an autodidact meets a dilettante…

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America’s disgrace – presidential criminality in plain view

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George Kent reads his opening statement to the House

As an outsider looking in, I’m appalled by the US Presidential system, and the licence given in that country to its head of state. I’ve learned over the past few years of watching the slow train wreck that is this presidency, that the US head of state is granted a level of immunity that should never be granted to any individual in a democracy. This is a total disgrace, and seems to have infected the judgment of many observers and commentators. I suspect they’re blinded by the power granted to the US head of state, and by the ease with which anyone, no matter how corrupt and incompetent, can become the head of state (providing they have sufficient funds and influence). Presidents in the USA seem to be idolised beyond normality, in a land of Superheroes. This love of Superheroes, in film and elsewhere, is a somewhat juvenile trait, and a dangerous one. Its dangers have generally gone unnoticed because most US heads of state have been cognisant of, and respectful of, the rule of law. The problem has become evident with the advent of a charlatan posing as the greatest Superhero of all, and who is perfectly willing to take advantage of the power granted to him to realise any of his whims and desires. 

Just today, at the end of the first day of public impeachment hearings, I’ve listened to the opening statement of career diplomat George Kent. His statement highlighted for me the enormous damage done to a sovereign state, Ukraine, by those working for the personal interests of this President. And yet I heard a panel of journalists, I believe from CBS, more or less agree that there was wrong-doing which however wasn’t impeachable. I couldn’t help but feel that this commentary was shocking and disgraceful.

Impeachment is a process derived from the United Kingdom, where it is now obsolete. It has never been a part of the Australian system and should, I think, be removed from any democratic system, and replaced by solid, clear law. Hopefully Americans will wake up to this one day, though I’m hardly sanguine about it. 

Americans – and I’m really talking here about the intelligentsia – seem overly obsessed with their constitution. Some are even describing this latest crime of their President as bribery, simply because that crime gets a specific mention in the constitution, which is preposterous. The eighteenth century constitution doesn’t go into great detail about the crimes a President might commit, nor should it, because it should be evident that the President would be held accountable for any law-breaking, to the same extent as any other US citizen. To accept or facilitate any other outcome for the head of state would itself be a form of corruption or criminality.

The US President, and his acolytes, notably Rudi Giuliani, are clearly guilty of extortion – demanding a thing of great value for the President, with menaces, or via coercion. This crime has essentially been proven. This particular case is also at the very high end for this type of crime, as it involves the extortion of an entire nation, an ally of the USA, endangering countless lives and a nation’s freedom. A very hefty prison term should be demanded for all involved. This should not be in any way controversial.

Failing this – impeachment? To describe this as a poor substitute would be the greatest understatement in American history. The democratic world watches with bemusement tinged with contempt.

Written by stewart henderson

November 14, 2019 at 2:39 pm

The boy in the white palace 4: extortion for dummies

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Beneficence is always free, it cannot be extorted…

Adam Smith

Jacinta: I’ve been bemused by the sloppy way, IMHO, that the boy king’s adversaries – the Great Patriots – are handling their strategy for the defence of the realm. Some are still using the Queer and Daft (Q&D) term quid pro quo, as if that’s going to be an effective rallying cry for the country’s GPs. In fact it’s so feeble that the boy’s courtiers and epigones are happy to use it themselves, saying quid pro quos are great things, very handy for the MAGA cause….

Canto: Yes but I do notice that some of the more quick-witted GPs are almost at the point of considering, in a consistent way, a more obviously criminal term for the lad’s crimes. Whoduv thunk it? Unfortunately they’re not quite sure which crime to bruit about.

Jacinta: And Q&D terminology is still de rigueur for many, especially the courtiers and epigones. The two more serious, and accurate, terms for the crimes being particularly focussed on – re impeachment….

Canto: And impeachment’s a process we’re going to have to deconstruct – to use a shitty po-mo term most appropriate for the occasion – in another post.

Jacinta: Indeed – the two crimes being whispered way too softly by the GPs are bribery and extortion, with bribery being, unfortunately, the most favoured. But the Great Patriots are wrong.

Canto: That’s bad.

Jacinta: I think the only reason they prefer bribery is because, apparently, it’s in the SACUSA…

Canto: Scusi?

Jacinta: What? Oh yes, dummy, the Sublimely Awesome Constitution of the USA. Get out from under your rock, mate. It’s apparently mentioned in the SACUSA as one of the high Crimes and Mis Demenours you’re not allowed to consort with. We’ll look into that later. But I think extortion’s the thing, to set before the wee king, because, well, it’s much more nasty-sounding. I also think it’s more accurate. Off the top of my head, it’s about demanding money – or a thing of value – with menaces. And the boy king doesn’t need money – he’s been rolling in it since he was in his nappies, according to the New York Times. He’s far more in need of something to trounce his enemies, so that he can stay in the White Palace until he’s all growed up – and that’s a long long time.

