One More Thought

 

Something occurred to me in going over the litany of Republican allegations of crimes by Democratic Presidents and candidates.

Consider.

There was the years-long investigation of Bill Clinton's role in Whitewater investments, his impeachment for attempts to conceal an affair with the White House intern, and the last-minute deal with the Special Counsel to avoid indictment for perjury.  Though never reaching the stage of criminal investigation, there were allegations swirling about accusing Clinton of everything from running drugs in Arkansas to killing Vince Foster to the Clinton body count.

Hillary Clinton got off easy, really, being accused of nothing worse than sending State Department e-mails on a private server.  But this was nonetheless portrayed as a heinous crime, and the FBI's decision not to prosecute as a major miscarriage of justice. Trump led crowds chanting, "Lock her up" and vowed to prosecute if elected.  

And now Joe Biden's son Hunter's sleazy but legal (or legal but sleazy) career in international business is being portrayed as anything from vast ring of financial fraud to an outright Chinese spy.

Do you notice someone missing there?

Barrack Obama.

Many people were convinced that it was seeing a Black President that caused the Republican Party to lose its mind.  I never believed that.  I was old enough to remember just how much the Republican Party lost its mind when Bill Clinton was President and concluded that any Democrat in the White House is enough to push Republicans over the edge.

During his time as candidate and President, Obama was accused of being a secret Muslim, being ineligible because he was born in Kenya, being a Communist, fascist, Muslim, atheist, terrorist supporter and generally hating America.  But no one ever made any serious allegation of criminality.

Looking back, the omission is striking.

The One Thing That Might Give Me Pause

 

I must admit that there is one thing that might convince me that the Manhattan prosecution of Trump is not wholly illegitimate.  That is District Attorney Alvin Bragg's comment that falsifying business records is the bread and butter of prosecution for white collar crime.

And just to be clear, I do believe that white collar crime is real crime, and that, although white collar crime poses no immediate threat to our physical safety, consistently letting it go unpunished will undermine society's morals.

On the other hand, white collar crime poses no immediate threat to our physical safety, so police departments and district attorneys generally ignore it to focus on street crime.  When most district attorneys prosecute white collar crime, it is very simple, low level white collar crime, like writing bad checks.  More complex cases are usually left to state attorney generals or federal prosecutors.  And even they tend to take only the highest-level, most egregious cases.  Intermediate cases are usually treated as civil or administrative matters.

Clearly any records falsification Trump may have done is not the sort of street-level white collar crime like writing bad checks that causes serious headaches to local merchants and draws the attention of local prosecutors. Nor is it the sort of really egregious case that draws the attention of federal and state prosecutors.  If intermediate white collar crime has an actual victim, the offender usually has enough resources that the victim can sue.  But there was no victim in this case. So if any enforcement actions were taken, I would expect them to be civil penalties by some administrative agency.

But Manhattan may be an exception. As one of the world's greatest financial centers, it is presumably also one of the great centers of white collar crime.  So it may be that the local district attorney in Manhattan really does spend a great deal of time prosecuting white collar crime.  Maybe he even prosecutes fairly low-level, victimless cases.  Maybe a thorough perusal of the Manhattan white collar prosecution could convince me that there was nothing unusual here.  But I doubt it.

What Does It Mean to Prosecute Al Capone for Tax Evasion?

It should be clear by now that many Trump critics are nonetheless uneasy about prosecuting him for the Stormy Daniels payoffs. And others have suggested that the charges may be flimsy, but this is sort of a case of prosecuting Al Capone for tax evasion.

I disagree.  And in trying to analyze why I disagree, I came up with a series of criteria for what makes prosecution of a serious criminal for trivial matters the proverbial case of prosecuting Al Capone for tax evasion and why it just doesn't apply here..

