A commenter on my previous post asked a good question: How do you distinguish rule of law from lawfare? In our legal system a prosecutor is not obliged to prosecute all crimes, even ones he knows about. If whether crimes get prosecuted depends mostly on how serious they are and how good the evidence is, that's rule of law. The more it depends on whether the person prosecuted is someone the prosecutor or his superior wants to get, the more it is lawfare. An
I don't think there is sufficient evidence to conclude that the 2020 election included fraud by democrats or republicans but I think this is largely because investigation into such things was pretty blatantly suppressed, with various cases thrown out of court and people posting independent investigations into it banned from twitter and facebook. In addition, there was significant informal pressure to not question or look into the actual data on the election, with the narrative that it was unquestionably unimpeachably secure.
Among other reasons there may not be sensible and honest opinions on Trump is, for example, things like how someone on facebook threatened to report me to the FBI for saying that I did not believe January 6 was a coup attempt or even an insurrection, although I will grant that trespassing and vandalism on federal buildings are unarguably illegal.
Oh also, more evidence that going after Trump for questioning the election is lawfare rather than rule of law: No one gave a shit when house democrats in 2016 proposed not certifying Trump's win, or when Jill Stein et all raised millions to do recounts https://en.wikipedia.org/wiki/2016_United_States_presidential_election_recounts
They did give a shit about not certifying Trump. The president of the Senate - Joe Biden - called the objectors out of order and proceeded to certify Trump.
Trump is not being charged with questioning the election, he is being charged, correctly or not, with doing illegal things in the attempt to change the election outcome. Neither doing recounts nor arguing for not certifying an election is illegal.
The majority of ppl that went to protest the vote on Jan6 were well within their rights to do so. They believed (rightly or wrongly) that the vote would be unjust and sought to persuade representatives. Yet many were prosecuted for ridiculous crimes. Those that broke into the capital and interfered with the vote were rioters. The word "insurrection" means to revolt - to attempt the overthrow of a government. That certainly never happened.
Not really, even an order of magnitude increase in my chance of getting SWATed leaves it very low, but it also depends on how unhinged someone is in terms of willingness to escalate.
In any case it brings a threatening vibe to a conversation I really don’t enjoy.
Very low isn't non-zero. I think in our current climate you are underestimating the danger. In yesteryear we generally had the jury to gut check the system. While they weren't great, their conviction rates have skyrocketed from a crap shoot to nearly always plus if you are killed first, they don't matter. Prisons and graveyards are littered with actually innocent people whom underestimated the odds.
My advice to people nowadays is give in to the bullies veto if not doing so can put you in any legal risk
" I will grant that trespassing and vandalism on federal buildings are unarguably illegal.". I wouldn't grant that at all as an unequivocal fact especially given the selectiveness of the prosecution, I.e. what constitutes vandalism or trespass are pretty subjective. Protestors have routinely did these things in Federal buildings even after Jan 6th and narey a prosecution. You have a right to petition your government whether they like it or not.
Not to mention the fact, revealed in the videos, that guards opened the doors and welcomed them inside. It might still be technically trespassing, but it's hard to argue "mens rea" under those circumstances.
"On the other hand, I think it is reasonably clear that Biden’s victory was in part due to unethical, but not illegal, actions ... the largely successful effort to pretend, on no evidence, that the Hunter laptop was Russian propaganda "
S'cuse me - how EXACTLY is this case of government free-speech violation not "illegal" ? Various gov employees & former intelligence employees were involved in suppressing free speech. That evidence is clear-cut.
Lying is not in general illegal — politicians and intelligence employees do it all the time. If the Twitter decision was due to government pressure, as has been argued, that might be illegal, but I don't think it is clear.
I used to think that but having become intimately familiar with the legal system lately, lying 100% is generally illegal, it's simply not prosecuted most of the time. There is an acknowledged legal fiction that people are always telling the truth when they say something hence strictly liable even if no intent based on the words alone; it's the entire criminal categories of solicitation, conspiracy, fraud, etc. They exist to imprison people not for actual crimes, but simply lying as nearly all of them explicitly remove mens rea from the elements.
Agree - Trump chooses very poor, lousy, ppl to support.
OTOH exactly who is going to dismantle the Washington excess-power machine ?
Currently we have a State Dept, DoJ, CIA, FBI who are perfectly willing to put their thumbs on the scale of justice and to weigh-in in a clearly partisan way. Illegally - yet with zero consequence.
We NEED to get partisanship OUT of the operation of government.
Who (else) even addresses this issue ? Not Nikki, not Biden (who benefits from it).
‘Trump's line about “false accusation[s]” appeared in multiple comments deemed to be defamatory, including on June 21 and 22, 2019. In his 2022 statement, he called Carroll's claims a “con job” and “a Hoax and a lie.” Trump's line about not knowing Carroll also echoes each of the above comments.’
And Trump defamed her once again after he was found liable for the first defamation.
He seems to think he can bully his way through anything. He’s had good luck with that technique so far. It’s his stock in trade. See the spineless GOP.
See Mitt Romney paying $5,000 a day for security against threats from Trump supporters
You know I get the whole being a conservative at Harvard in the 60’s thing. I’m a bit of an iconoclast myself and there is a good case to be made for conservative and libertarian positions. But why carry water for this noxious goon with no discernible principles? It make no sense at all to me. Do you really think the country will be better off after another Trump presidency?
The constant cruel insults, the firehose of lies, the astounding ignorance, the cabinet being required to be credulity straining sycophants, and after they leave they all tell us what an idiot the man was. It’s all simply disgusting.
As I would think should be obvious, I'm not arguing in favor of Trump being president, I am arguing that what is being done to try to stop him is more damaging than what he did or is likely to do.
Your response is actually an example of something I have a post draft on, the tendency to conclude that anyone who says something negative about side B must be a partisan of side A, the sort of tribalism that is probably even more of a threat, but hard to prevent since a good deal of it is probably hard wired into human brains.
So thank you — I need more examples.
I wasn't a conservative at Harvard in the sixties — I don't think I have ever been a conservative in the political sense of the term. I was a libertarian.
Part of the point of my argument on the Georgia and DC cases is that, when law is being used by the party in power against its opposition, they should be very restrained — part of which is interpreting actions in the most charitable light possible.
It is too easy for both sides to slip into the "all's fair in love and war and this is war" mindset. If you read the comments here, from both sides, they have less the feel of rational disagreement than of "I know who the good guys are and who the bad guys are."
You know, when William Barr said that there was an innocent interpretation of the call to Georgia asking to find votes I really had trouble grokking it. I don't think it was from tribal allegiance though. I was weighing the word of the Republican Georgia Secretary of State against that of Donald Trump.
Yes, if he believed that the vote was rigged it wouldn't have been extortion, but then I've always thought of Trump as the sort of liar who believes his own lies, at least in the moment of telling them, so rational thought becomes confounded.
Calling someone "liar' is indeed defamatory. There is no doubt. But this is a classical he-said-she-said case, and the amount and type of fines involved, on such VERY weak evidence are preposterous and clearly the result of a politically biased judiciary.
This is OBVIOUSLY a case of a biased judiciary imposing fines that are illegal - see our constitutions reference - "nor excessive fines imposed". That you fail to address this flagrantly unlawful use of judicial power is indeed, "simply disgusting".
I'd PREFER that you-extremist-types stop abusing your current power to inflict harm based on some deranged views of justice. You will certainly NOT like where your actions take the nation. You want to oppose Trump (not a terrible goal) but you are perfectly willing to destroy the government, the nation, and all notion of justice in your way. YOU are the evil here.
> You want to oppose Trump (not a terrible goal) but you are perfectly willing to destroy the government, the nation, and all notion of justice in your way
> "What I want to do is this. I just want to find, uh, 11,780 votes, which is one more than we have, because we won the state."
Somehow nobody discusses the context of the quote, but when looking at the full transcript (e.g. https://www.documentcloud.org/documents/7340548-Trump-Transcript-A) there's nothing irrational or illegal in it. Trump quotes a number of potential irregularities in the elections, and how many votes, by his estimation, each has cost him. Obviously, it would be very hard - and probably impossible - to prove all of them, but he is convinced at least some of them are true. Some may be actually true, some may be false alarms (Trump opponents claim all of them are false alarms, but obviously Trump does not agree with them) - but he doesn't need to prove them all. He only needs to prove enough to get over the line - it's completely rational behavior, you have limited time, you have limited resources, you have a specific goal - you need to concentrate on achieving this goal, select the best ways to reach it and allocate resources for it. Trump mentions the number 11779 nine times at least - because this is his goal. He doesn't try to solve the election fraud once and for all - he tries to prove enough of it to achieve his goal. I don't see how it's irrational - or illegal. It's the thing every trial lawyer does in every trial - try to prove enough to obtain the necessary outcome. Somehow, mentioning this number is taken as a proof of some nefarious intent - but I don't see how it is. Trump mentions there are multiple irregularities - with potential effect sizes ranging from thousands to hundreds of thousands - and implores the local authorities to look into them, at least enough to find the necessary numbers of irregularities to restore the correct - in his opinion - result. I do not see how this is irrational - or, for that matter, illegal. His claims may not be true, but that happens all the time - people think they are right, and are either mistaken or fail to prove their case according to legal standard. Somehow, when it concerns Trump, it's getting considered as some sign of special nefariousness.
Each one of the ‘irregularities’ had already been checked out and found to to be inaccurate before the call took place. Trump made ominous noises about Raffsenberger ‘being in big trouble if he didn’t see things Trump’s way.
Time and again Trump was told all the claims had been found false.
Very much like a mafia capo. I don’t know the legal definition of extortion in that context but Trump was definitely ‘leaning’ on the guy with breathy vague threats.
‘You know you and your attorney could be in a lot of trouble here if this isn’t taken care of.’
If Trump were like the mafia capo, Raffsenberger - and the guy who leaked the call - would at least disappear, and possibly be found accidentally suicided. Which has happened to a number of inconvenient figures, most lately - the Boeing whistleblower, for example. However, with all the love of Trump to make public enemies and insult and berate people, I don't think there's any single case where anybody who Trump conflicted with ended up hurt in mysterious circumstances. So one could confidently say, at least in this aspect, Trump is entirely unlike any mafia capo.
True. No physical violence from Trump himself. He just says I’d like to punch him in the face and then one of his supporters does it.
How do you feel about the death threats that Liz Cheney and Mitt Romney get from Trump supporters for not showing fealty?
Romney was spending $5000 a day for security for himself and his family.
Or the death threats to Davis French’s son?
I could go on and on with this list.
The man is dangerous. He could stop this by saying it’s wrong and a very bad thing and he doesn’t want it to happen but never does. In fact his rhetoric tends to encourage it. He just sits back and lets it play out to his advantage.
Every prominent politician gets death threats from cranks, it's not something special. Yet, both Cheney and Romney are alive and well, and I don't think anybody who ever crossed Trump had suffered any violent consequences, from anybody, even if they are not multi-billioaires like Romney and do not spend 150k/month on security. Talk is cheap, any bored teenager can send a "death treat" (and many do, unfortunately).
If we talk about institutionalized political violence, though, the right doesn't have nearly close to something like Antifa, which can - and regularly does - field paramilitary forces capable of organized violence that can take over whole cities (e.g. Portland), rout the police and suppress press coverage with impunity (people who attacked Andy Ngo and almost murdered him, for example, were largely let go free and suffered no consequences).
> Who will remove this pebble from the Don’s shoe?
