House ethics oversight: What just happened?

1. The House Republican conference, in secret, voted overwhelmingly to dismantle ethics oversight so Members could more easily get away with corruption.
2. Bob Goodlatte and his accomplices knew this attempt was shameful; otherwise they wouldn’t have tried to do it with surprise and stealth.
3. The House GOP leadership claimed to be against it but was entirely willing to let it happen until the public outcry got too loud.
4. Trump’s flack endorsed it and even said that the House GOP had a “mandate” to do such things. (Why not? Didn’t Trump promise to “fill the swamp”?)
5. Trump himself didn’t speak out until the public blowback become overwhelming.
6. Even then, Trump didn’t say protecting crooks in the House was a bad idea. He even endorsed the false claim that the existing process was somehow “unfair.” Trump just said that he’d prefer that the House Republicans do other awful things first.
7. Nonetheless, the press is giving Trump credit he hasn’t earned.                    
8. The proposal has been pulled for the moment, but the leadership is still committed to doing something later. Whatever that is won’t be good.                
9. The whole affair illustrates the culture of corruption that will permeate the government for the next four years, unless a wave election ends the Republican House majority in 2018.
10. But it also illustrates that pushback can work. Keep pushing!

Why Donald Trump is not a traitor, and why it matters

John Shattuck, who as a lawyer ought to know better, says that Donald Trump’s actions with respect to Russia “raise the specter of treason.”

Now, I bow to no man in my hatred and contempt for Orange Julius Caesar, and I fully support Shattuck’s demand for an investigation of foreign interference and other misconduct in the course of the election just completed, but using the word “treason” is simply wrong, for reasons I’ve given before. And its wrongness matters, not just because hyperbole always weakens argument, but because the carefully restricted definition of the crime of  treason is essential to protecting free speech and the freedom of association.

Even assuming that:

    • Trump willingly accepted, and even asked for, Russian help to get elected (which I’d rate very likely);
    • Offered specific policy concessions in return for that help (less likely, though there might be an implicit bargain); and
    • Knew that those concessions were damaging to the national interest (still less likely, and in any case impossible to prove;

he still did not commit the crime of treason, simply because the United States is not at war with Russia.

Treason is the one crime defined in the Constitution; it consists in “waging war on the United States, or adhering to their enemies, giving them aid and comfort,” and it must be proven either by confession in open court or by an overt act testified to by two witnesses. An “enemy” in this context is a nation (or other entity) with which the United States is at war; that is clear both from the fact that “adhering to their enemies” is an alternative to “making war on the United States” and by the definition of “enemy” in international law; as the Declaration of Independence says, the United States regards other nations as “enemies in war, in peace friends.” A Nazi or Japanese sympathizer in 1940, even one taking German or Japanese money to betray American national interests, was not, by this definition, a “traitor.”  Therefore, no matter how disloyally  Trump has acted, he has not acted traitorously.

Why insist so strongly on what might seem a pedantic legal distinction?

Because the Framers knew what they were doing. “Treason” had been used in English politics as a catch-all charge against the losers in various political struggles. Worldwide, treason charges are among the most powerful tools of tyranny, precisely because the ordinary-language concept is so vague.

If “enemy” simply means a country whose government makes efforts to damage U.S. national interests, then whether someone is a “traitor” becomes a mere question of opinion (or, as Talleyrand said, “Just a matter of dates”). Anyone working in tandem with a foreign government might find himself charged with treason. The absolute rock-bottom principle of criminal law in a free society has to be that it’s possible to know whether one is or is not breaking the law, and that it’s not possible to become a criminal retrospectively when Oceania goes to war with Eastasia. The Reagan Administration waged an illegal and semi-covert war against the Sandinista regime in Nicaragua; that doesn’t make Americans who tried to stop that war, and who did things to help the Sandinistas, guilty of treason. “Cold War” was a metaphor, not a type of “war” for Constitutional purposes.

