Following Up: Sense and Nonsense in the Abortion Debate

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abortion, abortion rights, birth control, Clarence Thomas, Constitution, contraception, Dobbs v. Jackson Women's Health Organization, Following Up, gay marriage, Ninth Amendmen, Planned Parenthood of Southeastern Pennsylvania v. Casey, privacy, Roe v. Wade, same-sex marriage, Samuel Alito, Supreme Court

Even by the standards of the shameful misinformation- and sheer ignorance-dominated era in which we live, the national abortion debate is noteworthy for the shameful misinformation and sheer ignorance it’s generated, So I thought it would be useful to provide some crucial correctives.

First, the 1973 Supreme Court Roe v. Wade ruling just overturned by six of today’s Justices did not create an absolute Constitutional right to an abortion. That majority opinion specifically stated that

“appellant [Jane Roe, the pseudonym of the pregnant woman who brought the case] and some amici [individuals and organizations that provided supportive “friends of the court” briefs] argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.”

The Roe majority added its agreement with prior federal and state court decisions that, although the right of privacy “is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.” .

Second, as a result, “codifying Roe” through Congressional legislation, as sought by many critics of the Court’s Dobbs v. Jackson [Mississippi] Women’s Health Organization ruling overturning Roe, would not create an absolute Constitutional right to an abortion, either. In fact, the specific legislation offered in the House and Senate would clash violently with both the Roe and the follow-on 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision by preventing the state or federal governments from imposing any limits on abortions “after fetal viability.” as long as “in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

Third, whatever was contained in legislation establishing national abortion rights, an act of Congress could well wind up providing only the most short-lived of guarantees. For that law would be likely targeted for abolition as soon as anti-abortion politicians gained sufficient control of both Houses of Congress and/or the Presidency (depending of course on whether a majority achieving this goal was veto-proof). And if the Senate filibuster is ended – another goal of many abortion rights backers – scrapping an abortion rights law would be even easier.

Fourth, I wrote on Friday that a Constitutional right to privacy is essential for any political system like America’s that claims to value individual liberties, whether it’s explicitly mentioned in the U.S. Constitution or not. As with all legitimate rights, it can’t be absolute – because in principle and in real life, too many of these can come into conflict. But without an underlying right to privacy, no limits on government’s authority to control individual behavior would exist save those that are explicitly mentioned in the Constitution.

These are numerous and important (like freedom of expression and religion, the right to keep and bear arms, to be protected against unreasonable searches and seizures). And although it’s often overlooked, the Ninth Amendment holds that “certain rights” not enumerated in the Constitution must be “retained by the people.”

But the text of the Ninth Amendment offers no examples or guidance of any kind. And without an underlying right to privacy, it’s not the slightest bit difficult to understand that despite the assurance offered by the Dobbs majority, many other current individual liberties could be endangered. Nor is the evidence limited to Justice Clarence Thomas’ opinion concurring with the Dobbs ruling, which argued that with the right to privacy out of the way, Supreme Court rulings legalizing contraception, same sex marriages, and same sex relationships should be overturned with the same logic.

Even now, politicians in some states are moving to outlaw certain kinds of birth control devices. And it’s surely pertinent to note that Dobbs opinion author Justice Samuel Alito – who insisted that “It is hard to see where we could be clearer” in stating that the majority opposed equating the legalit of abortion and the legality the other forms of intimate behavior mentioned above – himself opposed the 2015 pro same-sex marriage decision using the exact same kinds of arguments he made in Dobbs. So I certainly think he could have been clearer.

But there’s another important reason to prize a right to privacy.  It has to do with the nature of constitutions themselves. Their whole point (unless they’re the phony kind concocted by dictatorships) is establishing limits on government. Why else bother with such exercises? And what set of limits on government is more crucial than those determining how it can and cannot treat private individuals’ behavior? 

