On Liberty Watch

“Sometimes the first duty of intelligent men is the restatement of the obvious.” George Orwell

With Orwell’s aphorism in mind I am reminded of when I served as a juror in a trial.

It was a criminal case in which the defendant was charged with breaking into a small accounting firm and stealing computer equipment. He was arrested a block away from the heist by a police officer who testified that the defendant was holding one of the purloined computers as the officer approached. At the sight of the officer the defendant dropped the computer like a hot potato and took off running. In due course he was apprehended, arrested, charged and sent to stand trial.

For some reason the defendant choose to stand trial rather than negotiate a plea bargain. The defense produced the inevitable collection of character witnesses who showed up to testify that the defendant was really a good guy after all. Then for some inexplicable reason, the defendant actually took the witness stand. After we listened to his rather implausible explanation of how the stolen computer managed to find its way into his hands at 2:00 AM around the corner from the burgled accounting office, the prosecutor began his cross-examination.

That’s when we found out about the three prior convictions for attempted murder.

The defendant, gamely insisting that it was really only two and not three attempted murders, triumphantly pointed out that he never actually succeeded in killing anyone. Moreover, he pointed out, he really only pled guilty despite his innocence, because the judge was upset and he didn’t want to disturb her any more.

As you might have guessed, this didn’t wash very well. The formal conviction vote came shortly thereafter.

I tell this story because, just as the defendant’s guilt was obvious, it is similarly obvious that President Trump is in way over his head, and as he twists and turns to pretend otherwise, he, like the defendant is just making matters worse. But the defendant just made things worse for himself. Trump is making things worse for the country at large. That ought to be obvious too. What may not be obvious (although it should be) is the cultural damage Trump is doing as he further degrades a popular culture that is already doing great damage to the institutions of civil society.

An important insight of conservative intellectuals is that politics stems from culture, not the other way around. Contra this, totalitarians have tended to see art as instrumental in the quest for power. Hence we have Soviet proletarian art of the Stalinist era, Mao’s Great Cultural Revolution, and Hitler’s fondness for art whose exterior form was meant to symbolize an inner racial purity. And of course, all used art as propaganda.

As Trump and his coterie crash through political and social norms that have been with us for centuries, he is wearing down institutions that matter, and matter a lot, for the support and preservation of liberty in America. His down market vulgarity is not merely tasteless; it attracts more of the same ilk as the hiring of the Anthony Scaramucci, the new communications director, clearly shows.

In Scaramucci we have someone who appears to be a lot like the President: a slob with a lot of money, who has no understanding of politics, history or policy.

Up until this point there have been conservatives who have been willing to give Trump the benefit of the doubt. The time for that is by now well past its sell-by date. Other conservatives have decided to “support Trump when he’s right and oppose him when he is wrong.” That too is wearing a little thin, given that Trump is his own worst enemy, and that his influence in the legislature is diminished, to say the least. And not to put too fine a point on it, if a liberal Democratic President behaved even close to the way Trump routinely behaves, conservatives would be swinging from the lights.

Conservatives are supposed to have an appreciation for the limits of government power; they are supposed to be the ones who think people are unique individuals with inherent rights and are not just an undifferentiated mass, they are supposedly the ones who wish to conserve and protect the institutions of Western society that preserve and protect liberty and the rights of man. Remaining silent and timid in the face of an all-too-predicable daily display of Trumpian boorishness and overbearing behavior is no way to accomplish conservative ends. After all, it was Edmund Burke who said “The only thing necessary for the triumph of evil is for good men to do nothing.”

If the Republican Party, the Party of Lincoln, relegates itself to defending the President’s indefensible behavior rather than choosing to articulate and implement an agenda to roll back government power and expand individual freedom, it ought to close up shop.

JFB

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There was a time not so long ago when courts would intervene if parents refused to get medical help for a gravely ill minor child. Now, in England, we have the case of Charlie Gard. In that case the courts intervened to prevent the child’s parents from obtaining medical help in the form of an experimental treatment, even as their son lingered on the verge of death. This, even though the parents raised the substantial funds needed to treat him.

The British courts, backed by the badly misnamed European court of human rights, held that children have rights independent of their parents, and as a result hired a guardian to protect the 11-month-old boy’s right to die—against his parents’ wishes. The court refused to release the boy to the parents’ custody to seek treatment, ruling his interests would be best served by dying. Now after 4 months of court enforced stalling, the American doctor who had agreed to provide the treatment says that the child’s condition has deteriorated to the point where there is nothing he can do.