Of course, the “declaration of war” by Congress has now been rendered somewhat obsolete by changes in international practice. Even absent such a declaration, we’re clearly “at war” with a country or other entity with whose forces our forces are currently exchanging gunfire. Al-Qaeda, the Taliban, and ISIS are currently our “enemies.” But Saudi Arabia, despite what I am convinced was the direct involvement of senior officials and even members of the royal family in planning and financing the 9/11 attacks and other terrorist attacks, is not our “enemy” in that sense. And neither is Russia.

This principle will be even more important with Trump as President. Do you really want him to be able to announce that we’re “at war” with “Islamic terrorism” and start charging people with treason for building mosques? No, I didn’t think so.

So: repeat after me: Paul Manafort, whose firm helped pay for riots in Ukraine in which U.S. Marines were attacked, is disloyal. Donald Trump may well be subjectively disloyal, and very likely has acted disloyally. But they are not “traitors.” 

 

Donald Trump just appointed an Ambassador to Israel who has called me a murderer. Am I supposed to be OK with that?

The latest line being pushed by Trumpsters, Republicans, and some Very Serious People, including my good friends Gleen Loury and Megan McArdle, is roughly: “You lost. Get over it. Trump will be our President, and we all need him to succeed. Don’t rock the boat by questioning his legitimacy.”

I hear that. A generation of slash-and-burn Republicanism has so weakened all of our key institutions, and the norms of restraint, civility, and reciprocity necessary to make a Madisonian regime operate, that the survival of the Republic is now genuinely in question. There’s a case to be made for pretending that Donald Trump is a normal human being and hoping that he will stop his pathological lying and grow up to be a real, live President. Barack Obama, the victim of Trump’s systematic campaign of libel (enabled by Fox News and many Republican politicians) acted on that idea at yesterday’s press conference.

But I’m not buying.

A seemingly minor appointment illustrates why I’m not buying, and why I will never accept Trump as holding anything but the limited legal powers the Constitution gives the President: no moral authority, no call on our cooperation, no presumption of good will or good faith, no presumption even that he is acting out of loyalty to the national interest.

Two days ago Trump appointed as Ambassador to Israel a man named David Friedman, his personal bankruptcy lawyer (which, as you might imagine, makes him a very important person to a professional bust-out artist such as Trump). Naturally, Friedman is a lunatic extremist when it comes to the Israel/Palestine question, asserting that Israel should deny voting rights and public services to its Arab citizens unless they pass some sort of loyalty test and that it is free to rule the West Bank indefinitely while extending no civic rights to its inhabitants and stealing as much of their land as it pleases for settlements. Indeed, he runs a non-profit designed to support one such venture, grossly illegal not only under international law but actually under Israeli law, as the Israeli courts have repeatedly ruled.

Well, that’s no surprise. It’s not even very important, since the Ambassador doesn’t make policy.

But Friedman’s hatred of Palestinians extends – as is often the case among right-wing Jewish extremists – to hatred of all Jews who aren’t right-wing extremists. As recently as June, Friedman published an essay in which he said that members of J Street – the moderate Zionist group that favors a two-state solution – are “far worse than kapos – Jews who turned in their fellow Jews in the Nazi death camps.”

Kapos were accomplices in mass murder. Some were killed by their fellow prisoners when the camps were liberated. Some of them were tried and executed for war crimes. Even years later, they were at risk of extrajudicial vengeance: undoubtedly illegal, but widely thought to be justified.

Now, as it happens, I’m a member of J Street. So Trump just nominated someone who called me a murderer, and implicitly called for my murder in turn. Of course I don’t expect to actually share the fate of Yitzhak Rabin – murdered by one of the illegal settlers Friedman supports, someone who had listened to the kind of rhetoric Friedman spouts and took it literally – but I resent it all the same, just as I resent Trump’s collusion in making anti-Semitism one again an active factor in American life. Of course liberal Jews are not the only objects of Trumpian hate speech, but equally of course I tend to take hate speech personally when it personally applies to me.

We’ve heard a lot from the right wing about how liberals get the terrorism problem wrong because we fail to understand radical evil. There’s some justice to that claim and I’m working to improve in that regard.  So I’m glad to report having made enough progress that I recognize radical evil when it moves into the White House.

