“How did a fly get into the White House?”
“I’m very concerned that they affected the outcome of the 2018 election, and if you let them do what they’ve been doing it’s going to affect the outcome of the 2020 election as well.” Harmeet Dhillon, speaking at White House Social Media Summit on July 11.
Exactly one week after hijacking the traditionally non-partisan DC 4th of July celebration, Trump invited about 200 of what the New York Times gingerly called “conservative social media firebrands” to the White House for a “Social Media Summit”, which “was dominated by activists willing to share unverified smears against Democratic presidential candidates, disseminate QAnon conspiracy theories and create memes the president might share.” Trump himself gave the keynote speech (watch it yourself here), whose central message was that he and his supporters were being censored and discriminated against by Twitter, Facebook, and Google and he was going to do something about that.
Yes, that’s right. The president who governs by tweet complained that Twitter is stifling his voice. He then announced that “today I’m directing my administration to explore all regulatory and legislative solutions to protect free speech and free speech rights for all Americans.” I think this story deserves closer attention than it has received from news organizations.
The “summit” served several purposes:
- It set the internet memes for the upcoming election for the very people who will be propagating them.
- It officially gave Trump’s blessing to some of the most extreme sources of conspiracy theories and disinformation on the Internet. (For a partial list of who showed up, see here. The White House did not publish a list of attendees.)
- It put Twitter, Facebook, and Google (none of which were represented at this “Social Media Summit”) on notice that this administration will use the full force of the federal government against them if they try to police right wing content on the Web.
- It fed the firm belief on the right that they are the persecuted and the real victims of a vast leftist conspiracy led by Democrats and the “fake news” media establishment.
Early in his speech, Trump summoned Senator Josh Hawley (R-MO) to the podium so he could spotlight his campaign against the “social media giants who would love to shut us down.” Hawley is sponsoring legislation that focuses on “Section 230”, an amendment to the Communications Decency Act of 1996 that provides a legal shield for internet companies that host user-generated content and without which they could be legally liable for all content they host. Hawley has seized on Section 230 as leverage against Google, Facebook, and Twitter. “They’ve gotten these special deals from government,” Hawley said. “They’re treated unlike anybody else. If they want to keep their special deal, they have to quit discriminating against conservatives.” After Hawley finished his remarks, Trump called his Ending Support for Internet Censorship Act “very important legislation” and added that he didn’t trust the companies to “self-correct”.
Hawley (who defeated Claire McCaskill for the senate in 2018) is about as reactionary as they come (for more on his views, see here), and he is a rising force on the Republican right. His bill may not go anywhere, given Democratic control of the House, but that’s probably not the point, which is to use the “regulatory and legislative solutions” (in Trump’s phrase) of the federal government to intimidate the “social media giants” into relaxing whatever feeble controls they have in place to filter out blatant disinformation and batshit conspiracy theories from their platforms.
There is a strange paranoiac incoherence in TrumpWorld’s argument–a mixture of braggadocio and self-pity–which was on full display in Trump’s rambling and largely stream-of-consciousness speech. On the one hand, Trump bragged about his astonishing success in using social media to deliver his unfiltered message to his followers and its importance in winning the presidency for him. (“I’m hotter now than I have ever been!”) He lauded the brilliance of his senior advisor for digital strategy Dan Scavino’s social media campaign for his re-election.
At the same time, he claims that he and his supporters are victims of on-line censorship and manipulation to prevent their message from getting through. “Censorship like nobody has any understanding, like nobody can believe…” “…horrible bias…” “…They’re playing games…” “…They don’t let them on. They say, sir, I can’t follow you, they make it impossible…”
Then the big one: Trump invited lawyer and former California Republican vice chairwoman Harmeet Dhillon to the podium, where she lambasted the big social media companies and then said this: “I’m very concerned that they affected the outcome of the 2018 election and if you let them do what they’ve been doing it’s going to affect the outcome of the 2020 election as well.” Trump looked on approvingly and then said, “What Harmeet said is so so true!…That’s the collusion! It’s the collusion between the Democrats and the media and social media and these platforms.”
What’s the evidence for all of this? Trump’s tweets don’t “go off like a rocket” the way they used to. According to Trump, Twitter is messing with the numbers, and he doesn’t get as many re-tweets and likes as before. [Let us pause at this point and consider that the President of the United States obsesses over his Twitter following!]
The problem, of course, is that the algorithms and processes used by Twitter, Facebook, and Google to control content and searches are proprietary to those companies and mostly opaque to outside scrutiny. The conspiracy-minded can therefore project onto these black boxes whatever they imagine might be happening inside. And who’s to prove them wrong (and would it matter anyway)? The corollary is that if the social media giants do bow to pressure from Trump, how would the rest of us even know that had happened?
For TrumpWorld, the fact that it is almost entirely the extreme right alleging internet censorship isn’t because their sites were and are purveying falsehoods and disinformation, but rather because they’re being persecuted. The allegations become the evidence. And now the bomb throwers have been explicitly endorsed by the President of the United States, who invites them to the White House and calls them “very special people, brilliant people.” Nothing is too outrageous. “The crap you think of is unbelievable!…Some of you guys are out there, I mean it’s genius, but it’s bad,” said the president in a winking mock reproach.
And Trump gave them the themes to push:
- Democrats want to impose socialism…no wait, it’s communism. “It’s pure socialism…worse than socialism. There’s a word called communism too…this is beyond socialism.” That’s what the Green New Deal really is. “Our country is going to go one way, or it’s going to head in the direction of Venezuela.”
- The country is being invaded by dangerous brown people, and the Democrats are encouraging it. “They want open borders, they want people to pour in, including criminals, the worst criminals.” I.e., those Central Americans in those squalid CBP camps and private prisons are criminals and deserve to be locked up and deported along with the ones already here.
- Russian interference in the last election (“the Russian hoax”) didn’t happen and the investigation was a “witch hunt”. The real collusion is between the Democrats, the “fake news” media, and the social media companies to suppress the truth.
This is dangerous stuff, and its purveyors have been given free rein by the president.