Nobody will. For all Trump career, which spans almost a decade by now, I don't think anybody has ever did anything but talk about any of this - which, as I mentioned, it is absolutely routine in political context, literally every prominent figure, bar none, gets this. Only in Trump's case, as always, it's being dramatized as "campaign of fear" and "mafia-style intimidation" - despite utter lack of evidence of any action - while absolutely symmetric occurrences on the other sides are dismissed as "inconsequential cranks not worth any attention". And completely asymmetric force projections like Antifa or 2020 riots or 2017 riots are ignored altogether.
All in service of the insane idea that Trump is somehow uniquely dangerous - even after four years of his rule when he did exactly nothing to prosecute and suppress any of his opponents (while his opponents controlled and mobilized all governmental security apparatus against him, blocked him from social media, concocted and performed the insane "Russian collusion" fake and successfully blocked or dismantled almost every change he tried to do). On the other hand, when the other side actually does its best to put their political opponents in jail and deny them ballot access - this is not considered dangerous in the least. This is different, this is the good guys doing it!
I think Trump is truly unique in his command of his base. For reasons I will probably never understand his hard core supporters *love* him.
Adam Kinzinger was denounced by a former friend who flew with him in the military. He also received a notarized letter from a large group of family members calling him a traitor and disowning him.
> I think Trump is truly unique in his command of his base.
We've got millions of people voting for a person who barely walks, doesn't remember most of the facts of his life, constantly freezes and mis-speaks, and can not stand trial because no jury would convict him due to his obvious incapability of forming intent. And yet, millions of people are absolutely convinced this man, out of 330 millions or so (ok maybe less since you have to be natural born, but still plenty left) must be the Leader of the Free World. If this is not a sign of unfathomable love, what is?
> I think this cult of personality is frightening.
I must admit I never followed the exploits of Adam Kinzinger too closely, but given that he works for CNN, I can totally understand people want nothing to do with him. If I knew somebody who worked for CNN, I probably would keep away from them too - fortunately, I've got a lot of problems, but this is not one. But, frankly, a lot of friends and family members cut ties over political disagreement, there's even a old tired set of jokes about political squabbles over Thanksgiving - what this has to do with Trump? It's like some people are so obsessed with Trump that they are eager to attribute every negative event that ever happened in US political life and claim that Trump invented it and it only happens because of Trump. While even a modest effort at investigation would immediately reveal it existed long before Trump, happens in no relation with Trump and will likely continue long after Trump becomes yet another figure in the long line of names that history teachers user to bore their pupils to sleep.
What is fascinating to me is how people think the obsession of the hour is all there is and all there ever will be. Come on, is it really logical that Trump invented people arguing about politics and stopping being friends?
> BTW I hold no truck with Antifa either.
I mean no disrespect, but nobody really cares about what you personally hold (that is true for me too, of course). What I am talking about is the institutional stance. Antifa is a large and by now powerful force, and yet the FBI and other law enforcement almost completely ignore the mayhem they wreak, short of occasionally prosecuting the most egregious examples - like attempted murders of policemen or such. Nothing even close to the effort they took to find every last grandma with a tiny US flag in hand that peeked inside Capitol on Jan 6 and put her in jail where this dangerous insurrectionist belongs.But burn a district court - and FBI doesn't have any beef with you. I'm not talking about people who actually organized right-wing protests - those get decades in jail. Left-wing organizers are never even mentioned. The difference in the approach is absolutely striking, and it's not a secret why - leftist rioters have a massive political cover. People very high up - as high as current VP - has been running funds that bail out Antifa rioters and provide them legal representation and political support. This is another of the examples of political and law enforcement system being politically weaponized - and this is exactly how tyranny is being built. When one side's violent troopers are given free reign, while on the other side the slightest attempt of protest is suppressed with maniacal cruelness.
You are scared about people who love Trump so much that they don't want to talk to Kinzinger. I am scared about people who hate Trump so much they burn half the city down, and even more - about the people who hate Trump so much that they are willing to excuse the burners, because they think anything against Trump is a good thing to do. I think mine is much scarier.
The secret documents cases with Trump and Biden are very different. Trump, as the President, had full authority to use the secret documents, define the rules which govern their usage and declassify them, on any grounds he wanted to. Biden, on the other side, have never been the President at the time concerned, and had no authority to take these documents, keep them, disclose them to the third party - and yet, he did it on many occasions, fully knowing what he is doing is illegal. The difference here is like between a man that had a dispute with a rental company about the dates when the rental was booked and thus may have kept the car longer than the rental contract allowed - and a person who knowingly took somebody else's car, drove it for years, rented it out to other people, and when the real owner found out, just gave it back. And then claimed "well, I did give it back, so no harm no fault, right?!" I don't see how the former case is "more extreme" in any way - and how the fact that Trump thought he had the right to retain the documents, and he had the ultimate authority to declassify them (and it has been a long-standing tradition of Presidents doing exactly the same) - makes him "more extreme". I think, the person who thought he is not committing a crime and argues for his innocence - even if this argument is rejected by the court, which as I understand, never happened yet - can not be considered a worse criminal than the person that knowingly committed the crime and knew he is committing the crime at the time, and there's absolutely no dispute about the fact that the crime has been committed. Does proclaiming one's own innocence prove "extreme" guilt now?
But what about ‘ solicitation of voter fraud and extortion’
“The president, who will be in charge of the Justice Department for the 17 days left in his administration, hinted that Mr. Raffensperger and Ryan Germany, the chief lawyer for secretary of state’s office, could be prosecuted criminally if they did not do his bidding.”
“You know what they did and you’re not reporting it,” the president said during the call. “You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk.”
Legal experts said Mr. Trump might have violated Georgia State laws against solicitation of voter fraud and extortion by seeking to exert pressure on Mr. Raffensperger.’
If his claim was that there were more missing votes than that, which is what he claimed, what he was soliciting was not fraud. See the point made above by MostlyCredibleHulk
He made many more claims than missing votes, each one wackier than the last. It’s hard to believe he thought most of them had merit. And the tone of his ‘encouragement’ to Raffensperger was that of mafia capo.
“You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk.”
I listened to the entire hour. Don Corleone was always much more subtle than Trump.
I agree that he neither has nor wants to have a secure grip on reality, but given his belief that there were lots of stolen votes somewhere to be found, insisting that the relevant official find them wasn't unreasonable. Very likely if the stolen votes were there, Raffensperger knew they were there and ignored them there would have been some criminal liability.
Note that it is his opposition that has been making, not just threatening to make, criminal charges against Trump's lawyers.
Define "hinted". That seems a weasel-word for 'don't know the intent nor meaning'. I've been on hundreds of sales-team calls where a manager asks sales ppl to "find more orders" That never means invent fraudulent orders. You believe as you do due to your malign intentions and motives.
“You know what they did and you’re not reporting it,” the president said during the call. “You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk”
"the failure to prosecute James Clapper, Director of National Intelligence, for perjury after he lied under oath in congressional testimony"
Reading the linked text, it looks to me like Clapper lied under oath in only a very non-central exemplary way.
The rule I believe everyone understands is that one must not lie to Congress when under oath, because Congress is representing the will of the People in trying to get to the bottom of a gravely important matter, and lying in such situations is indicative of wanting to thwart the People. It's clear to me that Clapper isn't trying to thwart the People, and in fact, quite the opposite.
One rule people do not typically understand (including, apparently, Snowden) is that collective defense requires keeping watch over known adversaries, and uncovering unknown ones. The methods for doing this are necessarily secret - if they were public, adversaries could bypass them - and so Clapper, as then-DNI, had an obligation to safeguard those methods. Safeguarding not only means refusing to discuss those methods, but also being careful not to discuss related information that would imply anything about the structure of those methods.
The latter type of information can be unusually expansive - enemies have every incentive to learn everything they can about how we are trying to watch them, and even stuff like a detected flurry of our encrypted transmissions whenever they say "banana" is information. We can't simply legally define that away, either. At best, we can say "you have to report This, but you can keep That secret" and manage risk.
So when Senator Wyden asked Clapper a question that Clapper believed could reveal secret information, Clapper had to try to give Wyden an answer he wanted while also protecting information he was obligated to protect. He had to balance one priority of the People against another, and the tiebreaker was the result of a difficult logic calculation that resulted in him having to take time to pick his answer. And as he said, even stopping Wyden there and insisting on a classified session would have given away information by then.
In part, this seems largely attributable to either Wyden himself being very careless in his questions, or Clapper's office being careless in assessing the questions Wyden claims were submitted the day before. (Perhaps understandably careless - AFAIK, Wyden has never been heavily involved in defense matters; perhaps someone like Ben Cardin would have known not to bring Clapper to that spot. But surely finance has reason to protect similar information. Clapper's office should have objected to that question - but Wyden should have known not to even submit it in the first place.)
Point being, the reason for not prosecuting Clapper likely also falls into the category of "giving away information to our enemies" - which means he'll never be prosecuted *and* we'll never know that reason (except maybe 75 years from then, a la Venona). Same goes for anything else related to military intelligence.
Clapper was asked a straightforward question, had been told the previous day that he was going to be asked it, and gave a flatly false answer, a fact discovered shortly thereafter when someone revealed information that was being deliberately concealed. I don't see how you can describe that as a very non-central example of perjury.
He was trying to thwart the desire of people to know whether they were being spied on. The answer is that they were, massively, and he denied it. You can argue that the government should spy on people and conceal the fact, should lie to them, but it's still a lie. You can argue that Clapper was doing his job by lying to Congress in order to mislead the public about what security agencies were doing but I don't see how you can deny that he was lying to Congress.
It isn't clear that this is selective prosecution in favor of important people, which is how I interpreted it in the post. Alternatively, it is selective prosecution in favor of people who commit crimes that the government approves of. Do you think that is a good idea? Note that, legally speaking, a government actor can commit murder with impunity if the government simply chooses not to prosecute him. As I put it in my earlier post on selective prosecution, if the crown controls prosecution the King's friends can get away with murder:
I'm saying it's a non-central example of perjury, because the central example is lying to Congress in order to protect oneself, rather than to protect others, particularly the entire nation.
I am also saying that "selective prosecution in favor of people who commit crimes that the government approves of" is leaving out an important possibility, by suggesting that the reason the government approves of the crime in question is that it enables government officials to protect themselves at the expense of the people.
That is not the only possible reason. Another is that the government *tolerates* the crime because the crime prevented some harm to the people, and prosecuting it might negate that prevention and even inflict further harm. This harm is hard to measure, because it is determined by whether people actually malicious toward American citizens hear what Clapper said, what they might infer from what they heard, what they can do about what they infer, whether we observe what they did, and whether we can determine if what they did was in fact caused by Clapper's (non-)statements.
For example, suppose Clapper had answered Wyden's statement with the truth, and the whole truth. (I'm not even 100% sure Clapper lied, despite phrases such as "least untruthful".) We don't know what the whole truth would be, but it looks like a flat "yes, we spy on Americans" is not. Working from that, and the assertion that a flat "no" isn't accurate either, the truth might be "under some conditions". But that's not the whole truth, either; he didn't give the conditions. Wyden could ask, but the more he does, the more bits Clapper must let slip, which real enemies could use to infer what's really going on. And enemies can draw on information even Clapper and Wyden do not have. Even answers like "I can't discuss that" or "I won't discuss that" or "only under extremely strict conditions" or "only certain types of information" - all possible answers - are also leads. If the Senator leading the Intelligence Committee were there and interrupted the questioning to take Wyden aside and advise him behind closed doors, that would likewise be a lead.
