If your dispute with Trump and your call for his removal are based on policy (and his language about policy), rather than about discrete factual predicates amounting to legal violations, then you should eschew the language of the criminal law and push forward with debates (in this forum and elsewhere) about the prospective dangers you think Trump is creating or the harms he has already caused. But as I said, the country survived Johnson. To the extent that the argument against Trump is based on his saying stuff you think outrageous, I think the country will survive his talking big. I would also add that Trump has done little (as I see it) which substantially departs from his campaign statements—so a removal based on political disagreement about the expected consequences of policy is not going to be one with a strong democratic justification.
Technical point: It may be that deporting foreigners is not a criminal punishment, but exiling/banishing/deporting Americans who are in the country legally would seem to me to amount to a violation of a 14th Amendment liberty interest. This brings up an important cultural divide in America today (and not just in America, but across the Western world). Many of Trump’s supporters see the elites as being indifferent between their fellow citizens and foreigners. I ask you not to prove them correct.
Political Philosophy
Draining the Swamp: Progressive Politics – the Road to Crony Capitalist Perdition
From A Libertarian Republic to Majoritarian-Totalitarian Democracy: a Summary
The 2016 American Presidential Election
Trust in government fell by almost 80% from the end of the Eisenhower Administration to the end of the Obama Administration. Then Americans endured one of the most divisive and longest two year election campaigns leading up to the 2016 election. Former Democrat turned Republican Donald Trump defeated a field of 17 traditional center-right Republicans to run against traditionally centerleft Democratic candidate Hillary Clinton who turned left to defeat her socialist competitor Bernie Sanders in the primary. Sanders correctly argued that the U.S. political system is rigged more than he knew at the time but responded by promising his generally young supporters socialism without totalitarianism. The public has endured another two years of divisiveness as the losing party tries to undermine and some would impeach the winner.
Republican nominee and arguably crony capitalist businessman Donald Trump, the son of a crony capitalist housing developer, ran on the paradoxical promise to “drain the swamp.” The faux democratic election of crony capitalist supremo Vladimir Putin in 2011 drew the public reprobation of then U.S. Secretary of State Hillary Clinton, the subsequent Democratic Party nominee. Putin responded with a campaign of not so fake news not to elect Trump they had the same polls as everybody else but to expose Clinton as a crony capitalist who also engaged in election-rigging. He hit pay dirt. The faux Russian collusion scandal has since been used to undermine the legitimacy of the Trump Administration.
On the issue of trade there was no difference between the three main candidates all opposed the new TTP trade agreement. The U.S. trade deficit has been about $500 billion a year during this century, consumption financed mostly with additional debt. Candidate Clinton, who supported China’s entry into the WTO during the Clinton Administration agreed she would if elected renegotiate NAFTA, the trade bill passed at her husband’s initiative. On the related issue of immigration, candidate Clinton voted for the bipartisan Secure Fence Act of 2006, as did then Senators Obama and Schumer.
The Obama Administration had doubled the federal debt outstanding to over $20 trillion – and the unfunded liability is approximately ten times that. President Obama’s Chairman of the Joint Chiefs of Staff publically warned as early as 2010 that the debt was a threat to national security. Candidate Clinton promised she wouldn’t add a penny to the national debt, but her platform had an imbedded $10 trillion increase, less than Sanders to be sure. Candidate Trump promised to eliminate the debt in eight years by increasing economic growth. Clinton’s was a political lie, Trump’s an outlandish campaign promise since going unfulfilled: his appropriations bill contained a $200 billion increase in spending, a Democratic victory for domestic spending in return for Republican defense spending.
Candidate Trump ran against the “deep state” wars and military interventions that candidate Clinton had voted for. But as President, Trump embraced it with overwhelming Democratic support to punish Russia.
Progressivism’s Administrative State
The Democrats’ agenda has arguably fared much better under Trump than Republicans did under Obama. Given these similarities in proposed and actual policies, the subsequent animosity might appear puzzling. But the biggest difference among the candidates relates to the relative roles of the public and private sectors. The U.S. is now governed by an unaccountable patria administrative state: judicial and legislative subsumed in the executive branch and sometimes independent even of that judge, jury and executioner. The new religion is “science” requiring a faux consensus and leadership by the “experts” as proposed by John Kenneth Galbraith in the New Industrial State (1967) over a half century ago.
Washington, D.C. is a place where self interested deals are made in hotel lobbies and K street offices, but the entire federal bureaucracy sits on a former swamp. Most federal politicians are political swamp people having worked their way up in local and state politics by making political deals for budget and/or tax subsidies and/or regulatory discretion – legal extortion. Candidate Clinton is a self described progressive and candidate Sanders a socialist, the former supports state control of business, the later favors more direct state ownership.