Why does Trump gaze upon Putin with such rapt adoration? Why does he endorse Putin’s positions and reject the conclusions of US intelligence agencies? Why does he never criticize Russia or Putin? Is it because Russia holds compromising information about him or his businesses? Is it because he’s beholden to Putin for getting him elected? Or is it because Putin is what Trump wants to be?
(These explanations are not mutually exclusive–all could well be true.)
Putin represents everything a corrupt authoritarian demagogue could hope to achieve. He sits atop a small group of fantastically rich businessmen–the oligarchs–who control the country’s leading corporations and resources. He is the arbiter among them and can make decisions that directly affect their interests, and therefore they defer to him and enrich him. He is the nexus for major financial transactions, which require approval from and a payoff to him. By some estimates, Putin is world’s most wealthy man.
Moreover, he is almost entirely unconstrained by electoral politics, an independent judiciary, or a critical free press. Russian elections are thoroughly manipulated, and opposition leaders who become a possible threat are hobbled by various means, including imprisonment or even poisoning. Such incidents are never seriously investigated or prosecuted. Similarly, journalists who get out of line can wind up beaten, jailed, or killed. The press is therefore essentially state-controlled or cowed into submission.
The regime isn’t really ideological, except insofar as it favors policies that enrich the oligarchy and crushes any that would reduce its power. It’s basically a neo-czarist system, and it exploits religion and ethnic nationalism to bolster support. It uses memes like gay-bashing to get loyalty from socially conservative lower classes who derive little benefit from all the money rising to the top. The egalitarian vision of communism is truly dead, but its repressive apparatus is thriving and a few are getting super rich.
If all this sounds like a more dystopian version of what America is heading toward, there’s a reason for that. The concentration of both wealth and income in the top one percent of the population is actually worse in the US than in Russia. Among developed countries, the US ranks second in concentration of wealth, just behind Ukraine (Paul Manafort’s old stomping grounds), and ahead of Russia.
Trump didn’t create the increasing concentration of wealth, which has been building since the 1980s, but this accretion didn’t just happen in a vacuum and is a direct result of changes in tax policy and deregulation. But more than anyone else, Trump has figured out how to exploit it both economically and politically. And his policies are designed to increase that concentration and to perpetuate it. The most important example is his “tax reform”, which amounts to a massive transfer of wealth to the richest percentile of the population.
The “one percent” that we talk about here–the people who buy $40 million condos in Manhattan, fly their Gulfstreams to the Masters, and schmooze at Mar-a-Lago–are our oligarchs, though they may have arrived there by somewhat different routes. They may not all like everything about Trump, but a lot of them like that he lets them keep their wealth protected and amass ever more of it. So they support him and give astonishing amounts of money to keep him and his Republican acolytes in power, and some of that money even winds up in his pocket.
One problem for Trump is that, unlike Putin, he doesn’t own the entire oligarchy–yet. If Sheldon Adelson and his wife can donate an amazing $123 million to Republican candidates just in the 2018 election cycle, then Michael Bloomberg can donate $95 million to the Democrats. The US economy is about 12 times the size of Russia’s (in nominal terms), which means it’s a much larger pie to divvy up among more rich people, whose interests are more diverse. The rapid privatization of Russian state assets starting in the 90s meant that a relative small number of insiders with close ties to the old Soviet Communist Party were in a position to gobble them up and that Putin (as head of the FSB) was well placed to guide who got what even before he became acting president of Russia in 1999. The privatization of public wealth in the US has been a slower and bitterly fought process, and there was proportionately less in the public sector to begin with, but with Trump the pace has picked up, accelerating the concentration of wealth.
What that concentration means for American democracy is that what the average voter wants has less and less impact on what actually happens. A fascinating statistical study by eminent political scientists Martin Gillens (Princeton) and Benjamin Page (Northwestern) shows that “the preferences of average Americans have only a minuscule, near zero, statistically insignificant impact upon public policy” when pitted against economic elites. The study concludes that in the US, “the majority does not rule—at least not in the causal sense of actually determining policy outcomes. When a majority of citizens disagrees with economic elites or with organized interests, they generally lose. Moreover, because of the strong status quo bias built into the U.S. political system, even when fairly large majorities of Americans favor policy change, they generally do not get it.” To put it in everyday terms, money talks.
Trump and his Republican allies don’t yet have a totally compliant judicial system that will automatically endorse whatever they want, but they are certainly working to achieve that. Again, this process predates Trump, but has become starker since he took office. Mitch McConnell declared open war when he refused to allow Obama’s nomination of Merritt Garland to the Supreme Court to get so much as a hearing in Senate, and McConnell is perhaps the most enthusiastic enabler of big money in politics as well as the most determined foe of campaign funding reform. The Roberts court is now reliable on key issues affecting political participation having ruled in the oligarchy’s favor on three landmark cases that essentially removed any limits on political campaign contributions, gutted the Voting Rights Act, and (most recently) approved partisan gerrymandering. Lower federal courts are also being packed with ideologically approved judges. After stalling confirmations during the Obama administration, McConnell is now filling vacant slots with unprecedented speed.
Add to that a Justice Department headed by William Barr, who has jettisoned the traditional independence of that office from the White House and acts as Trump’s advocate. As Attorney General, Barr and his newly appointed subordinates are in a position to quash investigations and decide which cases are litigated. Whether career professionals at Justice and the FBI will be able to countervail such pressure remains an open question.
Then there is the increasing ugly White House campaign against the independent press, or as Trump calls it, the “enemy of the people.” According to the New York Times, at the recent private meeting with Putin in Osaka, Trump (after joking about meddling in our elections) “offered the sort of disdain for journalists sure to resonate with an authoritarian like Mr. Putin. ‘Get rid of them,’ Mr. Trump said. ‘Fake news is a great term, isn’t it? You don’t have this problem in Russia, but we do.‘” What’s not a problem to Trump is Fox News which functions as a quasi-official propaganda organ for the Republican Party and the Trump White House–more or less like TASS and Isvestiya in Soviet days. The message then gets amplified, often in more extreme form, in on-line and radio outlets like Breitbart and Rush Limbaugh and repeated by local TV and radio stations owned by conservative organizations like Sinclair and Clear Channel which dominate smaller media markets across the country. Trump doesn’t control newsmedia yet, but there’s really no doubt that he wishes he could.
