On Liberty Watch

In 1996 the GOP candidate for President, Senator Bob Dole of Kansas, used to tick off a laundry list of horribles mostly having to do with charges that President Clinton was sleazy and that a biased liberal press was protecting his Administration. After reeling off the particulars he would then go on to ask rhetorically: “Where’s the Outrage?”

He lost the race, and lost it decisively. Perhaps it was a harbinger.

Today we have no shortage of outrage. In fact we have a surplus of it. And it is constantly being stoked by cynical political operators who rely on confirmation biases to arouse the passions of their respective political bases in order to win the tribal contests we call elections. These elections have increasingly become exercises in identity politics and grievance mongering. The result is that rational governance, nuance and compromise are tossed out the window; policy disputes are criminalized, and mob rule is becoming the order of the day.

The cynicism of the players and the naiveté of the marks (generally the most passionate followers) can be seen by watching how quickly the players change their arguments and how easily their credulous followers swallow them. Consider, for instance, the FBI. They go from black hats to white hats in the blink of an eye, depending on whose ox is being gored.

The truth is that any objective analysis of the FBI’s performance over the years—make that decades—would have to conclude that the FBI has been highly politicized from the outset, and incompetent to boot. J. Edgar Hoover ran the place like it was his private police force, and he had no regard for citizens’ Constitutional rights. Long withheld documents being released today on the Kennedy assassination make it pretty clear that the FBI destroyed evidence after the fact. Robert Hanssen, a senior intelligence officer for the FBI, acted as a spy for Russia from 1979 until 2001 when he was finally caught. Time magazine described the Hanssen case as one of the most damaging in U.S. history.

Then there were the scandals at the FBI crime labs. In 2015 the FBI got around to admitting that almost every examiner in one of its elite forensic crime labs gave flawed testimony over more than two decades in the years before 2000. Of 28 examiners 26 overstated evidence of forensic matches of hair that favored prosecutors 95% of the time in 268 trials reviewed by the Association of Criminal Defense Lawyers and the Innocence Project. These cases included 32 death sentence cases. Of those, 14 defendants were either executed or died in prison.

The FBI is still up to its neck in cover-ups to protect the politically powerful. Consider the Lois Lerner / IRS saga. Just yesterday, on October 26, 2017, the DOJ and IRS settled some of the outstanding Tea Party cases in which the IRS deliberately targeted conservative groups in order to incapacitate them for the 2012 elections. The settlements included payments to the plaintiffs and an apology from the IRS.

It turns out that in the Tea Party cases the IRS handed 21 computer disks to the FBI that contained 1.23 million pages of confidential IRS returns from 113,000 non-profit 501(c)(4) groups, although federal law generally forbids the IRS from sharing such data. By means of Freedom of Information Act lawsuits, Judicial Watch, a conservative watchdog, was able to establish that the IRS, DOJ and FBI met on October 10, 2010 to discuss legal theories about how to criminally prosecute groups “posing” as tax-exempt non-profits, which is to say, Tea Party groups.

And then there is the infamous mishandling of the case of Hillary Clinton’s private e-mail server. In this particular comedy of errors the FBI, through the offices of FBI Director James Comey, ran interference for Clinton to make sure she wasn’t prosecuted even though it is perfectly obvious to anyone who can read that Clinton violated federal law on handling defense information, specifically, 18 US Code 793 (f). The sentence for this crime, by the way, includes up to 10 years in prison.

It is not necessary to belabor the point by citing more cases. It is crystal clear that the FBI has for decades been both politically corrupt and stunningly incompetent. And what has the political establishment done about it?

Nothing.

And what does the commentariat of the left and right have to say? They either cheer or hiss from the bleachers depending on the identity of the FBI’s latest target. Left wing activists were horrified that the FBI infiltrated radical left-wing groups in the 1960s and 1970s. Right wing groups thought it was just swell. Now left wing groups think it’s just great that the FBI is infiltrating “hate groups” and right-wingers have suddenly discovered the fourth and fifth amendments. But do we hear a principled argument from either side that is neutral in its application? Of course not.

And the same goes for the first amendment, particularly with respect to speech and the free exercise of religion. Do the mobs of the left or right defend these fundamental freedoms?

No.

It depends on whose ox is being gored.