Canto: Is he still in his nappies d’you think? I’ve heard rumours…

Jacinta: Well, I don’t think I’d have the stomach for that piece of investigative journalism, but it would certainly raise a stink if that were true. But here’s the thing. Ukraine has a new leader, with an overwhelming mandate to beat off Madame Putain and fight internal corruption. It’s a vastly important, and simply vast, country lying between La Putain and his or her designs on Europe, and it desperately needs an alliance with the USA, Europe and any other region it can ally itself with, but their President, when he came to office, hadn’t yet cottoned on to the fact that the USA is an ex-democracy and that its wee king had googly eyes for La Putain. ..

Canto: So he was ripe for extortion, I get it. The boy loves La Putain and wants to be like him, master of all he surveys, so he wants to have the Ukraine slay his rival, so he menaces them with a range of shite – saddling the country with being behind interference in his ascension to the throne in 2016, refusing to have an alliance with it, and with-holding funds and weapons, in the hope that La Putain will invade, slay the putative wrong-doers and share the spoils with the wee laddie.

Jacinta: Yeah, something like that. But let’s just get back to demanding a thing of value with menaces. I think it’s pretty straightforward.

Canto: Yes, others use the term coercion, but it’s the same thing, and it definitely applies in this case. The boy’s courtiers even drafted exactly what they demanded the Ukrainian Prez had to publicly say about the poor wee Biden boy and his nasty papa.

Jacinta: It’s time to look more closely at what the SACUSA has to say on the matter. Impeachment gets a mention very early on (Article 1, Section 2), but the nub of the matter is expressed, albeit briefly, in Article 2, Section 4, entitled ‘Disqualification’:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

So only two actual crimes are specified, which is a wee bit disappointing for dealing with the Most Powerful King in the Multiverse – but I don’t want to get into the impeachment disaster here, we’ll save that for another post. For now I’ll just say that ‘high Crimes and Misdemeanours’ however vague, was surely meant to cover more than nothing, and extortion sounds pretty lofty as crimes go. So let’s look more closely at extortion.

Canto: I have one dictionary definition here: ‘the practice of obtaining something, especially money, through force or threats’. Sounds like just the Right Thing.

Jacinta: Yes, and what the boy-king wanted to obtain was far more valuable to him than all the gold in Ukraine….

Canto: Encyclopedia Brittanica gives the definition as ‘the unlawful exaction of money or property through intimidation’, but in an article about white-collar crime it describes extortion as ‘a threat made to obtain a benefit from either a private individual or a public official’, and the threat here made by the boy and his courtiers, was ‘if you don’t invent something to besmirch the reputation of my domestic enemy, or announce that he has a reputation as a criminal, you will have no alliance with our mighty kingdom, no aid or support in defeating your enemy, La Putain (my own true love), and your people will die in great numbers, crushed by his or her mighty fist’.

Jacinta: Hmmm. A more clear-cut and extremely serious case of extortion could hardly be found. A girl-boy lawyer would win the case with a few hours’ training, except that the king is apparently above all law. He’s only subject to the law’s feeble sibling, impeachment.

Canto: I note that one of the Royal lad’s acolytes, one Nikki Hayley, has sought to churlishly dismiss the affair by pointing out that Ukraine finally received the aid, so no problem. However, the above definition points out that the threat is the crime, not the success or otherwise of the threat.

Canto: It also should hardly need pointing out that Ukraine finally received the promised aid because the scheme against the country was being leaked out – the lad’s courtiers had learned about the whistleblower complaint – not because there was a change of heart. In fact it’s widely believed that mirabile dictu, the withered boy has never managed to develop a heart, the poor sod.

Jacinta: That’s ridiculous, a piece of fantasy emanating from the Deep Kingdom….

Canto: We should operate on the boy to find out – we need real, pulsating evidence. I’m even prepared to do it under anaesthetic. I’d like him to do us a favour though…

Written by stewart henderson

November 10, 2019 at 11:13 am

first impressions of Trump

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Here’s the first of a series of very amateur vids on the crisis in the USA, and what a bemused and concerned outsider thinks of it all.

Written by stewart henderson

October 26, 2019 at 12:56 pm

getting roolly rich in the USA 1: Jeffrey Epstein

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Epstein’s two islands in the Caribbean – Little St James is immediately below the Great one

The Jeffrey Epstein case, in terms of women, girls and exploitation, is something I’m far too squeamish to explore, and of course it’s very very sad and disgusting, but my interest was also piqued by the news that he was/is a hedge fund manager (but maybe not), with mansions and an island and oodles of moolah to invest in all sorts of science projects. This raised many questions. Was he obnoxiously rich to begin with, like little Donny Trump? And what is a hedge fund, and can you legitimately make millions from one?