The parents have dropped their court action and have asked the court to allow Charlie to die at home. The court is considering the request.

Welcome to the single payer system.

When government says it will provide health care what it really means is that government will use its police power to decide who will and who will not receive treatment. They euphemistically call it cost containment. And so individuals and families will not be the ones to decide to let nature take its course. Nor does it mean that individuals and families will decide what constitutes taking “extraordinary measures” to prolong life. The calculus will be the state’s. It no longer belongs to the individual or the family.

It means that government, operating through a bureaucracy staffed by presumed experts, will decide who gets treatment and who does not; whose life is worthwhile and whose is not; who will live and who will die. Those decisions will inevitably favor the powerful and politically well connected. Like Charlie Gard and his family, individuals and their families will have lost agency over their own lives. Because in the Progressive Administrative state, rights come from government, they do not precede it, nor are they independent of it. Individual rights, including the right to life, are subordinated to the will of the state, not the other way around.

Remember, Charlie Gard’s parents raised the funds to pay for medical help for their son. And still the state asserted its police power to retain custody of the child, ruling that it was in Charlie’s best interest to die. The parents had no say.

By all accounts it is very unlikely that, in the end, the treatment sought by the parents would have changed the outcome. That is not the point. The decision rightly belonged with the parents. And the state just took it away. Because when push comes to shove, that’s how the Progressive Administrative state works.

Charlie Gard, RIP.

JFB

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It is now beyond dispute that the Russian government of Vladimir Putin sought to influence the outcome of the 2016 U.S. Presidential election. That the Russian government tried to subvert the American political process should come as no surprise—they’ve been at it for 50 years. What is different about this go-around is that high officials of the Trump campaign were stupid enough to go along with it. We know this is so because Donald Trump Jr. confessed to the deed (but not the stupidity) and released e-mails proving both. And this may not be the end of it.

So lets consider where this leads. For one thing, it is unlikely to end well. But let’s not get ahead of ourselves. At present, roughly everyone wants to see all the facts come out. Which is to say, (1) an examination of the various Trump enterprises and their commercial ties to Russian interests, (2) what meetings Trump officials had with Russian counterparties and who said what to whom, and (3) the extent to which President Trump was himself involved in these conversations, if at all.

To that end, the FBI investigation headed by Robert Mueller would seem to be the way to go. By all accounts he is investigating whether Trump obstructed justice when he fired James Comey, and whether there was collusion between the Trump campaign (and Trump himself) and the Russian government. The second is more important than the first because if there was no collusion, it’s hard to get too exercised over alleged obstruction when there is no underlying crime. So let’s consider collusion.

First, a definition.

In general, collusion is an agreement between two or more people to do something illicit. But that is kind of vague, so prosecutors generally turn to a charge of conspiracy. Conspiracy in the criminal law would occur when two or more people get together and agree to commit a crime—but they do not actually have to commit the underlying crime to be guilty of the charge. For instance, the conspiracy could be broken up by law enforcement before the conspirators act.

At this point, with what is publicly known it would be hard to charge Donald Trump Jr. with a crime, notwithstanding the daily hyperventilating at MSNBC. His agreeing to meet with Russian operatives who dangled oppo research in front of him was stupid, naïve and dishonorable, but not in itself criminal. And in any case, the criminal law is not the standard for what this is all about, which is impeachment.

There are two questions before us. One is evidentiary; the other is Constitutional. The first question is this. Did President Trump himself knowingly participate in an effort to cooperate, conspire or collude with a foreign power to secure an electoral advantage in the 2016 Presidential election? The second question is conditional on the first. If the evidence shows that Trump cooperated, conspired or colluded with a foreign power to secure an electoral advantage, what is the remedy?

Thus far there is no publicly available evidence that President Trump himself acted to collude with Russia. There is no question that he has bent over backwards to be at least rhetorically accommodating toward Russia in general and Putin in particular. Not only that, he frankly admitted firing Comey over “the Russia thing”, although he apparently took no steps to actually close down the investigation. Lots of smoke, but as yet no fire. So let’s ask the Constitutional question.

Does impeachment require proving that the President engaged in criminal behavior?

