, elections, Ginsburg, Im-Politic, Joe Biden, lame duck Congress, liberals, Merrick Garland, Mitch McConnell, Republicans, rule of law, Ruth Bader Ginsburg, Senate, Supreme Court, Trump

I call this piece “The Supreme Court Mess I” rather than “The Ginsburg Mess I” because the fix in which the nation finds itself regarding the replacement of the late Supreme Court Justice Ruth Bader Ginsburg reflects a number of much deeper problems America is suffering. These stem from the firestorm-like nature of some recent battles over the roster of this nearly (but not quite paramount) arbiter of the Constitution, which makes it a the nearly last word regarding the entire U.S. legal system and its often decisive, lasting effects on every dimension of American life. (The Roman numeral tells you that there will be another post on this subject coming real soon, probably tomorrow.)

Today we’ll focus on the immediate question at hand: whether the Senate should vote on President Trump’s nominee for a new Justice. To me, the only answer with any merit: Absolutely. Indeed, nothing could be stronger, and more important to affirm, than the conclusion that any President has every right to nominate a new Justice at any time during any of his or her terms in office (i.e, through Inauguration Day, January 20), and that the Senate has every right to vote on his choice during this time. Why? Because it’s what the Constitution says, and neither the Framers nor any American leaders have ever formally tried to change the system since 1789. That is, there are no exceptions made – including for presidential election years, as many Democrats are calling for now.

If you think about it non-hysterically, you can see why. Abandoning this standard opens the door to the kind of bizarrely and indeed laughably convoluted and self-serving case being made now by Republican Senate Majority Leader Mitch McConnell of Kentucky to explain why (a) he’s decided to allow a vote on a Supreme Court nominee this presidential election year, but (b) refused to allow former former President Obama’s appointment of Supreme Court nominee Merrick Garland be considered during the previous presidential election year.

According to McConnell, the governing principle for Court nominations is the result of the latest Senate election. As he wrote right after Ginsburg’s passing:

“In the last midterm election before Justice [Antonin] Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

“By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, To

To which the only serious reaction has to be “Seriously”? Not only is this position even further from the Constitutional standard than the presidential carve-out position. If it’s followed, it’s easy to see how other unscrupulous politicians could use even more arbitrary maxims like this to completely paralyze the Supreme Court nomination process.

After all, if it’s the Senate’s makeup that counts most of all, then why not bar nominations during the run-up to such elections – which of course take place every two years (when a third of the Senate faces reelection). For by McConnell’s logic, it wouldn’t be possible to know the people’s will on such matters for certain until those Senate results are in. And how would anyone define “run-up”? A month? Two? Six? A full year? On what objective basis could anyone distinguish among these possibilities? The only reasonable answer? None.

Lest you want to blame Republicans alone for this kind of sophistry, keep in mind that its origins lie in the so-called “Biden Rule” – when in 1992, the former Vice President and current Democratic presidential nominee argued that “once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” And in an example of poetic justice, McConnell and many other Republicans and conservatives cited this reasoning to justify their own Supreme Court positions when former President Barack Obama in March, 2016 nominated senior federal judge Merrick Garland to fill the seat left by Scalia’s death in February.

Three final observations: First, any number of politicians and pundits are citing various supposed historical traditions for justifying their stances on election year Supreme Court votes. (See here for Republicans and conservatives, and here for Democrats and liberals.) To which I can only say, “Tradition, shmadition.” As indicated above, although interpretation is possible and often needed for all laws and many Constitutional provisions, when the latter set out clearcut procedures – as for the nomination and approval of Supreme Court Justices (but not so much for impeachment) – Americans drift away from them at their peril. If you don’t like these procedures, then use the amendment process of the Constitution to change them, rather than pretending that traditions and non-legal precedents and other practices are adequate substitutes.

Second, equally ludicrous and even more dangerous is the claim that the nation’s current divided circumstances justify waiting until after the presidential election to fill the Ginsburg seat. That’s essentially warning that violence may erupt if the President and Senate exercise their Constitutional prerogatives, and in effect supporting a surrender to the threat of mob rule.

It’s absolutely true that practically all decisions made by political leaders – elected and unelected alike – are at least partly political in nature, and can profoundly affect the national interest short term and long term. It’s entirely legitimate, therefore, and even important for President Trump to take into account in his Ginsburg approach non-Constitutional considerations.