I’ve never been rich and I’ve never invested in anything, unless you call giving money to Oxfam or UNHCR an investment, so I’m really starting from scratch here. The first definition I’ve found is that a hedge fund is ‘an offshore investment fund, typically formed as a private limited partnership, that engages in speculation using credit or borrowed capital’. So, if this is true, why invest ‘offshore’, and how are you able to do this with money you don’t really have or haven’t earned? I suspect I won’t find easy answers to these questions. The website Investopedia (which sounds immediately suss!) starts with another definition: ‘Hedge funds are alternative investments (?!) using pooled funds that employ different strategies to earn active return, or alpha, for their investors’. Alpha! What a lovely musical note that hits for investors (especially combined with ‘male’). But the mention of pooled funds (e.g. mutual funds and pension funds, as well as hedge funds) might explain how you can make money even if you have little personally to invest. Investopedia also tells us that hedge funds ‘are generally only accessible to accredited investors’, because they’re less regulated than other funds. And we all know that the wealthy are very very keen to have less regulation and oversight than what the Yanks call ‘regular folks’

However, it does seem that, to be an ‘accredited investor’, it helps to be already rich. The term applies to financial institutions such as ‘investment banks’ and corporations as well as individuals. Needless to say, this is a world of which I know absolutely nothing. All I’ve really heard about it is negative – high rollers, corruption, anti-government arrogance and the like – which says much about where I get my information from. Even so, the most objective analysis raises questions – for example, the Australian Corporations Act of 2001 ‘defines “sophisticated investor” [basically synonymous with ‘accredited investor’] so as to exclude them from certain disclosure requirements.’ That rings alarm bells for me – you’d think that these heavy investors would be the last people to be excluded from disclosure. The Act also says that such investors require an accountant’s certificate to the effect that they have a minimum of $2.5 million in net assets or a gross income of $250,000 over each of the previous two years. Presumably they’re not asked about how they acquired such income/assets. And the financial bar is considerably lower in the USA.

Hedge funds have grown in popularity, and as a proportion of the asset management field, over the years. After the GFC of 2007-8 there was an attempt (probably feeble) to rein in the sector. The essential hedge fund strategy (think ‘hedging your bets’) is to receive a positive return regardless of bear or bull markets, by spreading the risk in some clever non-risky way. If you get to be a hedge fund manager (which some reports have claimed Epstein to be, though Wikipedia doesn’t mention this in a fairly comprehensive bio) you get to keep a certain percentage of invested funds for yourself – generally a management fee (maybe 2% of assets) and a performance fee (a substantial percentage of any annual increase in net asset value). You can see how disclosure is essential in payment of such fees, and why the temptation to cook the books would be high.

Epstein seems to have ‘risen’ from humble beginnings. His mother was a ‘homemaker’ and one-time school aide, and his father was a groundsman and gardener, yet Epstein is described, at various periods in his career from the early eighties, as an options trader, a financial consultant, a limited partner (at the dodgy investment bank Bear Stearns), a finance manager and other such vagueries – all despite a patchy scholastic record (but as an autodidact and dilettante I certainly don’t hold that against him). However, one very interesting item stands out….

Back in the eighties, Epstein became an associate of one Steven Hoffenberg, who hired him as a consultant for his company, Tower Financial Corporation (TFC). Epstein was paid $25,000 a month, which to me is an absurdly huge amount for anyone to be paid, though in this world it’s probably peanuts. Even before joining TFC (a collection agency that bought up other people’s debts – and if you think that’s dodgy, read on), Epstein had been bruiting it about among the crooked rich that he was a ‘high-level bounty hunter’, sometimes working for governments or the super-rich to recover embezzled funds, sometimes working for clients to secure embezzled funds. He and Hoffenberg became very close, flying around the world to do their dodgy deals, done not so dirt cheap, but in 1993 TFC collapsed and was exposed as one of the biggest Ponzi schemes in US history, with some $475 million of investor funds vanishing. Epstein, though, had already left the company and managed to escape without charge. Hoffenberg was sentenced to 20 years’ jail, and has always claimed that Epstein was intimately involved in the scheme. In fact, Wikipedia’s brief entry on Hoffenberg ends with this fascinating line:

In July 2019, he claimed that the American financier Jeffrey Epstein was his co-conspirator in the Ponzi scheme.

That’s right now, folks. Presumably he has the evidence for that – so why wasn’t Epstein prosecuted way back then?

Anyway, it appears, surprise surprise, that Epstein’s criminality isn’t restricted to his treatment of the opposite sex, which makes you wonder how many super-rich types who don’t draw attention to themselves vis-a-vis sexual exploitation can be shown to be criminals. And how is it possible to buy what is presumably an American island to use as a tax haven?

Tax havens are always described as ‘offshore’. That’s to say, not a part of the country in which you want to avoid paying taxes. The US site Investopedia underlines its dodginess by providing plenty of info on tax havens (hey man, we’re just tellin’ stuff, not selling’ stuff, I mean, peace off man), as well as providing a list which includes the British (but not the US) Virgin Islands. Epstein owns two of the US Virgin Islands, Great Saint James and Little Saint James, where he has one of his mansions. Great Saint James cost him $18 million in 2016, pretty cheap for an island I would’ve thought, and I can’t find the price he paid for Little Saint James back in 1998. This tiny island was his principal centre of sexploitation, aka Orgy Island by the cognoscenti.

The USA has an international reputation as a bad actor in respect of tax disclosure. With monumental hypocrisy, it implemented the Foreign Account Tax Compliance Act in 2010, requiring or ‘forcing’ (dog knows how) financial firms everywhere in the world to report accounts held by US citizens to their IRS, while at the same time refusing to comply with the OECD’s Common Reporting Standard – the only major nation to do so. To be clear about this the USA demands that other countries share information about US citizens’ offshore dealings, but refuses to share the same information with those countries about foreign investment in the USA. As a result, the USA is arguably now the world’s biggest tax haven. How this works exactly for US citizens like Epstein I’m not sure at this point, but the USA has become, especially over the last decade, one of the easiest places in the world for successful tax evasion, especially through the use of LLCs or shell companies. We’re finding this out through examination of Trump’s criminal activities, but of course I’m far from understanding the detailed nature of LLCs, offshore trusts and the like. I need to lern more.