Which, from my perspective, means Clapper was thrust into an impossible situation by being under oath to answer questions from someone who was careless. (There's the matter where Wyden claims he submitted the question the day before, and I recall reading that Clapper's staff *had* responded after all - and Clapper had briefly forgotten that they had.)
If you're under oath to Congress, and asked about information you can't respond to without revealing crucial information to real enemies - even if that response is "I won't discuss that in a public forum" - would you respond that way anyway, or respond contingent on the specific information, and risk harm to innocent citizens - or would you lie?
If I strongly approved of the government deliberately lying to the people and could not evade the question, even with advance warning, I might lie. If I did and was caught I should then be prosecuted for perjury. Clapper lied, was caught, and was not prosecuted.
We are supposed to have a system of law, not a system where government actors are free to break the law when they think it is desirable in the expectation that, if their superiors agree, they will not be prosecuted.
You disagree? Should government actors also be free to assassinate people if they and their superiors approve? I expect both Trump and Biden could think of people the country would be better off without, although probably not the same people.
If I strongly approved of the government deliberately lying to the people in general, then a lot of things would be different. Among other things, it'd probably be reasonable to assume I took fascist positions on most issues. In fact, I strongly *dis*approve of the government deliberately lying to the people in general - but this isn't the case I'm trying to bring up anyway.
The case I'm pointing at is a specific case of the government deliberate lying to the people in order to fulfill another vital function of that government - to protect the people from enemies foreign and domestic. Our system of law is supposed to support that service as well. If it doesn't, which should we prioritize?
Naturally, we would greatly prefer to not have to make that choice. I think the people who control the government try - at least in public - to organize the system so that it doesn't force us there in most circumstances, and in most cases, I think it succeeds. But I also suspect there are cases where it can't avoid it, and the situation du jour is where an official is put under oath and asked questions that force the release of information that could lead to harm to the people. (I suppose the classic way to sketch this is to pose the usual foil to deontological ethics and imagine a Congressperson asking an official for the location of someone that some murderer would very much like to kill, but currently cannot locate.)
As for assassinations, which are 100% likely to do physical harm, as opposed to revealing secret information, which requires more steps, I believe we try even harder to organize the system so that it does not force us to prioritize rule of law over assassinating targets, no matter how dangerous they are. Events that occurred during the Obama administration lead me to believe that even this can be unavoidable in the limit. (My strong personal emotional aversion to assassinations might cause me to refuse every time, only to receive news later of a terrorist attack I could have headed off.)
From here, the discussion could go even further. If you were authorized to command military force, and received news of a very dangerous group of individuals gathered somewhere for too short a time to deliberate with Congress for permission, would you follow the procedure and risk these people escaping, or would you order a strike, in defiance of the current rules?
And what would you then do in the aftermath? Claim you were in the right, and further claim the right to do this in the future? Or try to establish new rules to avoid the conflict between rules and harm?
And how secret would these rules need to be, in light of the fact that real enemies could game the rules if they know them?
"I believe we try even harder to organize the system so that it does not force us to prioritize rule of law over assassinating targets, no matter how dangerous they are"
Apologies - I of course meant the reverse; we try not to have to prioritize assassinations over rule of law.
An implication I left out in my last paragraph: while we'll never know the reason he wasn't prosecuted, if we found out, say, 75 years from now, we would very plausibly agree with it.
We do know why he wasn't prosecuted — he was lying in order to keep secret information that the government wanted kept secret, was going to a good deal of trouble to keep secret.
At the risk of being pedantic: what evidence do we have that that was the explicit reason for not being prosecuted? I didn't see anything in the article other than an assertion by a journalist that Clapper ought to be prosecuted, and a link to an analysis that claims he wasn't because it would be technically hard to prove, and the political will wasn't there. These seem like plausible reasons to me. Also plausible is the reason for lack of political will - the process of convicting Clapper would likely have revealed even more secret information. But I don't have any record of any official stating this.
We know that the government wanted to keep what they were doing secret and were going to a good deal of trouble to do so. Clapper worked for the government, for the same part of the governmment, and told a lie that he thought would preserve that secrecy. I agree that one can't prove the reason he wasn't prosecuted, but it strikes me as pretty obvious.
Could it really be difficult to prove that the Director of National Intelligence knew that the NSA was conducting a secret program of mass surveillance? That he denied it?
"Your Honor, we argue that the DNI knew about a secret surveillance program, and claimed there was no such program."
"How do you know there's a secret surveillance program for him to lie about?"
"Uhhhh..."
That's the basic gist. Generally, it's really hard to prove criminal activity about secret information without giving up information about the very thing you're trying to keep secret. (Unless of course the crime in question is that revelation.)
In this case, after the secret program was revealed by Snowden they stopped trying to keep it secret. Clapper's later explanations of his statement did not include the claim that it was true.
I wonder if you can distinguish between e.g. Trump and Biden w/r/t/ which of them misappropriates power, indeed is eager to do so and advertises the fact publicly, or whether noticing more closely the scale of the difference between them on this point might be the core reason that many people normally part of the libertarian/classic liberal coalition are at present aggressively supporting Biden and rooting for Trump to end up permanently out of positions where he can abuse public trust.
"The Chief Justice has made his law, now let him enforce it." Probably not a real quote but a description of Andrew Jackson's behavior. He may come closest of past presidents to a similar willingness to violate norms.
> He violates norms that are so well established that no one thought laws protecting them were necessary.
The relevant norm in question being that the administrative state is to be completely unaccountable to merely elected officials. And frankly, that is a norm that needs to go.
Here. Let me give you an example of a norm of human decency that Trump violates.
His supporters threaten his political rivals with violence quite often. The decent thing that most politicians would do and almost all would have done in the past is strongly discourage threats to rivals.
But Trump never does. In fact his rhetoric tends to encourage these things.
Trump is not a principled friend to liberty, libertarian instinct, or classical liberalism. His public-spiritedness runs about as deep, it would appear, as a police officer who routinely demands bribes of all, and will release even the worst suspects if a big enough bribe (the amount generally being highly subject to price discrimination after the suspect has been searched) is promptly paid... at least until he can arrest them again. That this excites eager application of laws against him, by those trusted with using lawful means to catch criminals. Seeing him subjected to such prosecution may make him a subject of some sympathy, given many of those lawful means are badly thought out laws which excessively empower prosecutorial discretion. But it does not make him any less unfit for an office of trust; indeed the example of the easy misuse of those minor powers should make clear what a danger a mob-popular executive with the ability to order the national guard to *not* intervene poses.
1. We should set aside E. Jean Carroll v. Donald J. Trump for this analysis since the government is not a party to this case. The only government involvement in fact is that the Trump DoJ tried to make this a case where the government defends the President for actions committed before he became President, and the Biden DoJ continued to make that case (unwisely).
2. In the fraud case brought by James, you may indeed claim this is targeted and pre-meditated. This does come closest to lawfare by your definition. Its worth considering whether the salient fact is that its against a "political" actor or the fact that it was isolated to one bad actor. i.e. do the (admirable!) actions of John Gleeson or Rudolph Giuliani in targeting and taking down the major crime families in NY count as lawfare by this definition? If the argument is that more real estate developers should be held accountable for inflating asset values and not just one individual, I agree!
3. The election fraud / Jan 6th case is singular, and clearly should not count as targeted (who else is/was there to prosecute to make sure its not targeted?). Going beyond narrow legal definitions for a moment, the effort to frustrate and subvert transition of power and then to argue that the President has "absolute immunity" is an attack on the institutions of liberal democracy, and the institutions must fight back with the full force of the law, whether this is classified as lawfare or not. As Justice Robert Jackson observed the constitution is not a "suicide pact".
I disagree with your point 1. The judge in the case is a political actor. More important, I don't think lawfare only describes government actions. If Democratic partisans use the legal system to punish their political opponents, that is lawfare as well. I think both the points in my footnote on that case are evidence that that was happening.
On point 2, I take both the case and the size of the verdict as evidence of lawfare.
Lawfare can be used in a non-political context, as in your examples or Thiel's actions against Gawker. My claim is not that it is always bad, although it might be, but that its use by one side of a political conflict against the other side, in particular by the side in power in the relevant courts, is destructive of the democratic system.
> ctions of John Gleeson or Rudolph Giuliani in targeting and taking down the major crime families in NY count as lawfare by this definition?
Yes, this is lawfare used for the purpose the law was established for - to fight crime and uphold the rule of law.
> If the argument is that more real estate developers should be held accountable for inflating asset values and not just one individual, I agree!
There's no such thing as "inflating asset values", unless you support the idea that there's a "true" asset value, which is unconnected to the voluntary exchanges on the market, and the source of this value is the opinion of a government officer. With that idea, you can prosecute any person who tried to sell their house for the price more than the government officer thinks is "correct", which will be about 100% of sellers, by rough estimate. The value of assets is the product of willingness of the market participants to potentially purchase these assets, or, in the case of collateral, to use these assets as the replacement for the loan value. If the loan giver is satisfied with the value - which in Trump's case they very much were - there's no other imaginary value to be compared to. If the bank thinks the potential benefit of owning Trump's estate more than pays for the risk of giving Trump a loan - then there's no place for any third party to intervene.
> As Justice Robert Jackson observed the constitution is not a "suicide pact".
Somehow a lot of people take it as "therefore, we can do whatever we want to keep ourselves in power".
You are making a separate argument, that section 63(12) of New York's Executive Law which gives the Attorney General of New York broad powers to investigate and prosecute civil fraud cases should be amended. Sure! There are ways to do that -- you need to persuade the current NY legislature or persuade NY residents to elect a different legislature to do so.
New York law is bad, and it's not a surprise - there are many bad laws on the books, but the effects if the most of them is mitigated by the fact that they are never actually used, or the court and prosecutors mitigate their potential badness by applying good judgement. In this case, this law has only been used to persecute a political opponent, and this takes it beyond just a bad law, to the territory where bad law is being used for even worse purposes. This is a banana republic territory. It's not enough to just recognize that the law itself is bad - which it obviously is - but also that it is used openly for completely illegitimate purposes. Dismissing it as "well, if New Yorkers want better laws, they should elect somebody to change it or something" is just sleepwalking into the banana republic. Everybody who does not want to live in a banana republic should be actively upset about this. This is exactly how it starts. This is exactly how Putin started the suppression of the opposition btw - with politically motivated "fraud" cases. When it worked, he proceeded to the next step - and so will happen here too, if it's not stopped.
I didn't really mean this law was never used before Trump (I didn't check if it were), I meant in this particular usage the badness of the law is multiplied by the fact that the only purpose of its usage is to persecute the political opponent (and, as far as I know, it's the first prominent case where it happened). The law that gives somebody arbitrary powers is bad in any case, but if it were used only to achieve good ends (such as prosecution of murderous criminals from mafia) one could claim maybe in the big picture the balance is not entirely negative. Still not ideal, but kinda not here not there maybe. Here, on the other hand, the badness of the law is reinforced by even worse practice, so the bad law is not mitigated by reasonable application - on the contrary, it is made so much worse by malicious application.
From a civil case brought by NY's Attorney General to Putin's Russia may be slightly far fetched. But you know what's less far fetched? A fraudulent slate of electors, pressurizing election officials to "find votes" for you, inciting violence on the Capitol while its in the middle of certifying the election -- these lead to Putin's Russia _much_ faster.
