Thursday, July 19, 2018

Fourteenth Amendment Solutions

Many denizens of the Interwebz, casting about for lawful means by which we might rid ourselves of the wannabe kleptocrat in the White House, have raised the idea of "Twenty-fifth Amendment Solutions," referring to the mechanism for removing from office a president who is incapable of carrying out his duties.  (Brad DeLong, for example.)

Apropos of my previous post on treason, it seem pertinent to mention "Fourteenth Amendment Solutions."  Specifically:
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
I wonder how many Senators, Representatives, and executive branch employees might face disqualification should a jury be persuaded that Russia's activities against the United States constitute actual hostilities.

Setting the Table for Treason

Suppose for the moment that Robert Mueller wanted to bring charges of treason against Americans in connection with L'Affaire Russe.  (Yeah, I know. But bear with me.)  What would that look like?  What steps would Mueller have to take to "set the table," so to speak, for treason charges?

By now, most of us following the Special Counsel's investigation know the Constitutional formula by heart: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."  Now, the "levying War" provision has traditionally been invoked only in cases of armed uprisings like the Whiskey Rebellion or the "Battle" of Blair Mountain, so let's assume that it's not at issue here.  To successfully charge Americans with treason, Mueller would therefore have to prove that they had (1) given aid and comfort (2) to an enemy.  

What counts as "aid and comfort?"

Rather than try to answer that question in the abstract, let's look at how it has been defined in actual treason prosecutions.  Remarkably, four of the six Americans convicted of treason against the United States since the end of the Civil War were prosecuted for their role in the creation and dissemination of enemy propaganda targeting Americans.  Specifically: Martin James Monti, Robert Henry Best ("Mr. Guess Who"), Iva Toguri D'Aquino ("Tokyo Rose"), and Mildred Gillars ("Axis Sally"). So, wherever the exact boundaries of "aid and comfort" lie, it seems pretty clear that assisting in the creation and dissemination of enemy propaganda falls definitively within them.

Coincidentally, what I'll call "Russia Indictment #1," relating to the social media activities of the Internet Research Bureau, alleges the existence of a covert Russian propaganda operation targeting Americans.  

Who counts as an "enemy?"

Writing in the Washington Post, UC Davis law professor Carleton F.W. Larson asserts that, "enemies are defined very precisely under American treason law. An enemy is a nation or an organization with which the United States is in a declared or open war . Nations with whom we are formally at peace, such as Russia, are not enemies." 

But curiously, if you follow the link Professor Larson supplies in support of his claim, you read Sir Michael Foster (1762) saying the following:
States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed. And the Fact, whether War or No, is triable by the Jury; and Publick Notoriety is sufficient Evidence of the Fact.
That is, Larson's citation is to a source which says exactly the opposite of what Larson claims.  Specifically, a formally declared war is not a requirement for a state to be an enemy, and whether a state is in "actual hostility" is not "defined very precisely" by law, but is rather a triable question of fact.  (And where Professor Larson gets the idea that enmity, if undeclared, must be "open war," placing the rendering of aid to a state engaged in covert, undeclared hostilities outside the bounds of treason, is a mystery to me.)  

So, who counts as an "enemy?" If Sir Michael is right, an enemy is a state which a jury finds to be engaged in "actual hostility" with the United States.  

Coincidentally, what I'll call "Russia Indictment #2," relating to the hacking of the DCCC, the DNC, and the Clinton campaign, alleges that the Russian armed forces (the GRU in particular), acting on the instructions of its national command authority, planned and carried out a series of military operations against the United States on American soil.  (The indictment goes as far as naming specific, uniformed officers of the Russian military who carried out the operations.)  That is, the indictment alleges facts that might persuade a reasonable jury that Russia was not merely a "competitor" or "adversary," but an enemy engaged in actual hostilities with the United States.

Returning to our original question: what would it look like if Mueller were "setting the table" for bringing treason charges against Americans in connection with L'Affaire Russe?  It turns out that it might look a lot like the two "Russia Indictments" we've seen to date.

Friday, February 2, 2018

Speaking of releasing memos

Today may be a good day to reflect on James Comey's apparent motive for releasing the memo which made Donald Trump president: to protect the institution of the FBI from retaliation by vindictive, partisan Republicans in Congress. 

How's that working out so far?

Friday, January 26, 2018

Note to Moderates, Centrists, and Independents

When 72% of Republicans say that Donald Trump is "a good role model for children," it is time to start calling yourself a Democrat. 


