06 December 2019

Our Post-Federal Government

the distribution of power in an organization (such as a government) between a central authority and the constituent units
James Madison, near the conclusion of Federalist 9, offered up this characterization of his vision of what the nascent United States government under the Constitution should be:
The definition of a Confederate Republic seems simply to be, "an assemblage of Societies," or an Association of two or more States into one State. The extent, modifications, and objects of the FÅ“deral authority, are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the Union, it would still be, in fact and in theory, an Association of States, or a Confederacy. The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the National Sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of Sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a Federal Government.
This was the government the Constitution established for the United States. This was the government that Benjamin Franklin opined was America's posterity "if [you] can keep it." 

Keeping the Republic has always been the great challenge of this country. From the bloody carnage of the Civil War to the various oppositions of individual states to various pieces of national civil rights legislation, Franklin's skepticism about the durability of the Republic has repeatedly been shown to be well founded. The enduring constitutional controversies surrounding the Patriot Act are but the most vivid example of ways in which the national government challenges and arguably undermines the shared sovereignty model of federalist government articulated in the Constitution, with the ongoing debate over the Constitutionality of ObamaCare running a close second.

The Constitution, as well as Constitutional governance, are subject to constant challenge. To date, elections and the courts have proven sufficient to meet the challenge, but the danger these means will eventually prove inadequate to the task has always hovered over all debate over the nature and future of the Republic.

With the spectacle of Adam Schiff and his Clown World Impeachment arrayed before us, it is time to acknowledge these means are failing us. The courts have not proven themselves immune to the contagion of partisan politics, with many jurists abandoning their sworn duty to impartially apply the law without fear or favor. Our elected representatives see fit to act in ways directly hostile to the Constitution, to champion such hostility, or are simply supine in the face of such hostility. Federalism, as promoted and promised by the Constitution, is no longer a distinguishing characteristic of the national government of the United States. Ours is now a "post-Federal" government--and that is not sanctioned by the Constitution.

Congress Ignores The Constitution

Nowhere is Congressional contempt for the individual citizen and the individual citizen's fundamental liberties more apparent than in Adam Schiff's recent casual revelation he had been surveilling the phone records of, among others, Rudy Giuliani, President Trump's personal attorney (the law generally frowns on anything which might compromise attorney client privilege) and independent journalist John Solomon (there is this pesky little thing in the First Amendment about not abridging the freedom of the press). Worse, that information was used to demonize and denigrate these people in social media and even during the hearings.
Some even speculated on Twitter that Schiff's compelling AT&T to produce the phone records might amount to extortion--which would be a supreme irony, given that is the allegation Schiff has leveled against President Trump.
What part of this conduct reconciles to the enumerated power granted to Congress by Article 1 Section 8 of the Constitution? Where is the power given to surveil citizens at will?

Even the FBI's execrable Operation Crossfire Hurricane surveillance of Donald Trump's Presidential campaign sought better legal bonafides than Schiff's subpoenas.

The States Ignore The Constitution

For years, the legacy media has popularized the false notion that there is a "national popular vote" for President of the United States. After Donald Trump won the Presidency in 2016, this myth acquired new urgency--but, as I noted at the time, still lacks all credibility:
The most glaring error is a rather unforgivable error of fact--namely, that a popular vote for the nation's Chief Executive is somehow within the Constitutional order of things. It is not. The text of the Constitution flatly contradicts this idea:

Article II, Section 1, Clause 2 states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
This particular clause of the Constitution has never been amended. Clause 3 of Article II, Section 1, was rewritten by the Twelfth Amendment, and Clause 6 by Amendments Twenty and Twenty-Five, but that is the extent to which Article II--which governs the office of the President--has been modified from the original text.
Put simply, the states, acting as corporate and sovereign entities, elect the President. There is not now nor has there ever been a "national popular vote" for the President of the United States. (Historical trivia note: South Carolina did not hold a popular vote in Presidential elections at all until after the Civil War, and fully half of the states did not begin holding a popular vote until well into the 19th century. 

Yet several states have chosen to ignore historical and constitutional reality in the wake of Donald Trump's election, forming a compact among the states to circumvent the Electoral College by allocating their electors to the winner of the non-existent "national popular vote". There are two lethal defects to this strategem: 1) The Supreme Court has ruled that states may not bind electors, and once chosen, electors are free to vote for President however they wish (hence the origin of "faithless electors" who vote contrary to their state's expressed intentions); 2) the Constitution expressly forbids such alliances among the states in Article 1 Section 10 Clause 3:
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
It hardly bears mentioning that this Electoral College "workaround" has not received the blessing of the Congress.

Yet the states do not care at all for these inconveniences. For the sake of imposing upon the several states an electoral outcome only they desire, a minority of states claim authority to abrogate the Constitution.

Nor is it simply in the realm of Presidential elections where the states shred the Constitutional order of things. An increasing number of states as well as cities have declared they will offer sanctuary to "undocumented immigrants" (illegal aliens), with California leading the way at the state level:
Supporters say the law — essentially making California the country’s first “sanctuary state” — would prevent immigrants like the woman in Mendota, who faced no criminal charges, from being turned over for deportation. If approved, the law could directly contradict federal directives, putting local law enforcement agencies in the difficult position of deciding whether to obey Sacramento or Washington. Legal battles are considered likely
As of this past April, 9 states have adopted "sanctuary" laws.

Regardless of what one believes a just immigration policy would be, there can be no dispute that immigration policy is the province of the national and not the state government. Perversely, this was the view of most Democrats and progressives in 2010, when they raised much hue and cry over an Arizona statute calculated to bring enforcement of federal immigration law down to the state and local level.

For its part, the Constitution is clear on the subject. Immigration and naturalization are unquestionably part of the enumerated powers of Congress--in particular Clauses 3 and 4:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
We may reasonably debate what the immigration laws for the United States should be, but we cannot debate that it is the role of the national government and not the state government to enact those laws. The crux of the immigration debate has always been a question of law, never a question of amorphous "justice". Illegal immigration is a crime, and it is seditious in the extreme for any state to seek to undermine federal law in an area that the Constitution unequivocally has assigned to the Federal Government.

