Posts Tagged ‘law’
getting wee Donny 4: the waiting game
the USA’s massive incarceration system – and the details are much worse – but the worst get rewarded
Canto: So we’re sick of wee Donny, and more importantly there’s so much that’s more valuable to write about….
Jacinta: But to be fair, and to be positive, this is about justice and reform, so that nobody like that can ever be allowed such power in the future, in a country that claims ad nauseam that it’s a paragon of nations etc etc.
Canto: Yes, reform of the political and the justice system – neither of which is likely to happen in the near future – is obviously required in the USA, and with their new, highly-regarded Attorney-General, not yet sworn in, hopefully some vital reforms can happen.
Jacinta: So the US Supreme Court has finally decided not to take up the appeal by the trumpets regarding the handing over of financial documents to the Manhattan DA. And this is another area requiring reform – endless appeals processes which not only deliberately waste time but use up the resources of the justice system for no good reason. There need to be penalties for this, and restrictions on the appeals process, which obviously favours the wealthy.
Canto: Though as to how wealthy this money-grubbing serial bankrupt is, that’s to be ascertained….
Jacinta: He seems to always have lawyers to pursue all these appeals, and they wouldn’t be stupid enough to do it gratis – or would they? I’ve never had the money to hire any lawyer, not that I’ve ever needed to. What a boring life I’ve led. Anyway, all these financial docs relating to wee Donny’s businesses for an eight-year period, 2011 to 2019, have been handed over to Cyrus Vance, the Manhattan DA, who has hired forensic tax and financial specialists and a crack lawyer, Mark Pomerantz, all of which indicates that this will be a Big Show, involving wee Donny’s wee kiddies and his long-time CFO, Allen Weiselberg, among others.
Canto: I just hope it happens soon and doesn’t drag on – justice delayed is justice denied. Pundits are talking about the ‘bad look’ of an ex-Prez perhaps being jailed, which infuriates me. World leaders are precisely those whose wrong-doings have the most profound consequences – in this case covid-19 fatalities, vulnerable kids permanently losing track of their parents, Kurds left high and dry in the Middle East, Saudi princes rewarded for murderous deeds, and the rise of hate crimes within the USA, all due to wee Donny’s soi-disant leadership. Not to mention all the victims of a fifty-year white-collar crime spree before that.
Jacinta: Well, he’s still at large, and campaigning for his trumpets in Ohio, Georgia and elsewhere. Pundits are disputing whether or not he’s a spent political force. It’s astounding. The prospective A-G is promising to get to those behind the attack on the Capitol, and the stink leads directly to wee Donny. And there’s so much else. Where did all that 2016 campaign money go? What’s now to be uncovered from the Mueller enquiry? What dodgy material is there from his time in office? Dodgy deals with Saudi Arabia, inaction on the Khashoggi murder, and of course Russia and Putin. It goes on and on. What a nation.
Canto: People are claiming that the GOP is being destroyed by the continuing presence of this wee bloke. Poor GOP. Many of them are still talking of election fraud, though the result of the election was in line with every opinion poll, left-wing, right-wing, centrist and aggregated, over four years. Wee Donny was on the nose – something to do with his nappy – within a few weeks of being elected, and he stayed that way throughout. So his 2020 loss was as predicable as the sunrise.
Jacinta: Well I draw some hope from Michael Cohen, who’s currently capitalising on his role as reformed trumpet. He claims that wee Donny hates being the defendant in court cases, because he always loses. So bring on the civil cases as well as the criminal ones. Cohen himself is suing Donny’s Disorganisation for $2 million in legal fees – proof that even bad lawyers don’t come cheap in the USA.
Canto: Haha, actually they’re legal bills, incurred during the Mueller and congressional probes. The Donny Disorganisation promised to indemnify him for those costs, according to Cohen, who’s been assisting the legal authorities on all this stuff for some time. And wee Donny’s wetting himself about it all, of course.
Jacinta: So – felony charges in Atlanta, Washington DC and New York, and civil cases all over the place, and yet we seem to be in a holding pattern, with as yet no A-G, no charges being laid, and with Donny’s supporters going crazy for him, imagining he’ll return to office on March 4, or that he’ll have a second coming in 2024. To do what?
Canto: What about the sexual allegations? Business Insider Australia did a report on this back in 2017. Apparently some 26 women have accused Donny of sexual misconduct, but the E Jean Carroll sexual assault claim seems the stickiest.
Jacinta: Great choice of words mate. According to a recent David Pakman video, and a CNN political piece, another woman, Summer Zervos, also has a defamation suit against Donny, related to sexual assault allegations. That case was put on hold recently and will be argued before the Court of Appeals. If Donny loses these cases – and the Carroll case looks the more serious – I presume it will mean he’s been caught lying, and the women have been caught truth-telling, and then they could go on to criminal proceedings. Pakman, though, is doubtful, and talks of a two-tiered justice system, which I have to say, seems to exist everywhere. Most people who get caught up in the justice system can’t afford any lawyers, let alone those who’re adept at running out the system for their clients.
Canto: Yes I don’t suppose it’s worthwhile to spend too much more time waiting on justice for someone who’s been so easily able to flout the law for so long. And yet…
Jacinta: There are so many victims, let’s not forget.
References
https://www.businessinsider.com.au/women-accused-trump-sexual-misconduct-list-2017-12?r=US&IR=T
UH-OH: Trump May Have to Answer Rape Allegations…Under Oath (David Pakman video)
https://edition.cnn.com/2020/01/07/politics/summer-zervos-trump-lawsuit/index.html
getting wee Donny 1: 2016 campaign finance violations
one of wee Donny’s ‘reimbursement’ cheques – a smoking gun?
Canto: So we both agree that free will is a myth, and that this has major implications for crime and punishment, but we’re also both human – at least I am – and we want to see nasties being punished, and in fact we delight in it. As a person with a lifelong loathing of bullies, I’ve too often fantasised about bullying those bullies, even torturing them endlessly. And I do wonder if my sudden interest in US politics from the time wee Donny looked like he might bullshit his way into their presidency has more to do with gunning for his downfall than anything else.
