We’re Not Heading for an Authoritarian Crisis

These Will Still Be Trying Times for Our Democracy

Back in February, a piece, Trial Balloon for a Coup made the rounds on blue Facebook. The essence of the piece was that the way the travel ban was rolled out—through a gutted state department, around an objecting DHS, and skirting the orders of the court—was Trump’s team trying to test the waters. I dissented, suggesting it was much more likely blundering by people who did not understand the limits and finesse of executive power. As the courts have continuously struck down and rolled back the ban and the administration has ceded to their authority, I have felt vindicated. The Trump Administration is testing and searching, but so far within Constitutional limits. And they’ve not been very good at it.

The newest round of breathless panic is about how the final months of the Trump administration might play out. And I do mean it: final months. The panic in the administration as Mueller moves in on Trump’s finances should tell that he is hiding something there. The publicly available information is starting to point to a racketeering operation that ties in with Russian efforts to compromise our democracy. We may not need to prove espionage to impeach the President; money laundering could well do the trick.

The President is enormously powerful and will have a few tools at his disposal. First, he could fire Mueller. There are some niceties here. Whether or not Trump can literally fire Mueller or if he has to find someone in the chain of command to do it for him has been debated. If Nixon’s precedent is anything to go on, he may have to fire Deputy Attorneys General until someone is willing to carry out the order to fire Mueller. The so-called Saturday Night Massacre touched off a firestorm that ultimately undid Nixon. Trump may be convinced not to follow that precedent.

Beyond a basic level of immunity and privilege (designed to keep more baseless
“scandals” from consuming the Executive), he may also be able to pardon the conspiracy. There is a vigorous legal debate about whether or not SCOTUS will uphold those pardons. First, there is good reason to think the President cannot pardon himself, though the matter is far from settled. If he cannot, then pardoning co-conspirators may also not be allowed because it would undermine the investigation into the President and effectively amount to a self-pardon. It would be an incredible SCOTUS case, to say the least. At any rate, being pardoned waives the right to claim the 5th Amendment (as self-incrimination would then be impossible). We could fall into an infinite loop of contempt charges and Presidential pardons, but its worth pausing here to consider the political ramifications of this.

This blog does not offer much aid or quarter to Republicans in Congress. Members of Congress are a spineless, self-preserving lot and this is a liberal outfit besides. But Republicans have been nominally correct on two fronts. First, there has been a paucity of conclusive evidence. Aside from the Donald Trump Jr. emails—and that’s a huge aside—there has mostly been innuendo, leaks, and speculation. Second, while it is technically their job to check the executive, Mueller is running an internal investigation. Passing the buck is not ideal, but its not in any way contrary to the way the Constitution frames this kind of problem. The public position of most Republicans in Congress has been to defer to Mueller and point out they’ve conveniently not seen much evidence.

Liberals were kidding themselves if they expected Representatives to rush to the steps of the Capitol to announce they were abandoning their party’s President before 6 months were up on a single admission by the President’s son. Conservatives are delusional if they think their party isn’t having private meetings about how they are going to close ranks when mostly smoke becomes mostly fire. Firing Mueller or issuing pardons would remove the veneer of plausible deniability and create a media sensation eclipsing the Comey firing. Committee hearings into Russia’s tampering of our election got more serious after that; imagine what a Mueller firing will do. Members of Congress saying they are “very concerned” may be a joke, but they are leaving themselves an escape hatch. Either of these actions by the President may well force them to finally take it.

What if I’m wrong? What if they duck for more cover? The crisis would be real, but the incentives to use our institutions to check the Executive would grow commensurately. Firing Mueller will almost certainly require a major reorganizing of the Department of Justice, while pardons would be tantamount to an admission of guilt. The firestorm that would follow would consume Washington, scuttle the domestic agenda, and fundamentally alter the political landscape more than even Comey’s firing. I predict that the public outcry would be withering, and that a critical mass of Republicans would defect against the President. But again, if I’m wrong, that wouldn’t be the worst of it. There will be a few days grace period for Senators and Representatives to cobble together a response. If it was not forthcoming or woefully insufficient, the institutional coup that would follow would be profound and undercut any authoritarian designs Trump harbored.

As a matter of public record, the Intelligence Community has been on this case for years. While they were not ready to pull the trigger in the lead up to the election—and Obama stopped them from the more measured plan they hatched—it has long been known they have damning evidence against Trump and his associates. If the first three branches refuse to see what is plainly recorded in the dark recesses of the NSA, there is a final, informal branch of government they can appeal to. If the Republican Party proves too paralyzed to defend our nation, the IC will not so much as leak as hemorrhage. It will be unsparing. Every Senator and Representative with tangential ties to Russia or the RICO case will find themselves the subject of a widening “leaking scandal”. The exact contours of the FARA case will become the subject of breathless NYT and WaPo reporting. Senators can scoff at WaPo’s masthead, but this Presidency may well die in the light.

