Justice Denied

The race to the bottom proceeds apace. Now Donald J Trump has some serious competition for being the most contemptible politician of the year.  That competitor is the ranking member of the Senate Judiciary Committee, Diane Feinstein (D, CA).  While the FBI was conducting background checks on Brett Kavanaugh, Senator Feinstein received and sat on a charge that  Judge Kavanaugh, when he was 17, attempted to rape a 15 year old girl. Most of the sane world would think that might be worth looking into post haste. 

Not Senator Feinstein.  The first order of business was to make sure that the lawyer the accuser hired was a Democratic Party activist. Then, at the very last minute, the allegation was leaked to the press, guaranteeing that any inquiry would be a public spectacle on the order of the Salem Witch Trials. And sure enough, all the Democrats on the Committee—every last one—announced that they believed the accuser before the accused even spoke. Not only that, several Democratic Senators, including Majority Leader Chuck Schumer (Harvard Law, 1974) and Chris Coons (Yale Law, 1992) announced that the burden of proof rested not on the accuser, but the accused. 

This despite, or maybe because of, the fact that the accuser says she does not know when the attack happened, the address where it happened, how she got there or how she got home. Moreover, none of the people she placed at the scene can corroborate her story. In fact, all of them deny that it happened at all. Additionally, a self-identified very close female friend of hers whom she placed at the scene says that (1) she wasn’t there (2) doesn’t know Brett Kavanaugh anyway, and never met him. 

So, Judge Kavanaugh is left with the impossible task of proving he did not commit a criminal act on some unspecified date, at some unspecified time, at some unspecified location. Because now the presumption of innocence has been replaced with the presumption of guilt. Especially so if the accused is a white male and the accuser is female and should therefore be believed. 

Committee Democrats argued that the hearing was not a trial, but a job interview. Consequently, normal standards of due process do not apply. This, of course, is nonsense. The assumption of due process permeates, or at least used to permeate, daily life, including job interviews. Does anybody seriously believe that equal treatment under the rules does not, or should not, apply in the daily activities of life? That there should be separate rules and operating standards for different classes of people? That it’s OK to deny due process to job or credit applicants? Apparently Committee Democrats do.  

Ritual Denunciation and Investigation

What we have here is not a search for truth, but a ritual denunciation designed to humiliate and silence  skeptics of progressive pieties. Or as Democratic Senator Mazie Hirono (Georgetown Law, 1978) so delicately put it “And I just want to say to the men in this country: Just shut up and step up. Do the right thing for a change.”  Note: For a change. Presumed guilty.

So now that the accused has been declared guilty, it is time for an investigation. Or rather, another investigation. This despite the fact that the ranking member kept the accusation hidden so it couldn’t be investigated for a month. Nevertheless another investigation has been demanded by Committee Democrats even though they have already announced they are going to oppose the nominee anyway.  Further it is crystal clear, or ought to be, that another investigation will not, cannot, establish a single substantive clarifying fact with respect to the question.  How could it?

The FBI in its investigation will take statements from the parties identified by Professor Ford as having been at the party where she claims to have been assaulted by Brett Kavanaugh. But those parties have already given statements under penalty of felony. And those statements contradict Professor Ford’s testimony. They say either that they did not attend any such party, or that nothing untoward happened. If one of those witnesses were to change his (or her) story why would that make them a credible witness for the accuser?  Why are they not credible now? 

The answer is simple. They haven’t produced the answer Committee Democrats want to hear. So now it’s time to shift the goal posts. Senator Cory Booker  (Yale Law, 1997) went so far as to argue that those who do not oppose Kavanaugh are simply “complicit in evil”. Beyond that, Democratic Committee member tactics included arguing that Kavanaugh routinely drank himself into a stupor, so much so that he couldn’t remember his various rape attempts; they included unsubstantiated (and naturally last minute) charges that he drunkenly exposed himself during a bachannal in his Yale dormitory, and that he and his friends participated in gang rapes. Surprisingly enough, these charges were unearthed at the last minute by lawyers who are activists in the Democratic Party. 

Delay, Delay, Delay

Now we are faced with another delay—this time one week—so the FBI can conduct its umpteenth investigation. The investigation will consist of interviews which will be forwarded to the Judiciary Committee. At which point one of two things will happen. Either the interviewees will stick to their stories which flatly contradict Dr. Ford’s testimony, or they will change their stories thus destroying their credibility. Neither case is helpful to Professor Ford’s case. 