 

 

 

 

 

A poem for our times (alas)

Events of the past few weeks have made me think of what I consider Auden’s greatest poem.
Note the behavior of the “crowd of ordinary decent folk.” Please don’t be one of them.
 
THE SHIELD OF ACHILLES
W. H. Auden
 
She looked over his shoulder
For vines and olive trees,
Marble well-governed cities
And ships upon untamed seas,
But there on the shining metal
His hands had put instead
An artificial wilderness
And a sky like lead.
 
A plain without a feature, bare and brown,
No blade of grass, no sign of neighborhood,
Nothing to eat and nowhere to sit down,
Yet, congregated on its blankness, stood
An unintelligible multitude,
A million eyes, a million boots in line,
Without expression, waiting for a sign.
 
Out of the air a voice without a face
Proved by statistics that some cause was just
In tones as dry and level as the place:
No one was cheered and nothing was discussed;
Column by column in a cloud of dust
They marched away enduring a belief
Whose logic brought them, somewhere else, to grief.
 
She looked over his shoulder
For ritual pieties,
White flower-garlanded heifers,
Libation and sacrifice,
But there on the shining metal
Where the altar should have been,
She saw by his flickering forge-light
Quite another scene.
 
Barbed wire enclosed an arbitrary spot
Where bored officials lounged (one cracked a joke)
And sentries sweated for the day was hot:
A crowd of ordinary decent folk
Watched from without and neither moved nor spoke
As three pale figures were led forth and bound
To three posts driven upright in the ground.
 
The mass and majesty of this world, all
That carries weight and always weighs the same
Lay in the hands of others; they were small
And could not hope for help and no help came:
What their foes like to do was done, their shame
Was all the worst could wish; they lost their pride
And died as men before their bodies died.
 
She looked over his shoulder
For athletes at their games,
Men and women in a dance
Moving their sweet limbs
Quick, quick, to music,
But there on the shining shield
His hands had set no dancing-floor
But a weed-choked field.
 
A ragged urchin, aimless and alone,
Loitered about that vacancy; a bird
Flew up to safety from his well-aimed stone:
That girls are raped, that two boys knife a third,
Were axioms to him, who’d never heard
Of any world where promises were kept,
Or one could weep because another wept.
 
The thin-lipped armorer,
Hephaestos, hobbled away,
Thetis of the shining breasts
Cried out in dismay
At what the god had wrought
To please her son, the strong
Iron-hearted man-slaying Achilles
Who would not live long.

Don’t Just Do Something, Stand There

The morning after the election one of my sister activist Dems wrote, “This is because the Democrats have lost the ability to talk to the white working class.” There were countless similar posts, arguing that Trump won because Berners didn’t turn out or Hillary was fatally flawed or black people were unenthusiastic or…

Allow me a modest proposal. Let’s spend a little time figuring out what actually happened, not so we can blame each other but so the next steps we take fix the real problem(s). Questions to be asked include:

–Were African-Americans actually unenthusiastic about Hillary, or was their turnout suppressed by new voting restrictions? Remember, the Supreme Court gutted the Voting Rights Act, and Republican-controlled states took full advantage of the fact.

–Have the Democrats lost the ability to connect with the white working class, or did we lose that ability with the signing of the Civil Rights Act in 1965? As long as the economy was strong, whites in the north stuck with unions and with Democrats; but once the economy collapsed, they went the way of whites in the south. It’s easier to scapegoat immigrants and people of color than it is to talk realistically about the very modest steps which can be taken to ameliorate the decline of human-powered manufacturing.

–Did Berners actually stay home, or vote Libertarian, or otherwise succumb to the narcissism of small differences, or did they just do a little less work for Hillary than they’d done for Obama? (Admittedly I ran into someone yesterday who said Hillary “deserved it” [to lose} because “she stole the election from Bernie.” Well, no, not unless your definition of “stole” encompasses “getting more votes than the other guy.”) Remember, the never-Hillary people were vocal but no more than a tiny minority of Sanders supporters.

–If Latinx turned out in force for Hillary in Nevada, which she won, but failed to do so in other states, does that reflect a problem between Latinx and the Democratic Party or does it simply demonstrate that a well-organized effort gets voters to the polls whereas a sloppy one fails?