I would say that for a case to be justified under the prosecuting Al Capone for tax evasion standard, it must meet the following three criteria:

1. There has to be a serious underlying crime.  Al Capone was not just a murderer, his entire fortune was the product of criminality.  The Stormy Daniels payoffs, by contrast, do not involve any underlying crime, just a distasteful affair.  A case of hush money that legitimately resembles prosecuting Al Capone for tax evasion is the case of former Republican Speaker Denny Hastert, who sexually abused underage boys while serving as a teacher and coach and was prosecuted for concealing hush money payments.  I would also throw in the case of Alger Hiss -- almost certainly a Soviet spy, he was tried for perjury in lying about it.
2. The real crime must for some reason evade prosecution.  Al Capone intimidated witnesses and covered his tracks well.  Denny Hastert and Alger Hiss were safe from prosecution on the underlying crime because the statute of limitations had run.  Another classic case might be someone of the underlying crime who is later determined to have concealed evidence or intimidated a witness.  Double jeopardy prevents a second prosecution for the underlying crime, but witness intimidation and tampering with the evidence are separate crimes. Or there may be a heinous act that no one ever thought to outlaw.  All irrelevant in the case of the Stormy Daniels payment, since there was no underlying crime.
3. The lesser crime must be clear-cut.  It may involve stretching the law beyond its original purpose, but there can be little doubt that the accused committed the lesser crime. It was beyond dispute that Al Capone had somehow accumulated a vast fortune, or that he never paid taxes on it.  A simple bank audit made clear that Denny Hastert has engaged in structuring (breaking a large payment into smaller payments to conceal its nature).  And Alger Hiss actually admitted to perjury.  I will admit to not knowing anything about New York's financial records law.  There may very well be a clear-cut misdemeanor case there.  But deceptive financial records are only a felony under New York law if done to conceal another crime.  Any by all accounts, that latter is dubious at best.

Of course, none of this is to admit that Trump has committed serious crimes. They just are not related to the New York prosecution. And that case that may genuinely be comparable to prosecuting Al Capone for tax evasion is the pending Georgia indictment for attempting to overturn the election there.

Consider how the criteria apply:

1. A serious underlying crime.  The attempt to pressure the Georgia Secretary of State into changing the election result was one sub-part of a vast, multi-state scheme to overturn the election and perpetuate the loser in power, subverting our entire system of elective government.  In effect, an attempted autogolpe.  A very serious crime indeed!
2. That cannot be prosecuted.  I don't know if that one applies. But it is possible that Trump's acts were so unthinkable that nobody thought to outlaw them.  No one ever thought to forbid fake electors from certifying themselves in violation of state election outcomes.  There may or may not be federal laws that can be stretched to apply.  Any Trump may or may not have had a provable role. There is ample evidence that Trump wanted to use the machinery of the federal government to overturn the election outcome, which is clearly a crime. But, to state the obvious, Trump was not successful in using the federal government to overturn the election because the federal government at all levels fiercely resisted, hence complaints about the "deep state."*  For anyone else, such an attempt, even if unsuccessful, would probably be prosecutable as criminal solicitation or conspiracy.  But it is not so clear for a President.  After all, Presidents need wide leeway to consider a broad range of options, including some options that are ultimately rejected on legal grounds.  At what point does loose talk about an illegal proposal cross the line into criminal solicitation or conspiracy?  I don't know.  But it is certainly possible that Trump stayed on the right side of the line.  Likewise, standards for criminal incitement are extremely high, and Trump's speech to the angry crowd probably did not meet the standards. 
3. An easily proven lesser crime.  Calling up the Georgia Secretary of State and asking him to change the result is about as clear-cut as you can get.

Finally, even if some part of the federal attempt to overturn the election does turn out to be indictable, it will almost certainly be for a less serious crime than insurrection or sedition.  So any prosecution related to the attempt to overturn the election will be an Al Capone for tax evasion prosecution.

Let's not prosecute on extraneous matters.

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*

 

Trump's Supporters Really Concern Me

 

Whatever one thinks of the New York indictment against Donald Trump, the reaction by his supporters has been truly alarming.  It would be one thing if they focused on the flimsiness of the charges, the degree to which the law had to be strained to bring them, the lack of an underlying crime, maybe a reference or two to the precedents of Monica Lewinsky or John Edwards (supported at the time by Democrats), that technical crimes undertaken to conceal a sexual impropriety are simply not a public concern, and the obvious conclusion from all this that the prosecution must be politically motivated. All of this is, in my opinion, a good point.