This final recourse will do incalculable damage to the political system, but it will not be an authoritarian crisis. We have every reason to believe the evidence was collected legally for national security purposes, and only sought after foreign adversaries mentioned this plan. For good reason that information is meted out through the politically accountable parts of our government, but the system was designed on the premise that our Congress would defend the Constitution from plain threats. If there is ever a time for leaks, it is as the President bullies Congress into accepting his collaboration with a foreign adversary.

To clamp down on this, Congress, the Press, and the rank-and-file officers of the Executive Branch would have to accept a clamp-down on rights. Could attorneys at the DOJ suddenly prosecute periodicals that published leaks? The DOJ would stand empty before most did that. Will SCOTUS acquiesce to a suspension of civil liberties? Could Trump shut down the press? It hardly warrants consideration. Would Congress stand by him through an assault on the First Amendment? Stuff of fiction! Would the Army back a power grab if he tried to deputize them? There is a great miniseries in that, but it should be relegated to speculative television. The machinery of authoritarianism is not in place, nor will it materialize in the next year.

Appointing Mueller created a brittle covenant with the GOP in Congress. So long as he is investigating, they will defer to him and turn over as few stones as they can get away with. It is not praiseworthy, but it is also only support at the most tacit level. They get stability and keep their options open. They can credibly say that their duty to check the President has been outsourced. If Trump removes Mueller or pardons the conspiracy, that covenant is broken. Congress will abandon him to save their own skins and, on the off the off chance I’m wrong, the IC will bring to light what our “leaders” have been too cowardly to show us.

The coming crisis—and I do think its all but upon us—will shake our Democracy to its foundations and re-write politics for a generation. But it will be the desperate final acts of incompetent, self-serving blow-hard, not the calculated authoritarian power grab that liberals fear. Trump’s extraordinary power and Congress’s vile timidness means that any patriotic should be ready to defend those foundations. But, having exhausted all other options, Congress will do the right thing if Mueller is removed.

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We Are Sansa Stark: Martin’s Bleak View of Rights

Content Note: Spoilers for the book and first season of Game of Thrones.

game-of-thrones-season-7

The first book of a Song of Ice and Fire, the series that has been adopted into Game of Thrones on HBO, follows virtuous Ned Stark to the capital of a tenuous confederacy of Medieval kingdoms. It is a generation after a Civil War where Stark himself helped to put the current king on the throne. Though his friend was an excellent warrior and general—and we learn their cause was against a king who was cruel by even the brutal standard of Martin’s Westeros—he is a terrible ruler. He would rather whore, drink, and hunt than “count coppers” and see to the justice of the land. By contrast, Ned Stark is virtuous, judicious, and concerned with ensuring the safety and security of his people.

It is a nod to the dynamic that emerges in J.R.R. Tolkien’s Return of the King. In it, Aragorn, the distant descendant of the last king of Gondor, at last returns to his ancestral home with the intent of taking the throne. He finds the descendants of the Stewards, who have been on the throne for 3000 years, unwilling to let go. Aragorn’s personal virtue and noble blood (yes, there is some racism involved) allow him to retake the thrown when the corruption of the Stewards is laid bare. Whatever you think of it as an allegory, it has little resemblance to our own history.

Another character in the book Game of Thrones who grapples with these ideas of honor is Sansa. The show is criticized for its sexism, but Martin built a sexist world and then showed us the thoughts of women navigating it*. Sansa is thrown into the capital with her father and must reconcile her education about chivalry, the right way for a man of status to act, with the actions of the men she is surrounded by. She wants Joffery to be her kind and gentle protector, but his budding sadism manifests in tormenting her. She witnesses one knight murder another with an underhanded trick. Her father’s friend, the King, is transparently lecherous and lazy. Again and again she sees the men she was taught to idolize break their chivalrous oaths.

Chivalry was the human rights of the middle ages—the latter is indeed a descendant of the former. There are critical differences, particularly in how common people were treated. The expectation was that the nobility would act, well, nobly to protect them. But they had an enormous amount of power and protection that meant if those ideals were not met, there was little recourse. except war between nobles and the king. (And this happened! The way Italian principalities turned on Caterina Sforza for murdering children is instructive.) If it was not expedient, horrors could unfold. But this is not so different than our own time, where some human rights violations are dealt with swiftly and other breaches are tolerated, albeit with condemnations.