That is the question. Neither has led to Putin's Russia yet, and what Trump has done so far is obviously not going to since it failed. The use of the legal system against Trump has not yet failed, but we will have to wait a decade or so to see if it destroys democracy. Also, if Trump wins the election, to see if he does.
No, it's not "far-fetched" at all. Essentially, a New York prosecutor can now destroy any business (or, in fact, just seize all assets) that belongs to a political opponent in the state, just by deciding to do it. Or, rather, they have always been technically able to do so, but now they are also willing to do so, and the courts are willing to take part in it and enable it. This is a huge development. This means the legal system is full politically weaponized and anybody who has any business in New York and is active politically has a big glowing target on their backs (unless they are Democrats of course). It is true that only their money and not their life is under threat, but again - this is *exactly* how it was for the first decade of Putin's consolidation of power. He never went for the lives of his opponents then - many of them still are alive - he always went for their assets, primarily - Russian assets that can be used as a power base, and successfully seized or destroyed their businesses. True, now he is much further down this road, several steps ahead, but it's not "far fetched" at all to notice the similarity - in fact, the identity - of approach.
> pressurizing election officials to "find votes" for you
I addressed this in another comment, it is not really what happened in that call, which is clear if you bother to read it longer than one out-of-context sentence.
> inciting violence on the Capitol while its in the middle of certifying the election
This charge is both false - he actually called to protest "peacefully" - and not unique to Trump in any way, protestors going into state or DC capitols to demand various things is a common occurrence, happened many times, including occupations of capitols that lasted for days, but only in one case it is dramatized as some kind of historically exceptional event. While, for example, much worse instances of violence - including massive extremely violent riots when Trump was inaugurated - are completely ignored. I don't think the FBI has made 1/1000th of the effort to prosecute the rioters of 2017 that they spent on prosecuting everybody that even walked near the Capitol in 2021. Also, many Democrat politicians called for protests many times, and many of them endorsed very violent protests of 2020 - which were orders of magnitude more harmful on any measure, be it money loss, lives lost or general effect on the society. Of course, 1st Amendment fully protects their speech - but I'm sure we can't apply that to Trump - for some reason.
> these lead to Putin's Russia _much_ faster.
I don't remember any examples of anybody in Russia questioning the election security on behalf of Putin or rioting in the government buildings in support of Putin. On the contrary, Putin always claimed the elections (which has been clearly absolutely fake for decades now, with only minor exceptions) are 100% safe and secure, and people who claim there's electoral fraud are just sore losers, and should be jailed for spreading misinformation. Moreover, any protests about the electoral fraud - as well as about anything else - were brutally suppressed. With protestors often given lengthy sentences, often by having some policeman testifying they struck him (even though nobody saw it and had any proof of it) or otherwise assaulted them. Others were jailed just for being there when the protest happened. The security services spared no effort and used all means available, including tapping security cameras, bank records, phone records, etc. to find and prosecute everybody who have been connected to any active protest.
Now, whose actions does this remind us of?
Every national election that I can remember - and probably every one I can't - had certain part of the opposing side, including often the candidates, to claim it wasn't done right. But only in one case, now, it led to weaponizing the legal system to suppress the political opponent and deny him participation in the elections. Putin, again, is routinely doing that - or rather, was doing that - he have no real opponents left within borders of Russia anymore, but while there were, they were routinely denied ballot access. Trump, on the contrary, never denied ballot access to any Democrat politician, as far as I know, neither did his helpers.
The prosecutor can only do that if he can convince the court that the business engaged in fraudulent business, profited by so doing, and the amount of the profit is at least the value of the assets. It's true that a prosecutor plus a sufficiently corrupt court — judge or judge plus jury — can do it. But then, a prosecutor plus a sufficiently corrupt court can also convict someone of a murder he did not commit — there is nothing new or unusual in this case.
None of these is claimed by the defense. It might surprise you to know what their argument is. Their argument is that the President has absolute immunity to do _anything_. His lawyer said as much in court (even if he ordered the seal team to assassinate a rival, nothing you can do!). Does that remind you of how a certain Russian leader operates?
And unfortunately the electors produced by a brazenly fraudulent election were allowed to stand, and now we have the Biden regime doing its best to destroy the country.
Trump's campaign message in 2016 was "drain the swamp." Because of his ineffectiveness as a leader, all he did was change the water. ALL of the legal machinations that have occurred since then are the result of blowback against anyone else wanting to drain the swamp. The evidence of how badly polluted the swamp has become is in the following:
Personally, I agree with Dr. Friedman - i have no intention of voting for either, so who is or isn't guilty of whatever the flavor of the day is, has no bearing on my decision.
I like America and most Americans I meet, I really do, but I think your country is F'd up. Is this the best you can do, argue about 4 year old, 8 year, my god 24 year old s**t. Stop it! You are embarassing all the rest of us who actually have expectations that the U.S. is positive influence for the world. Instead you act like a bunch of petulant 7 year old. Seriously, I'd send y'all to your rooms for a time out if I could.
We argue about things more than a century in the past, such as what the Civil War was about. I don't know what country you are from but I would give odds that there are events much more than 24 years ago that some of its inhabitants still argue about. In Spain, for example, the Carlists argue about a succession dispute from the early 19th century which they think was settled the wrong way.
There are lots of unethical things happening in politics, but non conceding is un precedented.
Political tensions accumulate until Election Day and then the agreement on the result of the election release them.
If the election was not stolen, non concession is the worst attack on the US republic since the civil war, and to dismiss such a treasonous act as “being irrational” is as ominous as the general direction of American política in this century.
Now, Trump is a modest problem. The real one is that the political cost of non concession has been small.
The US constitution was mainly sustained by the puritan disposition of the US people, that was intolerant not only of major institutional transgressions but even of adultery or perjury by elected officials. It is perhaps a country of extremes.
It shall not be legally treasonous, because electoral fraud is possible and outlawing its denunciation creates bad incentives.
Now, of course, non concession is a direct attack of a lawful presidential succession. I cannot imagine anything worse. It is an direct call to civil war if words mean anything. In North Korea words do not need to mean anything, but in the US?
Being a traitor is sometimes a legal offense, others only a moral one. Are you now a legal positivist? Among all people, precisely you??
I fear there will be no agreement after this next election. Dems are openly painting Trump as the Hitlerian anti-Christ in, a move to dehumanize, therefore justify murder. Some nut-bag will attempt assassination, and the Dem-party broadly is responsible for these very unjustified moves to demonize & dehumanize their opponent.
I am actually a little puzzled as to why there have, as far as we know, been no serious attempts to assassinate Trump. If his critics really believe what they say one would expect some of them to try it. Practically everyone, after all, approves of the idea of assassinating Hitler, in some (fictional) contexts even before he took power.
I suspect the way much of the left have trained themselves to have a panic attack at the thought of interacting with a gun in any way might have something to do with it.
Nah, most of the recent mass shooters were leftists and most of the Democratic claimed base has firearms. I think it has more to do with presidential assassination has fallen out of favor. It used to be every twenty or so years we had an actual assassination or a real attempt at least but when was the last one, Reagan? People thought Obama was going to get shot too, not even an attempt.
You must be new here, here being "The United States." The election results were questioned in 2000 Bush v. Gore, and 2016 Trump v. Clinton. That's just in my memory... I don't recall the Bush v Clinton election seeing questions of who actually won, but then most recent non-concessions without massive recounts come when Democrats lost, not Republicans, so I wouldn't be surprised if there wasn't one.
And you think this was not? What is your basis for believing Trump's claims about massive fraud? On all of them, people have offered arguments that they are not true — how have you checked out those arguments to know they are wrong?
> What is your basis for believing Trump's claims about massive fraud?
Basically based on seeing it being committed in real time on election night.
As for evidence, let's see: there were the synchronized stopping of the count across multiple states followed by statistically impossible jumps for Biden, observers being tricked or kicked out of the counting room followed by the count resuming (in one case them counters literally covering the room's windows to keep the observers from seeing what they're doing), video of the counters scanning the same ballots multiple times through the machines, sworn eyewitness affidavits, miscellaneous statistical irregularities etc.
Here is a blogpost that has more details collected:
These are all assertions made by one side of a controversy. I think if you read the arguments of the other side you will find plausible rebuttals. How do you distinguish "this happened" from "someone on my side says it happened and since he is on my side I believe him"?
After the Supreme Court ruled there would be no more recounts, Gore promptly conceded to Bush. For the good of the country. The nation was more important than a single election to Gore.
And no, when Clinton won against G H W Bush there was no recount.
"Almost a century and a half ago, Senator Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, "Partisan feeling must yield to patriotism. I'm with you, Mr. President, and God bless you."
"[A]nd now it has ended, resolved, as it must be resolved, through the honored institutions of our democracy."
"Let there be no doubt, while I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession."
More grace and class in one speech than Trump can summon in a lifetime.
I don't think there is sufficient evidence to conclude that the 2020 election included fraud by democrats or republicans but I think this is largely because investigation into such things was pretty blatantly suppressed, with various cases thrown out of court and people posting independent investigations into it banned from twitter and facebook. In addition, there was significant informal pressure to not question or look into the actual data on the election, with the narrative that it was unquestionably unimpeachably secure.
Among other reasons there may not be sensible and honest opinions on Trump is, for example, things like how someone on facebook threatened to report me to the FBI for saying that I did not believe January 6 was a coup attempt or even an insurrection, although I will grant that trespassing and vandalism on federal buildings are unarguably illegal.
Oh also, more evidence that going after Trump for questioning the election is lawfare rather than rule of law: No one gave a shit when house democrats in 2016 proposed not certifying Trump's win, or when Jill Stein et all raised millions to do recounts https://en.wikipedia.org/wiki/2016_United_States_presidential_election_recounts
They did give a shit about not certifying Trump. The president of the Senate - Joe Biden - called the objectors out of order and proceeded to certify Trump.
Perhaps a more powerful contingent - but certainty not ALL. Would you suggest that the Dem opposition should be prosecuted, treated as traitors ?
Trump is not being charged with questioning the election, he is being charged, correctly or not, with doing illegal things in the attempt to change the election outcome. Neither doing recounts nor arguing for not certifying an election is illegal.
You mean the ones that ignored Biden and stormed the Capitol to stop Trump’s certification?
After being whipped into a frenzy by Hillary’s speech nearby?
The majority of ppl that went to protest the vote on Jan6 were well within their rights to do so. They believed (rightly or wrongly) that the vote would be unjust and sought to persuade representatives. Yet many were prosecuted for ridiculous crimes. Those that broke into the capital and interfered with the vote were rioters. The word "insurrection" means to revolt - to attempt the overthrow of a government. That certainly never happened.
We are discussing those House Dems who voted against Trump's 2016 cert as pres.
Did you think that if he reported you for that the FBI would be interested?
Not really, even an order of magnitude increase in my chance of getting SWATed leaves it very low, but it also depends on how unhinged someone is in terms of willingness to escalate.
In any case it brings a threatening vibe to a conversation I really don’t enjoy.
Very low isn't non-zero. I think in our current climate you are underestimating the danger. In yesteryear we generally had the jury to gut check the system. While they weren't great, their conviction rates have skyrocketed from a crap shoot to nearly always plus if you are killed first, they don't matter. Prisons and graveyards are littered with actually innocent people whom underestimated the odds.