Jacinta: Yes we think similarly but we have the capacity also to step back and be more analytical and curious about a system that allows such an obvious scammer to take up the very top position in what so many ‘Americans’ – and I put that in quotes coz I’ve heard quite a few inhabitants of that double continent getting annoyed that these ‘Americans’ refer to themselves in that exclusivist way…
Canto: But what should we call them? Yanks? Uessians? United Staters?
Jacinta: Yeah, good, let’s call them United Staters from now on. So many United Staters think they have the world’s greatest nation…
Canto: As the Brits did in their days of glory in the 19th century…
Jacinta: True, the myth of economic power entailing moral superiority dies hard, and jingoism is a major barrier to national self-analysis. So we, as outsiders and non-nationalists might be better equipped to examine why it is that wee Donny, with his so obvious incompetencies, manipulations and deceptions, has gotten so far and damaged so much, with so few consequences. What does it say about the USA, are these deficiencies shared by other nations (leaving aside the out-and-out dictatorships and undemocratic oligarchies), and can the USA redeem itself by imposing some sort of justice on this character, for the first time in a long lifetime?
Canto: Yes, so this series, ‘getting wee Donny’ will look at his crimes, at the system that allowed them, and how the system might reform itself, or transform itself into something more respectable, so that nothing like wee Donny can arise again. And this means not only looking at their criminal justice system, but the anti-government ideologies that have supported wee Donny’s destruction of responsible and effective government. There’s a malaise in that country, which might prevent wee Donny from facing justice, for fear that the malaise turn into a pandemic of self-slaughter. Are we facing the downfall of the USA?
Jacinta: Unlikely. Too many WMD for a start. And the nation has a lot of smarts, in spite of all the morons.
Canto: Morons with guns, and lots of them. And enough brains to make plans…
Jacinta: Yes, there are a lot of obstacles to getting wee Donny, but first I want to look at the plans to get him, now he’s unprotected by infamous and absurd claims to presidential immunity, unworthy of any decent nation.
Canto: Actually, I’d like to look at how Australia and other Westminster-based nations, and other democracies in general, deal with crimes committed by political leaders while in office. I agree with you that immunity for those in the highest political office is absurd, they’re the last people to be given immunity, and should have a whole panoply of laws applied to them, but look at Israel, where Netanyahu appears to be getting away with all sorts of dodgy behaviour. We can’t go blaming the US without checking out any possible beams in the eyes of others, including ourselves.
Jacinta: Haha well I wouldn’t describe the USA as having nothing more than a mote in its political eye, but point taken. We’ll look at the legal accountability for Australian and other political leaders as we go along, but wee Donny is now a private citizen, and I recall that one of his first crimes in relation to the whole presidency thing occurred when he was a candidate, and he paid off a couple of women to remain silent during his campaign. His then lawyer and ‘fixer’ Michael Cohen was sentenced and imprisoned for a range of crimes, including campaign finance violations at the behest of ‘individual one’, known to be wee Donny. This was confirmed by Cohen in congressional testimony, and two cheques signed by Donny, reimbursing Cohen, were presented as part of that testimony. Six other reimbursement cheques were shown to the New York Times, but it seems none of these cheques provide details of what these reimbursement were for, if indeed they were reimbursements at all.
Canto: Mmm, so far, so weak. It would be worth having a closer look at that part of Cohen’s charge sheet that includes, from memory, two charges of campaign finance violations. Also, did his sentencing go into detail about what part of it was specifically for those violations? Clearly the fact that he was convicted of of campaign finance violations makes some sort of evidence in itself. Cohen wasn’t the one running for office, he did it for Donny, as the charge sheet presumably states…
Jacinta: There’s a press release from the Southern District of New York from August 2018 stating that Cohen pleaded guilty to, among other things, one count of ‘Causing an unlawful corporate contribution’ and one count of ‘Making an excessive campaign contribution’, each of which could incur a maximum penalty of five years’ imprisonment. But here’s the thing – Cohen pleaded guilty, and wee Donny would never do that. And another problem is that, according to Stephen Weissman, writing in the Washington Post, there’s a legal requirement for campaign finance violations to be ‘wilful’, that is, done with knowledge that they’re illegal.
Canto: So in some cases, ignorance of the law is an excuse.
Jacinta: Well, yes, perhaps because some kinds of law, like these, are intricate and complex, and it might be easy to break them in all innocence.
Canto: Innocent wee Donny, sure. I think you could make a case stick here.
Jacinta: Hmmm. We’ll have to wait and see – until after this empêchement shite has failed – if SDNY goes ahead on this front. Meanwhile there are many other trails – and possible trials – to follow.
References
https://www.pbs.org/newshour/politics/how-michael-cohen-broke-campaign-finance-law
https://www.vox.com/2019/2/27/18243038/individual-1-cohen-trump-mueller
Represent Us and ‘US democracy’, part 2
Wall Street owns the country. It is no longer a government of the people, by the people, and for the people, but a government of Wall Street, by Wall Street, and for Wall Street.
― Mary Ellen Lease
So the next issue the Represent Us video raises is partisan gerrymandering, an issue here in Australia too. It’s extraordinary to think that gerrymandering has been a problem in the USA since 1788 (the term refers to a salamander-shaped redistricting map created by a governor Gerry of Massachusetts in 1812), with still no solid solution found. So, although this isn’t a new problem, the clearly political, anti-democratic motives involved should make it obvious that it needs to be dealt with apolitically, such as through the justice system or a thoroughly independent, regulated authority. The idea should be that boundaries, which may need to be redrawn from time to time, considering, for example, the general human movement from rural to urban neighbourhoods, should be drawn so as to best assure that all individual votes are of equal value in deciding representation. This would clearly mean taking redistricting out of the hands of partisan politicians and making it a function of independent bodies armed, nowadays, with computer-based maps and up-to-date statistics on human movement. Or am I missing something? Apparently. Here’s what Wikipedia says about the US problem:
Through the 20th century and since then, the US Court system has deemed extreme cases of gerrymandering to be unconstitutional, but has struggled with how to define the types of gerrymandering and standards to be used to determine when redistricting maps are unconstitutional.
… the Supreme Court has struggled as to when partisan gerrymandering occurs (Vieth v. Jubelirer (2004) and Gill v. Whitford (2018)), and in a landmark decision in 2019 in Rucho v. Common Cause, ultimately decided that questions of partisan gerrymandering represents a nonjusticiable political question that cannot be dealt with by the federal court system.