There are clear advantages to taking this approach.  It appeals to a broad cross-section of the public, including many Trump critics, and would therefore give Trump defenders the moral high ground of claiming to speak for (most of) the people. It would divide Trump opponents between critics of the indictment and defenders of the indictment.  It casts Democratic defenders of the indictment as hypocrites, since they presumably took a different view when it was Bill Clinton or John Edwards in the hot seat.  And really, there would be no need to say anything further, at least for now.

But, of course, there is one problem with this approach.

It admits the hypothetical possibility that an indictment could be legitimate if the crimes were more serious.  And we all know that possibility is considerably more than hypothetical.  So Republicans are now in the ridiculous position of arguing that ex-Presidents should be exempt from all prosecution.  (What if they shot someone in the middle of Fifth Avenue?).  Or else that the act of running for President should exempt the candidate from prosecution. And this on behalf of a man who led chants of "Lock her up!"

Stick to Prosecuting Trump for Real Crimes

 

I get that this is not a fashionable view on my side if the aisle, but I really thing the Manhattan District Attorney should refrain from prosecuting Trump over the Stormy Daniels payments and let others prosecute him for real crimes.

And yes, I understand that Trump supporters will call prosecution for real crimes politically motivated and threaten to riot over them, too.  That is not an excuse for making a genuinely politically motivated prosecution on dubious charges.  Sticking to real crimes will not mollify Trump supporters, but it will make their complaints look less legitimate to the general public, and, in any event, it is the right thing to do.

And no, prosecuting Trump for the Stormy Daniels payments is not in any way like prosecuting Al Capone for tax evasion.  Prosecuting Paul Manafort for tax evasion was like prosecuting Al Capone for tax evasion.  Both men were good enough at covering their tracks, and in Capone's case, intimidating witnesses, that tax evasion was about all the government could prove.  Donald Trump is terrible at covering his tracks and has a whole parade of witnesses to testify against him.  Tax evasion is an extremely easy crime to prove and did not require any stretching of existing law.  The Manhattan DA appears to be stretching the law almost to the breaking point to bring charges.  There are plenty of much more serious offenses that do not require any difficult legal gymnastics to establish.

Nor is this about establishing that Trump is not above the law.  The serious prosecutions, in DC and Georgia, are about whether Trump is above the law. This case is more like the case of the Hillary Clinton e-mail server -- an attempt to place Trump below the law. There are innumerable technical crimes that people break every day, most of which appropriately go unprosecuted.  Trump supporters warn Democrats that two can play at that game.  I think it safe to say that most of us on our side of the aisle roll our eyes at that threat.  Republicans have been playing that game for thirty years!

Consider the Clinton presidency.  Republicans in Congress did everything from shoot a pumpkin in an effort to prove that Vince Foster was murdered to investigate the use of government personnel to answer letters to the White House cat.  And, of course, ultimately impeached Clinton over an affair with the White House intern.  I was much impressed at the time with Alan Dershowitz' book Sexual McCarthyism, which addressed what is properly an impeachable offense. Impeachable offenses, Dershowitz said, should be limited to abuse of public office, or very serious private crimes, like murder.  

Dershowitz goes on to say that a sexual impropriety should not be treated as an impeachable offense, and any claim that the real issue was not the sexual impropriety, but some technical crime to cover it up should be treated as disingenuous.  I believed that then and believe it now, whether the technical crime was Bill Clinton committing perjury in a civil deposition,* or Donald Trump paying hush money to a porn star. Ken Starr ultimately send Monica Lewinsky's dress to a crime lab and ordered a blood sample from Bill Clinton to prove that he lied under oath about the affair.  This sort of thing is normally saved for serious crimes -- real crimes -- like rape.  And now  one hears people demanding that Trump submit to a physical examination to see if there was an affair. No then, no now.

Dershowitz then goes on to say that a financial impropriety should also not be grounds for impeachment.  I am a little hesitant there.  How serious a financial impropriety is he talking about?  Clearly a candidate living beyond his means, being late on bills, even having bounced checks and bills turned over to collections can be dismissed as a private vice, rather like a consensual affair, and not a matter of public concern.  At some point mere financial mismanagement starts to look more like an attempt to defraud creditors, and at some point does become the stuff of criminal investigation.  At that point it becomes a legitimate public concern.  I confess to not having any clear sense at what point fraud becomes a serious public concern, much less grounds for impeachment or indictment.  And that would include the question of whether Trump's myriad financial improprieties cross over that line.