I’ll end this piece – almost – with a quote from an organisation and site that’s the polar opposite of Investopedia, the Tax Justice Network:

The United States, which has for decades hosted vast stocks of financial and other wealth under conditions of considerable secrecy, has moved up from sixth to third place in our index. It is more of a cause for concern than any other individual country – because of both the size of its offshore sector, and also its rather recalcitrant attitude to international co-operation and reform. Though the U.S. has been a pioneer in defending itself from foreign secrecy jurisdictions, aggressively taking on the Swiss banking establishment and setting up its technically quite strong Foreign Account Tax Compliance Act (FATCA) – it provides little information in return to other countries, making it a formidable, harmful and irresponsible secrecy jurisdiction at both the Federal and state levels.

Of course, none of this clearly explains how Epstein ill-got the wealth to be tax-liable in the first place. Certainly the Ponzi scheme he seems to have gotten away with was one, possibly the main, source, but he seems even before this to have ingratiated himself into the world of dodgy financial entities and personae, presumably through schmoozing and force of personality. Certainly his relationship with Ghislaine Maxwell, daughter of that supremo of repugnant dodginess, Robert Maxwell, is an indication of the world Epstein had become familiar with, a world in which everyone is advising everyone else on how to make money out of nothing and how to retain as much of that money as possible, regardless of anything so inconvenient as the law.



Written by stewart henderson

July 21, 2019 at 2:14 pm

situation USA 2 – very likely, the worst is yet to come

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The USA, over the past two and a half years, has been the object of a global ridicule and opprobrium never experienced before in its history, and it’s largely deserved. And the reason lies in a flaw in democracy pointed out by Greek philosophers, unabashed anti-democratic elitists, some 2500 years ago. Their concern was that the people could be too easily swayed by populist demagogues, individuals who, either through self-delusion or basic deceit, promised everything and delivered nothing, or worse.

There’s a famous quote, attributed to Churchill, that democracy ‘is the worst system of government, apart from all the others’. That description should be taken seriously. There’s no perfect system of government, in fact far from it. And democracy, in its purest form, is never practised anywhere. I’ve heard it said that a free press and an independent judiciary are two of the ‘pillars of democracy’. This is false. They’re in fact bulwarks against democracy. Both of these institutions are elite meritocracies. Another essential bulwark against democracy is an independent science and technology sector. If we based our acceptance of science on popular vote, we’d almost certainly still be living in caves, subsisting on the most basic requirements for survival. So let’s not worship democracy, but nor should we throw it out with the bathwater.

Democracy’s biggest saving grace is that it is inclusive. Everybody gets to have a say. One possible vote for each adult – assuming there’s no corruption of the process. In this respect, if nothing else, everybody is equal. Yet we know that no two people reflect in an ‘equal’ way, whatever that means, before casting their vote. Some are massively invested in voting, others barely at all, and their investments go in innumerable directions. Some of those directions never change, others zig-zag all over the place. And history shows, as the Greek philosophers knew well, that a licence to vote doesn’t turn anyone into a discerning voter.

The USA, it seems to me, suffers from two problems – too much democracy on the one hand, and too great a concentration of power on the other. They say that in the USA, anyone can become President. This is something Americans like to brag about. It’s not true of course, but even if it were, it wouldn’t be a positive. There appears to be no screening for such candidature. Some Americans are calling for extreme vetting of immigrants, but nobody appears to be calling for the same for Presidential candidates. You might argue that the same goes under the Westminster system of democracy, but in fact there is such a system, albeit informal, for attaining the position of Prime Minister. She must first gain the approval of her party, her team (and she can be dumped by that team at any time). In the 2016 US election, the candidate Trump by-passed the party he claimed to be a member of, and appealed entirely to the people, with a wide range of vague promises and claims about his own brilliance and effectiveness. The business cognoscenti knew well enough that Trump was a buffoon, a blowhard and a flim-flam man, but they also knew that his presidency, in being good for his own business, would be good for other businesses too, especially in the field of taxation. The Republican Party as a whole – with a number of notable exceptions – fell in line. Those who believed in minimal government recognised that Trump’s noisy incompetence would actually bring about minimal government by default, and give the governmental process a bad name, which was all fine by them. The question of ethics rarely entered into it.

As a distant watcher of what I’ve called the slow-motion train wreck of the Trump presidency, I’ve learned more than I ever thought I would know about the US presidential system, and more than I ever wanted to know about Trump himself.

