Monday, January 27, 2020

How Can You Defend Him?!

The ugly thing about politics these days is suffering through constant attacks on one's integrity if one happens to be on the "wrong" side. I am writing this to outline some political principles that I accept as an American Catholic on the Whiggish side of the spectrum. In much the same way I accept modern science, I believe that the American political system is one of the great products of the human mind's inquiry into the nature of man as a political animal. This does not mean that the American system inherently serves the common good or drives man to his highest and best end in and of itself. It is a tool, but it is hardly immune to misuse. Nonetheless, I believe that it is the best tool to establish a social environment of freedom that increases the odds that individuals will flourish in this flawed world. Expecting more than that is, by my lights, expecting more than any political system can give.

So turning to the present political matter, I don't defend President Trump so much as I defend our political system. Over sixty-two million of my fellow citizens voted for him, and while I did not, I do not believe that any of those people deserve to be disenfranchised. There are innumerable fights in every election over relative handfuls of votes, whether the issue is voter ID or restoration of voting rights to felons, but none of those disputes involve the sheer negation of a vote in the way that impeachment does. Yet for some reason, people do not believe that the standard of proof for this utter erasure of popular sovereignty ought to compel the conclusion that this impeachment is a sham and a mockery of American democracy. Most of those people think that they are much smarter than those of you who voted for the "wrong" candidate (e.g., I've heard "they shouldn't have voted for a criminal" as a justification). Personally, I believe that if I am not smart enough to persuade others with the truth, then I am certainly not smart enough to take their decision away from them.

 On the question of protecting the system itself from this attack, I cannot make a better argument than Alan Dershowitz has already made on the floor of the Senate. I commend it wholeheartedly. But what of Trump's conduct? How can I possibly make a principled argument for an unprincipled man? That is the subject to which I turn presently, and it is based in the same principle that I've outlined above. I am not judging the President as to whether I think his conduct serves the common good, when in many cases I do not, but whether it is within the reasonable scope of the authority bestowed on him by the popular sovereignty. That is how I distinguish between what I would view as good or bad policy and what I would view as conduct subject to sanctions by the other branches of government, up to and including removal from office.

I will start with the present substance: whether it is somehow wrong to go "digging for dirt" on one's political opponent and whether such information can, in and of itself, ever be the basis of a claim of misuse of authority. For a number of reasons, if what is being solicited is a public disclosure of such information, I maintain that it not only fails to violate any principle of authority but also serves the common good in exposing information about political candidates to inform the public's decision and in defusing blackmail. In fact, it is only in the fever swamp of Washington, where political information is treated as a kind of currency of inherent value, that this would be perceived as a bad thing. Normal people don't think like this. Now, I do think that it can cross a line to detraction, but if it is relevant to political competence, I do not believe that publicizing information is a bad thing.

I could go on for days about how campaign finance laws, which have been ostensibly passed to communicate more information to the public, have been repeatedly abused as tools of political suppression (see, e.g., Dinesh D'Souza). But when these laws are extended to include political currency, i.e., true information that could present a political advantage to one side or the other, the results are completely opposed to fair democracy. The previous low point of such an interpretation was the prosecution of John Edwards over his ham-handed attempts to cover up his affair, which prosecution was the brainchild of an ambitious Republican prosecutor who ended up with the reward of being elected to the House of Representatives. If you want another sham prosecution, you could hardly provide a better example than the Edwards case. Thankfully, that former prosecutor has been effectively redistricted out of office in 2020, and it couldn't have happened to a nicer guy. 

Unfortunately, the lesson Democrats took from that episode was that it worked. They persist in this "information is currency" theory to attack Trump. Before he was even elected, they set up a meeting with a Russian attorney bearing information supplied by Fusion GPS to get "dirt on Clinton." Note that this was reported by NBC, which is hardly a friend to Trump. Fusion GPS called this a "complete surprise."

This was the same firm that was working overtime in collusion with federal agencies to push the Steele Dossier and its associated Russian investigation, which was thoroughly exposed and debunked by the Horowitz report on FISA surveillance. I'll quote one of my favorite Rush-isms on this: I might have fallen off the turnip truck, but it wasn't yesterday. The same theme has been used to claim that Trump's call to the Russians to publish hacked information was "solicitation of foreign interference" (leaving aside whether it was sarcastic).

This connection to the Russians was clearly the "insurance policy" that the Democrats were trying to set up. They wanted to create an artificial situation where they could claim that Trump had solicited or received valuable "dirt" from the Russians. And they followed this playbook not only for the Russian collusion hoax but also for the Stormy Daniels affair that was incidentally disclosed, which situation directly paralled the Edwards prosecution.

All of this was supposed to lead to the Mueller report, which would presumably provide sure evidence of the very conclusion that the Democrats had carefully planted and lead to the Bad Orange Man's impeachment. This would be the vindication of the swamp-driven "information is currency" theory. Except ... it didn't. After concluding that there was absolutely no evidence of collusion between the Trump campaign and the Russians, the most Mueller could do was to rather lamely claim that the President had obstructed justice that would have been prosecuted but for DOJ policy not to prosecute the President.

 I have expressed disdain for such "process crimes," not that obstruction of justice is not a crime, but that obstructing an investigation that could not even possibly lead anywhere but for a highly dubious "information is currency" theory should be prosecuted. The DOJ has historically taken the ambitious position that any investigation with probable cause, no matter how unlikely to result in actual prosecution, is subject to obstruction. That is the position Mueller took. I can hardly blame Trump or Trump's legal team for thinking otherwise, which would assuredly defeat criminal intent. Notably, AG Barr took a directly contrary position in his response to the Mueller report, and I believe that he is right. For this, he has been attacked mercilessly and ruthlessly as a Trump stooge.

So to this point, I believe that Trump has done absolutely nothing wrong, neither wrongly soliciting foreign interference in the election nor obstructing justice. (NOTE: I am also generally skeptical of prosecution for matters that are within executive discretion, which is why I strongly disagreed with the idea of prosecuting Secretary of State Hillary Clinton for information management, even if "grossly negligent"). We can now move to what happened immediately after.

 At this point, the Democrats are desperate. They believed that it was such a sure thing that Trump would be removed by the Russian collusion hoax, which didn't happen. Also note that the call with Ukrainian President Zelensky that had created all of the kerfuffle was literally the day after Mueller testified, and Trump clearly believed that there was at least some evidence that Ukraine had worked with Fusion GPS in preparing the Steele Dossier. Does the idea that Trump might have had this on his mind rather pointedly during this call and that he might have deviated a bit from the talking points seem surprising? It does not to me, even though I think he should have controlled his emotions and not diverted a state-level discussion with any individual investigations. Nor does it seem concidental that the Deep State Democratic allies were flailing to try to find something on which they can hang this "information is currency" foreign interference theory, especially after the Russian collusion hoax failed.

That is how we arrived where we are. The Democrats are determined to manufacture a crime for which they can remove Trump, or at least hurt his or certain key Senators' chances of election. It is all based on this idea that anyone who solicits or receives negative information about any Democrat from a foreign power, even if public, has committed a crime, because information is currency in Washington. They are reaching for what exactly the leverage would have been, the quid for the quo. I don't think they have a serious claim unless Trump actually intended to impound the aid and not allow it to be spent at all, a proposition for which there is absolutely no evidence. It is a testament to Americans outside the swamp that normal people, those who bear no particular hatred toward Trump and who are not political junkies, don't see how this is a big deal or even a deal at all. And, fortunately for all of us, those people will almost certainly have their opportunity to decide at the ballot box whether that is the case.