The First Duty of Intelligent Men

“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.



Charlie Gard, Requiem in Pace

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.



The Impeachable Mr. Trump

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


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.













Trump’s Important Speech in Poland

Stranger things have happened. With storm clouds gathering speed over Russia, China, Iran and North Korea President Trump not only conducted himself like a grown-up, he delivered a speech in Poland that sounded positively Reaganesque. He delivered a much-needed affirmation of Western Liberalism and not

Storm clouds gather over a beach. © 2017 Joe Benning.

just in matters of economics. He touched on the importance of the West’s Judeo-Christian culture to its well-being; re-asserted the primacy of individuals as free agents, and put faith and family at the center of people’s lives rather than governments and bureaucracies. He said:


“We reward brilliance. We strive for excellence, and cherish inspiring works of art that honor God. We treasure the rule of law and protect the right to free speech and free expression.

We empower women as pillars of our society and of our success. We put faith and family, not government and bureaucracy, at the center of our lives. And we debate everything. We challenge everything. We seek to know everything so that we can better know ourselves.

And above all, we value the dignity of every human life, protect the rights of every person, and share the hope of every soul to live in freedom. That is who we are. Those are the priceless ties that bind us together as nations, as allies, and as a civilization.”

Most importantly he posed the question that James Burnham explored when he wrote “Suicide of the West”, which was re-issued in 1965 on the 50th anniversary of its initial publication. Burnham, a former Trotskyite turned Conservative and an early editor of William F Buckley’s  National Review, was pessimistic about the West in its competition with the Soviets. It was his fear that the defeatism and relativism that permeated liberalism would lead ultimately lead to the triumph of Socialism and the demise of freedom. But that was shortly after Goldwater’s 1964 defeat and 15 years before Ronald Reagan would take the reins and work with a Polish Pope to successfully bring down what he correctly called “the evil empire”.


Fast forward to 2017. President Trump (the same one who sneered at the idea of American exceptionalism in the campaign) echoed Reagan, Churchill and Pope John Paul II in his speech in Poland. He said:


“We have to remember that our defense is not just a commitment of money, it is a commitment of will. Because as the Polish experience reminds us, the defense of the West ultimately rests not only on means but also on the will of its people to prevail and be successful and get what you have to have. The fundamental question of our time is whether the West has the will to survive.”

In his speech President Trump asked the big, important questions. And he provided the right answers to those questions. Having done that, he now has to put away his Twitter account and start acting like he means it.





The Unbearable Absurdities of Politics

The continuing absurdities of Progressive politics are on full display in New York City and Chicago. Let’s start with New York.


Phase 1 of the Second Avenue Subway project will take riders between 96th and 63rd Street at a cost of $4.5 Billion, which is $700 million (15%) over budget. If and when it reaches the southern tip of Manhattan—that’s Phase 4—it is expected to cost somewhere in the neighborhood of $17 billion, but no one really knows. Keep that in mind for a minute because the existing New York’s subway system is so decrepit that it is plagued by delays and a train actually derailed in Harlem the other day.


According to John Raksin, Executive Director of the Riders Alliance, a riders’ interest group, the MTA’s capital budget of $30 billion is enough to sustain the system, but not completely update and overhaul it. The MTA’s operating budget is about $15 billion, of which $11 billion is paid by New Yorkers. Now we’re talking real money.


Where is it going to come from? Not from fares, apparently. Read on.


Cyrus Vance, Manhattan prosecutor, has decided that his office will no longer pursue criminal cases of most people arrested for fare evasion. Law enforcement for petty crimes was at the heart of implementing the “Broken Windows” policing strategy that was undoubtedly an important cause of the drop in serious crime in New York from its record breaking highs in the late 1980s to the point where New York is now probably the safest big city in the United States.


But the Broken Windows strategy was problematic (in many progressive circles) because of two of its underlying assumptions. The first is that people are rational decision makers who act in what they believe to be their own best interest. The second is that people are responsible for their own behavior. Listen to Councilman Rory I. Lancman of Queens, the chairman of the Court and Legal Services Committee:


“For too long, prosecution of fare evasion as a crime has disproportionately impacted people of color, bogged down our courts, and even put immigrants at risk of deportation,” he said according to the New York Times.