Inevitably, when the results of the investigation arrive, Committee Democrats are going to argue that the investigation was rushed or incomplete. They will probably ask for more time to study the report, or perhaps come up with another list of witnesses to be interviewed. Anything to delay a vote on the nomination until the mid-term elections. Because that is the goal and always has been. 

Justice Denied

We will never know the truth of what, if anything, happened with respect to the sexual assault that Professor Ford alleges. But there are some things we do know. One is that Professor Ford’s story, which never would have made it into a court of law, was never seriously vetted. Neither was her credibility. Another is that if she was assaulted by Kavanaugh, or someone else, justice will never be done. Neither will Judge Kavanaugh, assuming he is innocent, see justice done. His name and reputation have been deliberately and  irreparably harmed as part of a conscious strategy employed by Committee Democrats and their allies. 

Most importantly, for those who choose not to turn a blind eye, it is clear to see that the leaders of the Democratic Party, many of whom went to the nation’s finest law schools, have no interest at all in the pursuit of truth or justice. They have clearly demonstrated that for them  justice is not blind; ideological adversaries are not to be granted due process; the presumption of innocence is to be applied selectively; adversaries are evil and deserve to be destroyed. 

In the matter of the Kavanaugh nomination Committee Democrats have strayed far outside the democratic norms that they claim to hold so dear. They have fundamentally inverted political-legal norms and rules to designed to protect individuals from the arbitrary and capricious use of governmental power. In so doing they have displayed a totalitarian mindset that should be disturbing to all—including those who profess to be disturbed at President Trump’s erratic and authoritarian behavior. Their behavior suggests that their true concern is not with  authoritarian power per se, but the person exercising it. 

JFB

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Freedom Matters

“We fight to be free.” George Washington

“Freedom’s just another word for nothing left to lose” 

Me and Bobby McGee, written by Kris Kristofferson, made famous by Janis Joplin in her “Pearls” album. 

 

 

Judging from the adulation that most liberals are raining down on the recently deceased John McCain you would think that they voted for him in 2008 when they had the chance. But of course, they didn’t. Instead the prospect of a McCain presidency had them resort to their go to playbook of slashing attacks and smears. Maybe the worst of it was an evidence-free suggestion by the New York Times that McCain had an affair with a lobbyist who had business before his committee. Anyone who doubts this should check out the Times stories in the links here and here. 

It is absolutely true that McCain reached across the aisle to promote what he believed to be good policy. It is also true that the favor was not returned. And there is a reason for that. Despite all the rhetoric, progressives simply do not believe what McCain believed about the promise of America. 

Consider McCain’s rhetoric when he was awarded the Liberty Medal in 2017. 

“We are living in the land of the free, the land where anything is possible, the land of the immigrant’s dream, the land with the storied past forgotten in the rush to the imagined future, the land that repairs and reinvents itself, the land where a person can escape the consequences of a self-centered youth and know the satisfaction of sacrificing for an ideal, the land where you can go from aimless rebellion to a noble cause, and from the bottom of your class to your party’s nomination for president.”

Now consider the (recent) rhetoric of Andrew Cuomo. 

“We’re not going to make America great again. It was never that great.”

By now it should be obvious that the America that John McCain believed in is not the America that progressives see. They see an America shot through with injustice and riddled with race, class, gender and sexual oppression. The grim social justice warriors of the left can never reach across the aisle to do what’s best for America because they fundamentally reject the founding principles of what they still think of as Amerika. 

Fifty years of progressive attacks on the culture and institutions of American society have left their mark, and not for the better. Who doubts that the degradation of the culture was a factor, and maybe the most important factor, in the election of Donald Trump as President? 

John McCain was different because, without being doctrinaire, he defended those institutions and traditions that made America great. And he understood that freedom isn’t just another word for nothing left to lose; that there is a reason why 13 small colonies on the Atlantic Coast grew to be the mightiest and wealthiest nation on earth. 

It’s called Freedom. 

JFB

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The Beginning of the End?

The Fat Lady may not be singing yet, but she is clearing her throat. If Michael Cohen is to be believed, Mr. Trump probably committed a raft of crimes when he directed Cohen to buy the silence of women with whom he had sexual liaisons in order to protect his 2016 Presidential bid.  Since there is little doubt that Cohen made the payments on Trump’s behalf, the question of criminality revolves around intent.

The question of intent is not straightforward because Trump can argue that he had dual intent, meaning that when he directed Cohen to to make the payments he had more than just politics on his mind. Specifically Trump can argue that he wanted to spare himself and his wife embarrassment. The legal question then becomes this: Would Trump have made the payments had he not been a candidate in a political contest? Arguably, if it turns out that Trump has a (pre-politics) history of buying women’s silence, his legal position may be strengthened. 