For some time, Trump was nothing more than a funny name to me. My first full-on experience of him must have come from an early showing of ‘The Apprentice’, probably accidentally stumbled on through channel-hopping. I’ve never taken much interest in the business world, mea culpa. Within literally seconds, I was thinking ‘If I didn’t know better, I’d assume this was a black comedy. The host talks total gobshite, and the contestants, all actors, treat him like a deity. His very name is meant as a joke – he trumps everyone else in spite of being tasteless, boorish and pig-ignorant – and the contestants, who are put up in a monument to vulgarity called ‘Trump Tower’, swoon at all the gimcrack opulence. No better caricature of the Ugly American has ever been created’. Yet I knew that this was no caricature. Or rather, Trump was a caricature, but also a real human being.

What I didn’t know then, and what I’ve learned since his accession to the presidency, was the extent of Trump’s criminality. This has been fully revealed through a couple of New York Times stories, but I first learned about it through Sam Harris podcasts and other outlets, as well as through the words and behaviour of Trump himself, and his thuggish cronies. His use of standover men, fixers and the like has all the markings of organised crime – or somewhat disorganised crime in Trump’s case. The fact that he has gotten away with this behaviour for decades is a testament to the problems of the US justice system.

Trump became President with a minority of votes – this time revealing a problem with the federal electoral system. Claims by pundits such as Niall Ferguson that Putin’s interference in that election had a minimal effect were either naive or politically motivated. The Putin dictatorship’s actions were sophisticated and brilliantly targeted, and the subsequent response of Trump to the clear evidence of that interference should have been enough to have him thrown out of office. Another massive problem with the US federal system.

Sensible Americans are now faced with the problem of getting rid of Trump, and engaging in the root and branch reform of the disastrous system that allowed Trump’s rise to and maintenance of power. It seems, from other pundits I’ve read, that the US Presidency has experienced a kind of ‘dictatorship creep’ over the years, and this now needs to be confronted directly. The judiciary, for example needs to be fully independent, with the highest positions decided upon by judicial peers. Presidential emoluments need to be eliminated through clear, solid law. Presidential pardoning powers need to be sharply restricted, or preferably removed from the President altogether and placed in the hands of senior law officials. The presentation of all available taxation documents must be a sine qua non of presidential candidacy. If Presidents are to be directly elected – not a great idea IMHO – it should be through a first-past-the-post, one-vote-one-value system. Presidential immunity must be jettisoned, and if this interferes with the President’s role, this should scream to the American people that the President’s role is too burdensome, and that governmental power needs to be less concentrated and more distributed.

All of the preceding, and more, seems obvious to an outsider, but among Americans, brought up since infancy to believe they have the best government in the multiverse, self-criticism in this area is hard to come by. Possibly more abuse of the system by Trump and his enablers will wake Americans up to what’s needed, but I remain skeptical.

Which brings us back to the immediate situation. I have to admit, what has surprised me more than anything about this presidency is that Trump’s following hasn’t been reduced substantially since falling to around the 40% mark very early in his term. Clearly, his base, much-despised by Trump himself, has gained nothing from his incumbency, as opposed to the super-rich (small in number but gargantuan in power), who see through Trump but cynically support his lazy, neglectful attitude to government administration. The fact that this base is solid and easily aroused reveals a long-standing problem in America’s individualistic, mistrustful, and massively divided society. Trump is wily enough to try to take advantage of this discontent, especially as the law appears to be closing in on him. He may not have the numbers to win another election, but he is very likely to use those numbers to do as much damage to America’s much-vaunted but clearly very fragile separation of powers as he possibly can. I’m unfortunately quite convinced that the worst of the Trump presidency is yet to come.

Written by stewart henderson

May 13, 2019 at 7:30 pm

situation USA 1: Billy Barr’s memo, etc

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silly Billy

Jacinta: So we can’t get enough of the wacky world of US federal politics, maybe from a schadenfreudish perspective, since we’re not Americans and have no intention of setting foot in that mad bad sad world…

Canto: Fully of lovely people I should add. Very diverse.

Jacinta: Very, let’s leave it at that. But we’re fascinated that Trump is still trumpeting, and that the nation’s better half, actually more than half, has still not found a way to rid themselves of him. I’m very reluctant to attribute any smarts to Trump, because criminal types, in spite of many movie depictions, are rarely smart enough to avoid getting caught. Yet Trump is still at large. He’s obviously done many things right, re self-preservation, and even self-aggrandisement.

Canto: We think of criminals as dumb because they’ve been caught. That’s why we call them criminals.

Jacinta: Good point. Anyway, the slow train crash that’s US federal politics today may not be the Trump crash. He may well walk away from the wreck unscathed. The number of final scenarios from here seems virtually infinite.

Canto: So let’s jump right in. The Mueller team has produced a report, redacted to the public, but mostly available (with almost entirely unredacted summaries of each of the two volumes, on conspiracy and obstruction respectively), which we have read and which we’ve found to be extremely critical of the administration and Trump himself. We’ll be quoting from the report throughout this fun, multi-post analysis.

Jacinta: But first we want to have a look at the role being played by US Attorney-General William Barr, who’s currently standing between the Mueller Report and its reception and treatment, by Congress, by the US justice system, and by the American public.

Canto: Barr hasn’t been the A-G for long, having taken office on Valentine’s Day of 2019.