The Courts Ignore The Constitution

The era of President Trump has become a distinctly lawless era, with many of the federal courts engaging in what is perversely termed "judicial resistance". Even legal scholars who are generally opposed to President Trump question the wisdom of the courts descending into the swamp that is politics.

The courts have taken to ignoring the separation of powers within the Constitution, presuming to question the integrity of Executive Branch decision making in areas clearly within the purview of the Executive, such as national security. Disturbingly, many of the lower courts only give lip service to the notion of hearing arguments, dismissing without foundation any arguments from President Trump's administration. The first egregious example of this came in the opposition to President Trump's travel ban:
Robart’s seven-page order offered only the most threadbare analysis, giving no indication whether he thought the policy violated the due-process clause, the equal-protection clause, the establishment clause, or the free-exercise clause. Solely on the basis of this hasty and incomplete opinion, immigration officials around the country and consular officials around the globe were now enjoined from implementing the order. Less than a week later, a panel of the Ninth Circuit Court of Appeals affirmed the district court’s order — even though temporary restraining orders are not subject to appeal. The court nonetheless reached out to resolve difficult constitutional questions in this preliminary phase of the litigation.
The travel ban, readers will recall, was upheld by the Supreme Court on multiple occasions.

The irrationality and unconstitutionality of the courts extends into the domestic sphere as well, such as in the controversial debate over "sanctuary cities"--cities that proclaim intent to shield illegal aliens from enforcement actions by US immigration officers. The courts have seen fit to invalidate Executive Orders withholding federal funds from such cities even as they acknowledge the power of the national government to do exactly that.  A notable and disturbing part of that ruling was a disbelief in the Trump Administration's presented arguments.
Third, the court continued the recent practice of citing statement made by the President, and now Attorney General, to contradict representations made in court by the Justice Department. At bottom, the court believes the executive branch is attempting to mislead the court. This distrust is part and parcel of the resistance by the judiciary.
As I have written previously, while the courts determine what the law is, it falls to We The People to determine what the law should be. Such contortions and convolutions by appointed judges to impose their view of what the law should be is incompatible with the role of courts in a society governed by the rule of law. Judicial activism has long been a fixture of American jurisprudence, but when such activism wraps itself in an ennobling rhetoric of pious "resistance", the courts have well and truly lost their way.

Undeclared Wars: The President Ignores The Constitution

In October President Trump created considerable controversy within the legacy media with sudden withdrawal of combat troops from Syria. While this was met with considerable opposition by Senators and Congressmen from both parties, Senator Rand Paul articulated why this was the proper move to make, and why it was long overdue.
Iraq. Afghanistan. Now Syria. We hear that our presence could be needed for decades. To what end? What do we hope happens during that time? I, for one, don’t see what our national interest is in policing the Middle East and nation-building. Thankfully, neither does President Trump.
I myself applauded the move. It was long overdue.
Unfortunately, it also ultimately did not happen. While a few troops were moved a short distance in Syria, 2,000 troops were sent to Saudi Arabia to bolster their defenses after a presumed Iranian drone strike on their oil production facilities. In all, troop deployments to the Middle East have increased by 14,000 since just this past spring. Meanwhile, Drone strikes have increased since the Obama Administration

The number of wars declared by Congress to authorize putting American troops in harm's way? ZERO

The one governing entity with the power to commit the United States to combat abroad has had nothing to say about President Trump's commitments of troops into hostile areas, any more than it had anything to say about President Obama's commitments. Presidents have no authority to declare war, yet they have repeatedly entangled US troops in foreign wars. President Trump might deserve some credit for not starting new undeclared wars, but what he has done to actually end existing undeclared wars is minimal at best.

Disturbingly, many members of Congress actually approve of the policy of unconstitutional undeclared wars. Marco Rubio, a sitting US Senator, opposed Trump's troop redeployments, yet never articulated a desire to formally declare war on either Syria or ISIS.

Nor was he alone.

Nor was the sentiment contained to just Republicans. Nancy Pelosi publicly advocated a joint resolution of both Houses of Congress to reverse President Trump's troop redeployments.
"Our first order of business was to agree that we must have a bipartisan, bicameral joint resolution to overturn the president’s dangerous decision in Syria immediately," Pelosi said Monday.
Note that these are current members of Congress blithely ignoring that only Congress has the power to take the United States to war. Article 1 Section 8 Clause 11 of the Constitution makes that abundantly clear:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
No US military engagement in the Middle East has been the result of Congress declaring war. The last time Congress passed even a broad Authorization to Use Military Force (AUMF) was in 2001.
The last comprehensive congressional authorization to use military force (AUMF) came in 2001 when the legislative body authorized former President George Bush to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
On that authority has rested all US troop deployments to the Middle East since. Barack Obama used the Bush-era authorizations during his Administration, and President Trump has continued that unconstitutional policy. The Congress has actually encouraged this, despite its obvious Constitutional defects. 

In truth, Congress has always been tolerant of Presidents waging undeclared war. In the whole of American history Congress has issued only 11 formal declarations of war, and 6 of those involved the hostile powers in World War Two. The bloodiest of all US wars, the Civil War, is not among the 11 declarations. The assault on the Barbary Pirates immortalized in the Marine Corps Hymn ("to the shores of Tripoli") was undeclared, as were the interventions in Korea and Vietnam. Our longest and costliest expenditures of blood and treasure have never been sanctioned by formal declarations of war issuing from the Congress.

Put another way, our longest and costliest expenditures of blood and treasure arguably have been illegal and unconstitutional.

Congress Despises Fundamental Civil Liberties

The malfeasance of Congress extends well beyond a Clown World Impeachment and explicit support for endless undeclared foreign wars. Here at home Congress continues its steady assault on fundamental civil liberties. While the legacy media has focused the nation's attention on the impeachment inquiry, Congress has quietly reauthorized the surveillance measures first introduced in the Patriot Act after 9/11.
Today, while everyone is distracted by the impeachment drama, Congress will vote to extend warrantless data collection provisions of the #PatriotAct, by hiding this language on page 25 of the Continuing Resolution (CR) that temporarily funds the government. To sneak this through, Congress will first vote to suspend the rule which otherwise gives us (and the people) 72 hours to consider a bill.