These four aspects of the abortion rights debate certainly don’t exhaust the list of  falsehoods and plain old hare-brained ideas warping a controversy that’s otherwise entirely legitimate and necessary. But the sooner they’re recognized and cashiered, the likelier the nation will be to craft (or re-craft, as I’d put it, given my belief that Roe and Casey got the basics right) an abortion consensus behind which Americans can unify.  

Im-Politic: The Court’s New Abortion Decision is Egregiously Wrong Itself

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abortion, abortion rights, Constitution, Dobbs v. Jackson Women's Health Organization, gun control, Im-Politic, Planned Parenthood of Southeastern Pennsylvania v. Casey, privacy, Roe v. Wade, Supreme Court

The Supreme Court has finally decided to overturn the 1973 Roe v. Wade ruling supporting a Constitutional right to an abortion based on the majority’s vigorously argued position that “Roe was…egregiously wrong and on a collision course with the Constitution from the day it was decided” and that the follow-on 1992 Casey decision “perpetuated its errors.”

Maybe so, but at least based largely on the official summary (the Syllabus) of today’s ruling released by the Court, the six Justices who backed the Dobbs v. Jackson (Mississippi) Women’s Health Organization decision expressed some views themselves about what government can and can’t regulate that look pretty internally contradictory at first glance and that seem – eggregiously – at variance with ideas about Americans’ liberties that – to quote a legal standard they cite – are “deeply rooted in [our] history and tradition” and “essential to this Nation’s ‘scheme of ordered liberty.’”

Perhaps first and foremost, the Dobbs ruling states that “the authority to regulate abortion is returned to the people and their elected representatives.” And at least since a draft of the decision making this point was leaked in May, any number of pro-life supporters have argued that rescinding the right to an abortion by no means amounts to a nation-wide ban on the practice, and that states will remain perfectly free to keep or enact permissive abortion policies.

But in Dobbs, the Court has also called abortion a “critical moral question” because it “destroys what Roe termed ‘potential life’ and what the law challenged in this case calls an ‘unborn human being.’” Today’s Dobbs decision emphasizes this point in order to insist that their judgement poses no intrinsic challenge to other rights concerning highly personal behaviors, like the availability of birth control or gay marriage – which presumably don’t rise to abortion’s level.

All of which raises the question: If abortion is in a morality class by itself because of its devastating effects on the unborn, why do the six Justices supporting the Dobbs decision believe that states should have the any authority to regulate it? What satisfactory definition of morality could permit such a uniquely heinous practice to be permitted anywhere in the United States? Why, indeed, should it not be banned nationally – with or without whatever exceptions this or future Courts happen to allow.

In fact, contrary to the majority’s views, today’s Dobbs decision leaves in place many of the gravest threats to Americans’ freedom from government’s reach that appeared to receive support in the leaked draft version. Principally, the Court has now affirmed that not only does the Constitution grant no right to an abortion. It also holds that there’s no right to privacy having to do with the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.”

To be sure, the six Justices in the majority correctly contend that no Constitutionally granted rights are absolute, observing that this founding document creates a system of “ordered liberty” that “sets limits and defines the boundary between competing interests” – and also, by extension, between competing rights, since many regularly clash with each other in real life.

But if the American system of government and law aren’t distinguished fundamentally by the assumption that a substantial burden of proof lies with government for infringing on the freedom to make “intimate and personal choices” related to “personal dignity and autonomy,” then it’s difficult to imagine fundamentally what it is distinguished by. In other words, if you can’t find something like a “right to privacy” in the Constitution, you’re not looking very hard.

And ironically, just yesterday, the Court supported this kind of argument when it struck down New York State’s “concealed carry” gun control law. That majority argued that this statute unconstitutionally “required law-abiding, responsible citizens to ‘demonstrate a special need for self-protection distinguishable from that of the general community’ to carry arms in public.” That is, an excessive burden of proof was placed on ordinary Americans, when it should belong to government. Why shouldn’t this kind of reasoning apply to abortion?