As Martin moves towards the final act of Game of Thrones, he has a potent cocktail of themes. He has set up both a formidable cast of villains and the expectation that Ned Stark’s virtue can overcome them a la Tolkien. His daughter is trying to find a way to cling to her beliefs about the men in the capital. The king dies in an “accident” orchestrated by his wife. Ned Stark accurately accuses the queen of treason and is imprisoned for his efforts. To save his family, he confesses to the crime and agrees to go into exile.

And then King Joffery has him executed because he could.

Martin is in conversation with both Tolkien and human rights here. He is saying that ultimately, he (or she!) with the power decides what rights are. At the dawn of the 21st century, we are not used to thinking of human rights as a construct, something that exists simply because the powerful allow them to. But for years, a show essentially premised on that conceit (albeit, through chivalry) has captivated American audiences. Likewise, he is saying virtue is a frail and fickle answer to the vilest whims of the powerful; Aragorn would have been beheaded and the Stewards would have consolidated power.

Importantly, we are Sansa Stark. We believe in Human Rights with all the intensity Sansa believed in the chivalry of her world. Sansa is often criticized for being naive and willfully ignorant at the start of the series, but for me she hit close to home. I buy into the ideals of Human Rights, though I’ve soured to any idea they are literally real. Like Sansa, I’ve seen them ignored too many times for reasons that were too self-serving to believe that we have those rights in any intrinsic way. I’ve had to come to terms with the fact that the man I idolize did not always rise to the full heights of those ideals. Sansa feels essential to me because she shows me something about myself I do not like.

So, as you watch the new season of Game of Thrones, keep in mind Martin’s point: Human Rights exist only as long as we are willing to defend the lie.




*I will leave it to other commentators to discuss Martin’s obligation to build a world that transcends sexism, but I find his exploration within those constraints to be at least adequate. Lady Stark, Circe Lannister, and Brienne of Tarth are also perspective characters in the book and each shows a different facet of living with the sexism of the world.

The Nicest Thing I’ll Say about Mike Pence

A lot of ink is being spilled about how Pence has hired outside counsel. In particular, there is a theory going around that this proves Mike Pence is in some way guilty or hiding something.

Okay, this might be true! Pence was head of the transition and therefore could have known about whatever wrongdoing Flynn, Manafort, Carter, Sessions, and Page are working hard to hide. So the read that Pence has hired a lawyer and could well be worried about the investigation isn’t off the wall. It’s definitely how I read Trump’s decision to hire outside counsel, after all.

That said, hiring outside counsel is a matter of course in these situations for three reasons. First, when an investigation gets close, you should hire a lawyer just to keep things on the up-and-up. You want to quickly, accurately, and forthrightly respond through a competent professional especially if you have nothing to hide. Second of all, White House counsel is supposed to defend the White House; they do not explicitly defend Trump and Pence. Even Mike Pence is smart enough to know he might want his own lawyer. Finally, Trump has hired outside counsel whose job is to show that Trump is plausibly innocent. You know who makes a great fall guy? Head of the transition. Hiring a lawyer to defend against that is sensible.

So, yeah, the lawyer is mostly proof of swirling scandal. Nothing new about it.

The GOP is Suddenly Anti-Violence

It was the kind of gadfly news story that no one is going to remember in a year. The President’s son, Eric, said that critics of his father “are not even people“. Indeed, he’d “never seen hatred like this”. There was outrage. There were thinkpieces. There were condemnations. And we moved on.

Eric Trump is emblematic precisely because he is forgettable. His father, of course, may have incited violence, if not to a legal standard, then certainly in the court of public opinion. Ted Nugent offered to shoot the last first family. Congressional Republicans, quite apart from endlessly protecting gun access, have blocked investigations into right wing militias. There is at least one member of an actual, honest-to-Hitler Nazi Party working in the White House, the rest of the Nazi and Fascist adjacent pantheon of deplorables notwithstanding. Trump has called for “second amendment people” to deal with his opponents.

Apart from cozying up with this sort of endless performative violence, the GOP has constantly poisoned the well of discourse. Do you remember when we had the Obamacare debate and there were going to be Death Panels? Gay panic has mercifully receded in the last five years, but state legislatures still have people willing to say that LGB and especially T folks are nothing more than prowling rapists and murderers lurking in your local public restrooms. Liberals give shelter to illegals (rapists, murders, and, some, I assume, good people) and Muslim terrorists. The GOP has become a cult of fear, imagining political violence barely contained within liberal ranks and convincing its voters, by way of Fox News, to arm themselves and take all possible measures to thwart us.