So let’s turn to the ever-expanding Russia investigation. What is going on here?

After the smelling salts were duly administered, it finally dawned on the Democratic Party establishment that the country voted to give the keys to the White House to a witless reality TV star by the name of Donald Trump. So the Democrats immediately began the campaign to delegitimize the Presidency of Trump, pretty much before it even got started, which is pretty much what the Republicans did in 1992 to then President elect Bill Clinton. The centerpiece of the campaign was (and is) the charge that but for collusion between Russia and Trump, Hillary Clinton would have been elected President.

Thanks in part to Trumpian buffoonery, there is now a special investigator in the person of Robert Mueller conducting a wide-ranging investigation into possible collusion, as well as Trump’s associates, the Trump campaign, and Trump’s business empire. As a result it appears likely that Paul Manafort, Trump’s campaign manager for a brief period, will be criminally charged, probably with money laundering and various other financial crimes. The other Trump associates in the drama will probably be charged with being stupid, which while true enough, is not yet a felony.

The saga has now taken a new and wholly unexpected turn. It centers on an infamous dossier filled with salacious and unconfirmed reports that circulated widely in the press, which was then published by Buzz Feed. It turns out that none other than Hillary Clinton’s campaign and the DNC financed the dossier, but only after Trump’s Republican opposition stopped doing so when he secured the nomination.

Digging up dirt on the opposition, also known as opposition research, (oppo research) is nothing new. It has been going on forever. That said, there are two factors that come into play here. The first is that this type of stuff is typically low quality and consists largely of rumor-mongering. Second, and more importantly, plenty of the information for the dossier came from Russian operatives, which is to say it may very well have been part of a larger disinformation campaign designed to sow political discontent in the U.S. generally. If so, it succeeded brilliantly—with the help of the FBI.

It succeeded with the help of the FBI because Director James Comey has already admitted that the dossier was one of the reasons he launched the initial investigation into the Trump campaign. So the investigation may be attributable to a Russian disinformation campaign that the FBI fell for like the Keystone Kops. Moreover, if so, it would be the Clinton campaign and the DNC that inadvertently financed the Russian effort.

Apparently the Clinton campaign and the DNC used a law firm as a cut out to pay Fusion GPS to produce the dossier. The idea is that Clinton and the DNC could protect their anonymity while the law firm could argue attorney client privilege. Needless to say, no one at either the Clinton campaign or the DNC has fessed up to authorizing or even being aware of the payments to the law firm. After all, it’s pretty difficult to squawk about collusion with foreign powers when you are funneling cash to operatives of a foreign power to do oppo research.

And speaking of collusion with a foreign power, there is more news about the Uranium One deal. That’s the one where Hillary Clinton, among other cabinet officers, voted to OK the sale of uranium assets to a company that was taken over by a Russian concern, giving Russia a large chunk of U.S. uranium assets. It turns out that while this was going on, the FBI was investigating the companies involved and was prepared to criminally charge them, which would have killed any deal. But they didn’t. Instead they waited for a few years and quietly settled the case with a slap on the wrist. The FBI had an informant in the case who was prepared to testify about it. But the informant had to sign a gag order as part of the settlement deal, and so was not allowed to tell his story.

The informant’s lawyer, Victoria Toensing, has said that there is “on the record quid-pro-quo” around the deal that includes Bill Clinton getting paid $500,00 for making a speech at a Russian Bank, and the Clinton Foundation receiving tens of millions of dollars from people with an interest in the Uranium One deal. For his part, Donald Trump told the Justice Department to lift the gag order so that the informant can testify before Congress. He, the one who refused to release his tax returns, claims it is part of an effort to achieve transparency.

And, by the way, the Director of the FBI was Robert Mueller when the settlement, complete with gag order was negotiated.

Needless to say the argument is now being made that the independence of the DOJ is being threatened by Trump’s order to lift the gag order. There are a number of problems with that argument, not the least of which is that the DOJ is not now and never has been, independent. The Department of Justice is a part of the Executive Branch and answers to the President. And to argue that Justice is independent and apolitical by tradition requires believing that Bobby Kennedy was not Jack Kennedy’s brother; that John Mitchell was not Richard Nixon’s chief defender and an architect of Watergate; that Eric Holder was not Obama’s point man, and that Loretta Lynch and Bill Clinton merely discussed the grandkids on the tarmac.

