Michael Cohen’s Testimony Is the First Hearing in President Trump’s Impeachment by Jonathan Chait

Michael Cohen’s Testimony Is the First Hearing in President Trump’s Impeachment
By Jonathan Chait@jonathanchait

Michael Cohen Photo: Jim Lo Scalzo/EPA-EFE/REX/Shutterstock
The persistent nagging skepticism that has surrounded President Trump’s legal travails arose again in recent days when reports claimed that Robert Mueller would soon publish his final report. If Mueller was almost done, he couldn’t have much more, and none of it would touch Trump directly.

Michael Cohen’s testimony destroys that presumption completely. Trump’s former fixer alleges not only systematic criminality by his former boss, but deep culpability in the Russia scandal itself. There is no longer any serious chance that Trump will avoid impeachment proceedings. Cohen’s testimony should be seen as the first hearing.

Cohen’s opening statement reviews many of Trump’s familiar degeneracies. He is casually racist and habitually criminal, gleefully refusing to pay his contractors and arranging petty scams like using his “charitable” foundation for self-enrichment. More seriously still, Cohen has evidence in the form of signed checks that Trump knowingly violated campaign finance law by reimbursing him for payments to Stormy Daniels during the campaign. Trump signed the reimbursement checks that violated campaign finance law as a sitting president. (And, by signing a Trump organization check, he also casually broke his promise not to involve himself in any business activities while in office.)

But the most damning details in Cohen’s testimony concern the Russia scandal. Cohen’s evidence that Trump knew about the July 2016 meeting with Russian operatives is highly circumstantial, yet persuasive. He notes that Trump knew about everything that happened in the campaign, and describes a meeting in which Donald Jr. appeared to inform his father:

I remember being in the room with Mr. Trump, probably in early June 2016, when something peculiar happened. Don Jr. came into the room and walked behind his father’s desk — which in itself was unusual. People didn’t just walk behind Mr. Trump’s desk to talk to him. I recalled Don Jr. leaning over to his father and speaking in a low voice, which I could clearly hear, and saying: “The meeting is all set.” I remember Mr. Trump saying, “Ok good … let me know.”

Cohen is now the second member of Trump’s inner circle to publicly express complete certainty that Trump knew about the meeting. “The chance that Don Jr. did not walk these jumos up to his father’s office on the 26th floor is zero,” said Steve Bannon last year. Neither of them have anywhere close to enough evidence to prove it, of course, and this fact may never be proven.

But Cohen does have clear and direct testimony of several other aspects of Trump’s involvement.  He testifies that Trump knew about the attempts to develop a tower in Moscow, asked about the project repeatedly, and stood to gain “hundreds of millions of dollars” from the deal. So Trump was secretly beholden to Russia while he was running for president, and none of this was disclosed to the public during the campaign.

Cohen also explains that Trump directed him to lie to Congress about the project. (“In conversations we had during the campaign, at the same time I was actively negotiating in Russia for him, he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing.”) That is suborning perjury, just as surely as a boss telling a subordinate, “I was never here,” or, “We never had this conversation,” is clearly an instruction to lie.

Most explosively, Cohen alleges that he witnessed a conversation between Trump and Roger Stone, his intermediary to Wikileaks:

I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign. Mr. Trump responded by stating to the effect of “wouldn’t that be great.”

This is the final link in the chain between Trump and Russia. Robert Mueller’s indictments have outlined a conspiracy connecting Russian intelligence to the hackers who stole Democratic emails, the hackers to WikiLeaks, and WikiLeaks to Stone. Cohen is now connecting Trump to Stone.

Trump’s inner circle has obviously been aware of this. Asked in December if Stone ever gave Trump a heads-up on what WikiLeaks had obtained, his lawyer equivocated:

In a recent profile, Jeffrey Toobin asked Stone about “persistent rumors that Mueller has a witness who says he heard Trump and Stone on a speakerphone discussing WikiLeaks.” Stone replied, “Prove it.”

If this can be proved, it would also likely expose Trump to direct perjury charges. In his written answers to Mueller, Trump reportedly denied having been informed in advance about emails obtained by Wikileaks. And this explains why Mueller settled for allowing Trump to answer written questions rather than demanding a live interview. He knew he could commit Trump to supplying false answers that would expose him to perjury charges.