The scam here is that Democrats are alleging abuse of Presidential power, while simultaneously reauthorizing warrantless power to spy on citizens that no President should have... in a bill that continues to fund EVERYTHING the President does... and waiving their own rules to do it.

I predict Democrats will vote on a party line to suspend the 72 hour rule. But after the rule is suspended, I suspect many Republicans will join most Democrats to pass the CR with the Patriot Act extension embedded in it.
The Patriot Act has never enjoyed majority support among Americans, with as many feeling the surveillance powers granted go too far as feel the powers are appropriate for national security in a post-9/11 world.
In 2006, the public divided evenly over the Patriot Act, with 39% saying it is a necessary tool and 38% saying it goes too far. In 2004, a slight plurality (39%) said it goes too far and threatens civil liberties.
For Democrats and progressives in particular, the backdoor reauthorization is particularly troubling, because of their reflexive opposition to all things Trump.
Evan Greer, deputy director of digital rights group Fight for the Future, highlighted the provision on Twitter shortly after House Democrats released the continuing resolution (pdf), which would temporarily avert a looming government shutdown by providing funding for federal agencies through December 20. A House vote on the measure is expected as early as Tuesday.

"Wow," said Greer. "House Democrats are ignoring civil liberties and including a three month straight re-authorization of the Patriot Act (with zero reform) in the continuing resolution."
There is no great mystery as to why Congress resorts to such subterfuge. The Patriot Act's warrantless surveillance authorizations run afoul of the Fourth Amendment's prohibitions of unwarranted searches and seizures.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Abuses Are Not New

Sadly, these abuses and usurpations are hardly anything new. The willingness of the national government to ignore or contravene the Constitution is as old as the national government itself. Overlooked in appraisals of Chief Justice John Marshall's historic Marbury v Madison (5 US 137) is the fact that the law declared unconstitutional in that ruling was a clause in one of the very first acts passed by Congress--the Judiciary Act of 1789.

Five years before Marbury v Madison, Thomas Jefferson and James Madison authored the Virginia and Kentucky Resolutions, state legislative protests to the Alien and Sedition Acts of 1798.

Despite the US Constitution having been drafted to bind the national government to the will of the people and of the states, the impetus of the national government since its inception has been to subvert the will of the people and of the states. This is part of the darker side of American history, the part rarely acknowledged in history books.

As the record shows in abundance, no part of the national government is measuring up to its Constitutional duties, and has not for some time. Presidents overstep their authority, Congress encourages them to do so, and the courts blithely play along. No one is innocent.

The Tipping Point

Yet while the abuses and usurpations of the national government are lengthy, Adam Schiff's Clown World Impeachment Hoax represents a significant shift in the nature of the abuses. 

From the outset, Adam Schiff has lied repeatedly. 

He lied in his public statements about the Whistleleaker.

He has lied about the laws covering government whistleblowers. 

He has lied about the quality and content of testimonies and evidences.

He has lied about President Trump's own words.

Add to his litany of lies his contemptuous disdain for the civil liberties of others by surreptitiously seeking the phone records 

In all of this, Adam Schiff has displayed a singular shamelessness--he simply does not seem to care that his actions are blatantly unethical if not downright illegal. He is empowered and facilitated by his fellow Democrats, who fatuously argue positions that are diametrically opposed to the Constitution as well as to common sense.

Perhaps Schiff feels emboldened by the willingness of the judiciary to arbitrarily and with scant consideration of the strictures of the Constitution to oppose President Trump. Perhaps he takes Speaker Nancy Pelosi seriously when she describes President Trump as an "imposter". Whatever his reasoning, Adam Schiff demonstrates not merely an unwillingness to respect even the Congress, but blatant contempt and disdain for the government in its entirety. I am forced to conclude that Adam Schiff simply does not care what the Constitution or the laws say regarding his conduct--he means to do however he pleases and to hell with the rule of law.

We are come at last to a point where Congressional Democrats no longer feel compelled to do more than pay the most sardonic of lip service to the Constitution, and where Congressional Republicans have, with a few exceptions, allowed them to do so. We are come to a point where Congress is contemptuous of its own responsibilities, and ignorant of the real powers and priorities of the Executive Branch. We are come to a point where vast portions of the government believe the choices and decisions of the permanent bureaucracy are superior to the policy positions of a duly elected President.

A truly federal government would not tolerate such abuses by the officials within it. A truly federal government would be mindful of the fundamental rights of the people, and deferential to the sovereignty of the several states.

We no longer have a federal government. We have a "post-federal government". We have the government structures that remain when ideals of federalism are discarded and put aside. We have merely a national government, with not even a notional allegiance to the Constitution but instead faithful only to pursuit of its own power, a national government that slides closer and closer to outright totalitarianism and corrupt authoritarianism. We have a national government that daily surrenders more and more of its fundamental legitimacy and credibility.

We have a national government that has become a grave national problem.

Can We Recover?

Can we repair our government and restore the Constitutional order? In truth, I do not know.

In theory, if the American electorate coalesces into a committed force for Constitutional governance and votes against the corrupt incumbents who in every respect are the problem, installing new representatives more attuned to the Constitutional obligations of the Congress, we may turn back the tide of corruption and restore good government. 

In theory, if the American electorate is steadfast, it may prevail upon enough states to invoke Article 5 of the Constitution, and call a Convention of States, to enact suitable Amendments to the Constitution to remedy the defects manifest in the Congress and across the Executive Branch.

In reality, more than 80% of Senators and Congressmen typically win reelection after reelection.

In reality, while a number of states have passed resolutions ("applications" in Constitutional argot) for calling a Convention of States, the number of applications for any particular proposed amendment subject or for an unrestricted (plenary) convention to consider any proposed amendment is still well short of the necessary 34 out of 50 states needed to compel Congress to call such a convention.

Can we repair our government and restore the Constitutional order? I do not know; there is no way to know.

What I do know is that the current state of affairs cannot stand. No modern government has ever endured once it forsakes legitimacy and credibility in the eyes of the people it presumes to govern.