I’m not sure if this 2019 decision is due to the conservative stacking of the Supreme Court (Republicans have more financial clout but less popular support than Democrats), but it seems reasonable to my naive self that legislation can be created to ban incumbent governors etc from redrawing the boundaries of their own districts. They should be the last people allowed to do so.
So the video goes on to claim that, due to gerrymandering, ‘only 14% of House campaigns are actually competitive’. As a non-American, I’m not sure if that means just House of Reps campaigns or Congressional campaigns. In any case a USA Today article from late 2016, with the telling title ‘Fewer and fewer US House seats have any competition’. However, the author argues that it’s not just about gerrymandering. He quotes a political scientist who talks of ‘self-sorting of the population’, where citizens move around to be with the ideologically like-minded. The Washington Post has an article from mid 2017 on the trend, which, I have to say, favours my fantasy of having the USA split into two nations, on red and blue lines, and seeing how each one fares. But nothing is so simple. Interestingly, on the gerrymandering question the WaPo has this:
Some states have moved to take the redistricting process out of the hands of the legislature, turning the duty over to special commissions that in many cases are told to ignore political outcomes. Results have been mixed.
A bit vague, unfortunately. Are they talking about the results of the attempt to form special commissions, or the results of redistricting by the commissions? The point should be that redistricting by partisan actors should be banned as intrinsically a bad thing.
So let’s look at other claims in the video – 1) trillions of dollars spent annually ‘on fraud and abuse in government’ (does this mean on fighting it, or just by the fraudsters and abusers?) – 2) one in five children live in poverty – 3) the most expensive healthcare in the world – 4) more people in prison per capita than any other country. Other claims are perhaps less quantifiable – the US is losing jobs to the rest of the world, and isn’t doing enough re air and water pollution. I’ll look more closely at those first four.
On point one, the evidence is plentiful. This Medical Economics article cites a study showing nearly a trillion dollars annually in healthcare waste, most of it due to administrative complexity and over-pricing. Forbes reports here on massive waste and fraud by federal agencies, and – most egregious but least surprising – the Pentagon’s accounts are in such a mess that multiple firms of auditors have given up on auditing them. There’s no doubt that waste, fraud and abuse in this massively over-indulged sector dwarfs all others.
As to point two, poverty is of course defined differently in different parts of the world. The US website Debt.org has a section titled How is poverty defined in America?, but what follows fails signally to answer the question. Nevertheless, according to their vague criteria 22% of Americans under 18 live in poverty. With its limited government-based safety net and its massively-paid business and banking sectors, there is surely no other ‘open society’ nation that has such a rich v poor disparity.
On the third point, according to Investopedia, the USA does indeed spend more per capita on healthcare than any other nation, but without the best outcomes. Also, unlike most European nations which also spend heavily on healthcare, the USA spends vastly more on expensive private health insurance rather than subsidised government healthcare.
Point four – Wikipedia doesn’t seem to have reliable figures on incarceration rates beyond 2013, but it does state that ‘in the last forty years, incarceration has increased with rates upwards of 500% despite crime rates decreasing nationally’. It’s an outrageous and shameful statistic, but they might argue that it’s the price they’re willing to pay for their libertarianism (!). The rate of incarceration of women in recent decades has been double that of men. The price to pay for women’s liberation?
So there you go – the greatest country in the world, according to that country.
So the Represent Us argument is that this mess can be cleared up, or begin to be cleared up, if the nation is given back to the people, who are currently unrepresented, mostly. Fix the system, and you can fix everything else. According to Silver and Lawrence, and the constitutional scholars (again, that worshipped constitution) and other experts they consulted, a law (but presumably more than one) that would wrest power from the established economic elites and so move, via the people, to end gerrymandering (using independent redistricting commissions), to create ranked-choice voting (we have this in Australia, where it’s called preferential voting), which will give more scope for new parties and independents, and to automate voter registration.
As to the issue of bribery and financial corruption in the political system, here’s what’s hoped to happen once they, the people are in control. They’ll overhaul lobbying and ethics laws, so that politicians can’t be bribed, say, by promises of cushy sinecures after leaving office; they’ll mandate transparency of political spending, for obvious reasons; ‘give every voter a tax voucher so politicians spend time fundraising from their constituents rather than the [economic elites]’ (this is a strange one I’ll have to look into).
All of these reforms can be wrapped up in an American Anti-Corruption Act, which 87% of Americans already support, enthuses Josh Silver.
So the model American Anti-Corruption Act (AACA), co-authored by Silver and other luminaries, was first unveiled in 2012. I gather from the Wikipedia article on it that it does have a lot of electoral support, though 87% might be a bit exaggerated. I just don’t have that much faith in they, the people.
In any case, Silver himself has little faith in a Congress captured by the economic elites. Congress, he feels, will never turn such an act into law. So what’s the solution? I’ll look at that in my next post. Keep well!
USA – suffering for its own failure
The commentariat is divided, though perhaps not entirely on partisan lines, on the treatment of the American President.
It’s becoming clear that, in the USA and elsewhere, people are inhabiting their own social media bubbles. There’s no doubt this is a massive change. Twenty years ago, the term ‘social media’ didn’t exist. Today, when you walk down the street, or catch public transport, you will see people clutching their social media connection machine in their hands as if their life depended on it, and much of the time they’re fully engaged with it. I’m not sure that this social media world can be divided clearly on left/right political lines, but it’s fairly clearly affecting the political understanding of vast numbers of people.
The commentariat, however, more or less represent the intelligentsia, and we expect them to be less in thrall to social media. Yet the division is striking, even if, it seems, uneven. I may be biased, I’m not sure, but it seems to me that those disparaging and mocking, or claiming to be bored by the career diplomats testifying to their frustration and alarm regarding the covert operation to extort the Ukraine government, are in a minority, though a loud one. At the same time, the US President was smearing, via Twitter, the former US ambassador to Ukraine, Marie Yovanovitch, as she was about to testify. As all the evidence shows, Yovanovitch was removed from her post by Trump, and threatened by him in a phone call to the Ukrainian President, saying ‘she’s going to go through some things’. The President described this phone call as ‘perfect’.
All of this is well known, as is the reason for Yovanovitch’s removal. She was a hindrance to the extortion plot.