But it’s something else entirely, and far more dangerous, to contend that such judgment calls are or should in any way be legally binding. As with federal government personnel choices, Constitutional procedures can be used to protest and overturn presidential or other decisions that are entirely legal but unpopular for whatever reason. They’re called elections, and Americans would do far better to focus on taking all (legal) steps to ensure that their candidates and viewpoints prevail, rather than dreaming up spur-of-the-moment rationalizations for ignoring settled law that may create momentary advantages, but that contain equal backfire potential, and that can only erode the rule of the law to everyone’s ultimate detriment.

Third, my only strong preference in this matter is that a Senate Supreme Court vote not take place during a lame duck session – which would be convened after the presidential election. That’s because a possibly decisive number of Senators who would be considering the nomination would be Senators who have been voted out of office. What an offense to the idea of representative government that would be! At the same time, it’s only my preference. These sessions themselves are entirely legal, and I’m not about to claim that my views should substitute for Constitutional procedures.

Im-Politic: A Worrisome Hole in U.S. Free Speech Protections

Tags

civil liberties, Constitution, First Amendment, free speech, freedom of expression, Im-Politic, mob rule, Oregon, peaceful protests, Portland, protests, Supreme Court

However crazy it sounds, an idea that came to me in high school bears heavily on the burst of recent, overlapping national controversies about free speech, peaceful protests, and political violence. In fact, it spotlights what looks like a gaping, increasingly important, and increasingly worrisome hole in U.S. Constitutional protections not only for legitimate expressions of opinions, but for exercises of other significant liberties.

The idea: That public authorities have an affirmative obligation to protect the expression of unpopular and even disgusting viewpoints even, and especially if, they might ignite violent reactions, and when those violent reactions were taking place.

You might think that this is longstanding Constitutional principle, policy, and practice on the federal, state, and local levels, but that’s not so. And the result is nothing less than an invitation to mob rule that thankfully hasn’t been taken up often during American history, but seems all too tempting nowadays.

I first became aware of the problem when my senior year history class focused for a while on civil liberties and we read about a 1949 Supreme Court case called Terminiello v. City of Chicago. The question at hand was whether local authorities could prosecute a speaker expressing views in a public place to that created “a condition of unrest, or…a disturbance.”

Writing for the majority, Justice William O. Douglas, a staunch defender of civil liberties, argued that the Chicago speaker, a suspended and indeed horrifically bigoted Catholic priest named Arthur Terminiello, and others like him, were entitled under the First Amendment to voice opinions even which (in the words of the presiding local judge) “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”

The Douglas opinion, in my view, was especially valuable because it held that no one – either private citizens outraged for whatever reason, morally legitimate or not, or government at any level – could censor, otherwise prevent during the fact, or punish the expression of any view belonging in the category of Constitutionally protected speech. As a result, the majority wound up expanding that realm of protected speech.

Unfortunately, this legal standard only lasted for some two years. In a 1951 case called Feiner v. New York, the Supreme Court ruled that, as described in this summary, “The First Amendment permits the government to take action against speech when there is a clear and present danger that it will cause a disturbance of the peace.”

In the 1969 case Brandenberg v. Ohio (about two years before my high school class), the Justices seemed to narrow the grounds for suppressing speech that created this kind of “clear and present danger” (a broader category of circumstances that could justify curbing speech and other forms of expression) to speech likely to incite “imminent lawless action.”

But it was only in 1977 that a truly decisive blow seems to have been struck against what I consider a blaming the victim approach when the Court ruled that government couldn’t prevent the expression of most repugnant ideas for fear of threatening public order before the fact either. The case was called National Socialist Party of America v. Village of Skokie, and upheld an Illinois Supreme Court decision that prevented a heavily Jewish municipality from preventing a demonstration by a group of (as the name makes clear) Nazis. udeupheld the defended

All the same, the group of questions I wound up asking in high school about Terminiello remains unanswered. Specifically, if hateful ideas like Terminiello’s are Constitutionally protected speech, didn’t government’s First Amendment obligations logically extend further than affirming his right to express them amid the threat or use of violence? Wasn’t government Constitutionally obliged to make sure that such expression actually take place – for example, responding to threats of violent responses by declaring that such actions themselves would be prosecuted, and following through? Wouldn’t failing to require these protective actions too often threaten to turn the act of expressing protected speech into a test of physical courage, and thereby convince too many who hold unpopular views to hold back?

