Trump Beyond Reach of Law

February 3, 2020

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Let me get this straight. The House of Representatives has impeached President Trump for abuse of power and obstruction of Congress. The abuse of power is that he allegedly made assistance to Ukraine–a contrary invaded by Russia–conditional upon its government’s initiation of investigations that would help Trump’s reelection campaign. That scheme included illegally holding up military aid already authorized by Congress. The obstruction of Congress involved refusing to comply with lawful subpoenas for witnesses and documents related to the investigation of the abuse of power.

The response of Senate Republicans to the obstruction charge is to assist Trump in the obstruction by blocking any attempt to obtain the very witnesses or documents that Trump is withholding. That makes Senators accomplices to the obstruction. Majority Leader Mitch McConnell admitted as much when he promised to coordinate the Senate trial with the White House to get Trump acquitted, just before he raised his right hand and swore an oath to consider the evidence impartially.

The response of Senate Republicans to the abuse of power charge was first to deny that it happened. Now it has evolved into an admission that it happened, but Trump should be acquitted anyway. Why? Because his intent was only to get reelected, which he thought was in the “public interest.” And because the people should decide his fate in this year’s election. You know, the same election that Trump has been trying to corrupt. And what’s to stop him now? We have a justice department that says that a sitting president cannot be indicted. We have a Senate majority that says that he shouldn’t be impeached. We have a Congress that can’t even exercise oversight because Trump acknowledges no obligation to provide witnesses or turn over documents.

The Senate has failed to fulfill its constitutional obligation for a fair trial. That’s not too surprising, considering that it has not been functioning as a democratic institution for some time. The Majority Leader refused to provide even a hearing for a highly respected, moderate Supreme Court nominee who had previously been praised by both parties, despite the constitutional obligation to “advise and consent.” Meanwhile, he fills the courts with judges whose views are far to the right of most Americans. Few bills passed by the House or sponsored by Senate Democrats are even debated in the Senate. That includes bills to protect the integrity of our elections against foreign interference. This Senate will go down in history as an enabler of the most serious assault on our democracy in our lifetimes.

One can only hope that our faith in democracy–although shaken by this administration and its congressional enablers–will not be destroyed. Very often in public affairs, the tide does turn. Truth comes out; corruption is revealed; the rule of law is strengthened; would-be dictators fall; and commitments to democratic principles are renewed.

Don’t forget to vote, or at least try to!


Democracy and Prosperity (part 3)

July 19, 2019

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I have been discussing the symbiotic relationship between capitalism and democracy as described by Torben Iversen and David Soskice. So far I’ve ignored variations among advanced capitalist democracies. But the authors warn against using any one country–such as the United States in discussions of the “Washington Consensus”–as a model for how ACDs have developed or should develop.  The American version of the emerging knowledge economy is only one version, and one that has its origins in a certain kind of history.

Two paths to capitalist democracy

The symbiotic relationship between democracy and capitalism developed along with the industrial economy. One link between the two was human capital development. Industrialization required a labor force with at least some basic skills, such as reading and writing, and that required some commitment to democratic institutions such as the public school.

How was the political order to be broadened to include the opinions and interests of workers? In some countries, such as Denmark, Sweden, Netherlands, Belgium and Germany, pressure from the working class itself played a major role. In others, such as Britain, U.S., France, Australia, Canada and New Zealand, the initiative came more from modernizing elites who were challenging the power of agrarian interests unsympathetic to industrialization and democracy.

Those differences had their origins in preindustrial patterns of organization:

[T]he countries in which democratization was eventually the result of working-class pressure were organized locally on a quasi corporatist basis both in towns, with effective guild systems, and in the countryside with a widespread socially rooted semiautonomous peasantry, rural cooperatives, and/or dense rural-urban linkages…. [A]ll of these states were Ständestaaten in the nineteenth century—a system in which the different estates (including organized professions) played a direct role in governing. We therefore refer to the preindustrial political economy of these societies as protocorporatist.

The authors do not give any simple definition of corporatism, but I think of it as the opposite of rugged individualism. While classical British and American liberalism celebrates the self-interested individual, corporatism sees people more as representatives of strong group interests, such as guilds or churches. To make a long story short, the protocorporatist countries provided more fertile ground for the emergence of strong worker organizations.