The signs are everywhere if you look–from symbolic (like turning the 4th of July celebration on the National Mall into a political event) to deeply if more distantly disturbing (like trying to politicize the military). I’m certainly not the first to notice. Anne Applebaum wrote a prescient op-ed in the Washington Post three years ago before the election headlined “The Secret to Trump: He’s Really a Russian Oligarch“, in which she observed that he is “an oligarch in the Russian style — a rich man who aspires to combine business with politics and has an entirely cynical and instrumental attitude toward both…His transition from donor to candidate, although partly motivated by megalomania, has also been designed to shore up his businesses. Just as Russian businessmen use political power to direct money to their own companies, so does Trump.”
What’s different now is that Trump isn’t just another crooked billionaire trying to work the political system to get richer. He’s now the capo di tutti capi. In Russian terms, he’s not Oleg Deripaska, he’s America’s Putin. Or at least that’s what he aspires to be. If only he can smash enough democratic institutions to let him achieve his goal.
Today’s landmark Supreme Court ruling on partisan gerrymandering (Rucho et al v. Common Cause et al) is likely to go down in history as another in a series of key decisions by the Roberts court that poisoned American democracy–like Citizens United (which opened the flood gates for money in politics) and Shelby County v. Holder (which gutted the Voting Rights Act). Whether the poisoning is fatal or not remains to be seen.
What all these cases share is a deliberate blindness of the court’s majority to the real world outcomes of their legal reasoning and a passive-aggressive theory of judicial restraint which asserts that the courts are powerless to step in to right wrongs even when they are acknowledged to exist. All were decided by 5-4 split decisions, and all prompted bitter and lengthy dissents from the justices in the minority. All were intensely partisan. These are the Plessy v. Ferguson and Dred Scott decisions for our time, and their impact will likewise be felt for decades.
This could have been a chance for the court to show a principled evenhandedness on this supercharged issue. The Maryland case in question favored Democrats and the North Carolina case favored Republicans, so the optics would have given cover to establish that the courts have the power to restrain egregious partisan gerrymandering. Instead, the Supreme Court majority got the vapors and declared that the problem was too hard because there was no objective way to decide how much was too much and therefore it could do nothing. This kicks the issue back to the states who did the gerrymandering in the first place, thus effectively making the practice entirely legal.
The ruling does not, however, affect Democrats and Republicans equally. While it’s true that “both sides do it”, in this century partisan gerrymandering has been much more aggressively pursued by Republicans and with great success. Academic analysis has consistently shown that partisan gerrymandering has given Republicans a built-in advantage of at least 20 seats in the House of Representatives and that their advantage in state legislatures is often much greater. Republicans have total control of 30 out of 50 state legislatures, and therefore control how both state legislature and US House districts are drawn. They have just been told that partisan gerrymandering is just fine.
The decision is perhaps no surprise, given the hyperpartisan nature of the Roberts court, but the reasoning presented is odd indeed. Read it yourself here.
The ruling accepts that the Court can rule on some electoral issues, including racial gerrymandering. “In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts…Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid.”
But, according to the court, partisan gerrymandering is different. Legislators can take partisan interests into account because the Framers entrusted districting to political entities. “The ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.” The court then cites another 5-4 ruling in a 2004 case (Vieth v. Jubilirer) in which the late Justice Scalia held for a 4 justice plurality “that the plaintiffs’ claims were nonjusticiable because there was no ‘judicially discernible and manageable standard’ for
deciding them.” Justice Kennedy joined in that ruling, but “left open the possibility that in another case a standard might emerge.” The ruling goes on to say that “the question is one of degree: How to provid[e] a standard for deciding how much partisan dominance is too much.” I.e., the Court admits that there could be too much partisan gerrymandering, but how would it determine when it reaches that point?
The ruling then claims that what this is really about is proportional representation (“Partisan gerrymandering claims invariably sound in a desire for proportional representation“), and launches into a disquisition about how the constitution does not require that. And how would you determine what “fairness” is, anyway? As Scalia wrote, “‘Fairness’ does not seem to us a judicially manageable standard.” There follows a lengthy discussion of well-known issues in drawing districting maps, and it concludes that “it is only after determining how to define fairness that you can even begin to answer the determinative question: ‘How much is too much?’ At what point does permissible partisanship become unconstitutional?”
Next the Court goes on to deny any equivalence to racial gerrymandering. “Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.”
This assertion is perhaps the strangest of the entire ruling, because racial gerrymandering cases are precisely about fairness in power and influence. Moveover, racial and partisan gerrymandering often coincide or overlap. Many of the the most notoriously contorted congressional districts were drawn deliberately to pack African-American voters in a single district. This does two things: 1) it assures at least a few African-Americans would be elected to Congress, but 2) it also minimizes the impact of African-American votes in “white” districts. And, because black voters tend to vote overwhelmingly for Democratic candidates, such gerrymandering also impacts the partisan distribution of power. The sentence about asking for elimination of a racial classification is simply baffling.
The lower court ruling (which is here being overturned) cited “predominant intent” which had been used in the racial gerrymandering context. “In racial gerrymandering cases, we rely on a “predominant intent” inquiry to determine whether race was, in fact, the reason particular district boundaries were drawn the way they were. If district lines were drawn for the purpose of separating racial groups, then they are subject to strict
scrutiny because ‘race-based decisionmaking is inherently suspect.‘” But “determining that lines were drawn on the basis of partisanship does not indicate that the districting was improper. A permissible intent—securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent ‘predominates.'”
The Court here seems to be saying two conflicting things. First it says that there could be too much partisan gerrymandering to be constitutional (but the problem is how to determine what “too much” is). Then it states that gerrymandering for partisan advantage is actually “permissible intent”. So if it’s permissible, how could there ever be too much of it? And if it’s possible to render a judgment on fairness based on some standard in racial gerrymandering, why isn’t that possible in partisan gerrymandering?