Proving it remains the obstacle. The scale of Cohen’s accusations are so vast that it is not tenable for Trump’s defenders to simply brush them aside. Instead, they are attacking him as an untrustworthy liar — a “convicted felon who’s been lying,” in the words of Donald Trump Jr.

This counterattack proves much less than Trump seems to think it does. Busting up a criminal organization usually requires the cooperation of some of its members, who, by definition, are also criminals. Federal prosecutors have publicly vouched for their belief that Cohen has turned the page on his criminal history and is coming clean. Cohen’s testimony is “credible and consistent with other evidence obtained in the SCO’s ongoing investigation,” reports his sentencing memorandum. “He has told the truth,” said Jeannie Rhee, one of Mueller’s prosecutors. Cohen has backed up some of his allegations against Trump with physical evidence, such as signed checks.

Of course, the charges to which Cohen has pled guilty are serious ones. He lied to protect Donald Trump. This is the same crime President Trump and his son have also apparently committed, a fact that rather complicates their attempt to present Cohen’s lies as fatally disqualifying to his credibility.

In any case, the depth and breadth of credible allegations against the president are now on a scale at which it will not do to let them go without further investigation. Regardless of whatever additional evidence Mueller finds, Congress will surely start impeachment hearings to get to the bottom of it.

First Thoughts by Josh Marshall

Editor’s Blog – Talking Points Memo / by Josh Marshall / 7h

A quick reaction to the first couple hours of testimony. I’d say that in general, there haven’t been big revelations beyond those included in the prepared remarks. The Democrats have gotten some more granular detail on key points like the Trump Moscow project and the Wikileaks drops. The Republicans in general have not done terribly well. They’ve triggered some defensiveness on Cohen’s part a few times with respect to his crimes.

Cohen has managed some low moments on his own: invoking Charlottesville and Helsinki as turning points in deciding to come clean. That sounds nice but not terribly credible.

They obviously have the basic fact that Cohen is a convicted liar and felon. He has credibility problems. At the end of the day though impugning Cohen’s character discredits the guy who brought him to public life, President Trump. This is a box there’s really no way out of. Beyond that I’d say the Republican members of the committee have accomplished more in spittle than light or even heat.

Cohen meanwhile has parried them fairly well, all things considered.

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Cohen Testimony So Far by Josh Marshall

Editor’s Blog – Talking Points Memo / by Josh Marshall / 4h

Michael Cohen did about as well in this hearing as could be hoped. After all, he’s a convicted liar, a convicted felon. He pled guilty to crimes and he’s now admitted to all manner of misdeeds – some on his own behalf, some on Trump’s. His credibility is inherently weak. But he brought documents. Most importantly he seemed not to overstate his claims.

As I noted earlier, he actually defended Trump on a number of fronts, a fact that is worth considering in the context of the Republican minorities’ hearing preparation. While he had very damaging testimony about the Trump Moscow deal and Roger Stone’s alleged heads up about the Wikileaks dump, he did not have any silver bullet revelation. He gave many answers Democrats would likely have preferred went differently. He said he was aware of no evidence of “collusion”, though what that might mean isn’t clear. He said he’d never been to Prague. He said he had not met with any Russian representatives in Europe during his 2016 trip, which he said was family related. As I noted below, Cohen actually knocked down a number of rumors about Trump’s personal life.

None of this is to say it was a bust. What it did was make him more credible in his actual accusations. He was also helped by what was often comically bad preparation by Republicans. About half the question time from Republicans amounted to rants against Cohen or flogging him over a future book deal. They made the obvious points about his credibility. They played mostly to the President himself.

But it’s worth asking whether better preparation and research might have allowed them to help themselves more – indeed, helped the President more. Cohen said he was aware of no collusion. In its broad outlines, the on-going Trump Moscow negotiations were already known. There was actually a decent amount they could have used from him that was, if not helpful, then at least not incriminating from someone who supposedly was an insider’s insider.

Mainly what they accomplished was making him seem more sympathetic with their rants or, in some cases, easily debunked or contradicted claims.

Democrats were not terribly better. A few of the questioners shed new light. But most covered old ground without the precision that might have generated new information. This is why sometimes it’s worth having an outside counsel handling the questions or perhaps more coordination between the questioners. Part of me suspects the real serious work they expect tomorrow in the closed door Intelligence Committee hearing.