Which brings us to the tragic killing last weekend in Portland, Oregon of right-wing protester Aaron Danielson amid a spate of violence that resulted from the entry into the city’s downtown of a motor vehicle caravan carrying many individuals of this ilk.

The caravan has been widely described as needlessy provocative, but the grounds seem shaky at best. According to some Mainstream Media accounts, the vehicles “descended on the city and sparked confrontations with Black Lives Matter counterprotesters.” But this phrasing raises more questions than answers. For example, what exactly about the caravan’s trip “sparked confrontations”? Were the opening clashes completely simultaneous? If not, who acted first?

One answer – and revealingly, from the now-conspicuously woke New York Times – is that “As the vehicles displaying Trump flags and signs enter downtown Portland, protesters [gathered] along the street to confront the caravan and in some cases block its route.” I’ve yet to see any accounts blaming the caravan-ers for starting the clashes.

The caravans could legitimately be blamed for knowingly, and even illegally, inflaming an already volatile situation. But no Portland or Oregon officials have declared that the act of driving through downtown itself was illegal, or even constituted a permit-less protest. Certainly, the city’s police had no plans to stop it.

And why would they? Since when has transiting a public thoroughfare not explicitly declared off-limits by the authorities been “provocative,” much less of dubious legality? Which is where the Terminiello point comes in.

The authorities in Portland knew beforehand that the caravan would take place. Their “goal” was to restrict their route to surrounding Interstates – and away from that downtown core. But what the heck is that about? They were afraid of confrontations? If so, didn’t they have an affirmative obligation to make sure that this event could take place safely? In fact, why wasn’t protection offered in advance? And P.S.: These questions pertain whether the caravan was considered by the police to be a protest, or simply an attempt to visit a public place. Finally, regarding the right to access public spaces like downtown Portland for lawful reasons – which seems like a pretty foundational civil right – why in the first place has the area’s government permitted these blocks to become a dangerous near-combat zone for months and even longer?

Of course, decisions about most effectively allocating available resources in a given situation allocation – which need to be left up to the authorities – will always prevent police or other law enforcement agencies from protecting every exercise of Constitutionally protected freedoms adequately. The challenge, moreover, is especially great in these fraught times. At the same time, what better argument could be made for more, rather than fewer, law enforcement assets?

More important, though, the notions that travel through a public street as such, whether simply expressing an agenda or not, amounts to a provocation that is somehow illegal or even improper, and that government has no duty actively to safeguard it, should be completely unacceptable to everyone who values free expression. Because if legitimate authority doesn’t make sure that threats or acts of violence don’t shut down free speech and the exercise of similar rights, you can be certain that the mob – or mobs – will quickly take notice.

Im-Politic: How to Deal with the Confederate and Other Now-Controversial Monuments

Tags

A.P. Hill, Abraham Lincoln, Arlington National Cemetery, Aunt Jemima, Civil War, Confederacy, Confederate monuments, Constitution, cross-burning, Elizabeth Warren, First Amendment, Franklin D. Roosevelt, George C. Wallace, George Washington, Im-Politic, Ku Klux Klan, Mexican War, military bases, Pierre Beauregard, racism, Reconstruction, Robert E. Lee, Stonewall Jackson, Theodore G. Bilbo, Thomas Jefferson, treason, Trump, Tucker Carlson, Woodrow Wilson

Not that anyone’s asked for it, but the Confederate and other allegedly racist monuments issue is back in the news, so here’s my handy dandy guide for figuring out which of these memorials should be taken down or removed, which should remain publicly displayed (and how), and which should be left alone. (This guide, which only covers the major controversies that have reappeared recently, will of course include naming decisions for public buildings and spaces like parks and squares and streets.)

Some major misconceptions need to be cleared up first. Right off the bat, everyone should agree that whatever actions are taken (removal or alteration), they must result from legal processes. Unauthorized teardowns and inflictions of damage are simple vandalism and should be punished as such. No private person or group has the right to take these matters into their own hands, precisely because no one’s voted for you. As for public officials, unless laws specifically empower them to act unilaterally, they should always work through legislation or established rule-making procedures.