So what can we conclude from all this?

1. All the facts have yet to be revealed and it is still too early to determine whether collusion with a foreign power(s) or other crimes have been committed by any of the major players, and if so by whom.
2. However, it is reasonably certain that both Donald Trump, Hillary Clinton and their sycophants have been lying through their teeth about various aspects of these (and other) affairs.
3. Most important and in some ways most distressing is the fact that large swaths of the population are so partisan and emotionally invested that they simply do not care who is lying about what. They have picked their side and they are sticking with their side’s story—even as the story changes.
4. There is plenty of outrage, but the blinders remain on and firmly fastened.
5. There are almost no principled arguments being offered by the combatants. The sole point of the debate is to skewer the other team. It’s probably a reasonable guess that they are all afraid of what the truth may be, because it will show just how craven for the most part, they all are.

Finally, how and why we have arrived at this point is the more interesting question. But that’s another day.

JFB

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Ex President Barack Obama has emerged to denounce current President Donald Trump’s decision to rescind Obama’s executive order known as DACA. The decision, according to Mr. Obama, did not constitute a “legal requirement”. It was, he opined, “…a political decision, and a moral question.”

As President, Mr. Obama crafted the DACA policy. Federal courts halted the policy’s implementation when they ruled the mirror image (DAPA) policy to be in violation of federal law. In any event, President Obama weighed in via Twitter, after having said that he would comment on Mr. Trump’s actions at “certain moments where I think our core values may be at stake.”

Since Mr. Obama is a bit of an expert at knocking down straw men, let’s look for a little clarity and ask the obvious question. Just what are those “core values” we supposedly share?

How about looking at one of the most contentious issues in American politics, which is to say abortion rights. According to Gallup, the country is divided evenly between people who describe themselves as “pro-life (46%)” and “pro-choice (49%)”. Forty three percent (43%) say abortion is morally acceptable; 49% say abortion is morally wrong.

Let’s take setting priorities in the criminal justice system. According to Gallup, 49% of the country wants to strengthen law and order; 43% want to reduce bias against minorities.

How about the media? While the percentage of people who trust the media has remained essentially unchanged for years (at only 37%), the distribution of trust has shifted dramatically. Back in 1999 (when overall trust was higher) party affiliation was not a factor; 53% of Democrats and 52% of Republicans thought the press got the facts about right. Now the comparable figures are 62% for Democrats and only 14% for Republicans.

Let’s take NAFTA. While it has had overwhelming support among economists, it has always been contentious among the public. Today 48% think it is good for the U.S., while 46% think it is bad for the U.S. But what has changed over the years is that Democratic support for NAFTA has risen substantially while Republican support has plummeted. It is almost a complete reversal of party positions from the late 1990s.

What we can see in poll after poll, on issue after issue, whether with respect to policy specifics or overarching social, moral and ethical questions, Americans are deeply, and maybe irretrievably divided. The divisions are largely based on class and level of educational achievement; there is a wide divide between the views of younger generations and older Americans, and people are clustering geographically and socially with other people like themselves.

The make-up of the political parties is also changing as blue-collar working class voters are increasingly turning Republican. This turn largely reflects a revolt against the social policies of liberal coastal elites. At the same time, upper class Republicans repulsed by Trump are looking around, but still find themselves unwilling to sign on with Elizabeth Warren et. al.

So, Mr. Obama, please stop with the pabulum; let us know what values we share as Americans beyond professional sports franchises and a recently developed penchant for Tattoos. That may prove difficult because Americans no longer share a core of common values, beliefs or culture. Americans are busily retreating to their own corners and falling away from civic engagement.

None of this should be a surprise. Charles Murray, the bête noir of modern liberalism predicted it 25 years ago.

There is a certain inevitability to all this. Consider what happens when more and more policy gets made in Washington and less in local communities. It is inevitably top down and just as inevitably it reflects the interests and sensibilities of the educated elites who staff the never-ending sea of federal bureaucracies. Needless to say, this works just fine for educated elites who live on the coasts. But it stomps out opportunity and upward mobility for the middle and lower classes, especially the ones trapped in a public school system that defines failure.