So why isn’t the President in prison, as should and would occur in every reasonably regulated democratic country? The case is easy to prove, it is admitted by the culprit, and involves a number of first-hand witnesses. This morning I heard a member of the commentariat lay this all out in some detail, then lament that it’s ‘very unfortunate and appalling’, and so forth. And of course many others agreed. Their helplessness is sad, indeed tormenting, to behold.
The President should be held without bail, because of his known compulsion for witness tampering and intimidation, until the date of his trial, but of course this isn’t happening, not because the President is immune from prosecution while in office, but because – despite the massive opportunity for any holder of presidential office to pervert the course of justice – there is no clear law regarding how to treat a criminal President. That this is so, is damning. Waiting for that President to leave office is not a solution, as should be abundantly clear, even to a ten-year-old.
What continually astonishes outsiders like myself is that the commentariat within the USA seems perversely unaware of this failure in the US politico-legal system. With great power – and the power of the US president is, IMHO, far too great – must come great legal responsibility. It’s one of the many failings of the American presidential system that this is not made abundantly clear though black letter law, and plenty of it. Depending on the Constitution, brilliant and wondrous though it might be, is insufficient.
Trump and the USA’s failure, part 2: effective law and distributed power
I have established the republic. But today it is not clear whether the form of government is a republic, a dictatorship, or personal rule.
Mustafa Kemal Ataturk
Australia has a Constitution, and so does Britain, but we don’t talk about them much – they don’t loom so large over the political system. The Westminster system doesn’t have an impeachment process, for the obvious reason that it is surplus to requirements. Due to its being a political process, impeachment is an unmitigated disaster.
So what happens, under the Westminster system, if a Prime Minister ‘goes rogue’ and either breaks the law or conducts herself in a manner contrary to the nation’s interest?
Well we need to step back a little to answer this question, because, under the US system, an elected President can be a rogue from the start. Trump is a clear case in point. Trump was, of course, far from being regarded as kosher by the Republican powers-that-be when he first suggested himself as a Presidential candidate, so he took his Barnum & Bailey campaign directly to the public, and in doing so highlighted the central problem of democracy, recognised two and a half thousand years ago, by Plato and Aristotle, who were unabashed anti-democratic elitists. The problem being, of course, demagoguery or populism – the notion that the public can be easily swayed by a candidate who promises everything and delivers nothing. The fact that this remains the most central problem of democracy surely says something about humanity in general – something that we may not be able to fix, but which we need to be on our guard against. Democracy is in fact a seriously flawed system – but far better than any other political system we’ve devised to regulate our seriously flawed human nature.
Under the Westminster system it’s far more difficult (though perhaps not impossible) for a ‘rogue from the beginning’ to reach the top of the political tree, because Prime Ministers aren’t directly elected. In fact the Westminster system has no correlate to the US presidential system, its general elections being much more correlated to the US mid-terms. This means, in effect, that under the Westminster system there is one set of general elections to two under the US system. Having two sets of general elections every four years seems a little over-indulgent. It means that you’re always preparing for or recovering from some election or other, and I’m not convinced that this is a good thing for your political health or your economy. And if you were ever to consider dispensing with one of those two sets of elections, clearly the Presidential elections should be the one to go.
Of course, this is sacrilege. Americans are obsessed with their Presidents – they even remember them as numbers – it’s bizarre. But it’s part-and-parcel, of course, with US individualism. It’s not surprising that the superhero is largely a US phenomenon. Many of your worst movies feature a Rambo or Indiana Jones-like character who single-handedly wins out over the baddies, often against a background of official incompetence or corruption. Think again of Trump’s OTT drain-the-swamp campaign rhetoric. And speaking of OTT, let’s not forget the carnivalesque razzamatazz of US Presidential elections, and the oodles of money that candidates are expected to raise, for no reasonable reason as far as I can see.
So, bearing all this in mind, let’s compare the situation and the job description of a Westminster-style Prime Minister with a US President.
Generally the Prime Minister is already an elected member of a party (either of the left or the right) and is chosen by parliamentary members of that party to be leader – much like a captain of a soccer team is already a player in the team and has proven herself to be experienced and knowledgable about playing the game and getting results. She has, in other words, earned the respect of her fellows. The Prime Minister works alongside her fellows, and under the scrutiny of her opponents, in the parliament. The President, on the other hand, is completely separate from parliament and surrounded by his own hand-picked team of very powerful courtiers, who need not have had any previous political experience.
The Prime Minister is able to choose her own cabinet, but only, of course, from elected members of parliament. All cabinet ministers, and indeed all MPs, are under continual scrutiny from other members of the House or the Senate. If the Prime Minister herself (or any other minister) is thought to be ‘going rogue’ or underperforming, she can be subjected to a no-confidence or censure motion in the House – requiring a simple majority. These have sometimes been successful, resulting in a change of Prime Minister between federal elections. While traumatic, such changes of leadership have nowhere near the impact that a change of President would have, since under the Westminster system the power is far more distributed, the team is far more important than its captain. The ‘great man’ Presidential system is such, however, that the only feasible way of dumping a President is by impeachment – an overly elaborate and highly political procedure that is almost designed to inflict trauma upon the populace.
There is, of course, no provision for impeachment in the Westminster system, and there has never been any need for such a process. A Prime Minister can, of course, be dumped for any number of reasons – most of which fall very far short of high crimes and misdemeanours. However, if a Prime Minister does go that far, she would be dealt with by law. There’s no suggestion under the Westminster system that a Prime Minister or any other minister or government official, would be immune from prosecution while in office. To me, the idea is totally absurd, for it seems far more reasonable that the precise opposite should be the case – that a country’s leader should be held to a higher legal standard than any other citizen. In other words, with great power comes greater legal responsibility, as a matter of course. Any political system that operates otherwise is simply rotten at its very core. It follows that the nation’s body of law, not the constitution, should govern the behaviour of those holding high office in government. For example, gaining a financial benefit from holding high office, other than the official salary and benefits that accrue to that office, should be illegal and cause for immediate dismissal in the most straightforward way. Contravening campaign finance laws should also be dealt with severely and immediately. If this causes a crisis in government, then clearly the system of government needs to be reformed, not the law. The constitution is at best a quasi-legal document, a laying out of the political system and the roles of its component parts. As an eighteenth century document, it can’t possibly be expected to cover the legal responsibilities of 21st century office-holders. That’s the vital role of a living, constantly adjusting body of law, to keep up with the legal responsibilities of a constantly modernising and complexifying political and business sector.