–Why was the Hillary campaign operating with such poor intelligence that it instructed Illinois to waste hundreds of volunteers in unwinnable Iowa who could have been going to winnable Wisconsin and Michigan?

–Do the results, so contrary to every poll, reflect a groundswell of “shy” Trump supporters, or do they reflect tampering in key states and precincts? Remember, Russian-supported hackers broke into Democratic files and sowed dissension between Bernie’s people and Hillary’s, while pro-Russia Julian Assange kept the email story alive; why stop interfering on Election Day? The BBC reported that day that the four states whose voting systems were most susceptible to tampering were Pennsylvania, Ohio, Nevada and Colorado.

–Was Hillary a fatally flawed candidate or was she just a woman who’d been vilified for 30 years and had the nerve to keep going? Remember, whenever people actually saw and heard Hillary herself–at the convention, during the debates–her poll numbers went up.

–As Hillary actually won the popular vote, what should we infer from her loss other than that, for the second time in 16 years, the Electoral College has interfered with the will of the people? And is there anything realistic to be done about it?

So before the Berners blame Hillary, or elites blame the working class (which is overwhelmingly brown and female), or we all blame the media and misogyny (real as those influences are), let’s do some serious analysis. Only the right diagnosis will yield a cure.

Yes, Donald Trump Wants You To Know He Thinks You’re Too Stupid to Live

 

No, it’s not really worth parsing every detail of the multiple, apparently credible, charges of illegal sexual conduct by Donald Trump, made by a variety of women and covering a variety of incidents, all consistent with the behavior he bragged of on tape to Billy Bush. But his reaction – and especially today’s release of what the campaign said would be exonerating evidence – repays inspection.

Trump on the stump has now lurched into fantasy-land, arguing that the charges are a result of a vast conspiracy encompassing not only the Clinton campaign but all of the mass media, in the service of “international bankers” with whom Clinton is plotting to betray American sovereignty. It’s full-on Father Coughlin/Elders of Zion material, apparently courtesy of Steve Bannon. Today the plot enlarged to include Carlos Slim, the Mexican telephone multi-billionaire and part-owner of the New York Times.

But apparently lunatic raving alone, along with the campaign’s mechanical denials of each new charge as it comes in, its media servants’ suggestion that we should “question the timing,” empty threats of lawsuits, and of course Trump’s follow-up that his accusers weren’t hot enough to rate being groped by him,  weren’t doing the job, so this morning Mike Pence, after asserting that he believed his running mate without offering any argument for that belief, promised that the campaign would release evidence “frankly, within a matter of hours” to disprove the charges. Trump made the same promise later in the day.

When that alleged evidence appeared – in the Murdoch-owned New York Post, doubtless for lack of any even slightly respectable outlet willing to go with it– it didn’t pass the giggle test.

The “evidence” concerned the charge of Jessica Leeds that Trump had groped her – putting his hand up her skirt –  on a flight from Dallas to New York in 1980. Trump has denied even knowing her. The Trump campaign put forward an Englishman named Anthony Gilberthorpe, now 54, to say that he was on the same flight, sitting nearby, saw the whole transaction, remembers it with “photographic memory,” and observed Leeds flirting with Trump rather than Trump assaulting Leeds. Pretty convincing, right?

Yes, but.

  • If Gilberthorpe is now 54, he must have been 18 in 1980. I suppose it’s possible that an English eighteen-year-old was flying first class from Dallas to New York, but it’s not especially plausible, and he doesn’t seem to have provided any explanation.
  • Trump flatly denied that he’d ever met Leeds. So if Gilberthorpe is telling the truth, Trump isn’t. He also contradicts the narrative of Trump surrogates that the incident couldn’t have happened because Trump is and always has been too precious to fly commercial.
  • Gilberthorpe appears to be quite a piece of work, without much respect for the truth. (a) He has claimed, among other things, to have pimped underage male sex workers to prominent Tory politicians, with the knowledge of Margaret Thatcher (!). (b) He won a defamation suit and then had the verdict reversed on evidence that testimony on his behalf had been faked by a friend who was then a Member of Parliament. (c) He then turned on the friendly perjurer and ruined his life by setting him up to be videotaped in bed with a young call girl. (d) One of the issues in the libel suit was Gilberthorpe’s sexual orientation. In order to convince the world that he was straight, he arranged for the publication of an engagement notice about himself and Miss Leah Bergdorf-Hunt. However, it later emerged that he had invented not only the engagement, but Miss Bergdorf-Hunt herself. No such person ever existed.