Beyond the big ticket claims in the prepared remarks, the big news today is more evidence that there are major on-going investigations into the President himself. Some of that clearly is tied to business dealings under the purview of the Southern District of New York. But there seems to be an active Russia probe as well.

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Responses on MMT by Josh Marshall

Responses on MMT, Part 1

Editor’s Blog – Talking Points Memo / by Josh Marshall / 2min

Printing some responses from readers to my post from yesterday about the slippery politics of MMT. From TPM Reader PJ …

I read with interest your thoughts on MMT, and am in the kind of academic circles where people will give talks where they think about and discuss MMT as part of some suite of solutions to the excesses or problems of late capitalism (or even straight up liberalism, in the conventional sense). I think perhaps both you and Matt are focusing too much on the practicalities of MMT rather than its rhetorical function, though there might be reasons to maintain the skepticism, there’s another possibility about policy facilitation therein.

I might consider it in parallel with supply-side economics as a device utilized by the Right. Was supply-side economics out of joint with the conventional economics of the post-war political and economic systems? Absolutely. Did its lack of relationship to reality doom it politically? Not at all. It enforced its (from the standpoint of the system) incoherent demands for quite some time, and continued to flex those muscles with the last big GOP tax cut. What was coherent was its ability to unite a set of groups around a theory which had institutional backing, ‘expert’ support, and all the other scaffolding that tend to be the markets of policy relevance: think here of how Heritage and AEI came up to ape Brookings and so forth in the second half of the twentieth century.

I think many MMT advocates are perhaps aware that it struggles to be reality-relevant in the way you are describing, but consider themselves to be facing two competing theories: one is the zombie body of supply-side, itself disconnected from reality. The other theory is more like conventional liberal economic theory, and with the scale of problems we face in terms of inequality but, especially, perhaps with respect to climate change, there’s no getting away from the fact that we will have to actively choose to inhibit our economic growth in the near to medium term for there to be a future that includes any prospect for economic growth. If conventional economics is tied to reality, it is by any definition one where catastrophe is written in the stars if we continue to prioritize GDP as a public good above others, albeit in the shambolic fashion wherein we can’t really think in the long term.

So, I think MMT is kind of like a magic phrase, one that if repeated enough and given scaffolding, could ultimately animate a series of progressive policy decisions that are necessary. The theory itself might be unrealistic and unworkable, but there is a way of considering how the Right succeeded by making a bunch of realistic and unworkable demands repeatedly and insistently. This is a very long game, but I would not count it out as a working theory for what the theory represents.

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Responses on MMT, Part 2

Editor’s Blog – Talking Points Memo / by Josh Marshall / 2min

Printing some responses from readers to my post from yesterday about the slippery politics of MMT. From TPM Reader A …

Hi, Josh. I’m an economist and Prime member (hoping to upgrade soon but have to convince hubs of necessity of expense first…). I read you every day, and the work you and your staff do is indispensable.

I just read your MMT post, and it is spot on. I would go even further. I consider MMTers to be the left-wing equivalent of Hayek/gold standard acolytes. Both of them defy what we know about how the economy works, theoretically and empirically.

That being said, deficits don’t concern me too much. I tend to agree with Olivier Blanchard, whose research shows that as long as overall economic growth outpaces the interest rate paid on the debt, we’re fine. That doesn’t mean we don’t have to be watchful and stay in certain limits, but we certainly have plenty of room, particularly in an environment of sustained low interest rates coupled with economic growth, to make much-needed investments in our infrastructure and educational systems.

Here’s my spiel, me on my expert soap box:
I think the idea of a GND is great in theory, but what concerns me more is the trend of economic concentration we’ve seen across industries over the last couple of decades. Usually, conservatives like to talk about “the free market,” and that if the government got out of the way, we would all prosper. Well, it’s true that the “free market” increases prosperity for all, but the “free market” is not what conservatives think it is. In economic theory, a free market (or what we call “perfect competition”) means that in every industry, there are tons of sellers, tons of buyers, the product/service being produced/sold is identical, and–KEY, in my opinion–there is something called “perfect information”: every buyer and every seller knows everything about every potential and actual transaction. Obviously, perfect competition is about as common as a unicorn. But the idea is that we want to get close.