Rather than parse that logical conundrum, the Court then washes its hands of the problem. “Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” It says that if the courts were to intervene, that would be “an unprecedented
expansion of judicial power.”
Then come the “thoughts and prayers”: “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void.” So what’s the answer? The states, of course! The very ones who approved the partisan gerrymandering in the first place!
The ruling then notes that some states have somehow managed to determine standards for fairness in districting–something that the Court just declared itself incapable of doing.
Or maybe Congress? The ruling notes: “The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering.” Oh right, that’s HR1, the”For the People Act” that the Democrats introduced this session to address problems such as voting, money in politics, redistricting, and ethics, and which Republicans vehemently oppose. It faces certain death in the Senate at the hands of Mitch McConnell, and if it miraculously ever passed, certain veto by Trump.
Or maybe the “Fairness and Independence in Redistricting Act”, which the Court notes “was introduced in 2005 and has been reintroduced in every Congress since.” Indeed. It has been reintroduced over and over again, because it was never passed.
The Court concludes “No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority.” So gerrymander all you want, we’re not going to stop you.
Some had hoped that on this key case Chief Justice Roberts, out of concern for maintaining a veneer of judicial integrity, would break ranks with Thomas, Alito, Gorsuch, and Kavanaugh, whose votes were preordained. But no. On this as on Citizens United and the Voting Rights Act, he knew what the answer had to be and came up with a rationale, however flimsy, to justify it. I think we can regard his vote in another case that put a temporary stop to including a citizenship question on the census as a gesture of atonement. Or at least an attempt to reclaim some shred of a reputation as something other than a partisan operative.
It’s worth your time to read Justice Kagan’s blistering dissent here (it comes at the end, after the majority ruling.) It demolishes the majority ruling point by point and begins thus:
“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government. And checking them is not beyond the courts…In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.”
This week ABC News aired an interview in which Trump stated that he saw nothing wrong with accepting campaign help from a foreign power and no reason to inform the FBI if that happened. Fox News immediately rushed to defend Trump with Sean Hannity declaring that it was “another round of fake, phony, moral selective outrage over that interview but it’s the perfect setup…that was a genius setup because the media mob will fall right into his trap breathlessly spewing fake, phony outrage over a non-story for days…” Senate Republicans then killed a bill introduced by Mark Warner (D-VA) that would have explicitly made accepting foreign help for election campaigns a crime.
It’s time to step back from this latest rotting tree and see the whole malignant forest that the Trump administration has become as it spreads across America’s political landscape like an incurable MRSA infection.
We have a president who remains strangely, but indisputably, deferential to Russia and Vladimir Putin and whose election campaign had Russian help. Whether Russian meddling tipped the election may be debatable, but there is no real question that Trump and his team both invited Russian help (“Russia, if you’re listening…”) and were quite eager (“I love Wikileaks!”) to accept it when it was offered and delivered. Upon hearing in June 2016 that the Russians wanted to meet about “documents and information that would incriminate Hillary”, Don Jr. enthusiastically emailed “if it’s what you say I love it especially later in the summer.” [emphasis added] That last phrase, which oddly has received little attention, certainly seems like a suggestion for when Russian-provided dirt would do the most good.
According to the Mueller Report, Paul Manafort instructed Rick Gates in April or May 2016 to send internal Trump campaign polling data to Konstantin Kilimnik, a Ukrainian/Russian associate of Manafort who was still working for Russian intelligence. Gates continued to send polling data to Kilimnik even after Manafort left the campaign in August. Also according to the report, Manafort briefed Kilimnik about polling data and the campaign’s strategy focusing on the “battleground states” of Michigan, Wisconsin, Pennsylvania, and Minnesota. Mueller shed no light on exactly what the Russians did with that information, but his report details a massive cyber operation to disseminate disinformation via social media and to publish potentially embarrassing material stolen by hacking the DNC and Clinton campaign.
Mueller’s failure to connect these and many other data points remains maddening and difficult to explain. But whether or not there was the direct coordination required to establish the crime of conspiracy, and whether or not there was an agreed quid pro quo, the fact that there have been so many highly unusual contacts with Russians by Trump and his team both before and after the election leaves little doubt that Russian help for the Trump campaign was more than just a coincidence. Add to that their failure to disclose such contacts and outright lies told when they were uncovered by the press, and it establishes a legitimate basis for suspicion that Trump and others in his entourage have been compromised. Yet that counterintelligence aspect of the Mueller investigation is completely absent from the published report. The House Intelligence Committee has issued a subpoena to DOJ for documents and materials related to this part of the investigation, but so far AG Barr has refused to comply.
Trump’s behavior in office has only added to such suspicions. There were the one-on-one meetings with Putin with no other Americans present (except an interpreter in some cases) of which no official record appears to exist. There was the Oval Office meeting with the Russian Foreign Minister and Ambassador (again, with no other Americans present), which was disclosed only after it appeared in Russian media. There was the press conference with Putin in Helsinki where Trump publicly accepted Putin’s denial of interference in US elections–contrary to both the conclusions of the US Intelligence Community and, later, the Mueller Report. Just this week there was the incident in the East China Sea where a Russian naval ship narrowly missed colliding–apparently deliberately–with a US Navy ship. Not a peep of protest has been heard from the White House about that, though Trump has tweeted about every other imaginable subject and his government seems eager to seize on any pretext to incite a war with Iran.
Perhaps more important and beneficial to Moscow has been Trump’s willful destruction of faith in US commitment to its democratic allies–particularly NATO–and gratuitous insults to allied democratic leaders, all the while snuggling up to the likes of Duterte, Viktor Orban, Kim Jong-un, and of course Putin. Under Trump, American foreign policy has switched from strong support for the European Union to indifference or even hostility, with Trump enthusiastically cheering for Brexit and providing at least tacit support for Nigel Farage and other right-wing nationalist European politicians. Weakening NATO and breaking up the EU have been long-term Russian strategic goals, and Putin could scarcely have imagined hitting such a jackpot, even though Congress has prevented Trump from dropping US economic sanctions as he attempted to do immediately after taking office. Even Trump’s “trade war” with China has redounded to Russia’s economic and geopolitical benefit, as Russian agricultural exports to China have surged to the detriment of US farmers.