So that’s the witness who is supposed to convince everyone that Jessica Leeds chose to expose herself and her family to the sort of abuse the Trump campaign and its Alt-Right buddies are so skilled at meting out, by making a completely false allegation. As I said, this doesn’t pass the giggle test, especially for anyone who has watched the video of Leeds with Anderson Cooper.

And that seems to me more significant than the underlying story, which, after all, is merely additive to several other such stories. The greater point is that Donald Trump and Mike Pence and everyone working for the Trump campaign has total contempt, not merely for the truth, but for the intelligence of the people it’s trying to fool and the professional skill and seriousness of the reporters he needs to help fool them. An organization that refuses to acknowledge any limits to what it can get away from has the makings of a totalitarian cult.

Footnote For my money, the most explosive substantive charge – both because the same incident is vouched for by five women, and because the victims were minors at the time, obviating any question of consent and vastly increasing the potential criminal liability had the statute of limitations not run – involves his walking in on the dressing room of the contestants at the Miss Teen USA pageant in 1997, gazing his fill at girls as young as fourteen as they were naked or half-naked, and cheerfully telling them not to worry because he’d “seen it all already.”  (Again, Trump is on tape with Howard Stern boasting of such behavior at the beauty pageants he owned, though not specifically with minors.) When one of them complained to the then-seventeen-year-old Ivanka, who was hosting the pageant, Ivanka reportedly said “Yes, he does that.” If that happened – and there seems to be no reason to doubt it – it was and is covered by statutes on Child Sexual Abuse, which carry draconian penalties; after all, if he’d merely looked at photos of undressed fourteen-year-olds on his computer he would have faced hard Federal time under the kiddie-porn statutes. Even Trumpites would have a hard time swallowing that, if it were being brought to their attention, but instead the media focus has been on the drumroll of adult accusers.

 

Trump’s Kremlin connection: the other shoe(s) drop

Mike Isikoff is about as far from being a Clinton-lover as it’s possible to be on an outpatient basis: he was last seen chasing down a semen-stained dress. But today he broke a blockbuster story: tracing the activities in Moscow of Carter Page, an otherwise utterly obscure person who was nonetheless one of the five people Donald Trump listed as “foreign policy advisers” to his campaign.

It appears that, after Trump named him as an adviser and just before the Republican convention, Page met in Moscow not only with an oligarch on the sanctions list but also with the official apparently in charge of Russian efforts to interfere in U.S. elections, including both the activities of the RT and Sputnik News and the hackers who broke into the DNC emails and released the results to WikiLeaks timed to create maximum heartache for Clinton.

Also today, ABC blew a major hole in Trump’s denial of major economic ties to Russia: his estimated take was in the “hundreds of millions of dollars,” some of it from the Russian mafia. His proposal to put his assets in a “blind trust” run by his children doesn’t pass the giggle test:  that trust wouldn’t even need glasses.

Add these to the list: Trump’s threat to renege on our NATO treaty commitments and not support our allies in the face of Russian aggression; Trump’s expressed admiration for Putin as “a stronger leader” than Obama;  hiring Paul Manafort, who worked to elect Putin’s puppet Yanukovych as President of Ukraine; his having foreign policy advisers like Gen. Michael Flynn, who takes money to go on Russian propaganda channel RT and compares it to CNN; Trump’s invitation to Putin to hack Clinton’s emails; and Trump’s astounding assurance that Putin wasn’t “going into Ukraine” two years after Russia had annexed Crimea and while Russian troops (under thin disguise as “volunteers”) were still shooting up the Donbass; and Trump’s promise to “look at” lifting the economic sanctions imposed on Russia after the annexation of Crimea.