But let me return to the situation of Presidents, and candidates for the Presidency, since it’s unlikely that the US is going to give up on that institution.
You’ve learned the hard way that a rogue from the outset can bypass the traditional party system and win enough popular vote – with the help of a foreign nation – to become the leader of the most militarily and economically powerful nation on earth, despite having no political experience, no understanding of his nation’s history, no understanding of the geopolitical framework within which his nation operates, and no understanding of or interest in the global issues that all nations need to work together to solve. In other words, you’ve learned the hard way that anyone can indeed become your President, no matter how unsuited they are to the position. So how do you stop this from ever happening again?
Well if you insist on maintaining a system which ultimately pits one superhero against another, then you need I’m afraid, to admit to a serious but really rather obvious deficiency of democracy – the attraction of the demagogue (and I leave aside here the inherent problems of a state in which so many people can be hoodwinked). You need to vet all Presidential candidates with a set of questions and problems pertaining to both character and knowledge. Character questions wouldn’t be just of the type “What would you do if…” or ‘Do you think it is right to…’, questions that a sociopathic personality can always find the ‘successful’ answer to (though it’s doubtful that Trump could). They should be in the form of complex moral dilemmas that experimental psychologists have been adept at formulating over the years, requiring essay-type responses. The knowledge questions, by comparison, would be straightforward enough. Such tests should be assessed by professional diplomats and psychologists. This vetting, of course, cuts across the democratic process with a measure of ‘adults in the room’ intellectual, emotional and ethical elitism. Because of course you need a member of the intellectual and ethical elite to hold such a high office.
You might argue that Prime Ministers aren’t formally vetted, and that’s strictly true, but there’s at least an informal vetting system in that leaders have generally to climb from the ranks by impressing colleagues with their communication skills, their understanding of policy, their work ethic and so forth. It’s also the case that Prime Ministers have far less power than US Presidents – who have pardoning powers, special executive powers, power to shut down the government, veto powers, power to select unelected individuals to a range of high offices, power to appoint people to high judicial office and so forth. It’s hardly any wonder that characters like Trump are frustrated that they can’t take the next few steps towards total dictatorship. It’s interesting that I’ve recently heard a number of US pundits saying out loud ‘this isn’t a dictatorship’, as if they need to remind themselves of this fact!
Many will scoff at all this gratuitous advice. But you currently have a self-styled ‘very stable genius’ – a boorish, blustering, bullying, belly-aching buffoon in fact – in barricaded isolation in your White House and due to the multi-faceted failings of your politico-legal system, you can’t get rid of him as easily as you obviously should be able to, and I honestly feel that things will get much much worse before you do get rid of him. You can’t blame Trump for this – he has been exactly the same person for over 60 years. The fault lies with your system. If you don’t change it, you’ll never be able to regain the respect of the rest of the democratic world.
situation USA 2: reflections on the Mueller Report and more recent events
I’m listening with moderate interest to Sam Harris’s recent interview with a legal journalist, Benjamin Wittes of Lawfare, about the Mueller Report. Harris and I share a total abhorrence of Trump, but Harris gives the appearance of being apologetic about it, presumably because he’s an American and a Big Name with a large following, a percentage of whom are Trumpets, who either follow Harris because of his castigations of the Left and identity politics, or just like trolling and giving him a hard time. So it’s no surprise that he’s been avoiding the Trump disaster over the last year or so, and focusing largely on more positive stuff.
However, with the Mueller Report all done, and Trump so far from done, he’s found an expert to dive into the report’s findings and implications. I’m not a lawyer of course, but I’ve read the report and, no doubt like many other such readers, I feel smugly annoyed at the way it has been misrepresented by both sides of politics.
I’m broadly in agreement with Wittes’s analysis of the report, even if I find the legalistic tone a little obfuscating at times, given the nature of the crisis created by Trump’s advent. One thing, though, I continue to be disappointed about – and this is common to most legal analyses I’ve heard, is a kind of dithering or a throwing up of the hands vis-a-vis ‘the indictment of a sitting President’.
Trump should now be in prison for the campaign finance violations he directed Michael Cohen to commit (and would be if he had lost the election). It seems to me grossly unjust that Cohen – though he did commit other crimes – should go to prison for two felonies related to payments Trump arranged to be made to women he had secret relations with, and one crime of lying to Congress about Trump’s financial dealings in Russia, without Trump also being charged and convicted. Cohen was sentenced to 3 years’ prison all up, and it appears impossible to separate the sentences for crimes directed by Trump from other sentences, but it’s certain that Trump, as the ‘Mr Big’ who hired Cohen, should receive longer sentences than Cohen for those particular offences. Presumably he will be charged and imprisoned when he leaves office – for these any many other crimes. If he isn’t, this will simply add to the USA’s well-deserved global disgrace.
Anyway, the interview takes the Mueller Report’s findings in order, first its release and the behaviour of Barr, then volume one and collusion/conspiracy, and then volume two and obstruction.
Wittes first defends Barr regarding the delayed, redacted release of the report. He describes the redaction process as ‘labour-intensive’ and time consuming, so that the near 4-week lag from the completion of the 400-plus page document to its release was justified. He also feels that the redactions themselves were by and large reasonable (something that can’t really be determined until we get to read the unredacted version). My essential quibble with this claim is that everything I’ve learned about Mueller, through reading the report itself and through listening to those who know him and have worked with him, is that he is meticulous and thorough in all legal matters. So it seems to me more or less certain that he would not have handed the report over in unredacted form. Of course Barr would’ve received the unredacted report as Mueller’s boss, but Mueller surely would’ve given detailed indications of what the redactions should be, and why those redactions should be made. Had Barr accepted those indications holus-bolus the report could’ve been handed over to Congress and the public almost immediately. There are two other reasons why Barr may have wanted to delay. First, to intrude further into the redaction process (in Trump’s favour), and second, to delay for the sake of delay, hoping that the commotion might die down, that ardour might cool even slightly, and even to delay the inevitable (as the Trump administration has been doing since).