Wednesday, January 3, 2018

2018 Conjectures

I wont call them "predictions," but I want to put a couple of conjectures about the events of 2018 on the record now, so I can claim astounding prescience later.

Donald Trump will Resign the Presidency before November, 2018

More specifically, I expect him to resign sometime between May and July 2018, having received assurances that Vice President Pence will use the pardon power and other powers of the Presidency to protect Trump and his family from further investigation and potential prosecution.  This will be sold to the President as a strategy to pull the rug out from under his opponents, to cement his legacy, and to say that the new President is his hand-chosen successor.

If the President does not agree, Vice President Pence, Speaker Ryan, and Majority Leader McConnell will rally the Cabinet and Congress to, regretfully, invoke the 25th Amendment due to the President's deteriorating "health."

In either event, the Trump Administration will end three to six months before the mid-term Congressional elections.  (Acting) President Pence rallies evangelicals and Republicans who have grown tired of apologizing for the disgraced Game Show Host in Chief. GOP losses in the House are safely limited.  Crowd goes wild.

Russia Investigation Part 1: Keystone KGB

By the end of 2018, there will be sufficient information on the public record to construct an accurate narrative of the Russian government's activities related to the 2016 election. It will be a mess. We will start to distinguish between amateurish personal initiatives -- like the Russian State Prosecutor's effort to do some kind of deal with Don Jr. -- and the activities of the GRU (Russian military intelligence) and the SVR (Russian foreign intelligence). The intelligence services will turn out to be more organized, but frequently at cross-purposes with one another.  Ultimately, we will understand the Russian "initiative" as a motley assembly of shady characters trying to put one over on the collections of dimwits and half-wits that constitute the Trump inner-circle. Most of them will turn out to have succeeded.

Russian Investigation Part 2: Hey, where'd my money go?

Listening to Donald Trump giving interviews, in the White House or back on the campaign trail, who among us has not thought, "How is it possible that a guy this clueless hasn't been robbed blind by his business associates?"

I offer this conjecture: it is not possible. And, as somebody wise -- Einstein or possibly Basil Rathbone -- once said, once you have eliminated the impossible, what remains, no matter how improbable, must be true. Which is to say, any serious inquiry into the finances of the Trump Organization will reveal that somebody has made off with all of Trump's money, leaving debt and worthless paper behind. Robert Mueller's money-laundering investigation would count as a "serious inquiry," by the way.

Sooner or later, someone is going to tell Trump. Hijinks ensue.

Wednesday, December 20, 2017

How to save the ACA

Economists -- and policy analysts of all backgrounds -- should pay more attention to video games. More specifically, we should pay more attention to the design of games with large online multi-player components. Designers of multi-player online games know more about how real-world people respond to incentives than anyone else in the world. Constructing systems of incentives and measuring exactly how players behave in response is their bread-and-butter.

Consequently, the designers of popular MMORPG World of Warcraft can show us how to save the Affordable Care Act. No, seriously.

First, let's recap the current situation. Earlier this year, Republicans failed to repeal the ACA, largely because almost everything in the ACA is extremely popular. Almost everything. There is, in fact, exactly one thing that people dislike about the ACA: the so-called "individual mandate." (Indeed, Barack Obama defeated Hillary Clinton in the 2008 Democratic primary partly by promising that his health care plan would not include an individual mandate.)

So today, Republicans in Congress have passed their "tax overhaul" bill which, in addition to adding special tax breaks for real estate investors (like Donald Trump and his family) and heirs (like Donald Trump and his family), also effectively repeals the individual mandate. (Technically, it eliminates the penalty for non-compliance.)

We should expect the GOP messaging machine to cast the bill as "tax cuts plus Obamacare repeal," thus declaring success on both 2017 legislative priorities. Yay team!

But there is an opportunity here. In 2018, Democrats (and Republicans of good will, should any turn up) have a chance to re-imagine the individual mandate in a form that will be unassailably popular. "But how can this be?" you may ask. I will explain. But first, a YouTube video. It's five minutes long. Give it a try. I'll wait. (For the truly impatient, the relevant point concerns the optics of World of Warcraft "rested experience" system, which starts at 3:15.)

The upshot is this: (1) People hate penalties. (2) People love bonuses. (3) People don't care very much where you set the baseline against which the penalty or bonus is measured. And the lesson for policy-makers is, "incentivize with bonuses, not penalties."