And then there is the matter of Hillary Clinton's e-mail server, another case of a technical crime that was ultimately not prosecuted.  Recall that this grew out of Republicans' investigation of the Benghazi attack in hopes of finding some misconduct to attack Hillary's political career.  They did not find such misconduct, but did discovery that Hillary had sent State Department e-mails on a private server, and suddenly the matter became the most heinous offense in the history of our Republic.  Donald Trump led crowds in chants of "lock her up."  The server somehow became the number one issue of the entire election. The FBI investigated the episode and declined to bring charges because, in fact, mishandling of classified information is a common occurrence.  Though it may be a technical crime, the investigating team found that actual prosecutions for mishandling of classified documents invariably included some aggravating factor such as intent, large enough volume that intent can be inferred, obstruction of the investigation, or disloyalty to the United States.  

One of the reasons the e-mail server had legs was the sense that lower-ranking officials were routinely punished for the sort of thing that Hillary did, while bigwigs get off. That is both true and not true.  Anyone calling for prosecution of Bill Clinton for lying in a civil deposition or Hillary Clinton for sending State Department e-mails on a private server or Trump for concealing hush money to a mistress ignore the fact that the choice is not necessarily one between criminal prosecution and going unpunished.  

Many things that are technical crimes are handled through civil or administrative penalties.  The Justice Department, investigating Hillary Clinton's server, found that, in fact, lower ranking employees were not prosecuted for the sort of mishandling of classified information that Hillary had done.  But lower ranking employees did not escape punishment in such cases.  Rather, they received administrative penalties such as reprimand, writeup, demotion, loss of security clearance and, in extreme cases firing.  The real injustice is that administrative penalties of this sort are not available against political appointees, so there really is no intermediate step between prosecution and no penalty.

Something similar applies to lying in a civil deposition and concealing evidence in a civil lawsuit.  Technically, these may be crimes, but as a practical matter, they are almost never prosecuted as such.  But this is not the same as saying that such actions go unpunished.  They are subject to a wide range of civil penalties, up to and including dismissal against a plaintiff or default against a defendant.**  A wide range of campaign finance violations are also handled as civil matters, as are many cases of fraud and other white collar crimes.  The New York Attorney General treated the Trump Organization's frauds as a civil matter.  The Manhattan DA could likewise have sought civil penalties if he truly thought the Stormy Daniels payoffs were worth pursuing.

Admittedly, there is the example of John Edwards, in the 2008 election, which is remarkably similar.  Edwards had an affair with a campaign staffer while his wife was dying of cancer and had a child by her.  Some of his wealthy friends paid roughly a million dollars to hush up the affair.  These were prosecuted as undeclared campaign contributions, which was widely seen as a stretch. The jury declined to convict, but Edwards saw his political career ruined and fell into ignominy and disgrace.  

So prosecuting Trump for a similar offense is not wholly unprecedented, but it is still a serious stretch and impossible to read any way other than as a politically motivated vendetta. If done before Trump is indicted for real crimes, this will undermine the credibility of much more serious charges.  If done after, it just looks like piling on. Let it go and stick to real crimes, like trying to overturn an election.

This is well put.

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*Bill Clinton went on to lie to a grand jury about the affair, a much more serious crime, but still ultimately in an attempt to conceal an affair that should never have been the subject of grand jury proceedings.  

**Something like that happened in Bill Clinton's case. The original lie took place during a deposition in a civil lawsuit for sexual harassment by Paula Jones.  The judge dismissed the suit as not meeting the legal standard of sexual harassment, but Clinton ended up paying damages -- something that presumably would not have happened in the absence of his lies.

A Personal Note

 Well, well, well.

I now have the dubious distinction of having had one of my blogposts flagged for content after sitting peacefully for eight years.*  I didn't even know Blogspot had community standards!

Nor do I know how the post cam to Blogspot's attention after eight years.  Looking through viewing history, no one seems to have looked at the post recently, except for me to see what that fuss was about.  Does Blogspot have a search engine that finally came across the post after eight years?