Finally, how can anyone believe that “a State’s regulation of abortion is not a sex-based classification” that “violates the Constitution’s Equal Protection Clause?” What men does the Dobbs majority believe will be affected by its decision? And how can these Justices reject the – inevitably gender-based — logic of the Casey decision’s statement that

“The Roe rule’s limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives”?

One claim made by many Dobbs supporters is true — the practical, on-the-ground effects of the decision will be limited for the time being , mainly because the total numbers of legal U.S. abortions have been falling significantly in the last three decades, and because practically all of these have taken place during a pregnancy’s first trimester. (See here for the data.) Interestingly, that’s after Mississippi’s proposed abortion near-ban would go into effect.

Moreover, some other so-called “trigger laws” will allow abortions early in pregnancies, too. But others (see, e.g., here) will significantly narrow this window (even outlawing the procedure before most women even know they’re carrying), and in some of these and others, the lack of exceptions for instances of rape and incest, for example, are truly abhorrent. And now with Dobbs the law of the land, who knows what other outrages may lie in store?      

At one point the Dobbs ruling, the majority wrote that “In interpreting what is meant by ‘liberty,’ the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent
views about the liberty that Americans should enjoy.”  As far as I’m concerned, that advice about leaving personal beliefs out of judicial decisions is a vitally important rule of thumb across the legal board, and as indicated by the above examples of tortured reasoning in today’s abortion rights decision, it’s one the Dobbs majority just threw under the bus.    

Our So-Called Foreign Policy: Louder Talk and Still Too Small a Stick

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alliances, allies, Biden, China, Constitution, defense budget, Finland, Lippmann Gap, NATO, North Atlantic treaty Organization, nuclear umbrella, Our So-Called Foreign Policy, Sweden, Taiwan, Ted Galen Carpenter, treaties, Ukraine, Walter Lippmann

The foreign policy headlines have been coming so fast-and-furiously these days that they’re obscuring a dramatic worsening of a big, underlying danger: The dramatic expansion spearheaded lately by President Biden in America’s defense commitments that’s been unaccompanied so far by a comparable increase in the U.S. military budget. The result: A further widening of an already worrisome “Lippmann Gap” – a discrepancy between America’s foreign policy goals and the means available to achieve them that was prominently identified by the twentieth century journalist, philosopher, and frequent advisor to Presidents Walter Lippmann.

The existence of such a gap of any substantial size is troubling to begin with because it could wind up ensnaring the nation in conflicts that it’s not equipped to win – or even achieve stalemate. As I wrote as early as March, 2021, a Gap seemed built in to Mr. Biden’s approach to foreign policy from the beginning, since he made clear that America’s goals would be much more ambitious than under the avowedly America First-type presidency of Donald Trump, but also signaled that no big increase in America’s defense budget was in the offing.

Since then, Biden aides have expressed a willingness to boost defense budgets to ensure that they keep up with inflation – and therefore ensure that price increases don’t actually erode real capabilities. But no indications have emerged that funding levels will be sought that increase real capabilities much. Congressional Republicans say they support this kind of spending growth to handle new contingencies, but the numbers they’ve put forward so far seem significantly inadequate to the task.

That’s largely because most of them have strongly supported Biden decisions greatly to broaden U.S. the foreign military challenges that America has promised to meet. As for the President, he’s specifically:

>not only supported the bids of Finland and Sweden to join the North Atlantic Treaty Organization (NATO), but stated that the United States would “deter and confront any aggression while Finland and Sweden are in this accession process.” In other words, Mr. Biden both wants to (a) increase the number of countries that the United States is treaty-bound to defend to the point of exposing its territory to nuclear attack, and (b) extend that nuclear umbrella even before the two countries become legally eligible for such protection via Congress’ approval. It’ll be fascinating to see whether any lawmakers other than staunch non-interventionists like Kentucky Republican Senator Rand Paul question the Constitutionality of this position; and

>just this morning declared that he would use U.S. military force to defend Taiwan if it’s attacked by China even no defense treaty exists to cover this contingency, either, and even though, again, there’s been no Congressional approval of (or even debate on) this decision.