Things were different in Britain and America:

The elite-project societies, in essence Anglo-Saxon (apart from France, which we discuss separately), functioned quite differently: well-developed property markets with substantial freedom of labor mobility, towns with limited local autonomy, and guild systems which had either collapsed (Britain) or had hardly existed (the settler colonies and the United States, minus the South). We refer to the preindustrial political economy of these societies as protoliberal.

In both kinds of countries, some democratization accompanied industrialization, but it took different directions. In the protocorporatist countries like Denmark and Germany, “effective training systems were built on guild and Ständestaat traditions and provided a large pool of skilled workers, which in turn led to unified labor movements with the capacity to extract democratic concessions from elites.” In the protoliberal countries like Britain and America, “the absence of either guild or Ständestaat traditions led to fragmented labor movements with privileged craft-based unions but no effective training system. Here democracy emerged as the result of industrial elites compelling a reluctant landed aristocracy to accept expansion of education and other public goods required for industrialization.”

Political representation

These two paths to democracy had consequences for electoral systems. Where the working class was highly unified and organized, the more socialist left came to be better represented in politics. The elites and other prosperous members of society might resist democratization until the demands of the working class became too strong to ignore. Then they supported a system of proportional representation rather than winner-take-all elections, to protect themselves against the possibility of a working-class majority. Some of these democratic countries (Germany, Austria, Italy) reverted to authoritarian rule for a time in order to counter a perceived threat from the left, but democracy eventually prevailed.

In countries like the United States and Britain, where organized labor was weaker and more politically divided, majority rule worked better for the modernizing elites and other beneficiaries of industrial capitalism.

In these cases industrial elites had little fear of the working class, but they had a strong incentive to expand public goods, especially education and sanitation, required for the development of an effective labor force (in part to circumvent union control over the crafts). The key obstacles to this project were landowners and more generally conservatives who had no interest in an expansion of public goods and who held strong positions politically, especially at the local level. Majoritarian democracy in these cases essentially emerged as a means to force the landed elites to accept major public investments in education and infrastructure needed for modernization. At the same time, a majoritarian system with a strong bias toward the middle classes effectively excluded the radical left from influence over policies.

Iversen and Soskice see a perfect correlation between the alternative paths to democracy and the electoral systems. The “protocorporatist” countries adopted proportional representation systems that gave worker parties more voice, while the “protoliberal” countries adopted majority-rule systems where major parties had to be more-or-less centrist to win a majority.

Inequality and educational opportunity

Democratic governments of different kinds have adopted many of the same policies to support the growing knowledge sectors of their economies, for example by liberalizing trade and investing more in education. All of them have experienced some increase in inequality as technological innovation has rewarded workers with the right skills and penalized those without them. However, they differ markedly in the extent of the inequality and the associated decline of economic opportunity. The U.S. Council of Economic Advisers introduced the term “Great Gatsby curve” to describe the inverse relationship between economic inequality and intergenerational mobility among countries.

In general, the countries with weak worker organization and majoritarian electoral systems now have relatively high economic inequality and relatively low social mobility. This is true of the United States, United Kingdom and France. Canada and Australia are more average in inequality and social mobility.

In contrast, the countries with strong worker organization and proportional representation systems now have relatively low economic inequality and relatively high social mobility. This is especially true of the Nordic countries: Finland, Norway, Sweden and Denmark. Germany is more average in inequality and social mobility.

I think this is an important finding, because it means that even in a world of global, hi-tech competition, countries have choices. Economic growth and global competitiveness do not necessarily require the extravagant executive salaries and tax cuts enjoyed by the American 1%! Nor do they require tossing aside former manufacturing workers without making provision for their economic security or retraining.

One of the biggest factors in economic opportunity is education, and here the international findings reflect badly on the United States. Here the authors use an index of educational opportunity based on such variables as the availability of vocational training, the public spending on preprimary education, the public/private division of higher educational spending, and the age at which students are tracked (since early tracking can restrict opportunity). Among advanced democracies, only Japan and South Korea scored lower than the U.S. on this index. The Nordic countries scored the best.

Many readers may find this puzzling because the U.S. has so many fine schools, especially major research universities. But the quality of individual schools is not the same thing as educational opportunity. A good prep school that serves only the affluent does little to provide upward mobility.

