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.