This Biden statement, moreover, lends credence to an argument just advanced by my good friend Ted Galen Carpenter of the Cato Institute – that although Ukraine has not yet joined NATO officially, ad therefore like Taiwan lacks an official security guarantee by the United States, it may have acquired de facto membership, and an equally informal promise of alliance military assistance whenever its security is threatened going forward.

As a result, Ted contends, “the Biden administration has erased the previous distinction between Alliance members and nonmembers” – and set a precedent that could help interventionist presidents intervene much more easily in a much greater number of foreign conflicts without Congressional authorization, let alone public support, than is presently the case.

To be sure, lots of legal and procedural issues have long muddied these waters. For example, the existence of a legally binding treaty commitment doesn’t automatically mean that U.S. leaders will or even must act on it. Even America’s leading security agreements (with the NATO members, Japan, and South Korea) stipulate that the signatories are simply required to meet attacks on each other in accordance with their (domestic) constitutional provisions for using their military forces.  (At the same time, breaking treaties like these, all else equal, isn’t exactly a formula for winning friends, influencing people, and foreign policy success generally. As a result, they shouldn’t be entered into lightly.)

Further complicating matters: America’s constitutional processes for war and peace decisions have long been something of a mess. The Constitution, after all, reserves to Congress the power to “declare war: and authorizes the legislature to “provide for the common Defense” and to “raise and support Armies.” Yet it also designates the President as the “Commander in Chief” of the armed forces.

There’s been a strong consensus since Founding Father James Madison made the argument that limiting the authority to declare war to Congress couldn’t and didn’t mean that the President couldn’t act to repel sudden attacks on the United States – that interpretation could be disastrous in a fast-moving world. But other than that, like most questions stemming from the document’s “separation of powers” approach to governing, the Constitution’s treatment of “war powers” is best (and IMO diplomatically) described as what the scholar Edward S. Corwin called a continuing “invitation to struggle.”

Undoubtedly, this struggle has resulted over time in a tremendous net increase in the Executive Branch’s real-world war powers. But the legal issues still exist and tend to wax in importance when presidential assertiveness leads to conflicts that turn unpopular.

I should specify that personally, I’m far from opposed yet to NATO membership for Finland and Sweden. Indeed, their militaries are so strong that their membership seems likely to strengthen the alliance on net, which would be a welcome change from NATO’s (and Washington’s) habit of welcoming countries whose main qualification seems to be their military vulnerability (like the Baltic states) and tolerating long-time members that have been inexcusable deadbeats (like Germany).

Similarly, as I’ve written, because American policymakers recklessly allowed the country’s semiconductor manufacturers to fall behind a Taiwanese company technologically, I now believe that Taiwan needs to be seen as a vital U.S. national security interest and deserves a full U.S. defense guarantee.

Yet I remain worried that the Biden administration’s Ukraine policy risks plunging the United States into a conflict with Russia that could escalate to the nuclear level on behalf of a country that (rightly) was never seen as a vital U.S. interest during the Cold War.

So my main concern today doesn’t concern the specifics of these latest Biden security commitment decisions. Instead, it concerns the overall pattern that’s emerging of talking loudly and carrying too small a stick – and ignoring the resulting Lippmann Gap widening. However Americans and their leaders come out on handling these individual crises, they need to agree that the responses  urgently need to close the Gap overall. Otherwise, it’s hard to imagine satisfactorily dealing with any of them on their own.

Im-Politic: Overturning Roe Could Backfire Big-Time on its Opponents

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2022 election, abortion, abortion rights, choice, Constitution, Democrats, election 2022, Im-Politic, midterms 2022, Republicans, Roe vs. Wade, Supreme Court

One of my favorite sayings has always been “Be careful what you wish for. You may get it.” And if life is remotely fair, it could well come back in spades to haunt supporters of the Supreme Court’s apparent decision to overturn the 1973 Roe v. Wade abortion ruling.