Wittes next talks about the letter Barr wrote soon after receiving the report, and its distortion of the report’s content. This of course relates to the delay in the release of the report, because Barr’s summary, which he later tried to argue wasn’t a summary, seemed to exonerate Trump of all crimes, allowing Trump and his administration to claim complete innocence. The duplicitous ‘summary’, which Mueller himself criticised severely in a letter to Barr, seems further evidence that Barr’s delayed release of the redacted report was strategic. The duplicity is revealed, as Wittes points out, in an analysis of Barr’s selective quotes from the report, published in the New York Times. Having just read the letter myself, I find this quote particularly disturbing:
Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.
Having read volume two of the report, and listened to many legal analysts discussing it, I find this pretty astonishing. You’d have to wonder what could constitute obstruction, according to Barr (though the answer is pretty evident from his 19-page letter on the matter which got him appointed A-G in the first place). As to Rosenstein, his role in the administration is being reassessed in the light of this endorsement.
But now I need to interrupt this analysis in the light of a recent brief press conference held by Mueller. He has used this platform to stress the finding that, due to Department of Justice policy, charging the President with a crime was ‘not an option we could consider’ – that’s to say, it was never on the table from the start. This, presumably, regardless of the crime – murder, rape, grand larceny, treason, no crime is so heinous that it needs to be dealt with pronto. Instead, Mueller refers to his introduction to volume 2 of the report. Here is the essential message from Mueller’s presentation:
If we had confidence that the President clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the President did commit a crime. The introduction to volume 2 of our report explains that decision. It explains that under long-standing department policy a President cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and kept from public view, that too is prohibited. The Special Counsel’s office is under the Department of Justice and under the regulation it was bound by that department policy. Charging the President with a crime was therefore not an option we could consider. The department’s written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation…. First the opinion explicitly permits the investigation of a sitting President because it is important to preserve evidence while memories are fresh and documents available…. And second the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrong-doing.
The words in italics are, importantly, Mueller’s emphases. As just about every pundit agrees, Mueller has emphasised this part of the report very deliberately to indicate that, now, that other process should take over. That’s to say, congressional oversight or impeachment.
But what Mueller and almost everyone else in the USA doesn’t get, is that this other process is fundamentally flawed because it is a political process. It is simply wrong to shirk the legal responsibility of dealing with legal issues, for one person only – the POTUS. It is, in fact, corrupt, to a degree that is so screamingly obvious to an outsider like me, that I feel like committing the whole nation to an institution for the criminally insane. And if the US Constitution permits this, so much the worse for that constitution. I must admit to being sick to death of the US Constitution being referred to in reverential and worshipful tones by Americans. It seems to make critical analysis impossible, almost treasonous. In any case, the implication of not being able to charge the President with clear-cut criminal behaviour, is this – with great power comes great immunity.
By not dealing directly with Trump’s criminality, or Presidential criminality in general, for whatever lame historical reasons, the Department of Justice has handed this situation over to partisan players, most of whom are not qualified or educated in law. This is wrong. And I’ve not heard a single US ‘expert’ point this out. To describe this as extremely frustrating is a vast understatement. I note that Mueller uses the weasel term ‘wrong-doing’ instead of crimes, to try to get the DoJ off the hook. It won’t do. Trump has committed crimes. His ‘fixer’ is in jail for some of them, and most lawyers happily say that they would win convictions for others. This whole sorry situation will damage, deservedly, the USA’s reputation for a long time into the future. Permanently, in fact, until it gets it the criminal liability of its all-too powerful leaders sorted out. Currently their President is above the law, and that’s the example they’re setting for heads of state everywhere.
situation USA 2 – very likely, the worst is yet to come
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.
situation USA 1: Billy Barr’s memo, etc
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.
Trump – still watching the slo-mo train wreck
Jacinta: Well haha, you made a prediction to me last December that Trump would be out on his highly intelligent arse by the end of this year – how’s that going?
Canto: Well after making that prediction I’ve embarked on a bit of a journey re US politics and the presidential system in particular, and as you know, what I’ve discovered has shocked me to the core. So, yes, he probably won’t be out by year’s end, but he obviously should have been, well before this. Basically, as I see it, the sensible folks of the US, the adults, are paralysed in the face of a crooked, incompetent, solipsistic pre-teen brat being elected, with less than half the votes, to the most powerful position in the most economically and militarily powerful nation on Earth. They just haven’t got the political system, the checks and balances, to deal with him, in spite of their constant braying about being ‘the world’s greatest democracy’. Still, as a number of US pundits have pointed out, he’ll be much closer to his end when this month comes to an end. And I find it all very engaging, in a morbid kind of way.
Jacinta: Well, yes, we’ve referred to it for some time as a slo-mo train wreck, and it looks like some of the more visible damage might be witnessed in the next few weeks.
Canto: Follow the money. Which takes us to Russia. We’ve long known that Trump was saved from his bankruptcies and financial incompetence by Deutsche Bank, the Russian money-laundering bank, that he’s very secretive about those finances, and his tax returns haven’t been prised from him…
Jacinta: But the Mueller team have subpoenaed Deutsche Bank, haven’t they? Specifically for Trump’s business finances? I mean, why else?
Canto: I’ve long said that the Mueller team have such a feast of incriminating info on Trump and Russia that even the world’s greatest glutton couldn’t consume it. And there’s plenty of murky stuff available to the public, as reported in The Moscow Project, for example, and in presentations by MSNBC journalist Rachel Maddow, among others.
Jacinta: The word ‘kompromat’ comes up a lot – compromising information or indebtedness, used to exert leverage over powerful individuals or business entities. Though I’m sure Russia-Putin never dreamed they would one day have such leverage over a US President.
Canto: Well that’s the thing. They did dream about it, and what’s more worked to make it happen. Remember that Trump didn’t win the popular vote, he won the electoral college. And remember that the Russians interfered with that election. I haven’t looked into this in detail, but the claim made, for example, by the historian and commentator Niall Ferguson, that Russian interference in the 2016 election was negligible as to results, that claim is bullshit, I suspect. They targeted ‘purple states’, theirs was a value-for-money operation, very sophisticated. I recall reading the speaking indictment on the hacking, and noting the mention of ‘known and unknown individuals’ on the American side of that hacking. So Mueller knew then about some American conspirators, and probably knows more now. Trump goes on about ‘no collusion’, but there clearly was a conspiracy, to win the election with Russian assistance in return for removal of sanctions and god knows what else.