In our majority-rule system, the interests of the downwardly mobile minority are not being well served. Their interests have diverged more sharply from those of more successful workers, making it harder for the traditional party of labor to represent them. This relates very much to the next topic, the threat that populism poses to democracies with high inequality.

Continued


The Attorney General vs. the Rule of Law

May 3, 2019

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A pretty strange headline, yes. But what can I say? Attorney General William Barr’s Senate testimony provided more insight into his thinking about the Mueller investigation, and what he thinks is troubling.

Who decides?

Recall that Robert Mueller stopped short of deciding whether or not the President had committed a crime. He accepted the Justice Department guideline that a sitting president cannot be indicted. He also believed that it would be unfair to accuse a president of a crime without indicting him, since the president would be deprived of the opportunity to clear his name in court. So he just laid out the facts, and then left it to Congress to begin an impeachment proceeding if the facts warranted it.

Attorney General Barr sees it very differently. He told Congress that a Special Counsel investigation is no different than any other criminal investigation. “Once a prosecutor has exhausted his investigation into the facts of a case, he or she faces a binary choice, either to commence or to decline prosecution. At the end of the day, the federal prosecutor must decide yes or no.” Barr went so far as to say, “I think that if he felt that he shouldn’t go down the path of making a traditional prosecutive decision, then he shouldn’t have investigated”!

Apparently, Barr sees no value in an investigation that might lead to Congressional action rather than Justice Department prosecution. He prefers to keep a legal decision about the executive within the executive branch itself.

Since in Barr’s eyes, Mueller failed to do his job by not making a decision, Barr felt justified in making the decision for him, instead of referring it to Congress. In fact, he rushed to make it before Congress had a chance to see the report. He even referred to the case as “my baby.”

No obstruction?

Attorney General Barr’s judgment is that the President committed no crime. He bases his judgment of “no collusion” on Volume I of the Mueller report, which failed to find sufficient evidence of a criminal conspiracy. He bases his judgment of “no obstruction” on Volume II…or does he?

Actually, his four-page “summary” of the Mueller report says that the lack of conclusive findings in Volume I eliminates the “underlying crime” that is relevant to the President’s intent. If there was no conspiracy, what corrupt motive would the President have to obstruct the investigation? That enables him to clear the President without taking very seriously the voluminous evidence of obstruction in Volume II.

There is a gaping hole in this logic. If the evidence in insufficient to establish conspiracy, that could be largely due to a successful coverup. Mueller reported that “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.”

One can easily imagine a scenario in which the President does something wrong, but then obstructs the investigation so well that the wrongdoing cannot be firmly established. His Attorney General then concludes that the President couldn’t have had a motive to obstruct justice, since he hasn’t been proven to have done anything wrong!

But it gets worse. In response to Senate questioning, Barr also took the position that the President can rightfully terminate an investigation if it is based on “unfounded allegations.” Who decides if the investigations are unfounded? The President, of course. So an investigation to determine if the allegations are true becomes unnecessary.

That assumes that the President is the best judge of the legality of his own conduct. It also assumes that he is omniscient enough to know what everyone else in his campaign or administration is doing. For Barr, it is justification enough that President Trump had a “sincere belief” that his administration was unfairly under attack. How many of us would be willing to place our trust in this president’s sincerity?

The implications of this line of legal reasoning are mind-boggling. The Chief Executive gets to decide whether an investigation is warranted of allegations against himself and his associates. If he ends such an investigation, the Justice Department is fine with that, and Congress is deprived of the information it needs to exercise its impeachment authority under the Constitution. The idea that the administration can also stonewall Congress and not respond to legal requests for information is consistent with this reasoning. The supposedly co-equal lawmakers take a back seat to the executive, no matter how incompetent or corrupt. Goodbye rule of law, welcome back George III.


The Mueller Report–Attorney General Barr’s Distortions

May 1, 2019

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On March 22, Special Counsel Robert Mueller submitted his report on Russian interference in the 2016 election to Attorney General William Barr. Unfortunately, Barr did not just release the report and let it speak for itself. Before putting out a redacted version, he rushed to conclusions that differed in important respects from the report itself.

Two days after receiving the report, Attorney General Barr released a four-page document that he said was intended “to describe the report and to summarize the principal conclusions reached by the Special Counsel and the results of his investigation.” When complaints began to surface that his summary was incomplete and misleading, he backtracked and denied that it was really a summary.