Not only that, university, media and cultural elites have relentlessly attacked the values of Middle America and traditional civil institutions for decades. You know, the Obama bit about the people bitterly clinging to their guns and Religion. Then there is the current fashion of denying that the difference between men and women is rooted in biology; gender is really only a social construct. So it is vitally important to fundamentally transform racist, sexist, homophobic, Islamophobic and capitalist America.

Basing policy arguments on an appeal to common values, to “who we are as Americans”, is a waste of time. Those common values and cultural understandings collapsed a long time ago after years of steady assault. They are not coming back anytime soon—if at all.

JFB

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On July 31, 2017 U.S. District Court Judge Susan Bolton ruled that former Sheriff Joe Arpaio was guilty of “flagrantly” disregarding an order by federal District Court Judge G. Murray Snow to halt the immigration round-ups for which he had become famous. Arpaio instead continued the practice, bragging at one point that he would “never give in to control by the federal government”. For his defiance of the court Judge Bolton found him to be guilty of criminal contempt, a misdemeanor for which he could have faced up to six months confinement.

But that will not come to pass because President Donald J Trump announced on Friday that he was pardoning Arpaio, an early “birther” who had announced his support for Trump’s presidential run early on. The pardon surprised no one because Trump had telegraphed it a few days prior at a raucous rally when he said “He should have had a jury, but you know what? I’ll make a prediction…I won’t do it tonight, because I don’t want to cause any controversy . . . But Sheriff Joe can feel good.”

So let’s cut to the chase. President Trump exercised his Constitutional prerogative to grant a pardon to a law enforcement officer. The law enforcement officer in question, Joe Arpaio, willfully refused to carry out a lawful court order to cease and desist in his illegal activities. In addition, Arpaio violated his oath of office to uphold the Constitution of the United States. Moreover, Arpaio has shown no remorse for his illegal behavior, which would almost certainly still be ongoing, had the voters not shown the good judgment to toss him out of office.

In pardoning Arpaio, Trump made it clear that neither he, nor his supporters, need to feel constrained by the rule of law. It is of a piece with his refusal to fully and forthrightly single out and condemn Nazis and the KKK at Charlottesville, VA. What matters for Mr. Trump is who you are and where you sit. It is about power, not justice. In this President Trump is fully simpatico with the “social justice” warriors and critical legal theorists of the left.

But in pardoning Arpaio, Trump has not only attacked the separation of powers; the way he did so doing effectively eviscerates the entire Constitutional architecture. Consider the point of the separation of powers as described by James Madison. Writing as Publius in Federalist 51 he said:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

But here we have a situation in which the President of the United States is dismantling those auxiliary precautions. Consider, we have a law enforcement official, Joe Arpaio, who was found to have systematically violated Constitutional rights. In response the President (1) praised and pardoned him, (2) rolled over the judiciary, and (3) sent an unmistakable signal that Constitutional violations by law enforcement officials will be rewarded if the violations are aimed at the right target.

It wasn’t too long ago that the Obama Administration was busy refusing to enforce the law. For instance, Obama ordered the IRS not to enforce the Obamacare mandates. And speaking of the IRS, there was that little matter of Lois Lerner weaponizing the agency against Tea Party groups. Not to put too fine a point on it, the Justice Department acted like a legal defense firm for Hillary Clinton during the non-investigation of her e-mail account.

When the Obama Administration simply refused to enforce laws it didn’t like, or were politically inconvenient, some Republicans pointedly asked what the reaction would be if a future Republican President were to simply announce e.g., that he was “suspending” capital gains taxes. In light of where we are today, it was a prescient question. After all, for blatantly political purposes a nominally Republican President has pardoned an unrepentant convicted criminal who flagrantly and deliberately violated Constitutional rights that he had sworn to protect.

In pardoning Arpaio the way he did, Trump violated his oath to “…preserve, protect and defend the Constitution of the United States”. That oath requires that the President “…take care that the laws be faithfully executed”. But to the contrary, President Trump rewarded a law enforcement officer and political ally who willfully ignored a court order to cease and desist violating the law. Not only does that signal a willingness to tolerate, if not celebrate, lawlessness by government officials, it further undermines law enforcement by sending a signal to Trump allies that they will be taken care of if they are under investigation.