Since the United States is not at war with Russia, what Trump is up to does not meet the Constitutional definition of “treason.” But since U.S. and Russian interests directly conflict, and since the Russian military has engaged in risky provocations such as buzzing U.S. Navy vessels in the Baltic, there is no reason not to call what Trump is doing – most of all, his invitation to an adversary to intervene on his behalf in our elections – disloyal. That’s the first time in U.S. history (unless you want to count George McClellan in 1864) that such a word could be  accurately used about a major-party candidate for President of the United States.

And yet the Republican Party – including legitimate war heroes such as Bob Dole and John McCain – is unifying behind a man not just obviously unfit to lead this country but not even loyal to it. That should give you some idea how deep the rot goes.

Footnotes

  1. With his usual impeccable timing, Ted Cruz chose today to endorse the man he previously said was unfit to be President.
  2. In related news, the Russian newspaper Kommersant reports that former KGB Col. Putin plans to reanimate his old outfit by recombining foreign and domestic intelligence agencies. Instead of doing so under the KGB name, however, Putin proposes to revert to name the outfit carried when Lavrenti Beria ran it for Stalin: the Ministry of State Security, or MGB. No word yet on plans to re-open “mental hospitals” in which to torture dissidents. But have patience.

“An unfortunate series of coincidences and errors”

That’s the latest spin on the Trump University/Trump Foundation/Pam Bondi scandal from the Trump campaign. I think we can all agree on “unfortunate.” Harder to believe in “coincidences” and “errors.”

Since the cable nets, the New York Times, and the Associated Press have all been too busy trying to find wrongdoing at the Clinton Foundation to cover it, and even now don’t seem to be able to get the facts straight, here they are (courtesy of CREW and the Nonprofit Quarterly:

  • Trump University fleeced students around the country.
  • Some of them complained.
  • The Attorney General of New York backed the students legally.
  • Victims in Florida asked the state AG – then and now, Pam Bondi – to do the same.
  • Bondi called Trump personally and asked for a campaign contribution.
  • The Trump Foundation issued a check for $25,000 to Bondi’s captive PAC, called “And Justice for All.”
  • Of course a foundation can’t give charitable money to a PAC. That’s illegal. Internally, the Foundation recorded having paid the money to another group called “And Justice For All,” a Utah-based disability-rights group. That group never actually received any money from the Trump Foundation.
  • When the Foundation filed its annual report with the IRS, it didn’t list the illegal contribution to Bondi’s “And Justice for All” PAC. Nor did it list the imaginary contribution to the Utah disability-rights group (which would have been legal). Instead it reported a contribution in the same amount to a Kansas-based anti-abortion group called “Justice for All,” which also never got a nickle from Trump.
  • Three days later, the Florida AG’s office announced that it would not join the lawsuit against Trump U.
  • A few months later, Trump and Rudy Giuliani headlined a fundraiser for Bondi at Trump’s Mar-a-Lago club, giving the campaign a bargain-basement price for the use of the space.
  • After the scandal broke, Bondi’s PAC tried to return the money, but the Foundation said “Never mind.” Trump wrote a check to the foundation as “reimbursement,” as if that made everything OK.
  • The IRS just now hit Trump with a $2500 penalty.

So, if you’re like the White Queen, and practice believing six impossible things before breakfast, you can try to believe that:

  • Bondi, when she made the fundraising call, didn’t know complaints against Trump were pending before her office, and didn’t bother to check.
  • Trump, who brags about making political contributions to buy influence, made this one entirely innocuously.
  • Trump somehow mistakenly ordered a $25,000 political contribution made illegally out of his foundation rather than writing a personal check.
  • The Trump Foundation staff coincidentally found two other groups with similar-sounding names and actual charitable status. They actually sent the check to the correct address in Florida, but mistakenly recorded it internally as having been made to the Utah group and then made a completely different mistake by reporting to the IRS a contribution to the Kansas group, in the latter case with the correct address – not, of course, the address to which the check had actually been sent – and IRS number. And all of this mere sloppiness happened to one of the foundation’s biggest disbursements of the year.