So how does one explain doing so many things that subvert US economic and foreign policy interests, threaten painfully constructed strategic alliances, and flout national security procedures, while simultaneously advancing Russian interests? There really is no benign explanation. It’s not necessary to know exactly what kind of kompromat the Kremlin has on Trump in order to see its result.
Meanwhile, the central issue of the Mueller investigation–continuing Russian interference in US elections and what to do about it–remains almost completely unaddressed. Trump’s position on this can be summed up as: “It’s a hoax and never happened.” According to the New York Times, former Homeland Security Secretary Nielsen was warned not to even broach the subject with Trump, even though Russian penetration of the US electoral machinery is now known to be far more extensive than has been acknowledged by the administration.
Yet there is still no US government task force to find ways to counter hacking of voter databases and machinery for vote recording and tabulation. Our decentralized system is controlled by state and local agencies which lack the sophistication and resources to foil skilled hackers. Several bills have been drafted (almost entirely by Democrats) to institute measures to safeguard the country’s electoral apparatus against malign manipulation, but the Republican leadership in the Senate–specifically Mitch McConnell–has blocked them from being introduced for debate and vote. The question then is cui bono or who benefits? One obvious answer is Trump. But almost certainly the other beneficiary will be the entire Republican party, which has based its future largely on targeted voter suppression. If Russian hackers can help with that, why should Republicans do anything to stop it?
Thanks to the electoral college, it doesn’t take much to alter a presidential election. The 2016 vote wasn’t really all that close–Hillary Clinton got 3 million more votes than Trump–but Trump won the electoral vote by a margin of only 77, 742 votes cast in Pennsylvania, Michigan, and Wisconsin. In 2000, George W. Bush also lost the popular vote, but a mere 537 votes in Florida gave Bush the electoral college victory (after the conservative-controlled Supreme Court stopped the recount). How hard would it be for Russian hackers (or ones from somewhere else) to affect the result in “battleground” states just enough to tip the balance? And would we even know if it happened?
Doing that wouldn’t necessarily require anything so crude as altering the vote count (although that remains a possibility). Altering voter databases to remove selected categories of legitimate voters who show up at the polls only to discover that there are problems with their registration would be much easier. Such a tactic would supplement domestic Republican efforts to purge voter rolls already deployed with considerable success. In Georgia, for example, Brian Kemp defeated Stacy Abrams for governor by only 54, 723 votes–a margin of 1.4%. As Georgia’s Secretary of State, Brian Kemp headed the office charged with overseeing the state’s elections, which since 2010 had “purged upwards of 1.4 million voters from the rolls, including more than 660,000 Georgians in 2017 and almost 90,000 [in 2018]. Many of those voters found their registration canceled because they had not voted in the previous election.” As elsewhere, the suppression efforts were mostly targeted against African-American voters.
We now know that the voter registration systems of at least two Florida counties were penetrated by Russian hackers during the 2016 election. Florida has been critical in every presidential election of this century, and was won by Trump by only 112,911 votes or a margin of 1.2% after going for Obama in 2008 and 2012. Then-Governor Rick Scott also engaged in voter suppression and purges, and then won a US senate seat in 2018 by 10,023 votes (a 0.13% margin) in an election that went to a manual recount. In that same election, current Republican Governor Ron DeSantis defeated his Democratic opponent Andrew Gillum by only 32,463 votes (0.4%). which also triggered a recount. Of course, recounts reveal nothing about how many people were prevented from voting because of “irregularities” in the registration rolls and other tactics such as reduced early voting days and closing selected polling places. Moreover, if Russian (or other) hackers had messed with voter rolls, how many local county election officials have the capacity to detect that or prevent it from occurring? This administration simply doesn’t care.
The panoply of voter suppression measures in state after Republican-controlled state across the country dovetails perfectly with the current administration effort to include a citizenship question on the 2020 census form. While adding such a question may sound innocent enough at first glance, there is clear evidence that it would significantly reduce compliance with the census particularly in areas with large immigrant populations, both legal and undocumented, which also tend to vote strongly Democratic. Surveys have shown that immigrants fear that such information would be used by the government to target them for deportation or other forms of harassment and discrimination. That likelihood has risen sharply because of the anti-immigrant actions and rhetoric of the Trump administration. The result would be a much larger undercount of the population in those areas–such as South Florida, South Texas, Southern California, and major metropolitan areas throughout the country. This would hurt the Democrats and help the Republicans by falsely reducing the official population of districts that generally favor Democrats, which could have a major impact when congressional and state legislature district boundaries are redrawn based on the 2020 census data.
Accurate census data is critical to federal, state, and local government because it forms the basis for political districting and allocation of government resources, affecting almost all aspects of American life. If certain areas are not counted fully, then they are disadvantaged compared to other districts where there is little or no undercount. The Census Bureau has long struggled to reduce the undercount of marginalized populations such as homeless, urban and rural poor (especially minorities), and immigrants. What is different now is that the Trump administration has deliberately introduced a measure that it knows will increase the undercount. We know that because documentary evidence has emerged of policy discussions between top Commerce Department officials and the late Thomas Hofeller, a Republican political operative and gerrymandering guru, in which the goals, methods, and rationalizing arguments were openly discussed. This issue will be decided by the Supreme Court, and this decision will show just how politicized the Court has become.
What all this adds up to is a concerted attack on the integrity and credibility of US elections–not just by Russia, but by Trump and the Republican party. The GOP knows that the demographic tide is against them, but it’s committed to a message aimed mainly at white voters in non-urban areas. But that base is shrinking as the country’s ethnic complexion changes. The Republican response is to double down on frightening–and thereby mobilizing–its white base, and deploying a metastasizing set of voter suppression instruments to help it hold on power with a minority of voters. And it is working. The courts may strike down one trick or another, but each case takes time and there is always another one to deploy while the Democrats play whack-a-mole. If the Russians do something that helps keep Trump and his party in power, one or two Republicans may shed a few crocodile tears, but they’re certainly not going to do anything to stop them.
Meanwhile, Putin can check off one more item on his wish list: destroying America’s faith in its electoral system.