The “Coalition to End Broken Windows” weighed in as well complaining that Vance’s actions were only a “half-hearted” effort to “combat decades of racist policing”. The policy, they said, perpetuates the idea that people should be punished “for being too poor to use public transportation.”


So once again, individual agency and responsibility go right out the window—over paying the $2.75 fare for riding the subway. Pretty much the same argument employed by Sandra Fluke, the oppressed Georgetown University Law student who was aghast that she might actually have to pay for her very own birth control pills. The horror.

Last year the police arrested about 24,600 for theft of services for fare beating and issued 67,400 civil summonses for the offense.


Enter Chicago


Not to be outdone in the absurdity sweepstakes, the City of Chicago has adopted a new education policy. In order to earn a high school diploma, a student will be required to submit a plan on what he intends to do after high school. If the plan doesn’t appeal to the school, it will not grant a diploma to the student, even though the student has passed all the academic requirements necessary for graduation.


What is more absurd is that they actually go through the mechanics of graduation at all in the Chicago Public School system. It is absurd because the public schools don’t teach the kids anything. According to the latest statistics I could find (2012) only a small fraction of the kids were proficient in math or reading. The U.S. Department of Education found that only 19% of 8th graders were proficient in reading, and only 17% in math.


So the Mayor and the Chicago Education establishment have decided to continue to hand out worthless diplomas to functional illiterates provided they have a good plan for the future. A better plan might be to fix the schools…

But that would offend the teachers unions, the main beneficiaries of the current system.





The Korean Peninsula

Overlooking Busan, South Korea © Joe Benning

The Clinton, Bush and Obama Administrations all pretty much followed the same policy with respect to North Korea, which was to attempt to bribe North Korea into giving up its nuclear program in exchange for food and cash. Any remote chance of a policy success died the day that the U.S. turned on Libya’s Gadhafi, who was summarily executed by U.S. backed rebels in that nation’s civil war, after he had surrendered his nuclear weapons. Hillary Clinton engineered that particular piece of statecraft under the newly discovered doctrine “Responsibility to Protect”.

And so now we are faced with a North Korea that is in the process of rapidly acquiring technology that will allow the hermit state to target American cities with nuclear-armed ICBMs. The Trump Administration, who, like the past three Administrations claimed to be leaning on China to rein in its North Korean client, insists that the current state of affairs is unacceptable, while it weighs the unpalatable options. In the meantime, the Washington Post announced that the latest missile test “…underscores the failure of Trump’s naïve approach to North Korea”. This, even though thus far Trump’s approach has been indistinguishable from that of his predecessors.

Up until now the received wisdom respecting the Korean Peninsula was that (1) North Korea’s leaders were crack-pots who nevertheless could not directly threaten the U.S., (2) China had an interest in reining in North Korea, but (3) had limited leverage where sanctions are concerned because a collapsing North Korea could destabilize China. That view is increasingly difficult to accept given the recent behavior of the players.

China talks a good game, but has actually done relatively little to rein in North Korea. More likely is that China is encouraging the North Koreans. Wait for the outlines of a deal whereby the North Koreans agree to “freeze” their nuclear program in return for the U.S. pulling back from the Korean Peninsula—and the South China Sea. The North Koreans will of course be lying, even as they solidify their position.

A U.S. pullback would greatly expand China’s regional power and leave Japan, South Korea and Taiwan vulnerable and exposed. China and Russia would be in a position to cooperate to push back against the West. While China expands its reach in the South China Sea, Russia would continue to pressure NATO, while adopting a more aggressive posture toward its “near abroad”. Iran, North Korea and Russia would expand cooperation as well.

The West is facing a time of great peril, and its most precious assets—credibility and resolve—are in doubt. Up until this point, the United States has had a deep bench of politicians and policy intellectuals to draw on when the going got tough. There are still plenty of extremely competent policy professionals in think tanks around the country. But it is hard to see where the political leadership is going to come from.