Or, if your mind is as cynically twisted as mine, you can believe instead that Bondi asked for a bribe (or made an extortionate demand), that Trump made the payoff as demanded but tried to get a tax break for it by making it out of foundation money, the Foundation staff did the best they could to cover the whole thing up, the investigation was duly killed, and Trump made the balance of the payoff (or simply indicated his gratitude) by hosting the fund-raiser.

 

No, actually, this thing is not at all like that thing: Trump, Russia, and “McCarthyism”

The astonishing closeness of Donald Trump and his campaign to the current (and increasingly murderous) Russian regime has attracted comment from Democrats (and other patriots). That in turn has attracted counter-comment from some of Trump’s defenders (and their dupes, and random Clinton-haters, plus some stray lefties still feeling the loyalty to the anti-anti-Communist cause even though Russia is now functionally fascist rather than communist) complaining about “McCarthyism.”

The comparison seemed to me so clearly absurd as to be scarcely worth the effort of refutation. But, as it seems to have some legs, here goes: Continue reading “No, actually, this thing is not at all like that thing: Trump, Russia, and “McCarthyism””

How much damage could Donald Trump really do, after all?

Some of the people planning to cast protest votes in November have a bedtime story they love to tell themselves. In the story, Donald Trump’s election wouldn’t be such a bad thing because the diffusion of power in the American political system would prevent him from carrying out the worst of his lunatic schemes.

Now, there is a germ of an idea there: political and institutional constraints greatly limit the power of a President. But it’s worth noting that the political constraints generally act through the perceptions of the President and those around him about what he can, and can’t, get away with: that is, precisely the sort of thing that would have kept Trump-the-candidate from, e.g., hurling ethnic insults at a federal judge. A President unfazed by criticism, and willing to ignore advice about the limits of his lawful authority from the Office of Legal Counsel, actually can get quite a lot done.  No President in the modern era – even Nixon – has dared to say what President Jackson said about a Supreme Court ruling: “Mr. Justice Marshall has made his decision. Now let him enforce it.” But what if we had a President who was willing to behave that way, surrounded by advisers egging him on to do so?  Trump’s power for evil might be substantially greater than (e.g.) Obama’s power for good.

Today a friend challenged me on this point: Make a list of ten really, really bad things that President Trump could actually do. A little bit of emailing around produced the following list. I’ve divided it into two groups: the “stroke-of-the-pen” things that a President could accomplish just by ordering them, and other things that would require Congressional approval or help from state governments. But let’s not forget that Trump’s election would almost certainly mean both that he had a Republican Senate and House to work with and that the Republican members of those bodies would mostly be terrified of primary challenges should they oppose the imperial will.

The distinction between the two groups is not absolute; in principle, the appropriations power could be used to constrain virtually any Presidential action, in the extreme by zero-budgeting the Executive Office of the President, leaving The Donald to write his own orders. And of course there is always the impeachment power. But again, an election that brings us Trump would be likely to disable those safeguards as well.

“With a stroke of the pen”