At least one thing is now clear about the redacted Mueller Report, which is that everything ultimately hinged on the 1973 Department of Justice Office of Legal Counsel opinion that a sitting president–“uniquely”–could not be indicted for a crime. According to the memo, any other government official–including the vice-president–could be indicted, but not the president. It is important to remember that this is NOT in the Constitution, and it is NOT codified in any law, but this opinion critically limited the scope and direction of Mueller’s investigation. So how did this memo become treated as sacred scripture?
The original OLC opinion was drafted in September 1973 in the context of corruption charges against then-Vice President Agnew, but it also followed a summer of Watergate hearings aimed at President Nixon which had riveted the country. The crimes for which Agnew would soon resign from office were basically garden-variety bribery charges which were easy for the public to understand, and they were doing serious damage to Nixon’s administration which was already under siege. Nixon was willing to toss Agnew overboard to try to keep his own raft afloat. But he needed a rationale to would allow him to get rid of Agnew while protecting himself, and his Solicitor General Robert Bork (who would become Acting Attorney General the following month after the “Saturday Night Massacre”) delivered.
The DOJ revisited and reaffirmed the original conclusions in another memorandum of opinion published in October 2000, though it appears to have been drafted earlier at the time of the Ken Starr investigation. (Clinton was impeached right after the 1998 midterm elections, but the Senate failed to convict him in February 1999.) As a excellent article in Lawfare notes, it appears to have been drafted with the Clinton case in mind, and “does not grapple with the significant obstacles to trying a multi-defendant criminal conspiracy while excluding from the charging document any reference to one of the conspirators—and perhaps a key conspirator.”
It’s definitely worth reading the October 2000 memo to examine the rationale for its conclusions, which seem quite dubious to me though we now seem to be stuck with them. It’s dense reading, but certainly comprehensible for non-lawyers like me. Read it yourself here.
Perhaps the most remarkable thing about the two memos, is that the author(s) could find no direct basis for making the president immune from criminal prosecution in the text of the Constitution. The 1973 memo (which the 2000 memo endorses in its entirety), “concluded that the plain terms of the [Impeachment Judgment] Clause do not impose such a general bar to indictment or criminal trial prior to impeachment and therefore do not, by themselves, preclude the criminal prosecution of a sitting President.”
The original memo then looks at whether immunity “can be justified on other grounds, in particular the consideration that the President’s subjection to the jurisdiction of the courts would be inconsistent with his position as head of the Executive branch.” Again, nothing found that was conclusive.
How about separation of powers? Problematic there too. “It cannot be said either that the courts have the same jurisdiction over the President as if he were an ordinary citizen or that the President is absolutely immune from the jurisdiction of the courts in regard to any kind of claim.” As a consequence, “ [t]he proper approach is to find the proper balance between the normal functions of the courts and the special responsibilities and functions of the Presidency.”
Would the nature of the Presidency render a criminal trial “too political for the judicial process.” Nope, the memo finds that argument unpersuasive too. “Nothing about the criminal offenses for which a sitting President would be tried would appear to render the criminal proceedings ‘too political’.”
Next the memo considers the bizarre argument that because the President has the power to supervise federal prosecutions he should not himself be subject to indictment or criminal prosecution. I.e., the President could not be a criminal precisely because he’s in charge of federal law enforcement. The memo sees problems here as well.
After rejecting all of these justifications, the memo at last finds something to latch onto, i.e., that under the doctrine of separation of powers, indictment or prosecution of a president would “unduly interfere in a direct or formal sense with the conduct of the Presidency.” This is because “the necessity of the defendant’s appearance in a criminal trial was of great relevance in determining how the proper constitutional balance should
be struck. By virtue of the necessity of the defendant’s appearance, the institution
of criminal proceedings against a sitting President ‘would interfere with the President’s unique official duties, most of which cannot be performed by anyone else’….“[during the past century the duties of the Presidency . . .have become so onerous that a President may not be able fully to discharge the powers and duties of his office if he had to defend a criminal prosecution.”
The logic here is mind-bending, as it develops the notion that a president can’t be prosecuted or even indicted for crimes that he has committed (and possibly continues to commit) because he’s too busy running the country, and no one else can do that for him while he has to show up in court. Okay then, wouldn’t the same principle apply in the event of impeachment? The memo implicitly recognizes a little problem here, but says “in contrast to the risks that would attend a criminal proceeding against a sitting President, ‘this is a risk expressly contemplated by the Constitution, and is a necessary incident of the impeachment process’.” So…if it’s a “necessary incident” of impeachment, why wouldn’t it be the same for a criminal inquiry?
The memo then circles back to the previously rejected idea that a criminal inquiry would necessarily be too political. “By virtue of the impact that an adjudication of criminal culpability might have, a criminal proceeding against the President is, in some respects, necessarily political in a way that criminal proceedings against other civil officers would not be. In this respect, it would be ‘incongruous’ for a ‘jury of twelve’ to undertake the
‘unavoidably political’ task of rendering judgment in a criminal proceeding against the President.” In other words, criminal indictments against any other federal official, up to and including the Vice President, would not be “unavoidably political”, but such an action against the president would be. How’s that again?
Then, it argues that it would be uniquely “incongruous” for a jury of twelve to render a verdict against a president (again, oddly, unlike any other official) because they would not be representative of the entire country, as opposed to an impeachment proceeding in Congress, and it “would confer upon a jury of twelve the power, in effect, to overturn
this national election.” Never mind that a criminal conviction wouldn’t necessarily result in removal from office.
The memo then looks at the possibility of indicting a president, but leaving a trial until after he has left office. But “an indictment hanging over the President while he remains in office would damage the institution of the Presidency virtually to the same extent as an actual conviction…[and]…there would be damage to the executive branch
‘flowing from unrefuted charges’.” The memo opines that “the modern Presidency, under
whatever party, has had to assume a leadership role undreamed of in the eighteenth
and early nineteenth centuries,” and “[t]he spectacle of an indicted President still trying to serve as Chief Executive boggles the imagination.”