But his political position is another story. Somewhere along the line it is going to occur to Republicans that they would be better off with Mike Pence in the White House. Similarly, it is eventually going to dawn on Democrats that they are better off with a wounded Trump than a scandal free Pence. But the base of the Democratic Party wants blood, and if they re-capture the House in the midterms, they are likely going to impeach Trump. However, absent new and substantive information, the chance of a Senate conviction is vanishingly small. Trump could emerge from impeachment and acquittal more politically powerful. Clinton redux. 

Leaving aside the histrionics of the base, the Democrats really have to think long and hard about whether they want to impeach a President for process crimes. Suppose proof were to emerge that Trump ordered the payments solely because of political considerations. That’s easy enough to believe since he appears to be beyond embarrassment about anything. Even so, that type of process crime is pretty thin gruel for overturning a Presidential election.  Students of the game will recall that is the essence of the Clinton argument during his impeachment trial. 

During the Clinton impeachment saga the Republican chorus insisted that Clinton lied under oath and as a result, ought to be removed from office in order to protect the integrity of the justice system. And right on cue, the Democratic chorus responded that it was “only about sex” so it didn’t matter. That was about the time that Gloria Steinem invented the “one free grope rule” which has now been modified and adopted by Evangelicals. So at this stage of the game it’s safe to say that the difference between now and then is that the teams have switched Jerseys. 

But the main substantive issue still remains on the table. Did candidate Donald Trump somehow collude, cooperate or coordinate with foreign powers, especially Russia, for the purpose of influencing the election in his favor? That remains a serious question and it should be answered. The best way to do that is for special counsel Robert Mueller’s investigation to continue. Once Mueller has wrapped it up he will send a report to Congress at which time the facts be available for all to see. 

Then Congress can do its job. For a change. 

JFB

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Richard Milhous Trump

The political commentariat has spilled a lot of ink trying to understand what the Trump phenomenon is all about. But no one has come up with a convincing story about why it is that candidate, and then President Trump has managed to break every rule in the book with near impunity. Perhaps it is because the rules he breaks with such obvious delight were designed for a very different day and age, with very different sensibilities.

I submit the Trump phenomenon is not primarily about politics; it is about culture. He is, unfortunately, representative of the current damaged state of American culture. Consider for a moment, Mr. Trump’s behavior and his policy agenda and think about when we have seen this before.  Most recently it was the backlash against the cultural revolution of the 1960s that propelled Richard Nixon into the White House. 

Trump’s behavior is routinely crude, juvenile, narcissistic and authoritarian. It is Manichean; driven by class consciousness, complete ignorance of economics  and a whole-hearted disdain for political and social norms. His “America First” policy agenda champions exclusion rather than assimilation. It rests on the delusion that building physical, financial and administrative barriers between the United States and the rest of the world will bring back the mythical America of the 1950s.  It is a zero-sum game. The Sharks versus the Jets. Differences are solved with fists. 

The America First urge is nothing new in American politics; it has always lurked a bit under the surface. There are however two differences this go around. First, during previous bouts of isolationism America was a bit player on the world stage. Second, Donald Trump has managed to do what no other politician has done before. He built a coalition that capitalized on populism and isolationism. He combined the Midwestern prairie populism of South Dakota’s George McGovern with the Southern populism Alabama’s George Wallace. By combining the two he captured the electoral college (although not the popular vote) without the votes of upmarket coastal elites and ethnic minorities, both of which are concentrated in urban enclaves. 

 

Barring some catastrophic political error (to which Trump seems strangely immune) it will be difficult for someone to upend his coalition. His backers have made an emotional and class based commitment, not a policy based one. This makes them difficult to dislodge, particularly when the opposition keeps on insisting that Trump voters are Neanderthals. Deplorables as Mrs. Clinton put it. Consequently the 2020 Presidential election is starting to shape up like the 1972 contest between George McGovern and Richard Nixon. 

When George McGovern won the 1972 Democratic nomination, he led his party sharply to the left, and then went on to carry Massachusetts, losing the other 49 states to Richard Nixon. McGovern’s capture of the Democratic Party with his call to “Come Home America” led it into the political wilderness for 2 decades until Bill Clinton captured the White House for the Democratic Party in 1992. Note that Jimmy Carter’s narrow 1-term victory was an aberration, the result of disgust with President Ford’s pardoning of Richard Nixon. 