Before explaining why, I should briefly re-lay my cards on the table on abortion generally. As explained in this May, 2019 post I’ve supported Roe because of all the evidence that it conforms with a strong, consistent, public consensus in favor of a thoroughly reasonable compromise solution to the abortion dilemma. Specifically, the national default position is that abortion should be legal, but individual states, reflecting the beliefs of their populations, should be able to impose some restrictions.

In other words, Roe never established an unqualified right to abortion – because unless we’re talking about hermits, rights in human societies, including those enshrined in the Constitution, can never be unqualified. There are simply too many rights, and they too often collide with other rights and imperatives. So durable balances need to be struck, and from time to time, they need to be modified in light of changing circumstances.

They don’t make everyone happy, and they leave important inequities. But given the existentially heated and fiendishly complex nature of abortion, despite all the resulting and inevitable controversy stirred by the ruling and by the underlying issue, Roe succeeded on those crucial grounds. In everyday parlance, it was “good enough.”

At the same time, almost none of Roe’s opponents really seem to believe that there is an unqualified right to life, much less that it begins at conception. Certainly, that’s not an argument made by the leaked Supreme Court ruling. Nor is it claimed by the Mississippi abortion law that the Court is still considering, or by the even stricter new Oklahoma statutes.

The above description of Roe doesn’t take into account the argument that the decision fails by purely legal and Constitutional standards. Indeed, even leading pro-choice Constitutional experts have agreed with that judgment. But the underlying assumption that law stands clearly apart from politics can’t withstand serious scrutiny – and certainly not in any system of representative government. In such systems, legitimate laws can’t help but originate ultimately in that society’s values and culture, and politics is one indispensible method of figuring out how to enable those preferences to govern behavior and resolve disputes in mutually acceptable ways.

As I noted in the 2019 post (quoting a prominent historian of the Constitution), a crucial test that the Supreme Court must pass, (including for its own public support), is avoiding getting too far ahead of public opinion or trailing too far behind. That is, responsible justices will be exceedingly mindful of politics, its changes, and the trends underlying them. For the past half century, the Supreme Court justices who upheld Roe achieved that objective.

So assuming Justice Samuel Alito’s draft ruling stands, how is it likely to backfire on Roe opponents? For starters, they’ll need to start thinking seriously about a challenge that the 1973 ruling has enabled them to duck for decades, especially if Roe’s demise does significantly reduce the numbers of abortions.  The Roe opponens will need to deal with making sure that all the babies that aren’t aborted under the new regime have a real chance of leading satisfactory lives. After all, if you believe in the right to life, how can you neglect the quality of that life?

So unless there’s any chance that private adoption services will be able to place all the newborns with competent, caring parents (spoiler alert: there’s no chance), then the biological mothers and, when they stick around, fathers, will need a wide range of pubicly provided services and supports. In other words, Hello, Big Government. And those services and supports, which may have to be very long-lasting for the many new moms who are teens, won’t come cheap. So get ready for much higher taxes or deficit spending or some combination of the two.

For older new mothers who need to work, these supports will need to include paid family leave – whether by government or employers or some combination of the two. And if the goal is to help all the new children, this leave will need to extend for years – not just a few weeks. Moreover, this paid leave will also be needed even for many mothers who have working spouses or stable partners of some kind, unless these spouses or partners earn enough to pay all the household’s bills on their own.

Of course, there’s an alternative for the working mothers: Taxpayers spring for childcare. For as long as it’s needed. If, as is likely, Roe opponents don’t want governments handling this responsibility, they’ll need to admit many more immigrants to fill all the new positions private providers presumably would create. But no responsible Roe opponent would ever permit just anyone care for children, whether in government or for-profit or non-profit outfits. So extensive vetting and even training systems will need to be put into place, too.