Barr’s conclusion on conspiracy

Recall what Mueller’s own summary said about a possible conspiracy between the Russians and the Trump Campaign:

As set forth in detail in this report, the Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

Attorney General Barr repeats what the report says about the Russians. But then he skips over the part about the links between the Russians and the Trump Campaign, as well as the part about the mutual benefits the parties were expecting. Barr goes right to his conclusion, “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.” In case anyone missed it, Barr repeats the conclusion in each of the following two paragraphs. Apparently, all the wrongdoing was by the Russians, and no misdeeds by Americans are worth mentioning.

Barr also leaves out Mueller’s qualifying statements: first, that a failure to establish facts does not prove the absence of those facts; and second, that the lies told by many suspects impeded the investigation in finding the facts.

At his press conference before he released the report, Barr did exactly what Mueller warned against, turning insufficient evidence of criminal conspiracy into a flat-out judgment of “no collusion,” Trump’s favorite talking point.

President Trump faced an unprecedented situation. As he entered into office and sought to perform his responsibilities as president, federal agents and prosecutors were scrutinizing his conduct before and after taking office and the conduct of some of his associates….At the same time there was relentless speculation in the news media about the president’s personal culpability, yet as he said from the beginning, there was, in fact, no collusion.

Barr’s conclusion on obstruction

Mueller had found considerable evidence of obstruction of justice by President Trump. But he believed that Justice Department regulations prevented him both from indicting the President and from accusing him of a crime. “[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”

In his summary (or non-summary), Attorney General Barr just says, “The Special Counsel…did not draw a conclusion–one way or the other–as to whether the examined conduct constituted obstruction.” That’s technically true. But since Barr does not mention that Mueller was prevented by Department regulations from reaching a conclusion of criminal conduct, he leaves the reader to think that the evidence must have been inconclusive. Note that Mueller was not precluded from clearing the President of wrongdoing, and he says that he would have done so if the evidence supported that conclusion.

Then Barr asserts:

The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.

His determination is that the evidence is not sufficient to establish obstruction of justice.

But Mueller had said nothing about leaving it to the Attorney General, who would be subject to the same regulations that tied Mueller’s hands. In Mueller’s view, it fell to Congress, or to federal and state prosecutors after Trump left office, to make the appropriate legal judgments.

What Barr does is take advantage of Mueller’s restraint, turning a policy of not accusing a sitting president into a conclusion of insufficient evidence, a conclusion that Mueller never reached about obstruction. As Senator Angus King put it, “Mueller passed the obstruction question to the Congress, and Barr intercepted the pass….”

Barr’s willingness to go beyond the report to conclude that Trump and his associates had committed no crimes enabled the President to claim complete exoneration, while characterizing the entire investigation as a witch hunt and an attempted coup against his presidency. Then he proceeded to obstruct any possible Congressional investigation by vowing to resist all subpoenas.

Mueller’s response to Barr

Three days after Attorney General Barr released his misleading “summary”, Special Counsel Mueller wrote him a letter characterizing it this way:

The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this office’s work and conclusions….There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.

Barr kept Mueller’s letter secret and later testified before Congress that he didn’t know what Mueller thought of his conclusions.

In his handling of the Mueller Report, Attorney General Barr did a disservice to the Justice Department and the American people. He acted more like Trump’s personal slick attorney, spinning the evidence for the jury in order to create the best impression of innocence he could. I’m glad that Mueller called him on it, and I continue to hope that the full truth will come out.


The Mueller Report–Volume II

April 29, 2019

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In the first volume of his report, Special Counsel Robert Mueller reported that the investigation failed to establish a conspiracy between the Trump Campaign and Russians hackers, although it did establish that the Russians interfered in the 2016 election in many ways. The second volume finds significantly more evidence that Trump tried to obstruct the investigation itself.

Legal limitations

In reaching any conclusion about obstruction of justice, the Office of Special Counsel was restricted by Department of Justice regulations, which prohibit indicting a sitting president. Not only that, the report refrained from even accusing President Trump of obstruction, arguing that it would be unfair to accuse someone of a crime without indicting them. As Mueller explained:

[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.”…Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The implication is that no matter how much evidence of crime he found, Mueller was not going to conclude that a crime had been committed! He was only going to put the evidence out there and let someone else draw the appropriate conclusion and take the appropriate action. Given the Department of Justice’s prohibition on accusing or indicting a sitting president, only two possible ways of bringing a president to justice remain: an accusation of “high crimes and misdemeanors” by the House of Representatives, or prosecution by state or federal authorities after he leaves office.