My advice to people nowadays is give in to the bullies veto if not doing so can put you in any legal risk
" I will grant that trespassing and vandalism on federal buildings are unarguably illegal.". I wouldn't grant that at all as an unequivocal fact especially given the selectiveness of the prosecution, I.e. what constitutes vandalism or trespass are pretty subjective. Protestors have routinely did these things in Federal buildings even after Jan 6th and narey a prosecution. You have a right to petition your government whether they like it or not.
Not to mention the fact, revealed in the videos, that guards opened the doors and welcomed them inside. It might still be technically trespassing, but it's hard to argue "mens rea" under those circumstances.
"On the other hand, I think it is reasonably clear that Biden’s victory was in part due to unethical, but not illegal, actions ... the largely successful effort to pretend, on no evidence, that the Hunter laptop was Russian propaganda "
S'cuse me - how EXACTLY is this case of government free-speech violation not "illegal" ? Various gov employees & former intelligence employees were involved in suppressing free speech. That evidence is clear-cut.
Lying is not in general illegal — politicians and intelligence employees do it all the time. If the Twitter decision was due to government pressure, as has been argued, that might be illegal, but I don't think it is clear.
I used to think that but having become intimately familiar with the legal system lately, lying 100% is generally illegal, it's simply not prosecuted most of the time. There is an acknowledged legal fiction that people are always telling the truth when they say something hence strictly liable even if no intent based on the words alone; it's the entire criminal categories of solicitation, conspiracy, fraud, etc. They exist to imprison people not for actual crimes, but simply lying as nearly all of them explicitly remove mens rea from the elements.
Will you check your footnotes? The E Jean Carroll one links to a Kipling quote, while the third one (about elections) links to Carroll.
Anyone who still hopes Trump will drain the swamp should reconsider after seeing that he just endorsed Mike Rogers over Justin Amash.
Thanks. I have now fixed the footnotes.
Agree - Trump chooses very poor, lousy, ppl to support.
OTOH exactly who is going to dismantle the Washington excess-power machine ?
Currently we have a State Dept, DoJ, CIA, FBI who are perfectly willing to put their thumbs on the scale of justice and to weigh-in in a clearly partisan way. Illegally - yet with zero consequence.
We NEED to get partisanship OUT of the operation of government.
Who (else) even addresses this issue ? Not Nikki, not Biden (who benefits from it).
Carroll sued him for defamation, twice.
Two separate cases.
First
‘Trump's line about “false accusation[s]” appeared in multiple comments deemed to be defamatory, including on June 21 and 22, 2019. In his 2022 statement, he called Carroll's claims a “con job” and “a Hoax and a lie.” Trump's line about not knowing Carroll also echoes each of the above comments.’
And Trump defamed her once again after he was found liable for the first defamation.
He seems to think he can bully his way through anything. He’s had good luck with that technique so far. It’s his stock in trade. See the spineless GOP.
See Mitt Romney paying $5,000 a day for security against threats from Trump supporters
You know I get the whole being a conservative at Harvard in the 60’s thing. I’m a bit of an iconoclast myself and there is a good case to be made for conservative and libertarian positions. But why carry water for this noxious goon with no discernible principles? It make no sense at all to me. Do you really think the country will be better off after another Trump presidency?
The constant cruel insults, the firehose of lies, the astounding ignorance, the cabinet being required to be credulity straining sycophants, and after they leave they all tell us what an idiot the man was. It’s all simply disgusting.
As I would think should be obvious, I'm not arguing in favor of Trump being president, I am arguing that what is being done to try to stop him is more damaging than what he did or is likely to do.
Your response is actually an example of something I have a post draft on, the tendency to conclude that anyone who says something negative about side B must be a partisan of side A, the sort of tribalism that is probably even more of a threat, but hard to prevent since a good deal of it is probably hard wired into human brains.
So thank you — I need more examples.
I wasn't a conservative at Harvard in the sixties — I don't think I have ever been a conservative in the political sense of the term. I was a libertarian.
Sorry I got your 60’s political take incorrect.
The reason I felt you were carrying Trump’s water is that in all these cases you are interpreting his actions in the most charitable light possible.
Sorry I missed your motivation here too.
Part of the point of my argument on the Georgia and DC cases is that, when law is being used by the party in power against its opposition, they should be very restrained — part of which is interpreting actions in the most charitable light possible.
It is too easy for both sides to slip into the "all's fair in love and war and this is war" mindset. If you read the comments here, from both sides, they have less the feel of rational disagreement than of "I know who the good guys are and who the bad guys are."
You know, when William Barr said that there was an innocent interpretation of the call to Georgia asking to find votes I really had trouble grokking it. I don't think it was from tribal allegiance though. I was weighing the word of the Republican Georgia Secretary of State against that of Donald Trump.
Yes, if he believed that the vote was rigged it wouldn't have been extortion, but then I've always thought of Trump as the sort of liar who believes his own lies, at least in the moment of telling them, so rational thought becomes confounded.
Yes. It's not clear to what extent he has or wants to have a consistent picture of reality. In the post I offered my wife's interpretation.
But that's only a more extreme version of a common pattern, of people persuading themselves to believe what they want to believe.
Calling someone "liar' is indeed defamatory. There is no doubt. But this is a classical he-said-she-said case, and the amount and type of fines involved, on such VERY weak evidence are preposterous and clearly the result of a politically biased judiciary.
This is OBVIOUSLY a case of a biased judiciary imposing fines that are illegal - see our constitutions reference - "nor excessive fines imposed". That you fail to address this flagrantly unlawful use of judicial power is indeed, "simply disgusting".
I'd PREFER that you-extremist-types stop abusing your current power to inflict harm based on some deranged views of justice. You will certainly NOT like where your actions take the nation. You want to oppose Trump (not a terrible goal) but you are perfectly willing to destroy the government, the nation, and all notion of justice in your way. YOU are the evil here.
> You want to oppose Trump (not a terrible goal) but you are perfectly willing to destroy the government, the nation, and all notion of justice in your way
How in the world can you know what I want?
How in the world can you not recognize his "you" as being the generic plural?
I thought maybe the CapsLocked ‘YOU’ starting the next sentence might be a clue. Seemed somewhat personal, as in
‘YOU are the evil “one” here.’
‘One’ generally means someone specific.
> "What I want to do is this. I just want to find, uh, 11,780 votes, which is one more than we have, because we won the state."
Somehow nobody discusses the context of the quote, but when looking at the full transcript (e.g. https://www.documentcloud.org/documents/7340548-Trump-Transcript-A) there's nothing irrational or illegal in it. Trump quotes a number of potential irregularities in the elections, and how many votes, by his estimation, each has cost him. Obviously, it would be very hard - and probably impossible - to prove all of them, but he is convinced at least some of them are true. Some may be actually true, some may be false alarms (Trump opponents claim all of them are false alarms, but obviously Trump does not agree with them) - but he doesn't need to prove them all. He only needs to prove enough to get over the line - it's completely rational behavior, you have limited time, you have limited resources, you have a specific goal - you need to concentrate on achieving this goal, select the best ways to reach it and allocate resources for it. Trump mentions the number 11779 nine times at least - because this is his goal. He doesn't try to solve the election fraud once and for all - he tries to prove enough of it to achieve his goal. I don't see how it's irrational - or illegal. It's the thing every trial lawyer does in every trial - try to prove enough to obtain the necessary outcome. Somehow, mentioning this number is taken as a proof of some nefarious intent - but I don't see how it is. Trump mentions there are multiple irregularities - with potential effect sizes ranging from thousands to hundreds of thousands - and implores the local authorities to look into them, at least enough to find the necessary numbers of irregularities to restore the correct - in his opinion - result. I do not see how this is irrational - or, for that matter, illegal. His claims may not be true, but that happens all the time - people think they are right, and are either mistaken or fail to prove their case according to legal standard. Somehow, when it concerns Trump, it's getting considered as some sign of special nefariousness.
Each one of the ‘irregularities’ had already been checked out and found to to be inaccurate before the call took place. Trump made ominous noises about Raffsenberger ‘being in big trouble if he didn’t see things Trump’s way.
Time and again Trump was told all the claims had been found false.
Very much like a mafia capo. I don’t know the legal definition of extortion in that context but Trump was definitely ‘leaning’ on the guy with breathy vague threats.
‘You know you and your attorney could be in a lot of trouble here if this isn’t taken care of.’
If Trump were like the mafia capo, Raffsenberger - and the guy who leaked the call - would at least disappear, and possibly be found accidentally suicided. Which has happened to a number of inconvenient figures, most lately - the Boeing whistleblower, for example. However, with all the love of Trump to make public enemies and insult and berate people, I don't think there's any single case where anybody who Trump conflicted with ended up hurt in mysterious circumstances. So one could confidently say, at least in this aspect, Trump is entirely unlike any mafia capo.
True. No physical violence from Trump himself. He just says I’d like to punch him in the face and then one of his supporters does it.
How do you feel about the death threats that Liz Cheney and Mitt Romney get from Trump supporters for not showing fealty?
Romney was spending $5000 a day for security for himself and his family.
Or the death threats to Davis French’s son?
I could go on and on with this list.
The man is dangerous. He could stop this by saying it’s wrong and a very bad thing and he doesn’t want it to happen but never does. In fact his rhetoric tends to encourage it. He just sits back and lets it play out to his advantage.
https://www.politico.com/news/2024/01/12/trump-legal-public-official-threats-00135084
https://www.reuters.com/investigates/section/campaign-of-fear/
https://www.vox.com/23899688/2024-election-republican-primary-death-threats-trump
https://nymag.com/intelligencer/2023/08/pro-trump-threats-are-piling-up-against-the-authorities.html
Oh yeah, Adam Kinzinger received them too
https://www.axios.com/2022/07/05/adam-kinzinger-threats-jan-6-congress#:~:text=State%20of%20play%3A%20Kinzinger%20last,was%20mailed%20to%20my%20house.
And the Colorado Supreme Court
https://www.theguardian.com/us-news/2023/dec/21/trump-colorado-supreme-court-justices-death-threats#:~:text=Justices%20on%20the%20Colorado%20supreme,his%20attempts%20to%20cause%20insurrection.
Who will remove this pebble from the Don’s shoe?
Every prominent politician gets death threats from cranks, it's not something special. Yet, both Cheney and Romney are alive and well, and I don't think anybody who ever crossed Trump had suffered any violent consequences, from anybody, even if they are not multi-billioaires like Romney and do not spend 150k/month on security. Talk is cheap, any bored teenager can send a "death treat" (and many do, unfortunately).
If we talk about institutionalized political violence, though, the right doesn't have nearly close to something like Antifa, which can - and regularly does - field paramilitary forces capable of organized violence that can take over whole cities (e.g. Portland), rout the police and suppress press coverage with impunity (people who attacked Andy Ngo and almost murdered him, for example, were largely let go free and suffered no consequences).
> Who will remove this pebble from the Don’s shoe?
Nobody will. For all Trump career, which spans almost a decade by now, I don't think anybody has ever did anything but talk about any of this - which, as I mentioned, it is absolutely routine in political context, literally every prominent figure, bar none, gets this. Only in Trump's case, as always, it's being dramatized as "campaign of fear" and "mafia-style intimidation" - despite utter lack of evidence of any action - while absolutely symmetric occurrences on the other sides are dismissed as "inconsequential cranks not worth any attention". And completely asymmetric force projections like Antifa or 2020 riots or 2017 riots are ignored altogether.