I am not sure whether the post was flagged for violence or sex.  Given that it was a review of a Masters of Rome novel, it could be either.

And I must admit, knowing that Big Brother is apparently watching me makes me want to test the limits and see what Blogspot does and does not let you get away with.

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*To be clear, the post was not taken down.  It just has a warning that you have to pass to see it.

Further Thoughts on the Deep State and Rule of Law

I believe it is true that when Trump and the MAGAverse say "Deep State" they are generally referring to the rule of law, and that they see our national security bureaucracy as oppressive mostly because it seeks to hold them to the rule of law.  Another quote (broadly popular on the left) throws further light on the subject:: 

Certainly one can call this quote overly cynical. I believe that the opposite ideal, 

is one that probably everyone would agree to in theory, no matter how poorly we may do at living up to it.  

But I do think that seeing the law as something that protects one's in-group and binds out-groups, though never expressly articulated, is a good working definition of authoritarianism.  And there is no doubt that the deep state is an inherently authoritarian institution in the sense that it is based on a top-down command structure and innately coercive and, as such, inherently dangerous.

But at the same time, calls to defund the deep state are rather like calls to defund the police -- an invitation to chaos and disastrous in the real world.  Eliminating our military footprint overseas will not eliminate war, simply replace our military footprint with someone else's.  Eliminating intelligence gathering will simply blind ourselves while others retain their sight.  Unilateral disarmament is not peace, but merely preemptive surrender.

In short, our goal should not be to end the deep state, but to tame it.  But how?  There are three options:

1. Shrink the deep state
2. Subordinate the deep state to the rule of law
3. Subordinate the deep state to elective officials

These things are not mutually exclusive, but there can be tension among them, and a need to set priorities.

Glenn Greenwald and others like him seem to think that subordinating the deep state to the rule of law is a futile project, and we should focus on shrinking it.  Hence their alliance with Trump, because he appears to want to shrink the deep state since he cannot control it.

Is this a good priority?  And I suppose the only answer I can give is that is above my pay grade. I am certainly open to the idea that our deep state is too big and needs to be shrunken.  And certainly I am open to the idea that any time the deep state's capacity increases, it will find ways to use it, even expanding its surveillance and spreading into areas where it does not belong.  So there is much to be said for shrinking the deep state to the minimum necessary.

But would place priority in subordinating the deep state to the rule of law. This means that I do not see subordinating the deep state to the rule of law as futile, although I do see it as a difficult and unending project that will always run into more challenges.  

So why would I consider subordinating the deep state to the rule of law as more important that shrinking it?  Isn't it true (as Greenwald would doubtless say) that a smaller national security bureaucracy has less capacity to harm than a large one?  Well first of all, I do not know whether a national security bureaucracy shrunk far enough to cease being dangerous would be large enough to do its necessary job. Hateful as this may be to some on the anti-anti-Trump left, a national security bureaucracy large enough to be dangerous may be a necessary evil.

And second, since we are talking about priorities here, which is worse, a large but law-bound national security bureaucracy, or a small but lawless national security bureaucracy?  Can there be any doubt?  Lawless, coercive organizations can be small and still be dangerous. In my last post I discussed the tradeoff between giving the deep state "independence" and subordinating it to elective officials.  Give government agencies too much "independence" and they go rogue.  Subordinate them too much to elective officials, and they become a private praetorian guard.  The only safe option is to subordinate both elective officials and the unelected bureaucracy to the rule of law. The deep state should be subordinate to elective officials when acting within the discretion they are given by law.  It should remain independent of elective officials to the extent elective officials wish to circumvent the law.

And much the same tradeoff applies to the size of the national security bureaucracy.  Make it too large, and there is a very real risk that if will grow beyond the constraints of the law and go rogue.  But a small deep state is much more likely to become a private praetorian guard and therefore also dangerous.*  And make no mistake, that is exactly what a leader like Trump wants to do.

Giving Glenn Greenwald at al the benefit of the doubt, they appear to see Donald Trump's conflict with the national security bureaucracy as an attempt by the President to reign in a lawless deep state.  In fact, it has always been an attempt by the deep state to reign in a lawless president.

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*Hence the general rule within authoritarian societies, that the small, elite force such as the secret police are more dangerous than larger ones, such as the army.