Jacinta: A loving day for Billy and Donny. Some background to the appointment. Trump nominated Barr for the position on December 7 2018, a month after the resignation of the previous A-G, Jeff Sessions. Trump, as example F of the Mueller Report’s many examples of possible or probable obstruction of justice relates, had been trying to get Sessions to either ‘unrecuse’ himself (a legal nonsense, according to many) from overseeing the Mueller Report, or to resign, throughout Sessions’ tenure in the position. Barr, who held the position of A-G back in the early nineties, was clearly aware of Trump’s frustration with Sessions and his desire for an A-G who would protect him, support him, be on his team, etc, and had sent, unsolicited, a 19-page memo, available online, which is well worth reading. You don’t have to be a lawyer to recognise the many flaws in Barr’s arguments, you simply need a good sense of logic, decency and fairness.

Barr’s memo begins badly, with the title – Re: Mueller’s ‘obstruction’ theory. The scare quotes are meant to imply that obstruction isn’t really a thing in this case, and possibly for Presidents in general. But the most telling word is ‘theory’, because, as we have seen from the report itself, and no doubt this is a feature of Mueller’s legal career, the Special Counsel doesn’t theorise much, he relies on case law and precedent, which he cites at enormous length, to hammer home his findings.

Canto: Yes, just reading the memo, the word ‘theory’ comes up in the second and third paras. I also note the use of scary words like ‘demand’, ‘threat’, ‘interrogation’ and ‘coerce his submission’, all used in reference to Mueller’s behaviour towards Trump, all piled up in the first couple of paras. It’s no wonder that some have surmised that this memo was intended for an audience of one – especially if that person hasn’t the attention span to read more than a page a month.

Jacinta: Well, Barr quickly moves to legalese, using terms like actus rea (actually actus reus) and mens rea – which mean, respectively, a criminal act, and the intent, or knowledge of guilt. What he writes in these next paragraphs is unexceptionable – he agrees that the President is bound by standard obstruction laws, and that Nixon and Bill Clinton were rightly impeached on obstruction in the form of impairment of evidence. But then he goes on to write:

Enforcing these laws against the President in no way infringes on the President’s plenary [absolute] power over law enforcement because exercising this discretion – such as his complete authority to start or stop a law enforcement proceeding – does not involve commission of any of these inherently wrongful, subversive acts.

Barr Memorandum, June 2018, p2

Canto: Hmmm, I think I see what Barr is trying for here. But first, why isn’t it jaw-dropping to grant absolute power to one person over law enforcement? Only in America, surely. The land of the individual super-hero. But what I think Barr is arguing here is that Trump’s attempt to stop a proceeding – the Mueller enquiry – was perfectly legal due to his plenary power. So, even if Putin’s Russia interfered with the 2016 election ‘in sweeping and systematic fashion’, and did so to substantially advantage Trump, and the Trump campaign knew about and welcomed that interference, it was perfectly legitimate for Trump to shut down an investigation into that interference and the Trump campaign’s response. Based on that view, all attempts to get the enquiry stopped or to change its focus were legitimate. End of story.

Jacinta: You’re getting there. And fortunately we don’t have to rely only on our own brilliant minds to critique this memo, as many lawyers have already done so. But let’s continue to go it alone for a while, and then see what others have to say. Barr admits at the outset that he’s ‘in the dark’ about many facts, yet he’s happy to speculate, claiming that ‘as far as I know’, and ‘seemingly’, this is what Mueller is actually doing – for example ‘proposing an unprecedented expansion of obstruction laws’. Again, we’re not lawyers, but I note that Mueller cites precedent many times in his report. And he doesn’t include in his examples of possible/probable obstruction the multitudinous tweets and speeches in which Trump denigrates the Special Counsel’s investigation as a witch-hunt and the Russian interference as a hoax. In a broad sense, this appears to me to be witness tampering – using the bully pulpit in the manner of dictators of the past, repeating a lie over and over until it becomes true. The witnesses here being the American public. But back to the memo. Barr homes in on USC 1512, subsection c2, which Mueller does indeed use in his report, but c2 seems to me clear-cut about obstruction, and covers many acts committed by Trump which Barr glosses over or doesn’t mention. In fact Barr seems to think that the only possibly obstructive act committed by Trump was the firing of Comey. Here is subsection c:

(c) Whoever corruptly (1) alters, destroys, mutilates or conceals a record, document or other object, or attempts to do so, with the attempt to impair the object’s integrity, or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.

Further, Barr states that, as far as he knows, Mueller isn’t accusing Trump of evidence tampering. But how far does Barr know? This is an assumption, and on the basis of that assumption he accuses Mueller of an over-reach which in any case makes no sense on the basis of a straightforward reading of c2.

Canto: Well according to Barr, c2 shouldn’t be read as standing alone, it should somehow be read in the context of 1512 c as a whole. To me, though, it clearly reads as a necessary addition to c1, which doesn’t deal adequately with all the nefarious ways and means of obstruction. Barr describes the use of c2 as allowing an ‘unbounded interpretation’ of obstruction. But the law surely requires a definition of obstruction that captures the myriad ways that obstruction can occur – myriad but at the same time obvious to any well-reasoning witness.