Throughout the Federalist Papers, that series of essays undertaken to publicly advocate the adoption of the Constitution by the states, the Founding Fathers championed limited and divided government. In Federalist 44 and Federalist 45 they were particularly solicitous of concerns that the division of power between the national and state governments would produce  unhealthy factionalism. It is true that if the country hews faithfully to the Constitutional model of governing, the influence of nationwide political parties would diminish, and the capacity of each state to be sovereign within its own sphere would expand.

Today we are faced with limitless and centralized government. A strong national government and a weak state government is NOT what the Founding Fathers envisioned. That distortion is merely the government we now have. That distortion is the government we must now repair.

If the American electorate reawakens its slumbering interest in the proper Constitutional order, if the American electorate is willing to shake off the torpor of incumbent political hacks, electing with regularity new representatives and new Senators, and if the American electorate is willing to hold its elected representatives accountable for their sins, then we may yet restore to this country the rule of law.

Should there be a Convention of States? Absolutely--for only through a convention may the States remind the national government of their authority.

Should we vote out incumbents and demand more of our elected representatives? Absolutely--the Constitution puts "We The People" in charge. We are the sovereign, government is the subject.

If we do not restore the rule of law, before long the rule will be no law at all.

03 December 2019

Impeachment: The Case For, The Case Against

After weeks of closed-door depositions and two weeks of public hearings, both the Democrats and the Republicans on the House Permanent Select Committee on Intelligence have released their reports on Adam Schiff's impeachment inquiry into President Trump. 

We now have Adam Schiff's case for impeachment, and we have the Republican rebuttal.

Hundreds Of Pages To Say What Has Already Been Said

The reports each run into the hundreds of pages, and yet there is very little revealed that has not already been said. The case that Adam Schiff made in the public hearings is the case made in the Democrats' report. The rebuttals made by the Republicans are the case made in the Republicans' report. There is nothing in either report that has not been commented on at length already. 

Even the conclusions are unsurprising. The Democrats concluded that Donald Trump abused his office and sought to solicit foreign interference in the 2020 election. The Republicans concluded the Democrats were full of horse hockey.

Anyone who followed the public hearings will recall that these were the essential talking points of both sides during the hearings. Anyone who did not follow the public hearings may, if they desire, read the 400-plus pages of impeachment report to learn that the Democrats concluded Donald Trump abused his office and sought to solicit foreign interference in the 2020 election, while the Republicans concluded the Democrats were full of horse hockey.

The legacy media, true to form, greeted the reports with great sobriety and ponderance. In Vox, for example, wraps up "all you need to know" with a single quote from the report:
But all you really need to read is this one sentence from the report, which encapsulates all of its major findings: “[T]he impeachment inquiry has found that President Trump, personally and acting through agents within and outside of the U.S. government, solicited the interference of a foreign government, Ukraine, to benefit his reelection.”
The New York Post took the view of the Republicans, which was that Adam Schiff was full of....Schiff.
The Schiff report insists that chat was timed to bring the pressure campaign to a “crescendo.” In fact, the congratulatory call was prompted by the historic landslide win for Zelensky’s party in parliamentary elections just four days before.
Will It Matter?

Will the reports move the needle of public opinion one way or another? Doubtful. If public polling is any guide (although, admittedly, after 2016 all polls should be taken with a grain of salt), independent voters and voters in swing states are already making up their minds that impeachment is mostly a load of partisan horse hockey. Alternative media commentator Tim Pool highlights how badly the impeachment strategy appears to have backfired for Democrats in swing states. If that assessment is accurate, the committee reports will have no impact--the die is already cast for both parties.

Yet even that was more or less already known. With the impeachment inquiry now moving to Jerry Nadler's Judiciary Committee, instead of calling additional fact witnesses to present more "evidence" (although the Republicans have nothing but contemptuous derision for what the Democrats have counted as evidence thus far), he plans to open his phase of the inquiry with a panel of legal experts who will opine on what constitutes "high crimes and misdemeanors" and whether or not Donald Trump is demonstrably guilty of them. What Donald Trump has done the Democrats appear to believe they have demonstrated sufficiently. By wandering down a path of legal theory and contemplation, Nadler is conceding the emotive aspects of impeachment--he is conceding that the Democrats' die is cast.

Nadler's Witnesses Are Not All Friendly

Strangely enough, even some of that legal theory and contemplation is already known. The foremost legal scholar on Nadler's panel of experts, Georgetown law professor Jonathan Turley, has penned a few op-ed pieces already commenting on the impeachment proceedings. He had few kind words to say about the inquiry timetable and the ambition to conclude the inquiry by Christmas.
For an academic or legal commentator, it has become perilous to even raise obvious flaws in this impeachment from historical or constitutional perspectives. It is like trying to explain to panicked shoppers on Christmas Eve that the new “Tickle Me Elmo” is an overpriced and poorly designed toy. Whether it lasts does not matter. It is all about the sheer joy of opening and playing with it for a short time before it breaks.
Professor Turley has even been skeptical of the Democrats' initial arguments on impeachment:
Neither argument is compelling. The fact is that, if proven, a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet the more immediate problem for House Democrats may not be constitutional but architectural in nature. If they want to move forward primarily or exclusively with the Ukraine controversy, it would be the narrowest impeachment in history. Such a slender foundation is a red flag for architects who operate on the accepted 1:10 ratio between the width and height of a structure.
He even debunked Adam Schiff's theory of bribery by pointing out that it was rejected as far back as 1787:
Hastings was charged by the impeachment committee with bribery and other forms of abuse of power. The case dragged on for seven years before Hastings was acquitted on every article of impeachment. Even though Hastings did have some dodgy personal financial dealings, his impeachment today is widely viewed as an injustice, and Burke was ultimately censured for his intemperate rhetoric.
It seems unlikely that, given Professor Turley's explorations on impeachment thus far, that he will offer much comfort to Democrats looking to bolster the legal side of their impeachment case. One can almost envision Professor Turley repeating his observation that the Democrats' impeachment case may be intentionally "built to fail."
This of course assumes that Democrats seriously want to remove Trump from office. Instead, it all could be a failure by design in the hope of losing the case in the Senate in order to energize the Democratic base and win back control of the Senate next November, all while denying Republican voters a rallying point. Assuming that Democrats actually would like to remove Trump from office, how could the House prove such a case? The answer is those three simple steps of reschedule, reframe, and repeat.
With such commentary already in the public record, Professor Turley makes an odd choice of witness. Presumably, Nadler wants legal opinions that will bolster the case for impeachment, that will give the Democrats substance to argue the righteousness of their cause.