All in service of the insane idea that Trump is somehow uniquely dangerous - even after four years of his rule when he did exactly nothing to prosecute and suppress any of his opponents (while his opponents controlled and mobilized all governmental security apparatus against him, blocked him from social media, concocted and performed the insane "Russian collusion" fake and successfully blocked or dismantled almost every change he tried to do). On the other hand, when the other side actually does its best to put their political opponents in jail and deny them ballot access - this is not considered dangerous in the least. This is different, this is the good guys doing it!
I think Trump is truly unique in his command of his base. For reasons I will probably never understand his hard core supporters *love* him.
Adam Kinzinger was denounced by a former friend who flew with him in the military. He also received a notarized letter from a large group of family members calling him a traitor and disowning him.
I think this cult of personality is frightening.
BTW I hold no truck with Antifa either.
> I think Trump is truly unique in his command of his base.
We've got millions of people voting for a person who barely walks, doesn't remember most of the facts of his life, constantly freezes and mis-speaks, and can not stand trial because no jury would convict him due to his obvious incapability of forming intent. And yet, millions of people are absolutely convinced this man, out of 330 millions or so (ok maybe less since you have to be natural born, but still plenty left) must be the Leader of the Free World. If this is not a sign of unfathomable love, what is?
> I think this cult of personality is frightening.
I must admit I never followed the exploits of Adam Kinzinger too closely, but given that he works for CNN, I can totally understand people want nothing to do with him. If I knew somebody who worked for CNN, I probably would keep away from them too - fortunately, I've got a lot of problems, but this is not one. But, frankly, a lot of friends and family members cut ties over political disagreement, there's even a old tired set of jokes about political squabbles over Thanksgiving - what this has to do with Trump? It's like some people are so obsessed with Trump that they are eager to attribute every negative event that ever happened in US political life and claim that Trump invented it and it only happens because of Trump. While even a modest effort at investigation would immediately reveal it existed long before Trump, happens in no relation with Trump and will likely continue long after Trump becomes yet another figure in the long line of names that history teachers user to bore their pupils to sleep.
What is fascinating to me is how people think the obsession of the hour is all there is and all there ever will be. Come on, is it really logical that Trump invented people arguing about politics and stopping being friends?
> BTW I hold no truck with Antifa either.
I mean no disrespect, but nobody really cares about what you personally hold (that is true for me too, of course). What I am talking about is the institutional stance. Antifa is a large and by now powerful force, and yet the FBI and other law enforcement almost completely ignore the mayhem they wreak, short of occasionally prosecuting the most egregious examples - like attempted murders of policemen or such. Nothing even close to the effort they took to find every last grandma with a tiny US flag in hand that peeked inside Capitol on Jan 6 and put her in jail where this dangerous insurrectionist belongs.But burn a district court - and FBI doesn't have any beef with you. I'm not talking about people who actually organized right-wing protests - those get decades in jail. Left-wing organizers are never even mentioned. The difference in the approach is absolutely striking, and it's not a secret why - leftist rioters have a massive political cover. People very high up - as high as current VP - has been running funds that bail out Antifa rioters and provide them legal representation and political support. This is another of the examples of political and law enforcement system being politically weaponized - and this is exactly how tyranny is being built. When one side's violent troopers are given free reign, while on the other side the slightest attempt of protest is suppressed with maniacal cruelness.
You are scared about people who love Trump so much that they don't want to talk to Kinzinger. I am scared about people who hate Trump so much they burn half the city down, and even more - about the people who hate Trump so much that they are willing to excuse the burners, because they think anything against Trump is a good thing to do. I think mine is much scarier.
> Each one of the ‘irregularities’ had already been checked out and found to to be inaccurate before the call took place.
Well maybe for incredibly small values of "checked out".
The secret documents cases with Trump and Biden are very different. Trump, as the President, had full authority to use the secret documents, define the rules which govern their usage and declassify them, on any grounds he wanted to. Biden, on the other side, have never been the President at the time concerned, and had no authority to take these documents, keep them, disclose them to the third party - and yet, he did it on many occasions, fully knowing what he is doing is illegal. The difference here is like between a man that had a dispute with a rental company about the dates when the rental was booked and thus may have kept the car longer than the rental contract allowed - and a person who knowingly took somebody else's car, drove it for years, rented it out to other people, and when the real owner found out, just gave it back. And then claimed "well, I did give it back, so no harm no fault, right?!" I don't see how the former case is "more extreme" in any way - and how the fact that Trump thought he had the right to retain the documents, and he had the ultimate authority to declassify them (and it has been a long-standing tradition of Presidents doing exactly the same) - makes him "more extreme". I think, the person who thought he is not committing a crime and argues for his innocence - even if this argument is rejected by the court, which as I understand, never happened yet - can not be considered a worse criminal than the person that knowingly committed the crime and knew he is committing the crime at the time, and there's absolutely no dispute about the fact that the crime has been committed. Does proclaiming one's own innocence prove "extreme" guilt now?
> Being irrational is not a criminal offense.
But what about ‘ solicitation of voter fraud and extortion’
“The president, who will be in charge of the Justice Department for the 17 days left in his administration, hinted that Mr. Raffensperger and Ryan Germany, the chief lawyer for secretary of state’s office, could be prosecuted criminally if they did not do his bidding.”
“You know what they did and you’re not reporting it,” the president said during the call. “You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk.”
Legal experts said Mr. Trump might have violated Georgia State laws against solicitation of voter fraud and extortion by seeking to exert pressure on Mr. Raffensperger.’
If his claim was that there were more missing votes than that, which is what he claimed, what he was soliciting was not fraud. See the point made above by MostlyCredibleHulk
He made many more claims than missing votes, each one wackier than the last. It’s hard to believe he thought most of them had merit. And the tone of his ‘encouragement’ to Raffensperger was that of mafia capo.
“You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk.”
I listened to the entire hour. Don Corleone was always much more subtle than Trump.
I agree that he neither has nor wants to have a secure grip on reality, but given his belief that there were lots of stolen votes somewhere to be found, insisting that the relevant official find them wasn't unreasonable. Very likely if the stolen votes were there, Raffensperger knew they were there and ignored them there would have been some criminal liability.
Note that it is his opposition that has been making, not just threatening to make, criminal charges against Trump's lawyers.
Define "hinted". That seems a weasel-word for 'don't know the intent nor meaning'. I've been on hundreds of sales-team calls where a manager asks sales ppl to "find more orders" That never means invent fraudulent orders. You believe as you do due to your malign intentions and motives.
Read the quote.
“You know what they did and you’re not reporting it,” the president said during the call. “You know, that’s a criminal — that’s a criminal offense. And you know, you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk”
The true measure of a person's intelligence is how much they agree with me, so you must be very smart. This is an excellent summary of the situation.
"the failure to prosecute James Clapper, Director of National Intelligence, for perjury after he lied under oath in congressional testimony"
Reading the linked text, it looks to me like Clapper lied under oath in only a very non-central exemplary way.
The rule I believe everyone understands is that one must not lie to Congress when under oath, because Congress is representing the will of the People in trying to get to the bottom of a gravely important matter, and lying in such situations is indicative of wanting to thwart the People. It's clear to me that Clapper isn't trying to thwart the People, and in fact, quite the opposite.
One rule people do not typically understand (including, apparently, Snowden) is that collective defense requires keeping watch over known adversaries, and uncovering unknown ones. The methods for doing this are necessarily secret - if they were public, adversaries could bypass them - and so Clapper, as then-DNI, had an obligation to safeguard those methods. Safeguarding not only means refusing to discuss those methods, but also being careful not to discuss related information that would imply anything about the structure of those methods.
The latter type of information can be unusually expansive - enemies have every incentive to learn everything they can about how we are trying to watch them, and even stuff like a detected flurry of our encrypted transmissions whenever they say "banana" is information. We can't simply legally define that away, either. At best, we can say "you have to report This, but you can keep That secret" and manage risk.
So when Senator Wyden asked Clapper a question that Clapper believed could reveal secret information, Clapper had to try to give Wyden an answer he wanted while also protecting information he was obligated to protect. He had to balance one priority of the People against another, and the tiebreaker was the result of a difficult logic calculation that resulted in him having to take time to pick his answer. And as he said, even stopping Wyden there and insisting on a classified session would have given away information by then.
In part, this seems largely attributable to either Wyden himself being very careless in his questions, or Clapper's office being careless in assessing the questions Wyden claims were submitted the day before. (Perhaps understandably careless - AFAIK, Wyden has never been heavily involved in defense matters; perhaps someone like Ben Cardin would have known not to bring Clapper to that spot. But surely finance has reason to protect similar information. Clapper's office should have objected to that question - but Wyden should have known not to even submit it in the first place.)
Point being, the reason for not prosecuting Clapper likely also falls into the category of "giving away information to our enemies" - which means he'll never be prosecuted *and* we'll never know that reason (except maybe 75 years from then, a la Venona). Same goes for anything else related to military intelligence.
Clapper was asked a straightforward question, had been told the previous day that he was going to be asked it, and gave a flatly false answer, a fact discovered shortly thereafter when someone revealed information that was being deliberately concealed. I don't see how you can describe that as a very non-central example of perjury.
He was trying to thwart the desire of people to know whether they were being spied on. The answer is that they were, massively, and he denied it. You can argue that the government should spy on people and conceal the fact, should lie to them, but it's still a lie. You can argue that Clapper was doing his job by lying to Congress in order to mislead the public about what security agencies were doing but I don't see how you can deny that he was lying to Congress.
It isn't clear that this is selective prosecution in favor of important people, which is how I interpreted it in the post. Alternatively, it is selective prosecution in favor of people who commit crimes that the government approves of. Do you think that is a good idea? Note that, legally speaking, a government actor can commit murder with impunity if the government simply chooses not to prosecute him. As I put it in my earlier post on selective prosecution, if the crown controls prosecution the King's friends can get away with murder:
https://daviddfriedman.substack.com/p/the-kings-friends-909
I'm saying it's a non-central example of perjury, because the central example is lying to Congress in order to protect oneself, rather than to protect others, particularly the entire nation.
I am also saying that "selective prosecution in favor of people who commit crimes that the government approves of" is leaving out an important possibility, by suggesting that the reason the government approves of the crime in question is that it enables government officials to protect themselves at the expense of the people.
That is not the only possible reason. Another is that the government *tolerates* the crime because the crime prevented some harm to the people, and prosecuting it might negate that prevention and even inflict further harm. This harm is hard to measure, because it is determined by whether people actually malicious toward American citizens hear what Clapper said, what they might infer from what they heard, what they can do about what they infer, whether we observe what they did, and whether we can determine if what they did was in fact caused by Clapper's (non-)statements.
For example, suppose Clapper had answered Wyden's statement with the truth, and the whole truth. (I'm not even 100% sure Clapper lied, despite phrases such as "least untruthful".) We don't know what the whole truth would be, but it looks like a flat "yes, we spy on Americans" is not. Working from that, and the assertion that a flat "no" isn't accurate either, the truth might be "under some conditions". But that's not the whole truth, either; he didn't give the conditions. Wyden could ask, but the more he does, the more bits Clapper must let slip, which real enemies could use to infer what's really going on. And enemies can draw on information even Clapper and Wyden do not have. Even answers like "I can't discuss that" or "I won't discuss that" or "only under extremely strict conditions" or "only certain types of information" - all possible answers - are also leads. If the Senator leading the Intelligence Committee were there and interrupted the questioning to take Wyden aside and advise him behind closed doors, that would likewise be a lead.