Jacinta: Interesting – Mueller and Barr are friends of at least 30 years’ standing, which is a worry, and this makes me imagine, and perhaps it isn’t just imagination, that Mueller is writing up his report partly in refutation of Barr’s claims. That’s based on reading just three pages of Barr, but we’re often more miffed by the criticism of friends, and blokes are such competitive bulls.

Canto: Yes but you could be onto something there. Mueller dwells at length on 1512 c2 as the basis for his obstruction analysis, as well as on the three elements that must be fulfilled to show that obstruction has occurred – obstructive act, intent, and connection to an official proceeding – and towards the end of the report (Vol 2 III. Legal defences to the application of obstruction-of-justice statutes to the President), Mueller directly addresses the issue of 1512 c2, not in response to Barr, but in response to Trump’s personal counsel. These remarks summarise the Special Counsel’s position:

In analyzing counsel ‘s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.

Mueller Report Vol 2, p159

Jacinta: Yes I like the report’s succinctness, with the above summary being followed by a great deal of case law, constitutional argument and so forth. Of course we’re not conversant with all the precedents and the possible constitutional nuances, but we note that these arguments – which may well be directed at rebutting Barr – are detailed and cool, lacking the sense of outrage we find in Barr, regarding over-reach and unprecedented interpretations. And they do seem to confirm our amateur understanding that 1512 c2 is intended to cover acts other than the physical destruction of evidence – and those other acts would be an open-ended set.

Canto: Yes, Barr quibbles a lot on the term ‘otherwise’ in 1512 c2, and Mueller responds to that.

Jacinta: But if we move out from the detailed law into the world of basic ethics, we should be able to recognise that Barr’s position is nothing short of appalling. He tries to argue – and he did so in the senate hearing – that it’s not obstruction if the President ‘thinks’ that the proceeding is corrupt, and so wants to shut it down. So, according to Barr, Trump’s endless claims of a witch-hunt are sufficient justification for him to dismiss the Special Counsel! That’s laughable. I mean Trump would say that, wouldn’t he? Not that this is what Trump thinks. He knows full well that he’s a career criminal. It’s what every career criminal would say when brought to justice. Duh.

Written by stewart henderson

May 4, 2019 at 7:36 pm

more on the slo-mo train wreck – just look at the USA

with one comment

much truth in this, sadly

What is the greatest weakness of democracy?

The answer has been the same for over 2500 years. The possibility/likelihood of demagoguery and mob rule. It’s one of the reasons why we don’t have direct democracy – though there’s something close to a version of it in the USA. We have representative democracy, which is actually a check on ‘too much democracy’, because the representatives who are then voted on by the people (and I’m talking here about our Westminster system and to a lesser extent the US congressional system) are given their opportunity to serve in parliament/congress by an ‘elite’, or an in-group (of course there are problems with in-groups which I won’t get into here). Often they’re tapped on the shoulder or receive a late night phone call from a party apparatchik and told ‘X is retiring at the next election and I notice you’ve been active in that electorate and have held position A and B for the party, would you be interested in running for the seat?’ It’s likely the apparatchik isn’t operating on her own initiative – party officials have been observing the prospective candidate and how many party boxes she’s been ticking. So there’s this behind-the-scenes selection process going on before anything ‘democratic’ occurs. And this, IMHO, is a good thing. You don’t want just anybody even helping to run the country, let alone running it. I mean, just look at the USA.

Under the Westminster system there no Presidents, Vice Presidents or powerful unelected officials selected by the President. Yes there are chiefs of staff, private secretaries and advisors in official and unofficial capacities, but there is no unelected Secretary of State, Defence, the Treasury and so forth, who all owe their jobs to the President, albeit subject to some review.

Under the Westminster system there is a head of state whose position is entirely ceremonial. Everything she signs is at the direction of the party elected to power. That party has a leader, the Prime Minister, the first minister, primus inter pares, first among equals, the captain of the team. She works in the parliament, sitting alongside her colleagues, opposite her opposite number, consulting, sparring, winning debates, losing debates, triumphing and being humiliated on a daily basis. There’s no separate ‘executive’ space, there are no veto powers, shut-down powers, special executive powers and the like. Pardoning powers are limited, and not granted to the Prime Minister. In Australia, that power is granted to the Attorney-General, in Britain to the Lord Chancellor, but decisions are made in consultation with the whole of government. Power, in short, is more distributed under the Westminster system, and this is surely a good thing. I mean, just look at the USA.

Under the Westminster system there is only one set of national elections, not two. Britain, Canada, Australia and New Zealand – the four primary predominantly English-speaking nations who use the system – all vary as to electoral terms. In Australia, elections are held approximately every 3 years, but on no fixed dates (but elections are always held on a Saturday, and voting is compulsory). These elections are roughly similar to the US mid-term elections. People vote for their local member, based on that member’s campaign, her personal qualities, and the platform of the party she belongs to, if any. There are two major parties, of the right and left, and each party has its leader, elected by elected members of parliament. If that party holds power, she will be the Prime Minister. The Prime Minister therefore holds her position at the behest of the governing party. If the governing (or any) party loses faith in its leader, they can oust her through a vote of no-confidence, after which they will hold an internal round of voting for a new leader. The ousted leader then may or may not hold another cabinet position in government, or go to the ‘back bench’ as an ordinary elected MP. Thus, a Prime Minister may be removed from office between elections, though this is generally inadvisable as it is seen by the public as destabilising. It is a very different case, however, from removing a President from office, about which there appears to be no clear guidelines. The heavy reliance upon a President and his powers and duties appears to have created a degree of paralysis when it becomes clear that the President is manifestly unfit for office and has engaged in criminal activities before becoming President, during his campaign, and while in office. Under the Westminster system such a person would have been removed from office well before now, and it’s unlikely that such a person would ever have been placed in that office in the first place, since her appeal would not be directly to the people but to the party she is a member of. A person with an extremely shady reputation would be unlikely to appeal to a political party obsessed with the lack of rectitude of its opposite number, and therefore with its own rectitude.