As President, Nixon extended Lyndon Johnson’s welfare state, created affirmative action, imposed wage and price controls, and made detente with the Soviet Union a core element of U.S. foreign policy. At the same time he derisively referred to William F Buckley and California Governor Ronald Reagan as right wing troublemakers and elitist idealogues. Sound familiar?

Nixon co-opted Wallace’s blue collar populists and appealed to the patriotism of middle class voters. These were the voters he called the “Silent Majority”; voters who were not necessarily political conservatives, but who resented what they saw as the condescension of liberal elites. That ought to sound familiar as well. 

Meanwhile, like before, the Democratic Party is veering sharply left. And like before the Republican Party is either supporting or remaining silent about Presidential policy initiatives (like tariffs, deficit spending and industrial policy) that it had previously professed to abhor. Which is to say that both parties have turned sharply left in favor of more central planning; the question is one of degree, not direction. Just as under Nixon.

What separates Trump from Nixon is Trump’s ignorance as well as his outlandish and typically boorish public behavior. In fact, his profanity laced stream-of-consciousness speeches may be one factor that cements the tie between Trump and his fans. He talks like them; he is one of them. He is not a “suit”. Far from being a liability, his coarseness may be a political asset, at least in the short term. 

For some reason or other a lot of conservatives who used to quote Toqueville and Burke about the importance of the pursuit of virtue to the political health of a society seem to have lost their old speeches. Not that progressives are much better; quite a few including Kamala Harris, Tom Perez and Kirstin Gilibrand deliberately use profanity to develop “street cred” with the base. Bill Clinton’s town hall discussions about his underwear preferences now seem positively demure. So it should be no surprise that public discussions of policy issues are often fact free affairs framed in language designed to appeal to the prejudices of the audience. 

But the sloppy (at best) and often vulgar language used by politicians is detrimental to the health of civil society, social order, decency and compromise. It is also an indicator of sloppy thought. And it leads to bad policy, which often produces awful results. In this regard it is worth taking a trip down memory lane to recall some of Nixon’s policy making, which bears more the a passing resemblance to Trump’s.  

It is, for instance, well worth remembering that Nixon’s economic policies which included wage and price controls and attacks on the independence of the Fed, produced the runaway inflation of the 1970s. It ultimately resulted in severe stress in the financial system, a recession in 1973 – 1975, a severe stock market downturn, stagflation and commodity shortages. In fairness, it wasn’t entirely Nixon’s fault; he had plenty of help from successors Jerry Ford and Jimmy Carter who followed the same types of awful policies. 

With their protectionism, unrestrained spending and redistributionism, both major parties are planting the seeds for a return to the 1970s.  It is (or ought to be) clear that, while Trump is a problem, he is not the problem. He is symptomatic of a damaged culture that is infecting our political and civic institutions. The problem will last beyond Trump’s exit from center stage, just as it did with Nixon’s. 

The challenge is to rebuild the culture. That is a lot more difficult than winning elections. 

 

JFB

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SCOTUS Watch

The Federalist Society, scourge of the “living Constitution” and defender of liberty, provided in 2016 a list of 25 candidates it preferred as nominees for the Supreme Court. Whereupon candidate Trump announced, with a lot of fanfare and a little wiggle room, that he would select nominees from that list were he to be elected. His first nominee, Neil Gorsuch, was on that list and he now sits on the high court. 

Now that Justice Kennedy has announced his resignationTrump has another nomination to make. Reportedly his top 5 potential choices are all from the same list. At the top of the list is Brett Kavanaugh, who has a 47% chance of being selected according to Predict It, a political futures market. That the Federalist list dominates the selection process is cause for relief, and not just because the jurists on the list are first rate. It is also clear that the President, left to his own devices, lacks the capacity to make an informed selection. 

Nominee Prediction Markets

 

To the surprise of no one, the Senate vote counting has begun and progressives are already howling. They appear to be afraid of three things. First, that Roe v. Wade may be overturned (it should be). Second, that the Court will continue along its present path of defending the First Amendment, which is under relentless attack by progressives. Third, that the Court will begin to rein in the Administrative State by eliminating the judicial doctrine of Chevron deference when adjudicating disputes over the interpretation of regulations.    

Let us take a brief look at each of these policy areas. 

Roe v. Wade

In the matter of Roe, it is almost universally understood that the case was wrongly decided. The Court basically decided that women ought to have a right to abortion and set about creating that right out of whole cloth. In so doing it dispensed with democratic processes, imposed an abortion rights regime on the entire nation by judicial fiat and set the stage for the culture wars of the last 5 decades. The United States now has the most radically permissive abortion regime in the West. 