  1. Withdraw the United States from the Paris Agreement on global warming.
  2. Abrogate the nuclear deal with Iran, setting the stage for either war with Iran or Iranian development of a nuclear weapon. (Or both.)
  3. Deny hostile, or even objective, journalists and media outlets access to information by refusing them admittance to press conferences, instructing appointed and public-affairs officials to refuse all interviews, and subjecting even routine data requests to FOIA delays. That will have three effects: disabling the effective capacity of the independent media to exercise oversight; giving professional and business advantages to complaisant reporters and their outlets; and creating incentives for reporters and outlets alike to stay in the Administration’s good graces.
  4. Institute criminal investigation and prosecution of political opponents. The Attorney General, the FBI Director, and the 94 United States Attorneys all serve at the pleasure of the President. (The 10-year term of the FBI Director is a maximum, not a minimum, and Bill Clinton fired Director William Sessions in 1993.) Now imagine FBI Director Chris Christie, reporting to Attorney General Jeff Sessions. Those positions, and the U.S. Attorney slots, are all Senate-confirmable, but even if the Senate were to resist the President could appoint all of them on an acting basis.
  5. Use tax enforcement and the award or denial of tax-exempt status to punish enemies and rewards friends. The Director of the IRS is also a Presidential appointee. Civil-service protections would make it harder to replace IRS career staff with political loyalists, but the GWB Administration made substantial progress in filling the Justice Department with Republican apparatchiki, and the same could be done at the IRS.
  6. Attack “liberal-leaning” universities and not-for-profit research enterprises by either interfering with the grant process directly or by using financial or compliance audits to disqualify them.
  7. End enforcement of the Voting Rights Act. This is entirely at the discretion of USDoJ, and no doubt Assistant Attorney General Kris Kobach will have other priorities.
  8. Cease Department of Justice investigations into police misconduct.
  9. Mount a massive deportation process. Direct the Department of Homeland Security to target and remove persons who registered under DACA and DAPA.
  10. Investigate the “loyalty” of Muslims in the civil service and the military.
  11. Substantially reduce enforcement of anti-discrimination law, including revoking executive orders that require nondiscrimination by federal contractors.
  12. Block all entry of refugees.
  13. Wreck the Affordable Care Act in practical terms by reversing the administrative decisions that make it feasible, and destroy it legally by conceding its unconstitutionality the next  time it is challenged in court.
  14. Loosen regulation and virtually eliminate enforcement of all environmental laws, workplace health and safety laws, and consumer protections. Early targets would be the Obama Administration’s aggressive attack on air pollution from coal-fired power plants and the newly-instituted fiduciary-standards rule for pension advisers.
  15. Reinstitute torture by replacing the Army Field Manual with Bush-era interrogation “standards.” I do not believe that most, or even many, senior officers would abide by such orders. But the President is, indeed, Commander-in-Chief, and only custom keeps him from firing those who disobey unlawful orders. (When President Lincoln was told that Confederate forces had captured forty mules and two major-generals, he replied, “Too bad about the mules. Major-generals I can make.” Ranks of O-4 [major or lieutenant commander] and above require Senate confirmation, but junior officers are created by Presidential fiat, and brevet promotions are unlimited.)
  16. Encourage Russian aggression in Europe by renouncing our NATO obligations. Start by recognizing Russian sovereignty over the Crimea.
  17. Withdraw the U.S. from other treaties and international organizations: WTO, NAFTA, the U.N., the Paris Treaty on international climate change.
  18. Encourage Japan and South Korea to develop nuclear weapons by raising questions about the validity of our security commitments.
  19. Unofficially encourage or sponsor the growth of armed far-right “militia” groups, and discourage enforcement of federal laws against them (e.g., vigilante border enforcement groups, takeovers of federal lands by “sovereign citizen” organizations).

By legislative action or with the advice and consent of the Senate, or the help of state governments

  1. Appoint at least one and perhaps three Supreme Court justices on the Alito model, locking in a right-wing majority for a generation.
  2. Reduce tax rates for the rich.
  3. Block grant food stamps and/or Medicaid.
  4. Appoint anti-worker and anti-union members to the National Labor Relations Board.
  5. End federal support for the full range of women’s health services, including ending the federal partnership with Planned Parenthood.
  6. Increase domestic production of coal and oil while ending public investment in renewable energy.
  7. Repeal of Dodd-Frank, Sarbanes-Oxley, consumer financial protection laws.
  8. Disenfranchise Democrats with a combination of voter-suppression tactics (shorter voting hours, fewer voting machines leading to longer waits, hard-to-meet “voter ID” rules) and gerrymandering. In the extreme, use electronic vote counting to simply miscount the votes.

A story is told of Benjamin Franklin. As he left the Constitutional Convention – which did its work in secret – for the last time, a woman stopped him to ask, “Well, Dr. Franklin? What have you given us? A monarchy, or a republic?” Franklin answered, “A republic, madam: if you can keep it.”

This is not a game. Institutions do not maintain themselves.  Not all damage is reversible. I do not believe that Trump will be elected, and I do not believe that, if he were elected, that would be the last relatively free and fair election for President. But it’s not impossible.  Let’s not do the experiment.

I consider this list provisional. Please suggest additions, subtractions, and edits in comments. Do not take that as an invitation to debate. Comments of the form”but howsabout Hillary?” will be relentlessly zapped.