Deja Vu All Over Again

Yet this has been the singular characteristic of the Democrats' impeachment efforts thus far--an eerie sense of deja vu all over again. This impeachment push has from the start had the look and feel of the aborted attempts to cajole high crimes and misdemeanors from the Mueller Report. There is the problematic legal case, the shaky, unreliable, and potentially perjurious witnesses, there has been unexploded bombshell after unexploded bombshell. There is a case that, ultimately, has not been proven.

The nature of impeachment is always such that the case necessarily must be overwhelming. Alexander Hamilton alluded to this in the opening of Federalist 65:
The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
For an inherently political proceeding such as impeachment to proceed with a measure of justice, the case must be powerful enough to persuade virtually the whole of the community without regard to partisan alignment. This standard is clearly not met here. Whether one agrees or disagrees with the Republicans rebuttal, the unalterable fact of that rebuttal is that it is a point-by-point refutation of the Democrats' case. That refutation will persuade some people, just as the Democrats case will persuade others. 

That partisan divide not only means the impeachment process will fail in the Senate, it means the impeachment process deserves to fail. The hurdle Adam Schiff needed to overcome has always been clear: to persuade the bulk of the American electorate that Donald Trump was irredeemably corrupt and needed to be removed from office. The case needed to be made with such power and clarity that no coherent refutation was even possible. The Republicans have made a coherent refutation, one that will be believed by the Republican base just as the Democrats report will be believed by the Democrat base. 

For the Democrats, that is a case not made. That is a case that will fail. That is a case that deserves to fail.

01 December 2019

This Is The Way The World Ends

This is the way the world ends
This is the way the world ends
This is the way the world ends
Not with a bang but with a whimper. 

One of the more popular speculations among economic writers is the coming collapse of the US Dollar as the world's reserve currency. Several theories abound as to how this happens, most of which posit either President Trump as the author of dollar destruction, Fed Chairman Jay Powell as the destroyer of dollars, or an unholy alliance of both men leading the US economy over a cliff and into the abyss.

Readers of this blog will recall that I have written briefly of the chimera of US economic growth during the past decade, noting the unmistakable shift in financial market dynamics that occurred in 2008-2009, with a greatly expanded supply of fiat dollars steadily inflating financial asset prices. For the record, I freely confess to having an imperfect understanding of the financial and economic dynamics at play.

Still, there is sufficient data to suggest that the Cassandras decrying the coming collapse are all both right and wrong. 

Markets ARE Distorted And Dysfunctional

Let us begin with the obvious truth: the world's financial markets are in a parlous state, and have long ceased to make rational sense. We need only review the shift in correlations among the US money supply, core inflation, and financial asset prices to see that something is very wrong.

Let me reiterate one point about the charts I provide here: all of them are based on publicly available data put out by the Federal Reserve and other "officlal" sources. My analytics are of course subject to challenge, but the data is as the data is.

However, this dysfunction is by no means confined to the US. The linkages--and thus contagions among the world's economies are acknowledged and self-evident. One need look no further than the unremarked matched declines this past September between the Chinese yuan and the EU Euro currencies.

China sneezed, and the European economy caught a cold.

At the same time, the currency markets were rejecting the prospect of a financial apocalypse for Great Britain due to a pending "No Deal" Brexit.

In short, the economic data does not align with prevailing economic narratives. On one level, this is unsurprising, as the legacy media has been trafficking in rumors of war, famine, pestilence, and death for quite some time.

On another level, this pattern of misrepresentation is a reminder that fiat money is, quite simply, a fiction. The "value" we ascribe to the dollar, or the yen, or the yuan, or the euro, is an arbitrary and largely capricious assessment superficially based on the presumed economic performances of the economies backing each of these currencies--performances that are assessed on the basis of media reports that are themselves already proven to be of questionable accuracy and veracity.

Worse, little of the legacy financial media highlights uncomfortable truths such as the ginormous global debt overhang that has been a consequence of coordinated money supply expansions by the world's central banks.

The markets are thus badly broken, contaminated with bad reporting, bad information, and bad analysis, distorted and mis-shapen by decades of bad monetary policies world wide.

The Conspiracy Theorists Are Wrong

Yet while it is unwise to ignore the clear signs of market dysfunction, it is equally foolish to presume that all the world's unrest is driven by these distorted market dynamics. Democracy protesters in Hong Kong are not motivated by rises in stock markets and asset prices. One could even argue they are risking their personal fortunes in pursuit of greater freedom within the fascist Beijing regime.

Iraqi anti-government protesters are not risking their lives based on the movements of world currencies. 

Anti-government protests in Iran are not in defense of the US dollar. Iranians are angry at the failure and corruption of the Islamic Republic.

Trafficking in conflict minerals might be facilitated by the fiat money manipulations of the world's central bankers, but it is most assuredly not a cause.

Even where money and economics are part of the underlying facts, they are not necessarily a pursuit of or opposition to dollar hegemony. Much of the machinations in Ukraine are tied to the jockeying among Russia, Poland, and Ukraine over control of energy imports to Western Europe.

Viewing the world through a purely economic lens is benighted and simplistic, whether one is decrying the state of the world today or defending it.

Time Without History

The challenge in prognosticating the outcomes of world events is that the current state of world affairs is without historical comparison.

While the world has seen political and economic superpowers throughout history, from Ancient Persia to the Roman Empire to the many dynasties of imperial China to Spain, Britain, and the European colonial powers, the status of the United States as the sole and enduring political and economic superpower throughout the entirety of the globe is an historic first. The economic might of Han Dynasty China did not rise and fall with the prosperity of the Romans, nor did the collapse of the Roman Empire in Western Europe disrupt the rise of the Mayan cities in Mesoamerica, yet today the economic fortunes of the United States are seen by many as the economic fortunes of the world. The US is the first country to attain a dominant military position across the entire globe.