Jacinta: Kompromat indeed. Certainly seems to explain Trump’s behaviour re Russia-Putin from before the election to now. What’s amusing is that he’s not only parroted ‘no conclusion’ endlessly, he’s also repeated the ‘no deals with Russia’ mantra ad nauseam. Pretty dumb, because it soon becomes clear that when he repeats things like that, he’s lying.
Canto: Dumb but hey, he’s never been jailed or had to pay much of a price for his misdeeds. But let’s focus on Russia itself – or Russia-Putin as you call it (I like that combo). As you know the country is run, or rather fleeced, by a bunch of billionaire oligarchs who are Putin’s puppets, and if they don’t do his bidding they’re fleeced in turn by Putin and either jailed or forced into exile, or worse. Trump enters this network of fiends as the archetypal bumbling braggadocio. These guys love to sneer at Americans, no doubt seeing them as amateur scammers and thugs compared to themselves. And Trump is the ultimate incompetent amateur, as if created for their cynical purposes. Now, as is well known, Trump has filed for bankruptcy six times, from 1991 to 2009. It’s called Chapter 11 bankruptcy and it’s designed to enable restructuring, so Trump says he uses the system to his benefit, but of course little of what he says is true or even makes sense…
Jacinta: But surely it’s true that he hasn’t suffered much from his bankruptcies.
Canto: That’s true, and there are obviously major flaws in US corporate law that allow him to get out from under while others apparently foot the bill. But what’s interesting is that, as American banks saw him more and more as an unstable businessman, they turned off the tap. One bank that didn’t, however, was Deutsche Bank – the Russian money-laundering bank. Not only that, Trump was increasingly interested in business relations with Russians, probably due to their lax standards. Trump Tower Toronto was largely funded through VEB, a Russian state-owned bank once chaired by Putin himself, and Russian investments into Trump real estate in the US are too numerous to list. And that takes us to more recent events. Trump and his enablers were trying to build a tower in Moscow in the run-up to the campaign. Clearly this was of interest to Russia-Putin, so again the VEB was heavily involved. Imagine if candidate Trump, who already shared many of Russia-Putin’s anti-democratic proclivities, could be installed as President, in return for financial assistance, which would be tied to the lifting of US sanctions on Russia, and other sweetheart deals. What a coup that would be.
Jacinta: Yes, and all that is pretty well established, I mean in the public realm. But what about the law? Which laws have been broken? We both agree that impeachment stinks, so how exactly is the law going to deal with Trump and co?
Canto: Well, let’s leave aside the probable case that the Mueller team won’t have Trump arrested, due to the vast powers they’ve given their President. Let’s imagine it’s a more sensible system in which the head of state is as immediately accountable for his crimes as any other citizen. I’m not an expert on US law of course, but as often mentioned, Cohen has pled guilty to two felony offences, campaign finance violations, and has stated – obviously correctly – that they were directed by Trump. The FBI, or whoever, already knew that as they have all of Cohen’s paperwork, emails, texts, mountains of the stuff. So that’s two dead certain offences.
Jacinta: Cohen is trying for what we know Flynn will likely get – no prison time. How does that affect Trump?
Canto: Badly. I love it that Trump is lambasting Cohen for doing the right thing, and praising Manafort and Stone for doing the wrong thing. Now all Manafort can hope for is a pardon, from a surely doomed President.
Jacinta: So if Trump pardons Manafort and then he goes down on multiple charges – financial misdealings, conspiracy and obstruction of justice – what then?
Canto: The pardon shouldn’t be allowed to stand, and that’s another test for the US judicial system.
Jacinta: So should we try to find out the precise laws that have likely been broken?
Canto: That may be a difficult, or at least a painstaking task. There are lawsuits pending against him however. For example there are a couple of suits against him for violating the emoluments clause of the US constitution, one by Citizens for Responsibility and Ethics in Washington (CREW), and one filed jointly by the Attorneys-General of the District of Columbia and the State of Maryland. This will be the first time the emoluments clause has been tested in court. The D C and Maryland suit was filed back in June 2017 but there has been action on it recently, with subpoenas issued just a few days ago for Trump’s financial records relating to his D C hotel. So that’s one to watch on the sidelines. But generally there will be laws relating to money laundering, conspiring with foreign entities to interfere in an election, and obstruction of justice, that will likely apply to Trump. The obstruction of justice matter, which no doubt includes lying to the FBI (but perhaps not lying about the FBI!) is unfortunately a bit vague. In any case, we just need to stop hyperventilating – or I do – and watch it all play out. I’d love to see Trump in jail, but the other side of me knows he can’t help himself, he is what he is. The real problem, as I’ve always said, isn’t really Trump but the American political system, most particularly the Presidential system. I want to see if they try to fix it, post-Trump.
waiting for Mueller – the many and varied problems for Trump
There are undoubtedly billions of worthier subjects to focus on than Trump, but I do find it hard to look away for long from the slow-moving train wreck – and I’m still nursing my prediction that he’ll be out by year’s end. Of course I keep stumbling at obstacles, and anything that gets in the way of justice being the same for everyone seems to me an unnecessary and illegitimate obstacle. Now it’s this ridiculous notion that you shouldn’t charge a President around election time. It’s bullshit. It should be absolutely clear that you should charge any felon precisely when all is in order to charge him, no matter what time of year it is.
But that apparently isn’t how it goes in the USA, and so we have to wait for two whole months to bring charges, assuming this ‘etiquette’ is followed. And then what happens after the mid-term fall-out? Too close to Christmas?
Needless to say, I’m completely opposed to the truly criminal notion that you can’t charge a head of state while in office. Only in America is such a notion even thinkable – a testament to one of the worst political systems in the western world.
Anyway, no sense bemoaning a system that the US Congress, fourth estate and intelligentsia are too jingoistic to even be capable of examining let alone reforming. So instead I’ll focus here on the legal jeopardy Trump finds himself in from various directions, as we wait for the Mueller team to hopefully finish him off.