A note on the separation of powers. The idea originated with Montesquieu (1748) who separated the duties of government into three, the legislative, the executive and the judicial. However, under the Westminster system, the legislative and executive branches are essentially fused. This may have strengths and weaknesses, which are alleviated through oppositional and bicameral scrutiny, as well as the democratic process. The executive and the legislative forces of government are always in dynamic interaction, so that too much fusion and too much separation can be inimical to good government. In the USA, the physical separation between the legislative and the executive appears to be the source of a wealth of political problems.

Under the Westminster system there is no direct election of any person or persons by the whole nation, either through an electoral college or by means of a first-past-the-post nationwide vote. This is a useful if not essential curb to the dangers of demagoguery. Although there is no official screening of candidates (as I believe there should be), by means, for example, of a basic political literacy test, involving an understanding of the nation’s political and legal structures, its political history, the separation of powers and other pertinent matters (scientific literacy might be included), there is at least some screening to ensure party loyalty and understanding of party policies and goals. The Presidential electoral system involves no screening, formal or informal, a fact which some people appear to view with pride.

There is no immunity from criminal prosecution for a Prime Minister in Australia, Britain, Canada or New Zealand. The Queen as titular head of state, and her representatives (the Governor-General in Australia) may be immune, but that’s hardly an issue for government. There are some protections from civil proceedings while in office, but it would be an expectation that criminal acts of politicians would be treated like those of anyone else, or even more expeditiously considering the position of public trust they hold. Although such criminal proceedings would be scandalous, they need not affect government to a debilitating degree because of the distributed nature of political power and the flexibility of government roles under the Westminster system – unless, of course, the criminality was spread throughout government or opposition ranks, which would be a rare thing. In any case, look at the USA for comparison.

Under the Westminster system there is, of course, no such thing as impeachment. That’s because illegal conduct is dealt with by the law, and other ‘conduct unbecoming’ or conduct contrary to party ideology or ethics is dealt with by no-confidence motions. A no-confidence motion needs no external justification other than that the leader has lost the confidence of her party. If the electorate as a whole disagrees with the motion it will make its view clear at the next election, or at by-elections, which can serve to restrict the power of government, or send a message by reducing its majority.

Finally, there appears to be another, perhaps less tangible difference between Westminster system countries and the Presidential system of the USA. It is rare to hear residents of Westminster system countries representing themselves as partakers of the world’s first and greatest democracy, leaders of the free world, the light on the hill and so forth. Nationalism and jingoism appears to permeate US society like no other. Such parochialism isn’t conducive to self-analysis and reform. It needs to be pointed out, if we wish to talk of ‘true democracy’, that no nation was ever anywhere near full democracy until it granted full voting rights to the female half of the population. On that very reasonable basis, New Zealand was the first true democracy. Australia, Britain and Canada all granted women the right to vote before the USA did – though in Australia, Aboriginal people of both genders weren’t granted the vote until 1962, so Australia cannot be considered a true democracy till that date. But the US Presidential system, in its difference, also represents something else – US individualism, as represented in many Hollywood movies in which one quasi-superhero saves the world more or less single-handed in the teeth of official lethargy, incompetence or corruption. It can be argued that nations can be found on an individualist-collectivist spectrum, with the USA somewhat at one end of the spectrum, the individualist end, and a country like Japan close to the collectivist end. The problem with individualism is a lack of trust in government – if not a lack of trust in each other – resulting in poor support for collective action on education, health and other social goods, and also high incarceration rates. Collectivism suffers the opposite problem, lack of willingness to speak out, to criticise, to behave differently, to seek reform when needed, though it also tends to mean reduced crime rates and genuine respect for others.

What this means for the genuine crisis the USA finds itself in is anyone’s guess. Having allowed a person with no moral compass and little understanding of the world to bypass the checks and balances of party allegiance and teamwork by appealing to a sector of the population which he actively despises (people who actually work for a living, or try to) in order to become their all-too-powerful President, the USA has deservedly lost a great deal of standing in the global community. And because of the way their system operates – so very differently from the Westminster system – the slow-motion train wreck which began with this person’s ascension to the Presidency is very far from over, and one really begins to wonder if this is the beginning of the end of the US ascendency. I for one hope not. The USA is a great, flawed nation. It can do better than this. It can recover. It can reform itself. It might look, for starters, at the Westminster system.

Written by stewart henderson

March 3, 2019 at 8:38 pm