There simply are no parallels in history to the shape of the world today.

At Most, We Only Know What We Do Not Know

We know from the history of Rome, and China, and Persia that all great empires eventually decay. It is intuitively obvious that US hegemony cannot last, nor is it at all certain that we should want it to last. Yet we do not know from the history of Rome and China and Persia how to view US dominance over the world, either real or perceived. Extrapolations of various trends and geopolitical forces are in large measure wishful thinking.

Viewed one way, China's Belt and Road Initiative is a new form of debt colonialism, and China's pathway to global superpower status. Yet that view ignores the structural stresses and defects observable in China's own banking system. If China's financial systems collapse, the debts they hold from other nations will cease to exist almost automatically--the dissolution of a creditor is a brutal but irresistible means of debt forgiveness.

Similarly, the desires among nations to "de-dollarize" ignores one key function of a reserve currency: establishing the relative value of other currencies to each other. Will Russia and China readily agree on the value of the ruble and the yuan? Will the Brazilian real have stable value relative to either?

As much as nations of the world might wish to dispense with the US Dollar's reserve status, there are few ready substitutes to provide a baseline of exchange among the world's currencies. While some central banks have speculated on a return to a gold standard, at the present time that shift remains largely theoretical. Central banks have been stockpiling gold, but no central bank in the G20 is pegging their currency to gold or any other precious metal at this time.

We may know that the end of the dollar's status as the world's reserve currency, but we cannot know what will come after.

We may know that China's debts must someday be paid--that the world's debts must someday be paid--but we cannot know with certainty all that will befall if those debts are not paid.

We may know that the fiat money system, demonstrably unstable as it is, must eventually collapse and be replaced, but we cannot know exactly when, or how, or what will come after.

We can project, we can extrapolate, we can say "if this, and if this, and if this, then that", but we cannot know with certainty that any projection or extrapolation is anywhere near what will actually unfold.

At most, we merely know that we do not know. At best, we merely know what we do not know.

Actions Have Consequences

The one thing we always know is that for every choice made, for every action taken, a consequence is formed. There will be consequences to President Trump's tariffs, and there will be consequences to Hong Kong's recent elections, and there will be consequences to President Xi's seeming impotence in the face of those elections.

Every action sets new events in motion. Trade tensions between China and the US have set various economic transitions in motion, Supply chains and manufacturing jobs are moving out of China, eager to exploit both the still developing economies of Southeast Asia and to avoid President Trump's tariffs on Chinese goods.

Every bank Beijing bails out inches the Chinese financial system towards crisis and probable collapse.

China may indeed seek to sell off its holdings of US and dollar-denominated debt. That does not guarantee that it will succeed, for if everyone currently buying US debt suddenly wishes to sell US debt, who would be left to buy? A small version of this scenario played out during the summer when Argentine sovereign debt turned abruptly toxic. A sudden dumping of dollar denominated debt would render all such debt worthless--that pattern has played out enough times in the past as to be a foreseeable consequence.

Further, the more China unloads US Treasuries the more the yuan is likely to appreciate as a consequence--a primary reason China purchases US Treasuries has been to keep the relative value of the yuan low so as to favor exports. If China wishes to avoid a too-rapid strengthening of the yuan, which might upend its export-driven economy, it needs to tread carefully where the selling off of debt is concerned. Selling off of foreign exchange reserves (debt) must be accompanied by sufficiently large purchases of other resources to keep the yuan stable.

The challenge of pulling off such a chain of transactions, however, is significant. If there is one lesson that can be drawn from the 20th century it is that centralized planning of economic activity simply does not work. Broad government investment invariably turns out to be malinvestment. If one were to make any prediction about a government plan to sell off foreign debt and direct the proceeds into various infrastructure and other projects, the most reasonable prediction would be that the government--any government--would make a mess of it.

Mistakes Will Be Made

How do I assess the economic prognostications that abound in the media? I say they are all wrong--and they are all right. The BRICS nations are likely to pursue a policy of de-dollarization. China in particular will seek to decouple its economy from the US economy. Iran will seek ways to evade US sanctions, and Europe will seek ways to accommodate them for the sake of doing business. As governments pursue these strategies, they will, as governments are wont to do, screw them up. Heedless of their own ignorance, the policy "experts" in government will set forces in motion they do not fully comprehend, with consequences they cannot foresee, and will then scramble to respond to those unforeseen consequences, resulting in an ever expanding series of unplanned responses. Reaction will predicate action, which in turn will predicate further unforeseen consequence, thus predicating still more reactions.

If there is one sure pattern of history that is eternally applicable, it is the power of government to make a complete pig's breakfast of anything. Mistakes will be made, and they will precipitate chains of mistakes--as has been the pattern of government since the days of Hammurabi.

Will people learn the lesson from this that governments are inherently unreliable? While that is always the hope, if people have not learned that lesson yet even after five millennia of civilization, it seems improbable they will learn it now.

My prediction for what comes next is that of T.S. Eliot: through a series of small, careless, mistakes, governments the world over will topple the house of cards that is always the world geopolitical order, thus ending that order not with a bang but a whimper.

29 November 2019

Clown World Or Real World? How To Tell The Difference?

Among conservatives and right-leaning media types, one of the most disheartening media shifts in recent memory has been the apparent "betrayal" of iconic news aggregator Matt Drudge, whose headlines have lately trended towards the "anti-Trump" view of the world.

The curiously, quaintly, and yet effectively retro-themed "Drudge Report" has long been considered a primary source for conservative-leaning news, as well as "real" news unfettered by horrendous liberal bias. Many on the right feel that Drudge has abandoned that stance in favor of a more leftist/progressive tilt towards the news.
No right-tilting media outlet wields more influence than the Drudge Report, the widely read news-aggregation site launched in 1996. But those who follow the site closely say a sudden anti-Trump pivot is unmistakeable.