Which, from my perspective, means Clapper was thrust into an impossible situation by being under oath to answer questions from someone who was careless. (There's the matter where Wyden claims he submitted the question the day before, and I recall reading that Clapper's staff *had* responded after all - and Clapper had briefly forgotten that they had.)
If you're under oath to Congress, and asked about information you can't respond to without revealing crucial information to real enemies - even if that response is "I won't discuss that in a public forum" - would you respond that way anyway, or respond contingent on the specific information, and risk harm to innocent citizens - or would you lie?
If I strongly approved of the government deliberately lying to the people and could not evade the question, even with advance warning, I might lie. If I did and was caught I should then be prosecuted for perjury. Clapper lied, was caught, and was not prosecuted.
We are supposed to have a system of law, not a system where government actors are free to break the law when they think it is desirable in the expectation that, if their superiors agree, they will not be prosecuted.
You disagree? Should government actors also be free to assassinate people if they and their superiors approve? I expect both Trump and Biden could think of people the country would be better off without, although probably not the same people.
If I strongly approved of the government deliberately lying to the people in general, then a lot of things would be different. Among other things, it'd probably be reasonable to assume I took fascist positions on most issues. In fact, I strongly *dis*approve of the government deliberately lying to the people in general - but this isn't the case I'm trying to bring up anyway.
The case I'm pointing at is a specific case of the government deliberate lying to the people in order to fulfill another vital function of that government - to protect the people from enemies foreign and domestic. Our system of law is supposed to support that service as well. If it doesn't, which should we prioritize?
Naturally, we would greatly prefer to not have to make that choice. I think the people who control the government try - at least in public - to organize the system so that it doesn't force us there in most circumstances, and in most cases, I think it succeeds. But I also suspect there are cases where it can't avoid it, and the situation du jour is where an official is put under oath and asked questions that force the release of information that could lead to harm to the people. (I suppose the classic way to sketch this is to pose the usual foil to deontological ethics and imagine a Congressperson asking an official for the location of someone that some murderer would very much like to kill, but currently cannot locate.)
As for assassinations, which are 100% likely to do physical harm, as opposed to revealing secret information, which requires more steps, I believe we try even harder to organize the system so that it does not force us to prioritize rule of law over assassinating targets, no matter how dangerous they are. Events that occurred during the Obama administration lead me to believe that even this can be unavoidable in the limit. (My strong personal emotional aversion to assassinations might cause me to refuse every time, only to receive news later of a terrorist attack I could have headed off.)
From here, the discussion could go even further. If you were authorized to command military force, and received news of a very dangerous group of individuals gathered somewhere for too short a time to deliberate with Congress for permission, would you follow the procedure and risk these people escaping, or would you order a strike, in defiance of the current rules?
And what would you then do in the aftermath? Claim you were in the right, and further claim the right to do this in the future? Or try to establish new rules to avoid the conflict between rules and harm?
And how secret would these rules need to be, in light of the fact that real enemies could game the rules if they know them?
"I believe we try even harder to organize the system so that it does not force us to prioritize rule of law over assassinating targets, no matter how dangerous they are"
Apologies - I of course meant the reverse; we try not to have to prioritize assassinations over rule of law.
An implication I left out in my last paragraph: while we'll never know the reason he wasn't prosecuted, if we found out, say, 75 years from now, we would very plausibly agree with it.
We do know why he wasn't prosecuted — he was lying in order to keep secret information that the government wanted kept secret, was going to a good deal of trouble to keep secret.
Do you agree with it?
I don't know.
At the risk of being pedantic: what evidence do we have that that was the explicit reason for not being prosecuted? I didn't see anything in the article other than an assertion by a journalist that Clapper ought to be prosecuted, and a link to an analysis that claims he wasn't because it would be technically hard to prove, and the political will wasn't there. These seem like plausible reasons to me. Also plausible is the reason for lack of political will - the process of convicting Clapper would likely have revealed even more secret information. But I don't have any record of any official stating this.
We know that the government wanted to keep what they were doing secret and were going to a good deal of trouble to do so. Clapper worked for the government, for the same part of the governmment, and told a lie that he thought would preserve that secrecy. I agree that one can't prove the reason he wasn't prosecuted, but it strikes me as pretty obvious.
Could it really be difficult to prove that the Director of National Intelligence knew that the NSA was conducting a secret program of mass surveillance? That he denied it?
"Your Honor, we argue that the DNI knew about a secret surveillance program, and claimed there was no such program."
"How do you know there's a secret surveillance program for him to lie about?"
"Uhhhh..."
That's the basic gist. Generally, it's really hard to prove criminal activity about secret information without giving up information about the very thing you're trying to keep secret. (Unless of course the crime in question is that revelation.)
In this case, after the secret program was revealed by Snowden they stopped trying to keep it secret. Clapper's later explanations of his statement did not include the claim that it was true.
I wonder if you can distinguish between e.g. Trump and Biden w/r/t/ which of them misappropriates power, indeed is eager to do so and advertises the fact publicly, or whether noticing more closely the scale of the difference between them on this point might be the core reason that many people normally part of the libertarian/classic liberal coalition are at present aggressively supporting Biden and rooting for Trump to end up permanently out of positions where he can abuse public trust.
I think both attempt to misappropriate power. Trump is just more obvious about it.
I think this is a false equivalency. Trump is not just more obvious, he is an entirely new class.
His superpower is shamelessness. He violates norms that are so well established that no one thought laws protecting them were necessary.
"The Chief Justice has made his law, now let him enforce it." Probably not a real quote but a description of Andrew Jackson's behavior. He may come closest of past presidents to a similar willingness to violate norms.
> He violates norms that are so well established that no one thought laws protecting them were necessary.
The relevant norm in question being that the administrative state is to be completely unaccountable to merely elected officials. And frankly, that is a norm that needs to go.
Actually I was talking about norms of human decency.
It's amazing how often the phrase "human decency" is used as cover by bullsh*ters to avoid getting called out.
Here. Let me give you an example of a norm of human decency that Trump violates.
His supporters threaten his political rivals with violence quite often. The decent thing that most politicians would do and almost all would have done in the past is strongly discourage threats to rivals.
But Trump never does. In fact his rhetoric tends to encourage these things.
See the sort of thing I’m getting at?
No bullshit, the man is a noxious goon.
I think Zvi makes a good example, in passing, of Trump's flip on banning tiktok! https://thezvi.substack.com/p/on-the-latest-tiktok-bill
Trump is not a principled friend to liberty, libertarian instinct, or classical liberalism. His public-spiritedness runs about as deep, it would appear, as a police officer who routinely demands bribes of all, and will release even the worst suspects if a big enough bribe (the amount generally being highly subject to price discrimination after the suspect has been searched) is promptly paid... at least until he can arrest them again. That this excites eager application of laws against him, by those trusted with using lawful means to catch criminals. Seeing him subjected to such prosecution may make him a subject of some sympathy, given many of those lawful means are badly thought out laws which excessively empower prosecutorial discretion. But it does not make him any less unfit for an office of trust; indeed the example of the easy misuse of those minor powers should make clear what a danger a mob-popular executive with the ability to order the national guard to *not* intervene poses.
I am not sure what any of this has to with this post, or the two previous ones, none of which was arguing that Trump is fit for an office of trust.
Thank you for an extended post on this subject!
A few thoughts:
1. We should set aside E. Jean Carroll v. Donald J. Trump for this analysis since the government is not a party to this case. The only government involvement in fact is that the Trump DoJ tried to make this a case where the government defends the President for actions committed before he became President, and the Biden DoJ continued to make that case (unwisely).
2. In the fraud case brought by James, you may indeed claim this is targeted and pre-meditated. This does come closest to lawfare by your definition. Its worth considering whether the salient fact is that its against a "political" actor or the fact that it was isolated to one bad actor. i.e. do the (admirable!) actions of John Gleeson or Rudolph Giuliani in targeting and taking down the major crime families in NY count as lawfare by this definition? If the argument is that more real estate developers should be held accountable for inflating asset values and not just one individual, I agree!
3. The election fraud / Jan 6th case is singular, and clearly should not count as targeted (who else is/was there to prosecute to make sure its not targeted?). Going beyond narrow legal definitions for a moment, the effort to frustrate and subvert transition of power and then to argue that the President has "absolute immunity" is an attack on the institutions of liberal democracy, and the institutions must fight back with the full force of the law, whether this is classified as lawfare or not. As Justice Robert Jackson observed the constitution is not a "suicide pact".
I disagree with your point 1. The judge in the case is a political actor. More important, I don't think lawfare only describes government actions. If Democratic partisans use the legal system to punish their political opponents, that is lawfare as well. I think both the points in my footnote on that case are evidence that that was happening.
On point 2, I take both the case and the size of the verdict as evidence of lawfare.
Lawfare can be used in a non-political context, as in your examples or Thiel's actions against Gawker. My claim is not that it is always bad, although it might be, but that its use by one side of a political conflict against the other side, in particular by the side in power in the relevant courts, is destructive of the democratic system.
> ctions of John Gleeson or Rudolph Giuliani in targeting and taking down the major crime families in NY count as lawfare by this definition?
Yes, this is lawfare used for the purpose the law was established for - to fight crime and uphold the rule of law.
> If the argument is that more real estate developers should be held accountable for inflating asset values and not just one individual, I agree!
There's no such thing as "inflating asset values", unless you support the idea that there's a "true" asset value, which is unconnected to the voluntary exchanges on the market, and the source of this value is the opinion of a government officer. With that idea, you can prosecute any person who tried to sell their house for the price more than the government officer thinks is "correct", which will be about 100% of sellers, by rough estimate. The value of assets is the product of willingness of the market participants to potentially purchase these assets, or, in the case of collateral, to use these assets as the replacement for the loan value. If the loan giver is satisfied with the value - which in Trump's case they very much were - there's no other imaginary value to be compared to. If the bank thinks the potential benefit of owning Trump's estate more than pays for the risk of giving Trump a loan - then there's no place for any third party to intervene.
> As Justice Robert Jackson observed the constitution is not a "suicide pact".
Somehow a lot of people take it as "therefore, we can do whatever we want to keep ourselves in power".
You are making a separate argument, that section 63(12) of New York's Executive Law which gives the Attorney General of New York broad powers to investigate and prosecute civil fraud cases should be amended. Sure! There are ways to do that -- you need to persuade the current NY legislature or persuade NY residents to elect a different legislature to do so.
New York law is bad, and it's not a surprise - there are many bad laws on the books, but the effects if the most of them is mitigated by the fact that they are never actually used, or the court and prosecutors mitigate their potential badness by applying good judgement. In this case, this law has only been used to persecute a political opponent, and this takes it beyond just a bad law, to the territory where bad law is being used for even worse purposes. This is a banana republic territory. It's not enough to just recognize that the law itself is bad - which it obviously is - but also that it is used openly for completely illegitimate purposes. Dismissing it as "well, if New Yorkers want better laws, they should elect somebody to change it or something" is just sleepwalking into the banana republic. Everybody who does not want to live in a banana republic should be actively upset about this. This is exactly how it starts. This is exactly how Putin started the suppression of the opposition btw - with politically motivated "fraud" cases. When it worked, he proceeded to the next step - and so will happen here too, if it's not stopped.
"In this case, this law has only been used to persecute a political opponent"
I don't think that is the only occasion on which the law has been used. It might be the only one with a damage verdict on that scale — I don't know.