I’m not suggesting that yesterday’s shooting in Alexandria was caused by this directly. Though, now that I say it, there is something to be said for the fact that Sander’s hyperbolic talk of “rigged systems” and “revolution” thrives when laid against GOP extremism. But what I’m really suggesting is that the hypocrisy of suddenly finding a need for restraint in political discourse is really fucking rich. Liberals self-evidently need to clean house; the Sanders set in particular has drawn more than one extremist. But if there is one person I am not taking advice from about how to do that, it’s noted blight on American discourse, Newt Gingrich. Watching Congressional Republicans respond to the President’s fire hose of bile and vitriol with silence and Paul Ryan’s oddly glassy stare has been a masterclass in how to not to clean house.

But you know why I’m actually %10,000 done with this? There is an epidemic of violence in this country. We just had the 1-year anniversary of the Pulse shooting where 49 people—mostly queer, mostly Latino—were gunned down. Hate crimes are swelling. Systemic police violence is a lot like stormy weather; it comes a few times a summer in most cities. Congressional Republicans have the power to address all these things with the full force of the American Constitution behind them. They haven’t, they aren’t, and it makes clear where their priorities lie.

But, I guess they postponed the hearing about improving access to silencers, so maybe they are turning over a new leaf.

The Laffer Curve and Kansas

What is the matter with Kansas? After several years of budget crisis, they are finally admitting—in a dramatic fashion—that cutting taxes maybe contributed to the state budget deficit. The argument for cutting taxes in the first place hinged on an arcane bit of economic theory called the Laffer Curve. Named for Reagan’s economic adviser, the Laffer Curve asserts that under certain circumstances, lower taxes can actually allow the government to make more money.

The Laffer curve is not as crazy as reports make it sound—though it isn’t exactly the most urgent model either. The idea is that the higher the tax rate, the less people buy because it drives up the final cost; the higher the price of pizza the less you buy. Presumably, consumers don’t care very much if the price reflects tax, profit, or business expenses. That means the tax base, the amount of money that can be taxed, is shrinking. At the same time, the higher tax rate means that the amount of the tax base that becomes tax is higher.

This tug-of-war between a shrinking tax base and a growing tax rate doesn’t play out in any general way; there is no rule for when one might expect one to outweigh the other. With that said, let’s take a pretty standard supply and demand graph like you might find in an introductory textbook. You would expect to find two straight lines, one sloping up and one sloping down. The numbers* I assumed are purely fiction, chosen for their mathematical form and not based on Kansas data. Nonetheless, they illustrate the essential problem to a good approximation. Graphing the amount of revenue the government earns versus the tax rate gives you this chart:

Laffer Curve.png

Notice that until the tax rate is a whopping 200% the government makes more money for raising taxes. 200% isn’t an unusual number to get for the turnaround point on the Laffer Curve for a broad range of assumptions, though I must note it is possible to contrive models that put it near Kansas’s tax rate. Nonetheless, for a number of completely standard assumptions, the warning of the Laffer Curve is that if you lower taxes, the government will make less money.

Why did Governor Brownback fall for something freshmen getting econ degrees could have computed as wrong? I suspect it is wishful thinking. The analysis that Brownback relied on was sophisticated, and had an additional supposition that the low tax rate would draw businesses into the state. (They never came.) There is something appealing to my contrarian nature about the idea that taxes going up makes revenue go down, and I bet that would be stronger if I were conservative. It’s also possible—though I can only speculate—that Brownback just doesn’t care if revenue falls.

Trump’s budget makes the same kinds of claims, that if we cut taxes, GDP will roar. Conservatives in particular like to talk about the States as “laboratories of Democracy”; it is one of the places I agree. The experiment succeeded in Kansas; under normal circumstances, cutting taxes leads to decreased revenue, not an increase.




*I used {S: p=q} and {D: p=10-q} in case anyone is dying to verify my work.

The Hot New Right Wing Conspiracy is Really Boring, Guys

In the Great Book of Washington Spin, there is a tactic as old as politics: Whataboutism. Whataboutism is asking, “Yeah, what about…” and inserting the scandal of the day. Its barely tolerable during election season when it is tantamount to saying, “My guy is bad, but your guy is worse.” But now that the election is over, Whataboutism is simply ridiculous.

Which brings us to the Obama scandal of the moment: the NSA under Obama systematically violated the Fourth Amendment. Take for example this Fox News piece:

The secret court that oversees government snooping took the Obama administration to task late last year, suggesting it created “a very serious Fourth Amendment issue” by violating rules the government itself had implemented regarding the surveillance of Americans.