The Berlin Wall fell in 1989, followed by the Soviet Union two years later. In 1995 U.S. President Bill Clinton declared “The era of big government is over.” Britain’s Prime Minister Tony Blair, publishing in a Fabian pamphlet in 1998 argued: “Liberals (classical, i.e., American conservatives) asserted the primacy of individual liberty in the market economy; social democrats promoted social justice with the state as its main agent. There is no necessary conflict between the two, accepting as we now do that state power is one means to achieve our goals, but not the only one and emphatically not an end in itself.” But “the values which have guided progressive politics for more than a century – democracy, liberty, justice, mutual obligation and internationalism” have lead in practice to “state control, high taxation and producer interests (crony capitalism).” By the end of the century a few years after Blair spoke, the market had reached The Commanding Heights of the economy. But a decade later the Obama Administration had put the state back on top, seeking to control not just health care but finance and energy.
Progressivism like fascism and communism started with the best of intentions, in opposition to crony capitalism. Social welfare programs were implemented to spread the wealth and provide a safety net, but during the progressive Obama Administration economic growth per capita stagnated. Candidate Trump believed that rolling back the administrative state regulations and the tax on savings and investment as suggested by Blair would restore real private economic growth, the key to managing the public deficit. His Democratic opponents both favored a vast expansion of the administrative state and increases in the tax on capital.
Progressive Internationalism and the New World Order
Progressives supported freer trade even if not reciprocal in the post WW II era because America could still enjoy a balance of trade surplus that could be used to fund investments abroad and a “new world order” of American dominance in a bi-polar world with the Soviet Union and its satellites. The European Union evolved as a mechanism to end European – especially German “nationalism” in favor of this plan. Two events undercut this agenda of international control through capital flows: the 1960s wars on poverty and Vietnam turned American surpluses into deficits, and the common European currency created a German economic hegemony over Europe. The U.S. today is to China what Greece, Italy, Spain, Portugal and Ireland are to Germany, and that’s not a compliment. Both China and Germany – whose exports equal China’s with only 6% of the population – are mercantilist countries pursuing low wages and consumption domestically so that future generations can live off the debt that finances their over-consuming customers.
Germany understands perhaps better than any country the problem of using foreign debt to finance current consumption as it did to feed a starving population during the interwar years. The excessive debt undermined the fledgling Weimar Republic, giving rise to Hitler. Trumps trade policy appears incoherent, as is much of the criticism. Progressives still argue for globalism and internationalism while conservatives and libertarians are hung up on Ricardian theory of comparative advantage in international trade and the accounting identity of the trade and capital balance.
The problem isn’t global trade per se, but progressive policies that repress national saving and domestic labor and capital productivity while growing the administrative state. National boundaries still matter. In the EU the single currency zone has destabilized previously relatively stable prosperous countries, threatening political and economic collapse. The relationship between the U.S. and China reflects a similar dynamic: the willingness to accept American debt has kept the dollar from falling and trade adjusting. China holds over trillion dollars of debt backed by taxpayers, and was the biggest foreign funder of Fannie Mae and Freddie Mac during the sub-prime lending bubble. Progressives argued that we would grow out of this debt, but simultaneously and inconsistently deny that the failure to grow during the Obama Administration reflected economic repression but “secular stagnation” that capitalist innovation has run its course. If so, we are doomed when countries attempt to collect.
Thus far the main part of the Trump agenda, the tax reform and regulatory roll back – against universal Democratic opposition and condemnation – appears to be working. Economic growth per capita has picked up, unemployment is the lowest since the turn of the century, and business investment net of depreciation is rising from historic lows. But it is way too early to declare success. China entered the WTO without meeting the minimum requirements for intellectual property protection or reciprocity, a Clinton Administration oversight. Fixing the former should be uncontroversial. Reciprocity insures that the most competitive – not the most subsidized win. Subsidies may benefit American consumers temporarily, but the dislocations are costly and overconsumption dangerous, the debt leading to contemporary “gunboat diplomacy” to settle debts. A reciprocal tariff is a consumption tax, not irrational to consider under those circumstances.
Progressive efforts to Impeach President Trump: the Totalitarian Administrative State Strikes Back
Yet since the election, some progressive Democrats have been pushing for impeachment on grounds of Russian collusion and obstruction of justice, although no evidence has yet been produced of that after two years of investigation.
One thoughtful progressive commentator dismisses these grounds, arguing that the real grounds for impeachment are the “threats Trumpism poses to democracy and rule of law.” If true, those would indeed be grounds for impeachment but he doesn’t define Trumpism or provide evidence. The many articles in the progressive media can be summarized thus: Trump is tweeting against the administrative state agents that are out to get him.
Libertarians and Republican conservatives have argued that progressives have been undermining liberty and the rule of law for over a century to create the administrative state, obfuscating their agenda by manipulating words to mean the opposite of their historical meaning. Trump’s Court appointments are intended to reverse that trend. Statism is usually associated with one-party faux democracy to prevent state power from turning against the entrenched interests with a change of government. Trump ran against the progressive new world order, arguing to “put America first.” The Democrats didn’t think Trump had any chance to win. This seems the more compelling reason for their impeachment efforts. The anti-Trump organized hysteria bears a marked resemblance to the largely Soros funded Republican and Democratic efforts to ignite the democratic color revolutions in the former Soviet states described by F.William Engdahl in Full Spectrum Dominance: Totalitarian Democracy in the New World Order (2009).