I believe the answer is: No. The House is within its rights to impeach, and the Senate to convict the President of “High Crimes and Misdemeanors” without finding the President guilty of criminal wrongdoing.

Let’s consider the possibilities by engaging in a thought experiment. Let us suppose that then candidate Trump knowingly acquired and used opposition research from a foreign government, or governments. Let’s also stipulate that Trump did not explicitly promise something in return. What then?

I believe that such behavior would constitute an impeachable offense—not because the behavior was criminal in the conventional sense—because it probably isn’t. It doesn’t have to be. The phrase “High Crimes and Misdemeanors” should be understood as referring not to the crime itself, but to crimes and misdemeanors committed by a “High” person, which is to say a person who holds high office. That does not mean that Presidential jaywalking is an impeachable offense, but it does suggest a political standard by which Presidential behavior may be judged.

That standard is the effect the behavior has on the society writ large. By that standard impeachable offenses would be ones that inflict great injury on the society itself, that are abuses of the public trust, that require a check to preserve the separation of powers or acts that deserve “perpetual ostracism from the esteem and confidence and honors and emoluments of his country.” (For an in-depth discussion see Carl Scott discussing Federalist #65 on Impeachment in First Things. Another source to check is the Constitutional Rights Foundation).

Abuses of the public trust, particularly with respect to treatment of a foreign power are especially egregious in our Constitutional scheme. That is because the founders only adopted the U.S. Constitution to replace the Articles of Confederation 13 years later in 1789 after a great deal of debate directed at strengthening the federal government without making the President into a de facto King. In addition, having just fought the revolutionary war, they wanted to make sure the U.S. did not become ensnared in Europe’s wars, or fall under the influence of a foreign power.  So they adopted the emoluments clause, which among other things forbade the granting of Titles of Nobility by the United States, and prohibited public office holders from accepting gifts from any King, Price, or foreign state.

The emoluments clause was designed to stop politicians holding high office from falling under the sway of foreign powers. But it didn’t stop there. It was also designed to protect the republican design of American political institutions. (See this discussion of the emoluments clause at Heritage.org.)

In order to keep a check on the President, they adopted a Constitution for a republic—not a democracy—because just as they were fearful of creating a King, they were also afraid of mob rule. So they divided power at the federal level among three co-equal branches. And they created a federal system of dual sovereignty where the federal government and the states had different roles to play.

The impeachment clause (Article 1, Section 2, Clause 5) was designed to be a limiting mechanism to prevent a President from abusing the powers of his office. At the same time the founders made the process sufficiently difficult that it would not likely be used to prevent the President from using his lawful powers. In order to succeed, a vote to impeach requires a super-majority of 2/3rds of the House. Likewise, conviction in the Senate requires a tw0-thirds vote. Note—at the time the Constitution was adopted, Senators were not elected by direct popular vote, but were appointed at the state level.

At heart, the impeachment power is about politics, not the criminal law. Federal Office Holders are not allowed to accept gifts from foreign players without Congressional approval. Quid pro quo doesn’t matter. It isn’t allowed without Congressional approval. Period. Full stop. And it is clearly because of concern that foreign powers will seek to influence American policy by use of gifts and flattery. Moreover, the Founders were concerned with the harm that an errant politician could do to the society at large, particularly if he abused the powers of his office and violated the public trust.

Note that in the prohibitions against accepting gifts, and in the discussions in the Federalist there is no discussion of penalties. The only penalty specified in the Constitution is impeachment. That is because this is inherently a political matter, not a matter for the criminal law, at least in the first instance. The criminal law comes in later—after successful impeachment proceedings. In this respect it is worth noting that the requirements for a criminal conviction are tougher than for impeachment. A criminal conviction requires a unanimous jury rather than a two-thirds vote.

So I submit that it is reasonable to argue that an impeachable offense does not require a violation of the criminal law. But it does require an abuse of office and the public trust, or the infliction of great harm on the society at large—not merely a policy dispute. And in our Constitutional system, putting oneself under the influence of a foreign power is an egregious political offense.

Are we there yet with Mr. Trump?

No, at least not yet. But that is because all the facts are not yet known. When they are—and they will be—it is conceivable we could see a second Presidential impeachment in less than 20 years. The prospect of a Trump impeachment is no longer confined to the fantasies of the Resistance. Although not likely, it has become a very real possibility.

JFB

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