“Lately he has been absolutely terrible toward President Trump,” said conservative podcaster Josh Bernstein in a Nov. 8 show, dubbing the site “the Sludge Report.”

Gateway Pundit’s Jim Hoft pleaded, “Dear Matt Drudge — Please come home,” while Fox’s Jesse Watters took notice of a series of anti-Trump headlines, saying, “it just seems like the website has recently played up Trump gaffes and downplayed his successes.”

And they’re not wrong, according to B.J. Rudell, associate director of the Center for Political Leadership, Innovation and Service at Duke University’s Sanford School of Public Policy, who pinpoints the U-turn to the first week of August.
Conservatives Have Bias, Too

There is an irony to the angst that deserves closer attention. Whether Matt Drudge has shifted his media outlook or not, the criticisms from conservatives are every bit as biased and tilted to one side as the liberal media outlets many of them decry. One merely has to look at the observations made--Josh Bernstein's view that Drudge has been "absolutely terrible toward President Trump", or Jesse Watters' gripe that Drudge has "played up Trump gaffes and downplayed his successes."

And even in defending Matt Drudge, media watcher Howie Kurtz contended that the media was itself largely biased against Donald Trump:
“Look, I have covered Matt Drudge since he was an unknown blogger, and at this point in his career, he’s primary interested in clicks and riding the media wave, and the media wave you may have noticed, Jesse, has been largely anti-Trump, really for a long time,” Mr. Kurtz said on the Nov. 9 show.
Readers of this blog will note that this is not a new criticism from me, as I have devoted several blog posts to the decline of objective journalism and the rise of "infotainment" within the legacy media

Equally lacking in irony is the presentation of Drudge alternatives such as the visually similar Gab Trends and the often irreverent WhatFinger news portals. The one attribute both sides appear to show is a clear Trump-tilting, right-leaning bias in headlines.

We should not be surprised that various news aggregators display a distinct bias. Google News frequently selects as its headlines news articles that are decidedly biased--although we must in fairness note that even the legacy media concedes a liberal bias within the legacy media, and so arguably Google's apparent bias reflects the bias of their source materials. Whether by algorithm or manual curation, news aggregation sites are going to reflect the biases and preferences of the people managing the aggregation process.

Even the "RealClear" content aggregation sites maintained by the RealClear Media Group, while making part of their mission focus the presentation of all sides of an issue, rarely stray from the established legacy media paths (Tom Bevan, if you're reading, feel free to link my blog into the RealClearPolitics portal any time!). If the legacy media has a bias to the right or the left then aggregation of legacy media news articles will similarly have a bias to the right or the left. It is probably unrealistic to expect otherwise.

Is Anyone 'Objective'?

How then, can the average reader ascertain what is "objective news" and what is "infotainment"? Blanket presumptions are inadequate and unhelpful--for every questionable legacy media article there are alternative media sites that also get facts wrong, or get ahead of a story--case in point: ZeroHedge reported that Ukraine has indicted notorious oligarch Nikolai (Mykola) Zlochevsky, and later modified the reporting to indicate that Zlochevsky was merely the subject of an additional accusation, which might be more analogous to a criminal referral than a formal indictment. Gateway Pundit picked up on the report and ran with the story, although the headline and the reported facts are not entirely in alignment.

To make things even worse the self-appointed "fact checkers" make pious declarations of the veracity of various news items, yet often without careful scrutiny of their own analysis.  Politifact examined various Facebook postings predicated on the ZeroHedge/Gateway Pundit reporting and rated them "False".
The account linked to a story published on Interfax-Ukraine, a news agency that’s part of the Russian outlet Interfax. The story’s headline says, "MPs demand Zelensky, Trump investigate suspicion of U.S.-Ukraine corruption involving $7.4 bln."

However, the story doesn’t describe an indictment. Rather, it says Ukrainian members of parliament held a press conference at Interfax-Ukraine to demand Ukrainian President Volodymr Zelensky and Trump investigate what they called suspected money laundering involving Burisma founder Minister Mykola Zlochevsky and former President Viktor Yanukovych.

According to the story, one of the members of parliament, Andriy Derkach, said that the money transferred to "representatives of the Burisma Group, including Hunter Biden," amounted to $16.5 million.
Politifact concluded their analysis by questioning the credibility of Andriy Derkach
Anders Aslund, a senior fellow at the Atlantic Council who researches kleptocracy in Russia, told NBC that the lawmakers pushing new allegations at the press conference — Oleksandr Dubinsky and Andriy Derkach — are "professional disinformers."

"This is generally known in Ukraine," he said, "this is not outstanding news. Anybody who’s anybody knows about these two. They are not credible."
However, Politifact's inclusion of Anders Aslund's comments is itself questionable because Burisma appears on the Atlantic Council's "Honor Roll" of major contributors. Politifact does not mention this fact, even though it could potentially impact Aslund's comments. Politifact also does not offer up any data in support of Aslund's contention that Dubinsky and Derkach are "professional disinformers" (we will set aside for the moment the irony of accusing professional politicians of also being professional disinfomers). While a contribution is not by itself sufficient to discredit Aslund as being unreliable, that tie to Burisma does make uncritical reliance on Aslund's comments problematic.

Thus, while the Burisma story as originally reported by ZeroHedge and picked up elsewhere does appear to have been overstated--no formal indictment was announced--the salient facts of the reporting--that Zlochesvky was accused of additional corruption, and that Hunter Biden's company was accused but not indicted of receiving $16.5 million in laundered money--can be credibly sourced to Dubinsky and Derkach.  Is the lack of formal indictment sufficient, within the Politifact spectrum of veracity, to declare the story "False"? 

For myself, I would gauge the reporting to be somewhere between "Half True" and "Mostly True" on Politifact's "Truth-O-Meter" scale. At a minimum it must be acknowledged that both Zlochevsky and Burisma are notoriously corrupt--that much was the consensus of Adam Schiff's impeachment witnesses over the past several weeks. Also at a minimum one has to acknowledge there is ample room for debate over Politifact's assessment accuracy in this story.

Yet such deconstruction of Politifact does little to answer the foundational question here: how to tell between "objective news" and "infotainment"? How do we separate Clown World from the Real World?