This isn’t about Trump tweets. It’s a battle for the commanding heights.
Should Law Yield to a Judge’s Personal Beliefs?
Linda Greenhouse, writing about the late federal judge Stephen Reinhardt, also mentions Supreme Court justice William Brennan, and says “Doctrinal purity mattered less to him than extracting even the most gossamer claim to a favorable result.” She evidently sees this as a good thing.
I’m reminded of something written by Sebastian Haffner, who at the time of the Nazi takeover of Germany was a young lawyer working at the Prussian Supreme Court, the Kammergericht:
It was strange to sit in the Kammergericht again, the same courtroom, the same seats, acting as if nothing had happened. The same ushers stood at the doors and ensured, as ever, that the dignity of the court was not disturbed. Even the judges were for the most part the same people. Of course, the Jewish judge was no longer there. He had not even been dismissed. He was an old gentleman and had served under the Kaiser, so he had been moved to an administrative position at some Amtsgericht (lower court). His position on the senate was taken by an open-faced, blond young Amtsgerichtsrat, with glowing cheeks, who did not seem to belong among the grave Kammergerichtsrats…It was whispered that in private the newcomer was something high up in the SS.
The new judge didn’t seem to know much about law, but asserted his points in a “fresh, confident voice.”
We Refendars, who had just passed our exams, exchanged looks while he expounded. At last the president of the senate remarked with perfect politeness, ‘Colleague, could it be that you have overlooked paragraph 816 of the Civil Code?’ At which the new high court judge looked embarrassed…leafed through his copy of the code and then admitted lightly, ‘Oh, yes. Well, then it’s just the other way around.’ Those were the triumphs of the older law.
There were, however, other casescases in which the newcomer did not back down…stating that here the paragraph of the law must yield precedence; he would instruct his co-judges that the meaning was more important than the letter of the law…Then, with the gesture of a romantic stage hero, he would insist on some untenable decision. It was piteous to observe the faces of the older Kammergerichtsrats as this went on. They looked at their notes with an expression of indescribable dejection, while their fingers nervously twisted a paper-clip or a piece of blotting paper. They were used to failing candidates for the Assessor examination for spouting the kind of nonsense that was now being presented as the pinnacle of wisdom; but now this nonsense was backed by the full power of the state, by the threat of dismissal for lack of national reliability, loss of livelihood, the concentration camp…They begged for a little understanding for the Civil Code and tried to save what they could.
“The meaning was more important than the letter of the law”…Linda Greenhouse’s approving gloss on Brennan’s judicial strategy is in my view uncomfortably close to the methodology of this newly-assigned Kammergerichtrat. I am not saying, of course, that Greenhouse is a Nazi; I am, however, saying that the judicial interpretation approach that she prefers is highly dangerous.
(I discussed Haffner’s experiences at the Kammergericht, and their relevance to American today, in 2013 at Chicago Boyz, where an interesting comment thread developed)
Also highly dangerous: the attitudes and behavior of those CUNY law students…law students, mind you…who recently tried to shout down a talk being given by law professor Josh Blackman. See also Blackman’s own article about his experience at CUNY.
The mainstream of the Democratic Party and its supporting media has gone very far in the directions of legislation by the judiciary, and is moving rapidly toward the approval of politics by mob action. The prospect of Democratic control of Congress and/or the Presidency…even of Democratic dominance following a crippling of the Trump presidency…should be absolutely terrifying to all who value American institutions.
Haffner’s memoir is an important and well-written document; I reviewed it here.
(The above was also posted at Ricochet, in slightly different form; so far, it is only on the Member feed)
Po nan Jwèt la: Asymétri Kache nan Lavi Chak Jou
Taleb, Nassim N., Skin in the Game: Hidden Asymmetries in Daily Life. New York City: Random House, 2018.
NB: precisely because I regard Taleb as a national treasure and have considerable respect for his work, I am not going to pull punches here. I get to do this because I have … skin in the game, and not only in Haiti[1] (where I wrote this post over the past ten days, thus the Kreyòl Ayisyen title), but in a couple-three moderately hair-raising situations back in KC, which I will relate when appropriate. Which might be never; see Matthew 6:1-4 (cited by Taleb on page 186).
Getting this out of the way—buy this book, read it, and recommend it to others. I say this very much irrespective of what might be called the Manifold-Taleb delta, which is not altogether trivial, as I will explain in some detail—again, as a sign of respect—below. Immediately below, in fact.
Quote of the Day
But censorship by language reform is not a matter of logic, it is a matter of power. As Humpty Dumpty said, it is a question of who is to be master (if one may still be allowed the word), that’s all.
Like many things.