In addition, for all the states that ban abortion very early in pregnancies, when many women aren’t even aware they’re pregnant, it’s only fair that they hand out accurate pregnancy test devices or pay for tests by physicians’ offices. That is, more expenses – and taxes or debt.

Finally, Roe opponents may well rue its demise this year on political grounds. It’s true that they may be able to fire up their voters to turn out to defend anti-Roe candidates in this year’s midterm Congressional elections as Roe supporters are to mobilize theirs on behalf of office-seekers pledged to codify it as federal law, and/or support nominated judges likely to try restoring Roe or at least its protections.

But it’s also true that whereas before yesterday, Roe supporters (who tend to be Democrats and Democratic leaners, just as opponents trend the opposite way) had almost no issues with which they could inspire their voters (because of the Biden administration’s failures on so many fronts), now they may have one issue that can help close the so-called enthusiasm gap and improve their performance this fall. So that shapes up as a net loss for Roe opponents and the GOP overall.

The opponents’ losses could be even worse, however, since (as shown by the poll linked above) Roe is pretty popular with the moderate Republicans who deserted the party in the 2020 presidential election and helped Joe Biden win the White House. They may not be incredibly numerous, but by definition they’re often found in many of the swing districts and states that could greatly determines which party controls the House and Senate. (It’s their presence that makes these precincts up for grabs – when it’s not the presence of moderate Democrats.)

Nonetheless, it’s also distinctly possible that such a Roe effect may not materialize, or flare briefly and then fade between now and November. (That’s clearly been the case so far for the January 6 Capitol riot, to my surprise.)  Further, abortion won’t be the only issue on voters’ minds, and any number of events could intervene in the weeks and months ahead to alter the political odds. 

Whatever the political impact, however, the nation seems fated to deal with some serious and potentially tragic real world fall-out from the Supreme Court’s seeming plans for Roe, unless the justices reverse course. Is it too much to hope that they remember another of my favorite expressions:  “If it ain’t broke, don’t fix it”?              

Im-Politic: A Year After

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Biden, Capitol assault, Capitol riots, China, Constitution, Democrats, Donald Trump, election 2024, GOP, Im-Politic, Immigration, impeachment, January 6, January 6 committee, Populism, Republicans, Trade

Tomorrow is the first anniversary of last January 6’s Capitol riot, and it’s also when we’ll see the new monthly U.S. trade figures (which I’m really anxious to cover). So I figured I’d post today on what to me is the most fascinating and important development stemming from that day’s tumult:  Contrary to my expectations, the impact on American elective politics has been pretty slight so far and may well stay minimal. And that includes on the question of Donald Trump’s political future.

Before starting the political analysis, let me recap my main views on the actual events of January 6, the run up to them, and their immediate aftermath.

First, anyone who forced their way into the Capitol building, or even past the security barricades then erected around its perimeter, should be punished severely. Ditto for anyone who planned these actual attacks, and anyone illegally present in the building or anywhere on the Capitol grounds who resisted arrest and/or destroyed property.

Second, anyone illegally inside the building who didn’t act violently should be punished, too, though less severely (for reasons explained nicely by CNN here and here). For even if they just wandered in once the entrances were left unguarded, it should have been obvious from the chaos and violence they must have seen and/or heard that something was very wrong. Moreover, it’s a well established principle that ignorance of the law (in this case, trespassing on government grounds) is no defense.

Third, I see no valid argument for going after individuals who were simply present on the Capitol grounds outside the building and stayed outside, and even less of a case for action against those who simply attended the Trump rally that preceded the attack. And this includes actions taken by public or private employers.

Fourth, too many important, disturbing, and unanswered questions about Capitol security procedures and preparations remain unanswered. Principally, why weren’t the big metal doors on the Capitol’s ground level closed immediately after it became obvious that a crowd was milling about that included folks with bad intent? And why was the security presence so light to begin with?