Firstly the Michael Cohen case. Cohen is currently out on bail awaiting sentencing on eight criminal counts he has pleaded guilty to. According to this article in The Hill, from August 21, Cohen won’t be sentenced until December 12, which seems an eternity to me. It’s expected that he’ll do a fair amount of jail time.
What has this to do with Trump? Cohen was his fixer and I’m not sure how many of the felonies he’ll be sentenced on relate to Trump or his organisation. Some reports claim that more than one felony relates to the 2016 campaign. What is clear is that Cohen seems bent on revenge for the way Trump, who never treated him particularly well in spite of his loyalty, dropped him like a hot potato shortly after Cohen’s offices and home were raided by the FBI. In pleading guilty to one charge of campaign violations relating to the Stormy Daniels payment, Cohen implicated Trump as the person who directed his activities. This should have led directly to Trump’s arrest, but for some reason this hasn’t happened. In any case it stands to reason that whatever Cohen’s sentence on this particular count, Trump’s should be greater, as the ‘Mr Big’ in this case.
Of course Trump’s legal jeopardy from the Cohen direction is probably, or hopefully, more considerable than just the Stormy matter. Cohen struck a plea deal with the SDNY, clearly in the hope of getting a lighter sentence in return for dirt on Trump, but the plea deal seems to have been minimal, most likely because the Mueller team, who are surely in close contact with SDNY, have enough dirt on Trump already (particularly from the raid on Cohen’s offices and home, conducted by the SDNY, but nothing prevents the FBI from sharing information – in fact such sharing is essential), and they don’t like working with criminals if they can help it. Still, they may call on Cohen if they need to, which all spells trouble for Trump. Meanwhile, Emily Jane Fox writes In Vanity Fair (September 11) that Cohen’s attorney is set to meet New York State tax officials who are looking into the Trump Organisation’s finances. Hopefully Cohen will have more damning stuff on that topic. I should also add that it’s this SDNY probe into Cohen that has granted immunity to the CFO of the Trump Organisation, as well as to David Pecker, chief of the National Enquirer, a gutter mag dedicated to spruiking Trump’s ‘qualities’ and to ‘catching and killing’ negative stories about him. So, more legal jeopardy there.
Secondly, on those New York State tax officials. A Washington Post article from July 20 revealed that the state’s tax agency is investigating Trump’s personal charity (sic), the Trump Foundation. New York’s embattled governor, Andrew Cuomo, who appears to have launched the investigation under pressure from constituents, has said that the probe could lead to criminal charges. Trump’s children would be involved as well as himself.
Thirdly, the tax probe comes on the heels of a civil suit, filed in June by the New York Attorney-General, claiming that Trump and three of his children ran a charity ‘engaged in persistently illegal conduct.’ The Attorney-General’s department has been considering pursuing criminal charges, but apparently there’s a race to become the next Attorney-General there, and the Democratic candidates are all promising to go after Trump if elected. They’re hoping to focus on the Emoluments Clause in the Constitution, which is altogether a good thing. Not being well up on how the US electoral system works, I’m not sure how long it will take for this all to be sorted, but it definitely looks like there will be an annihilation of Republicans in the mid-terms, and this Attorney-General race will be caught up in that. So, more trouble for Trump.
Fourthly, the next Manafort trial starts soon, and it involves Russia. Manafort is apparently trying to negotiate a plea deal as I write, one that won’t involve dumping on Trump, and won’t involve actually going through the trial process. It’s hard to imagine that happening. An article in Fortune, out yesterday (September 13) claims that a deal has more or less been struck, but it’s hard to imagine such a deal not involving Trump. This deal may be announced as early as today. Considering that the Mueller team holds all the cards – a slam-dunk set of convictions on the second trial, and the possibility of retrying the ten counts that were left undecided in the first trial, it’s hard to imagine that Mueller wouldn’t have extracted some damning evidence about Trump, the campaign, and Russian money in exchange for any deal. Maybe Trump won’t be touting Manafort as a ‘great guy’ for much longer – but on the other hand, Manafort may just be lookingfor a way to avoid the expense of a court case he can’t win, and he’s hanging out for a pardon from Trump.
And fifthly, the Mueller probe itself. I see it dividing into three parts – conspiracy, obstruction of justice, and financial crimes.
Conspiracy charges will depend on whether Trump and/or his campaign knew about the Russian interference in the 2016 elections, an interference amply documented in the two speaking indictments, in February and July of this year, which together charged 25 Russian individuals and three Russian companies with hacking of servers and hijacking of social media sites to influence the election outcome, entirely in Trump’s favour. No American citizens were charged, but other persons ‘known and unknown’ to the investigators were repeatedly mentioned. The second indictment also raised profound suspicions that the Trump campaign had knowledge of the hacking, because of certain dates matching comments at the time by Trump himself. Apart from this there is the meeting at Trump Tower on June 9 2016, which I personally think is less significant, but about which there have clearly been cover-ups and lies by the Trump campaign and administration, including by Trump himself. It has always appeared to me highly likely that Mueller has an abundance of material on this conspiracy.
On obstruction, although much of the focus here has been on the firing of James Comey for the illicit reason of trying to stop the Russia investigation, it seems clear to me that the relentless public attacks on the Mueller enquiry, the FBI and the DoJ, and the hounding of specific officers within those departments, are all very serious cases of obstruction of justice, so flagrant and criminal in intent in fact that they should have warranted dismissal from office long ago. These are questions, of course, about the limits to free speech, but one would think that such limits would indeed apply to the Head of State when speaking of cases in which he himself is implicated. The more power you have to influence, the more responsibility you should bear in speaking of such institutions as investigating services, the judiciary and the free press, a matter which should be inscribed in law. In any case it’ll be interesting to see what the enquiry’s findings are on this topic. They should be fulsome.
On financial misdealings and any other bits and pieces of criminality that might be uncovered during the enquiry, There’s potentially a lifetime of stuff there. It’s pretty certain that Mueller has all the tax returns, and knows a thing or two about Deutsche Bank’s dodgy dealings with Trump. This is the most murky of areas, obviously, but there are outstanding financial experts on Mueller’s team who’ll be having a wonderful time joining all the dots.
So who knows when the fireworks will start, but I’ll be happy to be viewing them from a safe distance. Meanwhile I’ll try, really try, to focus on other things for a couple of months.