Let’s leave aside the obvious fact that the Trump doesn’t appear to be working all that hard at the nation’s business, what with daily “executive time”, tweet breaks and watching Fox and Friends, frequent golfing weekends and trips to Mar-a-Lago, and non-stop partisan rallies. Is a president really so indispensable that the only way he can be held accountable is to impeach him?
Oddly, neither the 1973 OLC memo nor its 2000 version makes any mention of an available remedy, which would be to invoke the 25th Amendment if the president were so beset by a criminal proceeding that he was “unable to discharge the powers and duties of his office.” In that case, the Vice President would become the Acting President until the president were acquitted or removed from office. That amendment was passed in 1967.
Then there was that awkward business of Clinton v. Jones, the 1997 civil suit in which the Supreme Court established that a sitting president has no immunity from civil litigation against him or her, for acts done before taking office and unrelated to the office. In particular, the court held that there is no temporary immunity, so it is not required to delay all federal cases until the President leaves office. So why is it okay to haul a president into court on a civil case but not okay if it’s a criminal case, when either would clearly impinge on his ability to carry out the functions of his office. The 2000 memo has no real argument here except to state flatly that “Clinton v. Jones, which held that the President is not immune from at least certain judicial proceedings while in office, even if those proceedings may prove somewhat burdensome, does not change our
conclusion in 1973 and again today that a sitting President cannot constitutionally be indicted or tried.”
The main point here is that both the 1973 memo and its 2000 corollary may be legitimate legal arguments, but they have been accorded a status by DOJ, the White House, and indeed the media and world of punditry that they don’t deserve. They are internal memoranda of opinion–nothing more–and they have never been seriously tested in court.
Moreover, they were both drafted with specific political agendas in mind–namely to protect a sitting president accused of serious malfeasance. The DOJ “policy” for which they now form the basis clearly kept Mueller from following his investigation to its logical conclusion in a vastly more important context. That may irrelevant at this point in the game, but if Congress will not do its duty to impeach this president, an “opinion” drafted for specific political purposes in the past will indeed have placed him above the law.
Ten months ago on this blog, I argued that an impeachment campaign should start immediately. Two major things have happened since then: 1) the Democrats gained control of the the House and, with that, the power to issue subpoenas, and 2) the Mueller Report was released detailing not only compelling evidence of obstruction of justice, but also multiple instances of highly suspicious contacts between members of Trump’s campaign and Russians connected with Putin. And yet the Democratic Party leadership is still counseling against impeachment.
There are two aspects of the impeachment debate: One is moral/constitutional, and the other is practical/political. They are separate, but intimately related.
The moral/constitutional part is a slam dunk. Any other president who had committed half of Trump’s offenses would have been impeached by now. Trump’s personal lawyer Michael Cohen is in prison for a crime which he said Trump instructed him to commit! Trump continues to obstruct justice before our eyes, and Trump’s White House is brazenly flouting multiple legitimate subpoenas issued by House committees. Trump has done literally nothing to protect the US electoral process against Russian manipulation (which was the reason for the Special Counsel investigation), and he continues to deny or obfuscate that it ever happened at all. I won’t waste space recounting all of the other issues of lying, or corruption, and/or abuse of power that could reasons for impeachment–which, it is worth repeating, can be anything that Congress deems a “high crime and misdemeanor”.
Failure to impeach means that Democrats acquiesce in Trump’s malfeasance. If a sitting President can’t be indicted (which is only a DOJ internal opinion, not law and certainly not in the Constitution), then the only remedy for holding a lawless president accountable is impeachment. If Congress won’t do that, then they are complicit in his crimes by omission. The impeachment clause of the Constitution is a dead letter, and we have a despot in charge of the country who can do anything he wants.
The practical/political part is obviously trickier. If Republicans maintain their cult-like devotion to Trump, then there will not be 67 votes to convict him in the Senate. The math is simple. But I would argue that this is not set in stone. I think that a series of high-profile committee hearings in the House could swing public opinion and therefore potentially votes in the Senate, where Republican incumbents face much more difficult prospects in 2020 than they did in 2018.
Relatively few Americans have actually read any of the Mueller Report. Public perceptions about it are shaped by the bumpersticker versions that they get from social and news media. When Trump goes on TV and says “no collusion, no obstruction”, people believe it. But public hearings as part of an impeachment inquiry can change all of that. There is shocking material in the Report which has barely penetrated the consciousness of average Americans, and the Mueller investigation did not even address Trump’s finances or their national security implications, which could come out as part of the impeachment inquiry. I vividly remember the Watergate hearings of summer 1973, which decisively shifted public opinion. What we are looking at now is far more serious.
Pelosi’s position that we forget about impeachment and focus on winning the 2020 election, may sound practical and shrewd, but it also sounds cynical and cowardly. Doing that preemptively concedes the moral ground to Trump and his acolytes. It says: “There is nothing fundamental and existential at stake here for our democracy–it’s all just politics.” I think that’s wrong–both morally and strategically.
The argument against impeachment is that is will be “divisive” and turn Trump into a martyr, thereby increasing his chances for re-election. Divisive, really!? Could we be more divided that we already are? Trump has about one-third of the country in his pocket, and nothing is going to change that. Yes, they will believe the mean liberals are persecuting him, but for those who may be reachable a steady drumbeat of revelations from impeachment hearings could be the only way to shift opinions among the 10 or 15 percent of Americans who haven’t totally made up their minds about Trump. Maybe it’s naive, but I still think that most Americans want to believe in the fundamental integrity of our institutions and will be turned off when it is clearly shown that Trump is actively subverting them. Putting Trumpian malfeasance out there every day could also be effective tactically–after all that’s the whole theory of negative attack ads, and they work.
Then let’s consider the electoral implications of NOT impeaching. Most important, is that it implicitly validates Trump’s mantra of “no collusion, no obstruction.” We can be sure that Trump will run with that. It will dismay and turn off the Democratic base, who want to see Trump go down hard, and reinforce the image of the Democrats as a party of gutless wusses. If they don’t care about what’s happening to American democracy, then really what’s the difference–they’re all just self-serving politicians after all.