There is a reasonably good case to be made that these actions cross the threshold into political “High Crimes and Misdemeanors” referenced in Article II, Section 2, that authorizes the removal of a President from office by impeachment and conviction. But there is a two fold political problem. First, the Republicans are terrified of Trump voters even as he proceeds to destroy their party. Second, the Democrats have no problem with executive over reach, as evidenced by their quiescence during Obama years—they just want to be the ones doing it.

And so we have an entire political establishment that, for its own purposes, is willingly acquiescing in the destruction of the rule of law in the United States. Isn’t bipartisanship terrific?

JFB

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Toward the end of February 2001 Mohammed Omar, the Taliban’s spiritual leader, ordered the destruction of all the statues in Afghanistan because, he said, they were idolatrous. And so the Taliban went about the systematic destruction of pre-Islamic artwork, which included giant statues of Buddha that were carved into the mountains. Some of these pieces were two thousand years old.

As they went about the business of blasting these priceless pieces of art into smithereens, they also erased a part of Afghanistan’s history. Which was rather the point. Art that did not conform to the received wisdom of Mohammed Omar and the governing bodies of Afghanistan had to be erased from memory, because as Orwell said, he who controls the past controls the future.

The civilized world was appalled.

Fast forward to August 2017. Leftist ideologues have decided that the 225-year-old statue of Christopher Columbus in Columbus Circle must go. Mayor Bill DeBlasio has courageously announced he will appoint a commission to look into the matter. City council speaker Melissa Mark-Viverito decided to weigh in: “There obviously has been ongoing dialogue and debate in the Caribbean—particularly in Puerto Rico where I’m from—about this same conversation that there should be no monument or statue of Christopher Columbus based on what he signifies to the native population…[the] oppression and everything that he brought with him” she said.

The opinion of the civilized world now appears to have evolved into an acceptance of the enlightened reasoning of Mohammed Omar. Statuary and artwork from the pre-Woodstock era must be put into the memory hole; otherwise we might offend the exquisite sensibilities of those aching for the chance to be offended. But of course, this has little to do with what the fight is really all about. It is really about erasing the past to control the future.

The hard ideologues of the left wish to rewrite the history of the West and in the process undermine its culture. And so they attack the soft underbelly of the West, which is that Western elites are either unable or unwilling to defend Western culture and tradition in the face of the mob. Because Western elites are ahistorical and have fallen prey to a vacuous relativism, they stand defenseless before the Marxist critique of Western civilization as a story of the continuing oppression of marginalized groups. Western elites are an easy target because they are lost in a haze of politically correct bumper sticker slogans that substitute for thought.

John Maynard Keynes was prescient here. He famously wrote “Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilled in their frenzy from some academic scribbler of a few years back”. Except that it turns out that the academic scribblers were not economists. They were Marxist philosophers, and artists and sociologists. They were of the Frankfurt School and later its offshoots like postmodernism and deconstructionism. Their leaders were Herbert Marcuse, Antonio Gramsci, Gyorgy Lukacs and Theodor Adorno. They successfully laid the groundwork for the ruthless cultural attack against Western civilization that is now taking the form of wanton destruction of artwork that doesn’t conform to today’s cultural norms.

But by burying symbols that are unquestionably part of its history, the U.S. is also burying its history rather than learning from it. That is hardly an optimal solution. Some, but not all, of those statues celebrating the Confederacy that have aroused such ire were actually created well after the Civil War ended. They were meant to be proclamations of resistance to, among other things, the 14^th and 15^th amendments that were passed to secure the legal rights of freed slaves. Those belong in museums so that their history can be properly taught.

And let us not forget that the Progressive hand lies heavily on the scale here in favor of historical racism. Woodrow Wilson was one of the most racist Presidents in U.S. history. Margaret Sanger was an unabashed racist and eugenicist who favored birth control and abortion to reduce the non-white population. Ruth Bader Ginsburg echoed that sentiment several years ago in a New York Times interview, when with respect to abortion she casually referenced “growth in populations we don’t want too many of”. Then there was the late Senator Robert Byrd who served for a while as an “exalted Cyclops” of his local Klan affiliate. Which is not to leave out Justice Hugo Black who also was a Klansman for a while.

So perhaps, just perhaps, we ought to sit back for a minute and get a grip before we buckle to the mob, and engage in a destructive rite of ritual self-purification.

JFB

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