Note too that Roe was based on the idea of a right to privacy, which was first discovered in Griswold v Connecticut. In that case the Court voted 7 -2 that Connecticut’s Comstock law violated the “right to marital privacy”. That’s right: marital privacy.  By 1972 in Eisenstadt v. Baird, the Court extended the right to unmarried couples. In 1973, Justice Potter Stewart cited Griswold and Eisenstadt in support of Roe. By 1992, in Planned Parenthood v. Casey, the Court found a liberty right to abortion under the 14th amendment, holding that states could not regulate abortion if it created an “undue burden”. Using this test, the court invalidated the requirement of spousal notification. 

All along the way, the Court continued to shift the decision criteria until we arrived at where we are today, which is abortion on demand at any time. Note too that while Griswold began with the right to marital privacy, the Court wound up invalidating a requirement of spousal notification of the intent to procure an abortion. Moreover the ever changing rights granted in the abortion regime are rights created by government, unlike the rights in the founding documents which are based on natural law, not positive law. 

And therein lies the rub. In the progressive universe, positive rights are created and dispensed by government. There is nothing sacrosanct about them. They are rooted in fashion, not philosophy. Which leads us to the First Amendment, now under assault.

The First Amendment 

The assault on the First Amendment is most visible in the Universities where speakers who espouse unpopular points of view are shouted down, ostracized and sometimes assaulted for expressing (or attempting to express) those points of view. And it extends to Trump, who has encouraged the use of violence to silence his critics. So what is the genesis of all this?

A good way to get a read on it is to refer to an article published by the New York Times on Saturday, June 30, 2018, titled “How Conservatives Weaponized the First Amendment”. A link to the article is here. 

The intemperate language of “weaponization” comes from none other than Justice Kagan in her recent dissent in Janus v. AFSCME. In her dissenting opinion she referred to her colleagues as “black-robed rulers overriding citizens’ choices”. It is difficult to ignore the irony of Kagen’s reference to “citizens’ choices” when, on First Amendment grounds, the Court held that public sector union members could not be compelled to financially support policies with which they disagreed. But, Kagan said, “the First Amendment was meant for better things.” 

Perhaps unwittingly, Justice Kagan revealed her preference for conferring command and control powers on an unfettered bureaucracy when she went on to say that the Court’s majority “…Weaponiz[ed] the First Amendment in a way that unleashes judges, now and in the future to intervene in economic and regulatory policy.” Well, judges have been intervening in economic and regulatory policies for at least a century. But more importantly, Kagan reveals an instrumental view of the First Amendment. She is perfectly willing to abandon free speech and free association (which includes the right not to associate) in support of compelled speech as long as doing so leads to her preferred outcome. 

On the progressive left, this is now becoming a fashionable way of thinking.  Consider this remark byProfessor Lewis Michael Seidman as reported by the Times in the above referenced article. 

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

Again we have the instrumental view. Free speech is just swell as long as it produces a “more just society”. The obvious question is: who will be the arbiter of what constitutes a “more just society”? And who will decide what speech advances the cause? How will the speech police punish malefactors? And how, exactly, does that protect minority rights? And not to make too fine a point of it, according to the founding documents of the U.S., speech rights inhere to the individual having been endowed by the Creator. There is a reason why the First Amendment is the first amendment. The government’s responsibility is to secure those rights, not pick and choose who exercises them. 

Which leads us to the doctrine of Chevron deference. 

Chevron deference essentially says that agencies, not the courts, are the primary interpreters of the meaning of statutes administered by agencies. Chevron deference requires the courts to accept an agency’s disputed reading of a statute, even if that reading differs from what the court believes to be the proper reading. The theory is that agencies—not the courts—have the necessary expertise to do so across the federal bureaucracy. Moreover, it is argued, by leaving this responsibility with professionals in the bureaucracy the Chevron doctrine reduces partisan political behavior by judges. 

In a paper published by the Federalist, Christopher J. Walker finds some evidence that suggests this last point may be correct. (Here is a link to the article). By restraining judicial discretion, Chevron may have reduced partisan political behavior by judges. Then again, it may have succeeded in simply relocating that partisan behavior to the bureaucracy. That aside, Chevron undoubtedly transferred significant power to the bureaucracy at the expense of the Congress. And it also increased Presidential regulatory power at the expense of the Congress—witness both the Obama and Trump administration’s reliance on governance by executive order. 