What Are The Facts?

In my day job as a Voice and Data Network Engineer, we emphasize hard data when performing analysis. In networking terms we look at the bits and bytes flowing through the network connections, we examine what systems report in their error logs, we perform various tests, gather that data, and use that to reach conclusions. The mantra of any good engineer is a quote by Robert Heinlein:

In theory, we are ruthlessly logical and data-driven in this regard. In reality, we are as human as anyone else and are as vulnerable to bias and illogic as anyone else. Yet an emphasis on facts, on empirical data, on that which has been documented and proven, is, in engineering and in journalism, the best vehicle for assessing what is real, for determining what qualifies as "truth".

It is facile and glib to say "look at the facts". If anything, that is a recurring mantra used by both sides of any debate, even though the exhortation to "look at the facts" more properly should be phrased "look at the facts I am presenting and ignore other facts." 

When any commentator stresses the facts, it is imprudent to presume they are presenting all the facts. When I write about a topic I do not present all the facts, nor do I operate under any illusion of such. I present the facts which support my thesis for that post. On occasion I update a post to reflect a correction or inclusion of relevant facts that come to my attention afterwards. At no point do I pretend to be so all knowing as to have possession of all the facts. Indeed, the moral imperative of free speech can be derived simply from this reality, that none of us possess all the facts of an issue, and we need a free exchange of ideas among people to ensure we get the benefit of the greatest amount of factual information possible. Since no one has all the facts we owe it to ourselves to share all the facts we have, so that we may all have as many facts as possible.

Clown World Believes It Has All The Facts. Real World Knows Better

Ironically, it is this uncertainty about the facts which provides the answer to the foundational question here. 

In the "Real World", both reporters and commentators are aware of their limitations with regards to facts. They are conscious of the inevitability of their own bias, and of the unlikelihood that they will ever be in full possession of all the facts on anything. I like to think of this blog as being firmly rooted in the Real World--although I freely admit that I can and do on occasion get the facts wrong.

In Clown World, moral certitude and an impious and arrogant rectitude pervades reporters and commentators alike. In Clown World, we see headlines such as this excrescence from Wall Street journalist Peggy Noonan, "Trump's Defenders Have No Defense." Setting aside the hyperbole, her own headline did not even reconcile with the much of her own writing, in which she acknowledged many shortcomings of Adam Schiff's impeachment witnesses:
Lt. Col. Alexander Vindman was not a persuasive witness and did not move the story forward, because in spite of the obvious patriotism reflected in his record he was annoying—smug and full of himself.
How "not moving the story forward" equates to making the case for impeachment is a leap of logic Ms. Noonan did not explain.
 The committee has paid entirely too much attention to the witnesses’ emotions. “How did that make you feel?” “Without upsetting you too much, I’d like to show you the excerpts from the call . . .”
If the committee was focused on feelings and not facts, how could the committee be making a case, which presumably is predicated on facts, not feelings?
On Wednesday Gordan Sondland, the ambassador to the European Union, was both weirdly jolly and enormously effective in doing Mr. Trump damage. He followed the president’s orders; there was a quid pro quo; “everyone was in the loop, it was no secret“; Rudy Giuliani was the point man, with whom Mr. Sondland worked “at the express direction of the president.”

It was his third try at truthful sworn testimony and it was completely believable. It was kind of the ballgame. He seemed like a guy with nothing to lose, or maybe a guy who’d already lost much.
"Third try at truthful sworn testimony"? If it takes a witness three attempts at testimony to tell the truth, on what basis may we presume that testimony to be "believable".

Only in Clown World would these sort of observations amount to a case being unequivocally made. In the Real World we would look at the defects of these witnesses and acknowledge the diminution of credibility that logically must follow.

More to the point, statements such as "he was annoying" and "he seemed like a guy with nothing to lose" are not objective facts but subjective assessments. They are opinions. Weighed against the Heinlein standard of "what are the facts?" these statements fall far short of making a case for anything except the author's own faith in her own judgment.

In rebuttal to Peggy Noonan, President Trump's defenders do have a defense, and that defense is that the case presented by Adam Schiff is charitably described as a "hot mess." It is full of conflicts and contradictions, and, worst of all, such empirical data as we have indicates that independent voters were not persuaded by it. That is the Real World--when key voting blocks are not persuaded of a position, the case for that position has by definition not been made.

Be Skeptical

Whatever story you read, whatever bit of analysis you absorb, always remember that it is not the complete story. No story is the whole story. No analysis presents the whole truth. ZeroHedge is not the whole story, Gateway Pundit is not the whole story, the New York Times is not the whole story, A Voice Of Liberty is not the whole story. 

At best any one source is but one piece of a story, one sliver of the larger truth behind a story. At worst a source is a misdirection, a troll for clicks, ratings, and revenue, without regard to facts or substance. In between are headlines that fail to do justice to the stories they present.

Perhaps Matt Drudge has decided to shift his bias in favor of greater clicks and revenue, and this has led him to abandon his previously seeming "pro-Trump" headlines. Perhaps he has a different agenda in mind. Short of getting Matt Drudge to disclose his thinking on his headline-writing ways there is little to be done on that point but speculate.

Yet what was never a matter of speculation was the reality of Matt Drudge's bias. As with both the legacy and alternative media, as with every news commentator on Twitter, on Gab, and across social media, Drudge is biased. The news aggregators that many are leaving Drudge to patronize are similarly biased.

Recognize bias for what it is, and recognize its inevitability.  Accept that every reporter has a point of view, every commentator has a particular background. Assess their work in part by how well they treat their own bias and background.

As I said after the publication of the Mueller Report, the best posture for the well-informed citizen is skepticism.
What you, the audience, must therefore do is abandon trust. Do not accept a narrative merely because it appears on a favored outlet. Do not presume even my interpretation of events is sound, or my recitation of facts is correct. Follow the links within my posting and read my source materials for yourself. Take the time to do your own research. Form your own conclusions--and challenge interpretation with which you disagree.

Do not trust. Verify instead.
The one clear takeaway of the recent news cycles is the necessity of that imperative.

Do not trust the media. Verify instead.