The Trump administration has been quick to declare the case closed because the Mueller report failed to conclude that the President had committed a crime. That is ridiculous, since the investigation was restricted from reaching such a conclusion before it began (although the public was not very aware of that). What it did do was look for but fail to find sufficient evidence of conspiracy, but find ample evidence of obstruction.

Evidence of obstruction

The report summarized the evidence of obstruction this way:

Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.

Here are some of the conclusions from the section, “Factual Results of the Obstruction Investigation.”

After Michael Flynn was caught lying to the FBI about his discussion of sanctions with the Russian ambassador, Trump met privately with FBI Director Comey and asked him to let Flynn go. “Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russian investigation and that he believed…that terminating Flynn would end ‘the whole Russia thing’.” Shortly afterwards, he fired Comey.

When Attorney General Jeff Sessions told the President that a Special Counsel had been appointed (in May of 2017), he was extremely upset. He blamed Sessions for losing control of the investigation by recusing himself, and asked for his resignation. Trump relented and didn’t accept the resignation at that time, but continued to criticize Sessions’ recusal, eventually firing him the following year.

One month after the Special Counsel was appointed, Trump directed White House counsel Don McGahn to tell Deputy Attorney General Rod Rosenstein to fire Mueller. McGahn resisted the order and decided to resign, but was talked into remaining by Reince Priebus and Steve Bannon. Trump later told McGahn to deny that he had been ordered to fire the Special Counsel, but he refused.

Trump also tried to curtail the investigation by asking former campaign chair Corey Lewandowski to convey a message to Attorney General Sessions. “Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign, with the Special Counsel being permitted to ‘move forward with investigating election meddling for future elections’.”

When the Trump Tower meeting was made public, the meeting in which Russians offered information on Hillary Clinton in return for assistance in ending sanctions, the President dictated a statement claiming that the meeting had only been about “Russian adoption.”

When former campaign chair Paul Manafort was charged with making false statements and other crimes, Trump did not want him to cooperate with the investigation. “The President and his personal counsel made repeated statements suggesting that pardon was a possibility for Manafort, while also making it clear that the President did not want Manaford to ‘flip’ and cooperate with the government.” Manafort told his co-conspirator Rick Gates, who later told investigators, that “it was stupid to plead, saying that he had been in touch with the President’s counsel and repeating that they should ‘sit tight’ and ‘we’ll be taken care of’.” Trump praised Manafort for refusing to “break”.

The President personal lawyer, Michael Cohen, was only in Trump’s good graces as long as he lied for the President. He lied to Congress about how long Trump continued to pursue his Moscow project while denying it during the campaign, and also about the payment of hush money to the porn star with whom Trump had an affair.  “Before Cohen began to cooperate with the government, the President publicly and privately urged Cohen to stay on message and not ‘flip’. Cohen recalled the President’s personal counsel telling him that he would be protected so long as he did not go ‘rogue’.” After he started cooperating with prosecutors, Trump called him a “rat”, attacked his family, and tried to undermine his credibility.

Issues to be resolved

Three elements have to be present to support a charge of criminal obstruction: “(1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.”

Knowing what the President intended when he did what he did is especially tricky, considering that he lies so often, and that he refused to answer any of the Special Counsel’s questions on the subject of obstruction.

For example, what was Trump thinking when he fired Comey? Did he really think that Comey was so essential that this would stop the entire Russian investigation? And even if he did want to stop the investigation, was it because he was covering up a conspiracy, or was it just that he was afraid of other embarrassing revelations, such as the Trump Tower Moscow deal that he had lied about?

The Mueller Report did not have to answer all these questions, since it was precluded from accusing the President of a crime anyway, as explained above. But Congress would have to address them if it chose to pursue the matter further. This is as far as the Special Counsel could go:

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if 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, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Now President Trump is refusing to allow anyone in his administration to testify to Congress, even in response to a legal subpoena. This applies not only to a possible impeachment hearing but to any oversight committee of the House. Even Richard Nixon never went that far. One can only conclude that the obstruction continues.