In immediate practical terms, this means that the Democrats should propose a refundable tax credit, in an amount similar to the old "penalty," for anyone who does obtain coverage under an ACA-qualified health insurance policy (through an employer or through a state or federal exchange). Now, since the majority of people already comply with these terms, this will entail a large-ish cost. However, the Republican tax bill has both (a) moved the goal-posts for "revenue neutrality" and (b) provided a target-rich environment of loopholes to be closed and egregious giveaways to be repealed. So the measures needed to "pay for" this tax credit could be politically popular all by themselves.

Slogan suggestions: "You've protected your family with a qualifying health insurance plan. We think you deserve a tax cut." Also: "Don't miss out on your ACA tax credit! Sign up for a qualifying health plan today!"

Also: keep an eye on these video game people...they're crafty.

Tuesday, November 7, 2017

The Taxonomy of Oligarchs

Rich people in America have the luxury of indulging an astonishing variety of self-destructive fantasies.  The rule of law and the power of voters to throw the rascals out when things turn really bad have, together, helped to insulate America's billionaire fantasists from consequences of their zanier notions.  Fear of the voters has kept Social Security, Medicare, and, recently, Obamacare safe from the lunatics who imagine that these socialist handouts have sapped America's moral fibre and polluted our precious bodily fluids.  The courts, and even the U.S. Department of Justice, have blocked, slowed, or limited the efforts of the White House to abuse its powers to the utmost.  And because their nuttier ideas have never been put into practice, America's oligarchic class -- if I may call it that -- can go on imagining the utopian world that might have been, if only their imprecations had been heeded, safe in the knowledge that liberals stand ready to save capitalism (again) should anything go really wrong.

Thus far, the worst "ideas" of the American oligarchic class have been blissfully free of consequences.  (More specifically, free of consequences for the oligarchs themselves, which is of course what really matters to oligarchs.)

But over the last decade or so, a new fantasy has captured the imaginations of a faction of America's oligarchic class: the notion that American oligarchs can make common cause with the oligarchs of countries like China, Saudi Arabia, and, especially, Vladimir Putin's Russia.   Like all such fever dreams, this one entails a puzzling blindness to certain obvious facts.  And like the flights of fancy preceding it, it will have catastrophic consequences for the oligarchs themselves if seriously pursued.

Once again, it will probably fall to America's liberals to save the imbecilic rich from their own idiocy and malice.  'Twas ever thus.  But for the record, it may be worthwhile to point out the fundamental category error that underlies this particular dangerously wrong idea.

The basic political idea which drives oligarchs of all stripes is that wealth and power go together, and, more importantly, that is is a desirable feature to be sought and preserved in any political system.  And in this, the oligarchs of America and the oligarchs across the sea share values and vision.  But there is a crucial difference apparently overlooked by all to many oligarchs of the American variety.  Namely, that American oligarchs are, with a few exceptions, plutocrats, while the oligarchs they admire, particularly in Putin's Russia, are kleptocrats.  This is a distinction which Americans overlook at their own great peril.

In a plutocracy, money buys power.  Often this is the power to protect one's money, and not infrequently the power to make more.  But the ultimate source of power is wealth obtained in the course of private business.  Now, this wealth may be obtained by shady means, it may involve evading regulations or simply breaking laws.  It may involve lucrative government contracts.  It may involve favorable legislation paid for with an advance of the anticipated proceeds of a desired loophole.  But, on balance, the arrow of causality runs from money to power. 

Kleptocracy is almost exactly the opposite.  Kleptocrats mingle wealth with power in much the same way as plutocrats, but the the arrow of causality is reversed:  power yields wealth.  More specifically, kleptocrats become wealthy by expropriating plutocrats.  Kleptocrats don't create or run businesses - they take yours, either metaphorically or literally at gunpoint. 

Precisely why American oligarchs, plutocrats who uniformly decry the power of government to take their stuff, should imagine that a cadre of individuals whose personal fortunes derive precisely from the power of government to do exactly that, is their natural ally is for the moment a question left open.  Perhaps the kleptocrats' open avarice strikes the plutocrat as less alien than those pesky liberals, always taxing them to give "free stuff" to the undeserving poor.  Or perhaps our plutocrats imagine that the appetites of the kleptocrats can be appeased at an acceptable cost. 

It may be vain to hope, but one can at least wish that American oligarchs would realize that the Russians are coming for their money before it is their turn to sample Russian prison life from the inside or to explore the slimming effects of a diet high in polonium. 

American liberals, for our part, can remind our own faction of the oligarchic class (for there is one) that plutocrats and kleptocrats are not friends but mortal enemies: kleptocrats are predators, and plutocrats are their natural prey,