The maintenance of a vast bureaucracy (with some agencies having police power) that acts at the order of the President is the essence of a command and control framework that is central planning in everything but name. Not only are the individual agencies vulnerable to capture; the system invites corruption in part because it lacks meaningful oversight and accountability. The agencies themselves are easily co-opted by partisans to be used as means to partisan ends; not only that—sometimes the staffing at an agency makes it a de facto lobbying group for outside interests.  These are not easily correctable flaws; they are baked into the architecture of the Administrative State. 

This is simply untenable; the Administrative State has to be cut down to size. One way to do that is to substantially weaken (if not eliminate) Chevron deference as judicial doctrine. The likely result would be a more accountable (or less unaccountable) federal bureaucracy; a reduction in executive power, and an increase in legislative power and accountability. All to the good.

In short, cases in three important issue areas are almost certainly going to come before the court before too long. One will be a challenge to the constitutionality of Roe v Wade. Another will include cases likely to challenge First Amendment rights respecting freedom of speech, freedom of association and the practice of religion. A third will call into question the Chevron doctrine and the relative power of the bureaucracy vis-a-vis the elected  branches and the Judiciary. A strict constitutionalist would find that Roe was wrongfully decided; that the First Amendment means what it says, and that the United States is a Republic in which laws are written by duly elected legislators, not the bureaucracy. Finally, a strict constitutionalist would be one who understands that the government is charged with securing the rights specified in the Declaration of Independence, using powers granted by the Constitution, and only those powers.  

A constitutionalist approach to these issues is a dagger pointed at command and control—the beating heart of modern progressivism. We shall soon see if Trump appoints a constitutionalist and what measures the left will take to torpedo such a nomination, if it occurs. 

JFB

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Unending Hypocrisy

To say that, in general, politicians are hypocrites is both incontestable and trivially true. Hypocrisy describes a behavior engaged in by almost all human beings, politicians among them. A more interesting question concerns specific instances of hypocritical behavior; instances that have the potential to provide deeper insight into the offenders. For that we turn to the case of Gina Haspel who was nominated by President Trump to be the new Director of the CIA. 

Needless to say #The Resistance is ablaze with outrage over the nomination. Haspel, they say, condoned torture, making her uniquely unfit to be CIA Director. 

Let us put this in context for a minute. Nancy Pelosi as ranking member was informed about what the CIA prefers to call “harsh interrogation methods” a full 3 months before Haspel even knew about them. One can search the record in vain to find objections to the program by Pelosi at the time (September 2002). Pelosi’s objections came years later after the public turned against the Iraq war and the existence of the program was leaked to the New York Times. Moreover the Congresswoman who objected to the program did so on the record and in writing when she found out about it. That Congresswoman was California Democrat Jane Harman whom Pelosi subsequently pushed out of Congress. 

And then there is the case of John Brennan, now a resistance icon who was running the CIA when all this was going on. (Error correction: John Brennan ran the CIA from 2013 until the end of the Obama Administration. That said, during the Bush years he support the rendition of terror suspects to other countries like Egypt where they were tortured. And, interestingly enough, in 1976 he voted for Gus Hall for President. Gus Hall was the nominee of the American Communist Party). Somehow or other the taint from all this doesn’t apply to him. Or to his buddy James Clapper over at the NSA who perjured himself before Congress at least twice. Brennan probably committed perjury only once. But they are full fledged members of the resistance and they both probably, almost certainly, had their hands in the corruption of law enforcement and intelligence agencies in order to serve domestic political goals. 

Last but not least let us consider the case of the most sanctimonious of the lot. That would be President Obama. He did not order or condone torture; his tool of choice was summary execution. Every day, as reported by the New York Times, President Obama was presented with a “kill list” of terrorist subjects that included American citizens. And Obama would give the OK for the ones to be executed by drone attack. No indictment, no trial. Just a hellfire missile. 

It took a filibuster by Rand Paul (R. KY) on the Senate floor to persuade the Obama Administration to concede that the President lacks the legal authority to order the summary execution of American citizens on American soil. But the Administration never did concede that it lacked authority to launch drone attacks on American citizens on foreign soil. Which makes the outrage over Vladimir Putin’s various assassinations of Russian citizens (and ex-citizens) on foreign soil kind of puzzling. It would seem the objection is not to summary execution per se, but to who is doing the killing. 

Remember that the next time the #Resistance drones on about the Rule of Law; their devotion to the concept appears to be rather opportunistic and selective.

JFB

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Trade Wars

In the wake of Donald Trump’s decision to impose tariffs on “foreign” aluminum and steel products, Gary Cohn decided to resign his post as head of the National Economic Council. In that position, he was nominally the President’s top economic advisor. Reportedly Cohn, a Democrat and free-trader, had argued strenuously against the tariffs. Opposite Cohn was Peter Navarro, also a Democrat, who staunchly opposes free trade. In the end Trump decided to make the lunge toward protectionism that he promised during the campaign.