Fifth, Nothing said by Trump at the rally qualified in legal terms as incitement to riot. Consequently, that argument for impeachment and removal was always bogus. Another argument was stronger, but in my view still inadequate – Trump’s delay (which I described as “reckless”) in urging the Capitol breachers to cease and desist at once, and in condemning their actions. It’s inadequate because it was a delay (in carrying out his Constitutional duties to “take Care that the Laws be faithfully executed”), not a refusal or a failure.

It’s possible that the investigations into the January 6 events by the (Biden) Justice Department or Congress’ January 6 committee might uncover stronger evidence of Trump culpability on any of these counts. But we simply haven’t arrived at that point yet.

These positions led to the three main political conclusions I drew about January 6:

>the former President would remain influential in Republican circles (particularly at the grassroots level), but that these favorability ratings would fade;

>Republican political fortunes would take a major and possibly lasting hit, as Democrats would miss no opportunity to remain voters about January 6, especially as elections approached; and

>support for Trump-ian positions on his core issues, notably China and trade policies, and immigration, would be significantly undermined.

As of today, however, these quasi-predictions are looking overblown at best, at least if numerous major national polls are generally on target.

Is Trump’s standing in Republican ranks diminished? As it’s been throughout the year (see, e.g., here and here), the evidence continues to be all over the place. For example, this CBS News survey shows that only 56 percent of self-identified Republicans want the former President to seek reelection in 2024.

At the same time, a new Reuters poll shows that no other likely alternative candidate is even close to him as the GOP’s favorite in the next White House race.

Does this mean that Trump’s only looking good to Republicans because his intra-party competition appears so unimpressive? That’s possible. Yet this Pew Research Institute poll shows that these same voters rate Trump’s presidential performance as nearly as highly as that of the revered Ronald Reagan.

Some similarly, seemingly contradictory, trends can be found in the national electorate’s views of Trump. That aforementioned CBS survey reported that a mere 26 percent of all U.S. adults want Trump to run again in 2024 (including only 23 percent of independents). According to recent RealClearPolitics.com averages, though (which combine the results of several individual soundings), Trump would beat President Biden in the popular presidential vote if the contest were held today.

And public opinion on the blame for January 6 seems pretty irrelevant. How else can you explain this Washington Post-University of Maryland finding that 60 percent of American adults believe that Trump bears “a great deal” or “a good amount” of blame for the riot?

Nor are there many signs that the GOP’s image overall has been tarnished by January 6 or by the party’s response to the Capitol attack or its reaction to whatever responsibility Trump deserves. The strongest evidence: Since November, Democrats have fallen behind Republicans in RealClearPolitics‘ gauge of which party Americans would support in a “generic” race for a seat in Congress. 

Most alarmist of all have been my fears that the public would turn against Trump-ian trade and immigration policies. Indeed, hard lines on China (which Mr. Biden has largely embraced) and on border security (which the President has clearly botched) are more popular among the electorate than ever.

In my defense, my initial reaction to the politics of January 6 did include the caveat that any damage to the Trump or Republican images could be limited, and even overcome, either if Americans’ characteristically short memories simply reasserted themselves again, or if they soured big-time on Mr. Biden. Clearly, the nation has seen a good deal of both.

Yet could outrage over the Trump and Republican January 6 roles and responses still be successfully stoked by Democrats going forward? To date, that doesn’t seem likely. Democrat Terry McAuliffe tried this tack in last November’s Virginia governor race – explicitly warning that a victory by Republican rival Glenn Youngkin would boost Trump’s future presidential prospects. He failed miserably. And these two polls (here and here) reveal only middling-at-best national trust in the fairness of the January 6 committee. 

Again, future bombshell revelations can’t be ruled out. But for the time being, it looks like for better or worse, the American public is steadily moving on from January 6. Will the Democrats? Can they?       

       

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?