In addition, let’s drop the dishonest nonsense about statues and plaques on public grounds, and choices of names for public buildings or military bases and spaces like parks and squares, being simple descriptions or illustrations of history. Nothing could be clearer than that they’re meant to express honor and pride.

Similarly, making changes (including removal) has nothing to do with “erasing history.” To take one example, if Robert E. Lee’s name is taken off a high school or highway or whatever, there’s no chance that Lee will be forgotten. Every American who takes a public school course in U.S. history will learn about his role as commander of the Confederate army during the Civil War. And if you happened to cut or sleep through that class, you can always access one of the upteen gazillion books about that conflict that have been written for the last roughly century-and-a-half since it ended.

It’s true that public school students may not encounter the names of lesser Confederate figures. To which the only adult reply is “Big deal.” The reason that folks like Generals A.P. Hill or even Stonewall Jackson may be overlooked is because, in the end, they weren’t such big deals.

Also a no-brainer: If Americans want to honor controversial or despicable figures or movements or ideas on their own property, that’s in virtually all cases their Constitutionally protected right. Ditto for private businesses. If your neighbor is flying a Confederate flag or has painted a swastika on his property, you’re free to shun him, and to urge others to do the same. If you’re offended by Aunt Jemima, switch your pancake syrup brand, ask the company to use a new image or character, or encourage boycotts and trust in the market and consumer choice to settle the issue. (Cross-burning on one’s own private property, a la the viciously racist and anti-semitic Ku Klux Klan, is legally treated somewhat – but only somewhat – differently.)

More complicated is the question of which level of government should be making which decisions where public property is concerned. For instance, should a federal ban be enacted on using Confederate names on any public grounds, including state and local? I can see an argument for that proposition (as indicated below, it provides encouragement for treason, a Constitutionally designated crime or, alternatively, creates a discriminatory environment). But I can also understand the case for leaving the decision to the states and localities – and ultimately letting the market decide (mainly in the form of privately organized boycotts of the type that has pushed several states to drop anti-LGBT measures).

So having cleared away this intellectual brush, here’s the guide – at least for some of the major cases:

>Confederate leaders – they’re the easiest call of all. They were traitors. They took up arms against the U.S. government. No decent American should want to honor them in any way. Yes, there’s an argument that some of these naming decisions (e.g., for U.S. miIitary bases) were made in order to promote reconciliation between North and South after the Civil War. Indeed, President Trump just made it.

But the U.S. decision not to prosecute the leaders of the Confederacy – and execute them if found guilty – was a strong enough gesture of reconciliation. In addition, nearly all Confederate veterans – including senior officers – were soon permitted to vote and hold public office once more. And the same states whose rebellion ignited the war were admitted back into the Union.

As a result, naming numerous U.S. military bases after Confederate generals represents a grossly mistaken (at best), and I would argue utterly perverse and continuing slap in the face to all American citizens and legal residents of the country, and especially to the soldiers who fought and died to preserve the Union and their families and descendents. There are plenty of other American military leaders who served their country in actually patriotic and genuinely heroic ways. Their names belong on these bases instead.

But what about the graves of Confederate veterans (including rebels from “ordinary” backgrounds who may not have been slave owners or even racists) currently lying in U.S. military or other national cemeteries, including Arlington? There’s no doubt, as made clear here, that a number wound up there because of mistakes in identifying very partial physical remains. But it’s also clear that many were placed in or actually moved to these plots and the graves specially marked as signs of respect – and that Congress approved.

Massachusetts Democratic Senator Elizabeth Warren has recently introduced legislation to “remove all names, symbols, displays, monuments, and paraphernalia that honor or commemorate the Confederate States of America and anyone who voluntarily served it from all military bases and other assets of the Department of Defense.” Presumably (though I haven’t found the full text) this includes the markers.

Fox News talker Tucker Carlson (who I generally admire) condemned this measure as grave “desecration.” That’s reckless hyperbole, but if Warren would actually remove the markers, that looks excessive as well, since at least according to the official description in the National Parks Service post linked above, they simply identify the deceased as Confederates.

My bottom line: It’s not possible to figure out which of these veterans were bad guys and which were at least reasonably good guys, and the bodies are already interred. So I’d leave them be.