I didn't really mean this law was never used before Trump (I didn't check if it were), I meant in this particular usage the badness of the law is multiplied by the fact that the only purpose of its usage is to persecute the political opponent (and, as far as I know, it's the first prominent case where it happened). The law that gives somebody arbitrary powers is bad in any case, but if it were used only to achieve good ends (such as prosecution of murderous criminals from mafia) one could claim maybe in the big picture the balance is not entirely negative. Still not ideal, but kinda not here not there maybe. Here, on the other hand, the badness of the law is reinforced by even worse practice, so the bad law is not mitigated by reasonable application - on the contrary, it is made so much worse by malicious application.
From a civil case brought by NY's Attorney General to Putin's Russia may be slightly far fetched. But you know what's less far fetched? A fraudulent slate of electors, pressurizing election officials to "find votes" for you, inciting violence on the Capitol while its in the middle of certifying the election -- these lead to Putin's Russia _much_ faster.
That is the question. Neither has led to Putin's Russia yet, and what Trump has done so far is obviously not going to since it failed. The use of the legal system against Trump has not yet failed, but we will have to wait a decade or so to see if it destroys democracy. Also, if Trump wins the election, to see if he does.
No, it's not "far-fetched" at all. Essentially, a New York prosecutor can now destroy any business (or, in fact, just seize all assets) that belongs to a political opponent in the state, just by deciding to do it. Or, rather, they have always been technically able to do so, but now they are also willing to do so, and the courts are willing to take part in it and enable it. This is a huge development. This means the legal system is full politically weaponized and anybody who has any business in New York and is active politically has a big glowing target on their backs (unless they are Democrats of course). It is true that only their money and not their life is under threat, but again - this is *exactly* how it was for the first decade of Putin's consolidation of power. He never went for the lives of his opponents then - many of them still are alive - he always went for their assets, primarily - Russian assets that can be used as a power base, and successfully seized or destroyed their businesses. True, now he is much further down this road, several steps ahead, but it's not "far fetched" at all to notice the similarity - in fact, the identity - of approach.
> pressurizing election officials to "find votes" for you
I addressed this in another comment, it is not really what happened in that call, which is clear if you bother to read it longer than one out-of-context sentence.
> inciting violence on the Capitol while its in the middle of certifying the election
This charge is both false - he actually called to protest "peacefully" - and not unique to Trump in any way, protestors going into state or DC capitols to demand various things is a common occurrence, happened many times, including occupations of capitols that lasted for days, but only in one case it is dramatized as some kind of historically exceptional event. While, for example, much worse instances of violence - including massive extremely violent riots when Trump was inaugurated - are completely ignored. I don't think the FBI has made 1/1000th of the effort to prosecute the rioters of 2017 that they spent on prosecuting everybody that even walked near the Capitol in 2021. Also, many Democrat politicians called for protests many times, and many of them endorsed very violent protests of 2020 - which were orders of magnitude more harmful on any measure, be it money loss, lives lost or general effect on the society. Of course, 1st Amendment fully protects their speech - but I'm sure we can't apply that to Trump - for some reason.
> these lead to Putin's Russia _much_ faster.
I don't remember any examples of anybody in Russia questioning the election security on behalf of Putin or rioting in the government buildings in support of Putin. On the contrary, Putin always claimed the elections (which has been clearly absolutely fake for decades now, with only minor exceptions) are 100% safe and secure, and people who claim there's electoral fraud are just sore losers, and should be jailed for spreading misinformation. Moreover, any protests about the electoral fraud - as well as about anything else - were brutally suppressed. With protestors often given lengthy sentences, often by having some policeman testifying they struck him (even though nobody saw it and had any proof of it) or otherwise assaulted them. Others were jailed just for being there when the protest happened. The security services spared no effort and used all means available, including tapping security cameras, bank records, phone records, etc. to find and prosecute everybody who have been connected to any active protest.
Now, whose actions does this remind us of?
Every national election that I can remember - and probably every one I can't - had certain part of the opposing side, including often the candidates, to claim it wasn't done right. But only in one case, now, it led to weaponizing the legal system to suppress the political opponent and deny him participation in the elections. Putin, again, is routinely doing that - or rather, was doing that - he have no real opponents left within borders of Russia anymore, but while there were, they were routinely denied ballot access. Trump, on the contrary, never denied ballot access to any Democrat politician, as far as I know, neither did his helpers.
The prosecutor can only do that if he can convince the court that the business engaged in fraudulent business, profited by so doing, and the amount of the profit is at least the value of the assets. It's true that a prosecutor plus a sufficiently corrupt court — judge or judge plus jury — can do it. But then, a prosecutor plus a sufficiently corrupt court can also convict someone of a murder he did not commit — there is nothing new or unusual in this case.
None of these is claimed by the defense. It might surprise you to know what their argument is. Their argument is that the President has absolute immunity to do _anything_. His lawyer said as much in court (even if he ordered the seal team to assassinate a rival, nothing you can do!). Does that remind you of how a certain Russian leader operates?
> A fraudulent slate of electors,
And unfortunately the electors produced by a brazenly fraudulent election were allowed to stand, and now we have the Biden regime doing its best to destroy the country.
Trump's campaign message in 2016 was "drain the swamp." Because of his ineffectiveness as a leader, all he did was change the water. ALL of the legal machinations that have occurred since then are the result of blowback against anyone else wanting to drain the swamp. The evidence of how badly polluted the swamp has become is in the following:
https://www.reuters.com/graphics/USA-CONGRESS/PRODUCTIVITY/egpbabmkwvq/?utm_source=join1440&utm_medium=email&utm_placement=newsletter
Personally, I agree with Dr. Friedman - i have no intention of voting for either, so who is or isn't guilty of whatever the flavor of the day is, has no bearing on my decision.
I like America and most Americans I meet, I really do, but I think your country is F'd up. Is this the best you can do, argue about 4 year old, 8 year, my god 24 year old s**t. Stop it! You are embarassing all the rest of us who actually have expectations that the U.S. is positive influence for the world. Instead you act like a bunch of petulant 7 year old. Seriously, I'd send y'all to your rooms for a time out if I could.
We argue about things more than a century in the past, such as what the Civil War was about. I don't know what country you are from but I would give odds that there are events much more than 24 years ago that some of its inhabitants still argue about. In Spain, for example, the Carlists argue about a succession dispute from the early 19th century which they think was settled the wrong way.
There are lots of unethical things happening in politics, but non conceding is un precedented.
Political tensions accumulate until Election Day and then the agreement on the result of the election release them.
If the election was not stolen, non concession is the worst attack on the US republic since the civil war, and to dismiss such a treasonous act as “being irrational” is as ominous as the general direction of American política in this century.
Now, Trump is a modest problem. The real one is that the political cost of non concession has been small.
The US constitution was mainly sustained by the puritan disposition of the US people, that was intolerant not only of major institutional transgressions but even of adultery or perjury by elected officials. It is perhaps a country of extremes.
Where in the Constitution or statute law is refusing to concede described as treasonous?
It shall not be legally treasonous, because electoral fraud is possible and outlawing its denunciation creates bad incentives.
Now, of course, non concession is a direct attack of a lawful presidential succession. I cannot imagine anything worse. It is an direct call to civil war if words mean anything. In North Korea words do not need to mean anything, but in the US?
Being a traitor is sometimes a legal offense, others only a moral one. Are you now a legal positivist? Among all people, precisely you??
Except it's not. One's presidency is a fixed term, their concession is utterly irrelevant.
> Now, of course, non concession is a direct attack of a lawful presidential succession. I cannot imagine anything worse.
How about actual election fraud?
That is! Precisely. Non concession means a Tekfir candidate. Biden or Trump? That is an empirical question.
I fear there will be no agreement after this next election. Dems are openly painting Trump as the Hitlerian anti-Christ in, a move to dehumanize, therefore justify murder. Some nut-bag will attempt assassination, and the Dem-party broadly is responsible for these very unjustified moves to demonize & dehumanize their opponent.
I am actually a little puzzled as to why there have, as far as we know, been no serious attempts to assassinate Trump. If his critics really believe what they say one would expect some of them to try it. Practically everyone, after all, approves of the idea of assassinating Hitler, in some (fictional) contexts even before he took power.
I suspect the way much of the left have trained themselves to have a panic attack at the thought of interacting with a gun in any way might have something to do with it.
Nah, most of the recent mass shooters were leftists and most of the Democratic claimed base has firearms. I think it has more to do with presidential assassination has fallen out of favor. It used to be every twenty or so years we had an actual assassination or a real attempt at least but when was the last one, Reagan? People thought Obama was going to get shot too, not even an attempt.
> non conceding is un precedented.
Or as Trump would tweet ‘unpresidented’
See ‘Dreyer’s English’ chapter ’On the Importance of Learning to Spell’
My misspelling is the written version of a charming European accent… :-)
I was referring to the former president’s misspelling.
You must be new here, here being "The United States." The election results were questioned in 2000 Bush v. Gore, and 2016 Trump v. Clinton. That's just in my memory... I don't recall the Bush v Clinton election seeing questions of who actually won, but then most recent non-concessions without massive recounts come when Democrats lost, not Republicans, so I wouldn't be surprised if there wasn't one.
There are people who seriously argue that Kennedy's win over Nixon was stolen, specifically in Illinois. But Nixon didn't.
Almost certainly was. That was, however, a legitimately close election.
And you think this was not? What is your basis for believing Trump's claims about massive fraud? On all of them, people have offered arguments that they are not true — how have you checked out those arguments to know they are wrong?
> What is your basis for believing Trump's claims about massive fraud?
Basically based on seeing it being committed in real time on election night.
As for evidence, let's see: there were the synchronized stopping of the count across multiple states followed by statistically impossible jumps for Biden, observers being tricked or kicked out of the counting room followed by the count resuming (in one case them counters literally covering the room's windows to keep the observers from seeing what they're doing), video of the counters scanning the same ballots multiple times through the machines, sworn eyewitness affidavits, miscellaneous statistical irregularities etc.
Here is a blogpost that has more details collected:
https://www.scifiwright.com/2024/01/summary-2020-presidential-election-fraud/
https://www.scifiwright.com/2024/02/a-question-about-2020-vote-count/
> On all of them, people have offered arguments that they are not true — how have you checked out those arguments to know they are wrong?
I've presented the above list numerous times to fraud deniers and have yet to hear a counter-argument that passed a basic laugh test.
These are all assertions made by one side of a controversy. I think if you read the arguments of the other side you will find plausible rebuttals. How do you distinguish "this happened" from "someone on my side says it happened and since he is on my side I believe him"?
After the Supreme Court ruled there would be no more recounts, Gore promptly conceded to Bush. For the good of the country. The nation was more important than a single election to Gore.
And no, when Clinton won against G H W Bush there was no recount.
Please see how one concedes a race if one is concerned about protecting the institutions of democracy.
Full text:
https://www.nytimes.com/2000/12/13/politics/text-of-goreacutes-concession-speech.html
"Almost a century and a half ago, Senator Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, "Partisan feeling must yield to patriotism. I'm with you, Mr. President, and God bless you."
"[A]nd now it has ended, resolved, as it must be resolved, through the honored institutions of our democracy."
"Let there be no doubt, while I strongly disagree with the court's decision, I accept it. I accept the finality of this outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession."
More grace and class in one speech than Trump can summon in a lifetime.
> Please see how one concedes a race if one is concerned about protecting the institutions of democracy.
Conceding brazenly rigged elections does not "protect democracy".