With the exit of Cohn, Peter Navarro is the undisputed architect of Administration trade policy. By way of background, Navarro is a professor emeritus of economics and public policy at the University of California, Irvine. Navarro, who earned his PhD from Harvard, has called for increasing the size of the U.S. manufacturing sector, setting high tariffs and repatriating global supply chains. Most importantly, he doesn’t want you to buy anything from China. Ever.

In 2006, he wrote the “Coming China Wars” which Donald Trump lists as one of the most important books he has read on China. (Permit me to be skeptical about a Trump claim to have read anything more advanced than a Marvel comic book, let alone a policy book without pictures). In 2012 Navarro published the next installment of his anti-China series with “Death by China”. He is considered by mainstream economists to be “heterodox”, which is a polite way in academia to call someone a crank. Which indeed he is, making him perfectly qualified to be a Trump economic advisor.

Economists across the political spectrum understand the power of trade to improve peoples’ lives through efficiencies gained from comparative advantage. That idea was first developed by the English economist David Riccardo in 1817. Basically, the law of comparative advantage posits that in international trade countries should produce and export goods in which they have an efficiency (comparative) advantage. Further, they should import goods from other countries where those countries have a comparative advantage. Doing so makes both countries winners because land, labor and capital are used to their best advantage. As a result, each country produces and consumes more than it ordinarily would have had each chosen to go it alone.

Time and again international trade has been shown to be a powerful force for improving peoples’ lives by expanding markets and opportunities. And time and again, politicians and demagogues have railed against free trade, believing, or professing to believe, that it is a zero-sum game. Some politicians may actually believe this for some reason or other. More likely, they have been bought off by constituent groups and other special interests looking to be protected from market competition.

It is true that Mr. Trump campaigned as a trade restrictionist, so no one should be surprised at his tariff announcement. Then again, he promised to do a lot of stupid things and this is just one of the lot. On that score, it is worth taking note that Mr. Trump’s trade policies are indistinguishable from those espoused by Bernie Sanders (D. VT), Sherrod Brown (D. OH), and Hillary Clinton (D. who won’t leave). It is also at odds with 30 plus years of Republican orthodoxy.

It is always dangerous to assume that underlying a Trump policy pronouncement there is some coherent set of beliefs. This time Trump may have convinced himself that it is possible to simultaneously (1) de-regulate the domestic economy, (2) re-regulate international trade, (3) run large budget deficits and (4) keep inflation under control without sending interest rates soaring, the dollar reeling, (5) all the while maintaining solid  economic growth. Unfortunately for Mr. Trump, it is not even remotely possible to do this. We already tried it once. It didn’t turn out well.

The attempt was made to do something like this in the aftermath of World War 2 with the adoption of the Breton Woods agreement. But for the system to work, it had to have a guarantor. That guarantor was the U.S. But the whole system came crashing down in August of 1971, weighed down by its own contradictions, when the U.S. slammed the gold window shut and refused to continue on as the system guarantor. The net result of this gargantuan policy failure was a decade of very high interest rates, soaring inflation, sagging stock prices, a collapsing dollar, long lines at the gas pump, wage and price controls, and high rates of unemployment, just to name a few of the less than charming events of the era.

Donald Trump is flirting with creating the same conditions that led to the disaster of the 1970s. Except that last time, we didn’t have the huge budget deficits and accumulated debt we have now. Nor did entitlements and debt service consume 70% of federal spending. Perhaps now the Congress will awaken from is slumber and assert itself before it is too late. It could start by restricting Presidential power to impose tariffs without a vote by Congress.

JFB

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The EU Again

In a remarkably destructive bit of policy making, the EU announced that it will not sign any agreements with countries that are not party to the Paris Climate Accords. That includes free trade agreements. And of course, the country in the EU’s gunsights is none other than the United States. Which means that the EU has told the U.S. in no uncertain terms that in order to trade with Europe, America must surrender its sovereignty to the central planners that populate the EU bureaucracy.

Fat chance.

Issue linkage is a tool commonly used by diplomats to get to agreements that might not otherwise be reached. The log rolling inherent in this sort of thing allows each side of a negotiation to come out claiming victory, thus greasing the skids. This however is something entirely different. It is an ultimatum. As such, it sets up a test of wills that structurally resembles a game of chicken in which each side has an incentive to escalate rather than resolve the conflict.