Not so, however, for the Confederate Memorial at Arlingon Cemetery – which even its official website says “offers a nostalgic, mythologized vision of the Confederacy, including highly sanitized depictions of slavery.” The Cemetery authorites go on to contend that “The Confederate Memorial offers an opportunity for visitors to reflect on the history and meanings of the Civil War, slavery, and the relationship between military service, citizenship and race in America.”

But given the monument’s clear glorification of the Confederate cause and its rose-colored view of slavery, and given that visitors have lots of other opportunities to reflect on the meaning of the Civil War and related issues, I’d ship this slab of stone out of there. It has no place on arguably the most sacred ground of this nation’s civic religion.

What to do with it, however, from that point – along with other Confederate monuments on federal grounds? Here I fully agree with those who would put them in museums instead of simply destroying them. Wouldn’t it be best to show them in a setting that could describe them fully and explain the context of their creation? And I’d deal with these statues and plaques on state and municipal lands in exactly the same way.

>Let’s move to American historical figures who didn’t revolt against their country, but nonetheless owned slaves and/or expressed racist views or supported racist policies. Here I’ll restate the argument I originally made in this post. If these figures were known only or best for racist views and positions – like former segregationist Alabama Governor George C. Wallace, or former (if you can believe it) even more racist Mississippi Governor and U.S. Senator Theodore G. Bilbo, I’d remove any statues etc from public grounds and stick them in museums, displayed as described above.

>The same would go, by the way, for Civil War leaders who for various reasons were widely seen after the conflict as personifications of honor or other military virtues, or who actually repented in word and/or deed after the war. Lee is the leading example of the former. However gentlemanly he might have been, or however well he may have treated his soldiers, and even however distinguished his record in the U.S. Army during the Mexican War (which, to complicate matters further, was in large measure a war of annexation), few would have paid much attention to him, or even known of him, if not for his Civil War role. So let’s get him and his name out of public spaces.

A prime example of the latter is Pierre Beauregard. This former Confederate general actually led the troops in South Carolina who fired on Fort Sumter and for all intents and purposes started Civil War. After the conflict, according to the official website of his hometown of New Orleans, he became “an early proponent of equal rights in Louisiana, serving as the outspoken leader of the short-lived and ultimately failed unification movement.”

Since I do believe in redemption (and hope everyone else does, too), I’d go along with a monument of some kind. But not the kind currently standing in the city – which depicts “the uniformed general astride his horse.” How about moving that statue to a museum, complete with a full bio, and putting up a new monument portraying him in civvies and celebrating his efforts to champion equality? Ditto for any similar cases.

As for those leaders with troublesome racial pasts and/or policy records who nonetheless are (rightly) known for much more (as I argued in the RealityChek post linked above) , I’d leave their monuments in place, too – but make the maximum feasible effort to add some explanations that mention these blemishes. By the way, such leaders include not only former slave-owning Presidents like George Washington and Thomas Jefferson, and outspokenly racist former Presidents like Woodrow Wilson, but even former Presidents generally seen as race relations heroes – like Abraham Lincoln and Franklin D. Roosevelt. 

A final point about dealing with the Confederate and especially other controversial monuments: If anything should be obvious about this discussion of the issue, it’s how complicated much of the history is, and therefore how complicated many of the monuments et al decisions are. Some are indeed easy calls and should be made promptly. But no one should favor anything resembling a rush to judgment on the others.

Im-Politic: An Impeachment Red Herring from House Judiciary

Tags

Constitution, Democrats, executive privilege, House Judiciary Committee, Im-Politic, impeachment, Jerrold Nadler, Mueller Report, Nancy Pelosi, Robert Mueller, Special Counsel, Trump

You know the Shakespearian expression, “The lady doth protest too much, methinks”? A wonderful way of describing someone who makes an argument that’s so over-the-top that it undercuts credibility?

I couldn’t help but think of it while reading the new report from the House Judiciary Committee’s Democratic staff on “Constitutional Grounds for Presidential Impeachment.”

I’m not talking about the substantive credibility of the case for President Trump’s impeachment (and/or removal from office). Instead, I’m talking about the case’s political credibility. Because this new study makes nothing so clear as the belief of the Committee’s majority Democratic members that they haven’t yet convinced enough of the American people that their efforts to oust the President are justified. And no doubt this conclusion applies to numerous others in the party’s House majority and in the Senate.