Besides, is it really all that impossible to conduct an impeachment process AND run an issue-based campaign? Moreover, a cornered Trump is more likely to make some big over-reaching mistake that could be impossible to overlook.
I say impeach his lying ass!!
I always feared that far too much faith was being placed in Special Counsel Robert Mueller’s investigation. Liberal commentators on television, former Justice Department officials and prosecutors, and Democratic politicians praised Mueller to the skies, citing his fearless integrity, bulldog determination, and by-the-book ethics, assuring us that he knew way more about the Trump campaign’s dealings with Russia than what the press had managed to reveal. The Mueller probe became the reason no one else did anything. As NYTimes columnist Charles Blow observed, all the eggs went in the Mueller basket.
So what did two years of Mueller’s investigation reveal to the country about the core issues of TrumpWorld contacts with Russia and obstruction of justice? So far, exactly nothing.
The indictments and convictions obtained as a result of the investigation, while damning in certain ways, are all peripheral to the core questions. And now we know that that’s all there is. No more indictments. Finito. And quite possibly no more actual information about the contents of Mueller’s report.
The central question of the investigation was this: Did the President of the United States or his subordinates act in concert with agents of a hostile foreign power (Russia) to obtain its help in the 2016 election and did he attempt to interfere with a duly constituted investigation in order to cover up such actions? And the corollary: Is the President of the United States subject to manipulation and influence by Russia?
Almost everything we know about this–and there is actually quite a lot–was uncovered by investigative press reporting. The Barr letter purportedly summarizing the Mueller report gives us absolutely nothing about collusion (except to state flatly that there wasn’t any) and tantalizingly adds that the Special Counsel did not make any recommendation on obstruction, which Barr summarily and unilaterally then decided not to pursue. Nor is there any indication in Barr’s letter that Mueller ever looked seriously into Trump’s financial dealings involving Russia.
Consider the utter strangeness of this whole affair, starting with the mind-boggling question that was the basis of the investigation itself.
The investigation was under the control of the Attorney General, who is appointed by and subject to being fired at any time by the President being investigated. Likewise, the Special Counsel himself could have been summarily fired, leading to efforts in Congress to protect him from that eventuality, which in turn were quashed by the Republican Senate majority leader. Trump’s first Attorney General, Jeff Sessions, had to recuse himself from overseeing the investigation, because he himself was potentially implicated–in part by repeatedly lying about his own contacts with the Russian Ambassador and others. This meant that the Special Counsel reported to the Deputy Attorney General, Rod Rosenstein, who had drafted the memo to justify the firing of former FBI Director James Comey, which event caused Congress to authorize the Special Counsel in the first place.
The president at the center of the investigation then proceeded to attack his premier law enforcement agency, the FBI, at every opportunity, resulting in the dismissal of several senior FBI officials, who had been so concerned by what they knew about Trump’s associations and behavior that they had launched an inquiry on their own even before the Comey firing and appointment of the Special Counsel. Reportedly, they (including Rosenstein) were so unnerved by Trump’s mendacity that they seriously contemplated wearing a wire to record conversations with him. Mueller himself then became the target of incessant rhetorical attacks by Trump and his enablers who alleged that the investigation was being carried out by embittered Democrats embedded in a radically liberal FBI, a charge which anyone at all familiar with that agency would know to be ludicrous. All of this meant that the Mueller investigation was on shaky ground throughout its course, with Trump openly hostile and defaming its objectivity.
What are we to make of the fact that Trump was never put under oath and was allowed to escape a direct interview and merely supply written answers (almost certainly drafted by his lawyers) to pre-agreed questions?
Why did Trump conceal the fact that he was still negotiating for Trump Tower Moscow well into his campaign for president, and why did he lie about it? Why did he meet privately with Putin on at least three occasions with no one else present to attest to what was said? Why did he publicly call for Russia to publish Hillary Clinton’s emails? Why did he publicly endorse Putin’s denials of meddling in US elections–in direct opposition to the conclusions of the US Intelligence Community? Why did he invite the Russian Foreign Minister and Ambassador into the Oval Office with no other US person present–a meeting that was revealed to the US public only by Russian media, because no US journalists were permitted? And those are only a few highlights. Nothing to work with there? Nothing to see? Seriously?
And what about Donald Junior and Jared Kushner who participated in the infamous Trump Tower meeting? Neither has been indicted and it’s not even clear that they were ever interviewed under oath, although both of them repeatedly lied about other contacts they had had with Russian officials, including Jared’s reported efforts to set up a back channel to Moscow using Russian embassy communications. Moreover, Jared’s activities were disturbing enough that Trump had to order that he be granted a security clearance over the objections of the intelligence community. And yet, nothing from Mueller on that.
And what was Mike Flynn cooperating about during the year and a half since he pled guilty? His sentencing has been repeatedly delayed ostensibly because he was providing valuable additional information to the Special Counsel, but what ever came of that? Similarly with Rick Gates and Michael Cohen and others. If they were singing to prosecutors enough to get their sentencing reduced and delayed, what were they singing about? Yet, there will be no additional indictments, we are told.
Granted, we don’t yet know what was in the full report that Mueller submitted, which according to New York Times is more than 300 pages long. But it is entirely possible that its contents allowed Barr to plausibly spin it as he has done. This would mean that Mueller essentially dismissed all of the above as irrelevant or that he was unwilling or unable to develop further evidence.
There are just too many loose ends for this to just go POOF and vanish. Yet we may never see a complete version of the Mueller report, and we have no reason to trust Barr on whatever spun version he opts to make public. Remember, Barr was picked for AG precisely because he is on record as maintaining that is virtually impossible for a president to commit obstruction of justice. Mueller certainly knew that in failing to make a recommendation on obstruction, he was actually making a decision in Trump’s favor.
Was Mueller so protective of his own reputation for objectivity and so afraid of showing any hint of bias, that he ultimately decided to pull his punches and err on the side of cowardice? Like Comey, was he so enamored of his own squeaky-clean Eagle Scout self-image that he committed an egregious strategic blunder that delivered the country to a man who is totally amoral and motivated solely by self-agrandizement?
There are no profiles in courage here. Just a whitewash veiled in a coverup.