According to top-secret documents made public by the Foreign Intelligence Surveillance Court – often referred to as the FISA court – the government admitted that, just days before the 2016 election, NSA analysts were violating surveillance rules on a regular basis. This pattern of overreach, coupled with the timing of the government’s disclosure, resulted in an unusually harsh rebuke of the administration’s practices and principles.

This is largely true. (An “unusually harsh rebuke” is true mostly in that Obama didn’t usually draw the Court’s ire for anything, not in that the abuse was severe—more on that in a second.) Much of the rest of the piece, including that press outlets like The New York Times didn’t cover it, are false. Indeed, it largely passed unnoticed in the liberal press because, frankly, it was not a particularly interesting story.

The gory details laid out by the FISA Court are far from scintillating. In fact, they are almost comically boring. As mentioned, ts true that in late September a pattern of Fourth Ammendment violations was found and brought before the Court. But who uncovered and reported this dastardly plot? Well, it turns out to have been the Inspector General of the NSA. That’s right: The NSA caught the NSA making these errors and told the court. They were rebuked, lest you think anyone ends up looking good here, for being slow to report them, but the Court gives no reason for the month delay and draws no wider conclusion as Fox does.

The abuse itself was hardly the basis of a Hollywood thriller or vast conspiracy against a CBS journalist. The main problem according to the Court was that the software the NSA was using to query its database required its analysts to opt out of data about people on email threads. If the analyst left a box checked, they might find out that an American citizen was on an email thread. I don’t want to pull the punch: The NSA should not have been finding that out. But the several hundred (the exact number is redacted) instances of this being used over 5 years were not linked to any sort of criminal behavior. It was systemic in the sense it appears few meant to do it, the system was just built that way.

The conservative press needs this to be a big issue because if the NSA was habitually breaking the law, Kushner’s actions can be excused. It’s the worst sort of whataboutism. Never mind that they would not be looped in until after many of the alleged exchanges happened. Never mind that email threads are not something you’d go into a Russia SCIF to hide. Never mind that there is a lot more substance to the accusations against Kushner than just, “some IC dudes said so”; he’s admitted to hiding his contacts with Russia, a transparent felony.

This isn’t a hot conspiracy. It’s a boring technical violation that the Government was fixing anyway.

The Catch-22 of Leaks

How do I even summarize the last few weeks? Words have failed me, so let me just share a gif:

giphy

The White House has been a tire swing on fire. Special prosecutor? Ryan maybe-but-maybe-not joking about Trump being on Putin’s payroll? Flynn and Manafort being completely, hopelessly, utterly screwed? I’m sure within two days these examples will seem quaint developments from a simpler, less chaotic time. The point is not to keep you updated on this dumpster fire. Its to point out something that ties all the developments together.

Everything we know so far is because someone with inside information called a journalist they strictly should not have. Donald Trump—sit down for this—has a point when he says there is a story in why his administration is hemorrhaging information to the press. To use Congress’s favorite word, it is “troubling” that people without authorization are fanning the flames of this scandal with leaks. That’s not how this is supposed to work.

A subtle line was crossed with the leak of the Paul Ryan tape. The transcript reveals that Paul Ryan, at best, actively considered that Trump was on the Russian payroll and thought it funny. At worst, it shows he was willfully complicit. Neither is good. But the leak is taking aim at Ryan’s domestic agenda by undercutting his Speakership. The problem is that Ryan and McConnell have been willfully ignoring the mounting evidence because it endangers their legislative master plan. We are at a precarious moment where a whistle blower has demanded the domestic agenda be put on ice to address a growing international espionage scandal.

The ethics of this, I think, are pretty straightforward. Leakers should only disrupt the domestic agenda if there is a clear and present danger to national security. The events of the past two weeks should have convinced you that the Russia collusion allegations are 1) substantive and 2) worth vetting. Trump likely got an Israeli spy killed and damaged our national security because he bragged to Russian officials about our intelligence. If the allegations of collusion are true—and the leaker may be in a position to know better than us—then Congress dragging its feet is doing real-time damage to our nation.

The Catch-22 is there is no way to be certain if it was ethical without Congress digging deep into this. If it is found that the FBI or the leaker in particular did not have solid reason to believe that there was immediate danger, this is in and of itself a scandal. But with what is public its hard to imagine that there is nothing fishy here.

Therefore, the question of leaks is fundamental. It’s not an either/or, where we should drop the investigation to find the leakers. We should immediately seek to learn why this information was being made public and make the determination if the judgement was sound. Whistle blowers should be judged on what they knew and the judgement of a reasonable person. The only way to know if this is, in the President’s words, a witch hunt is to vet the evidence.

The only way out is through.