No one can have any legitimate issue with the Committee releasing such a report. As Chairman Jerrold Nadler of New York notes, the full committee staffs put out similar studies in connection with the 1974 impeachment proceedings against President Richard Nixon, and those against President Bill Clinton in 1998. (One important difference: Unlike the previous reports, this new study was the product only of one party’s staff.) And scholarship has of course advanced since then.

But in the process of “Addressing Fallacies About Impeachment,” the Democratic staff created some itself – that impeachment proponents are maintaining that impeachment “is not part of democratic constitutional governance”; that because a presidential election is coming up, a chief executive “is entitled to persist in office after committing ‘high Crimes and Misdemeanors’”; and that such a President’s voters consider themselves “entitled to expect that their preferred candidate will do so.”

These arguments are transparently fallacious because none of the President’s backers has questioned the legitimacy of impeachment per se, and none believes that, whatever the political calendar, any office holder deserves to keep on serving after committing impeachable offenses.

To use an obvious but instructive example, just ask yourself: If Mr. Trump had committed a crime in public view – e.g., stood “in the middle of Fifth Avenue and [shot] somebody,” as he once suggested during his campaign, in a (typically) hyperbolic efofrt to describe his popularity with his base – does anyone seriously think that even the staunchest Trump-er would respond (if there were no extenuating circumstances, like self-defense) “Nope, nothing impeachable here. Let’s just let him serve out his term.)

(Interestingly, outside the impeachment context, the President’s lawyers have argued that Mr. Trump, or any President, couldn’t be criminally indicted for such an act while in office, but that’s a separate issue from impeachment.)

What Trump supporters are saying is that, after literally years of investigations – by Congress and by a Special Counsel (Robert Mueller) whose integrity no Trump opponent questioned – no conclusive evidence of impeachable transgressions has emerged. And that given the approach of a new election that would give the public a chance to decide the President’s fitness for office (an opportunity that was not available for second-term Presidents Nixon and Clinton), the best course for the country’s sake is moving on from the current proceedings. In other words, they’re making a political and policy argument, not a Constitutional argument.

For example, the Mueller report specifically concluded that “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election” and, more controversially, regarding obstruction of justice allegations:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

As numerous impeachment backers have pointed out, in his post-report press conference, Mueller did note, in the course of explaining the substantive and Constitutional obstacles to accusing a sitting President of criminal behavior, that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.” And of course that was a reference to impeachment.

But neither Mueller nor his report has stated that Mr. Trump actually has committed an impeachable defense, or explicitly said that enough evidence exists to warrant an impeachment inquiry. The Special Counsel simply observed that, if Congress has enough further problems with the President’s actions, it has a Constitutionally permitted avenue for pursuing these concerns.

It’s true that Congress has not yet had the chance to question under oath current and former administration officials who might be able to provide first-hand evidence of impeachable Presidential wrongdoing, and that the initial obstacle has been Mr. Trump’s refusal to permit them to testify.

That opposition could well stem from the President’s fear of what these figures might say. But it could also stem from legitimate concerns about executive privilege – a President’s recognized right, originating in the separation of powers created by the Constitution, to keep under wraps, including from Congress, internal deliberations of his or her administration.

This privilege is by no means absolute, and such Executive-Legislative branch disputes can be refereed by the courts. But Congress’ Democrats have declined to go this route either to compel such testimony, or free up impeachment-relevant records. In this regard, therefore, they so far have no one to blame for the absence of a “smoking gun” but themselves.

So why are the Judiciary Democrats serving up this red herring? I’m not a mind-reader, but Congress’ Democratic leaders acknowledge that they’re following the polls, and they show plain as day that, since late October, public support for impeachment and removal has fallen steadily – to the point where it’s clearly under 50 percent and still shrinking. And some evidence shows that the numbers are worse for the Democrats on this issue in key presidential election battleground states and Congressional districts crucial to their continued control of the House.

I’m not questioning whether House Judiciary Democrats, or any other Trump opponents, sincerely believe that the President has committed impeachable offenses, or whether they view the evidence as clearcut and even overwhelming. But the new Judiciary report’s baseless charge Trump supporters would oppose impeachment under any circumstances is strong evidence that, in this ultimately political debate, they’re far from making the political case.