In this, the EU is rather obviously overplaying its hand, and the consequences could very well be catastrophic. Consider the fact that various forms of nationalism are sweeping the globe, so that very few politicians have an incentive to be seen as neo-liberals to begin with. Britain has already had its Brexit vote; Macron has conceded that if France had a referendum on the EU, French citizens would vote to withdraw; Scotland is once again making noise about exiting the UK, and Spain only managed to keep the Basque region from seceding by the use of police truncheons.

Also consider what the U.S. response to all this may be. Donald Trump for one has already made clear that he has little use for either free trade or NATO. Suppose his response is to escalate further and say that the U.S. is just fine without a trade agreement with the EU, and by the way, the U.S. is going to begin withdrawing troops from Germany in preparation for leaving NATO. Without benefit of the U.S. nuclear umbrella, Europe can feel free to devise its own foreign policy for dealing with the Russian Bear, a prospect that Vladimir Putin would surely relish. That this would be a geopolitical catastrophe is an understatement.

The irony of all this is that it probably has little to do with the purported issue of climate change. Over the last several years the U.S. has become the largest energy exporter in the world, largely due to fracking. The U.S. is now largely “energy independent” in that it exports more than it imports. And because of fracking U.S. manufacturing has developed significant energy cost advantages over European firms. The EU’s latest gambit probably represents old fashioned protectionism gussied up as concern over the never quite defined issue of climate change.

Regardless of motive, the EU’s announcement was reckless in the extreme and could very well have far reaching consequences whose deleterious effects are likely to fall most heavily on the Europeans themselves, and stay with us for a long time. That, after all, is the story of European colonialism, and World Wars I and II. Perhaps they should give up playing empire and mind their own back yard which is in serious need of repair.

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The Great Washing Machine Threat of 2018

Donald J Trump, certified stable genius, has launched his trade war. He has done so to protect America from the clear and present danger posed by foreign made washing machines and solar panels. To this end he has decided to impose added taxes on their purchase. The result is that the prices of washing machines and solar panels will be higher than they would otherwise be, thus reducing the quantity sold. Effectively, the tax will be paid by consumers in the form of higher prices and by workers who lose their jobs as a result of reduced consumption.

What is fascinating about this particular piece of policy idiocy is that it runs exactly opposite the (correct) economic reasoning that went into the recently passed reduction in the corporate tax rate. Which is to say that corporations do not pay taxes; they merely collect them. Consequently, a reduction corporate taxes benefits the corporation’s owners (stockholders), workers and customers in the forms of higher returns to capital, increased wages and lower prices. About this there is little dispute among economists; the only question is the distribution of the benefits.

In the process of making America great again by saving us from the scourge of foreign washing machines the Trump Administration has apparently forgotten the logic of its own tax bill. Increasing taxes on washing machines and solar panels will simply raise prices and costs while reducing consumption, thus punishing workers, consumers and stockholders.

The Trump Administration has barreled ahead with this because it views trade as a zero-sum game (which it manifestly is not). Trade is a plus-sum gain in which each side benefits. After all these are voluntary transactions. People and firms do not continue to engage in transactions that make them worse off. Only governments do that. Moreover there are positive spillovers from trade in the form of faster economic growth coming from increased efficiency in the allocation of capital.

What is especially striking is Republican silence in the face of this. In the very recent past Republicans were ardent free traders. That apparently has gone by the boards, as has the Republican insistence that character matters. Perhaps the Republican Party is reverting to its prior preference from the 19th century for tariffs designed to protect domestic businesses from foreign competition. Back then it was the Democratic Party that had adopted the more hands-off approach, at least until FDR and the New Deal arrived on the scene.

And to boot, Treasury Secretary Steve Mnuchin has now decided to start talking down the dollar in FX markets. This is simply the beginning of an attempt to lower the prices of American goods in foreign markets, at the cost of raising prices for American consumers. To pull a stunt like this at a time when the U.S. government owes trillions of dollars to foreign investors, including foreign governments, simply mixes ignorance with incompetence.

That said it seems unlikely that free-traders are going to make a serious appearance in the Democratic Party of 2018. That is a shame because such a development would at least slow down the gallop toward more central planning and bureaucratic control over the U.S. economy. (Apparently the Trump Administration suffers from the delusion that it can loosen regulations on business conducted inside the U.S., but tighten regulations on external trade coming into the U.S. and never the twain shall meet.) So, we are faced with the unappetizing prospect of a bipartisan consensus in favor of using the police power of the state to attempt to impose higher prices on consumers and lower returns on investors. All at a time of enormous budget deficits and accumulated public debt.

Tired of winning yet?

JFB

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