Sometimes, the way to get to perfect competition is to get government out of the way, but sometimes, we actually need government intervention to get us closer to perfect competition. A lot of markets suffer from “information asymmetries” such that the seller knows more than the buyer, or the employer knows more than the employee, and can take advantage of that. Think of the opacity of hospital pricing, or companies that can restrict employees from revealing salaries to each other.

In other cases, the government should get out of the way. Consider that Medicaid and Medicare are barred by law from negotiating lower prices with pharma companies. Examine the US airline industry– only three truly national carriers (United, Delta, American). This is by design, in the form of anti-cabotage laws, and they ban foreign airlines from flying between domestic airports in the US. (Similar to the Jones Act, which deals with shipping and was suspended during the last big hurricane). If BA or Air France or KLM can meet our safety standards, why shouldn’t they be allowed to serve domestic US customers? This lack of competition is why tickets are expensive and passengers can get beaten up and otherwise abused on flights–they have no choice.

For far too long, conservatives have claimed the mantle of “the free market,” when what they actually mean is “whatever businesses want to do, unchecked.” As I said, I like a lot of the ideas in the GND, but I would much rather see the Democrats really take on these structural issues of concentration and info asymmetries to change the rhetoric surrounding the (incorrect) ideas that the body politic currently holds toward markets. I would like the Dems to look at every part of the economy and ask: What’s keeping us in this market from getting as close to perfect competition as we can? Do we need more or less govt. policy to move in that direction? I believe that thinking in this way could change things fundamentally, for the better.

The GND and MMT to pay for it…. well, it’s just looney tunes, practically and politically, and there are more basic issues to deal with.

Responses on MMT, Pt 3

Editor’s Blog – Talking Points Memo / by Josh Marshall / 3min

Printing some responses from readers to my post from yesterday about the slippery politics of MMT. From TPM Reader MO …

What we have now is a fiat currency pretending it’s still on a gold standard. That is, we have a financial system designed around using the natural scarcity of commodity commodity money, but we’ve abandoned commodity money. oddly, we persist in acting like money is in natural limited supply, and we can only get more of it by taking taxes, say.

The money we have is basically a bet on future productivity and stability. it’s a social compact. That’s really all it is: faith in the United States of America. And of course there’s nothing at all trivial about that faith. It motivated people to fight and die. Or emigrate, of take a chance on businesses, or work towards their own self advancement. The US has tangible physical assets and resources, it’s an extraordinary human accomplishment. But the united States itself is as Anderson says an “imagined community, and the money we use is nothing but a symbol of that community.

So why can’t we fund a welfare state by paying people in printed money? Heath care is a bet on the stability and productivity of our citizens: health care returns benefits in the form of that very same productivity. The money is not scarce. The danger, the obvious danger, is inflation, but as mentioned taxes effectively extinguish money and can be used to prevent inflation.

I wrote a history [relevant topic in economics from major academic publisher]. I only mention to suggest that this isn’t an ill-considered claim. Why do we still act as if money is a naturally scarce commodity, when we know it isn’t?

Is This The Break? By Josh Marshall

Editor’s Blog – Talking Points Memo / by Josh Marshall / 4min

British PM Theresa May has announced today that if her latest Brexit proposal fails Parliament will vote on delaying Brexit or proceeding to a no-deal Brexit. The failure of her latest plan seems highly likely, if not certain. That would simply match every other plan she’s cobbled together. I have not followed the inner workings of each of these deals to have much ability to predict. The basic issue has been clear for a while. There’s no majority for any actual deal since the whole thing was sold on false pretenses, with false promises and none of the challenging obstacles in view.

But if Parliament votes for a delay, it’s hard for me to see how that doesn’t sound the death knell of Brexit altogether. It has been crystal clear that there’s no parliamentary majority for any actual Brexit plan, though perhaps the concept could get a bare majority. Without the hammer of a deadline, why will it move forward at all?

The whole exercise has been a perfect test case of governance failure. An ill-considered referendum was sold on preposterous terms. The country committed to doing something that wasn’t actually doable, an idea that had, in the nature of things, innumerable insoluble challenges. As one observer put it, the British people committed to building a submarine out of cheese. And then Parliament had to set about doing that impossible thing.

The wisest commentary I’ve read on Brexit came in the lead up to the vote from Irish commentator Fintan O’Toole. Brexit, he wrote, was in fact a English nationalist movement. An independence movement from the EU, and the uncomfortable equality with the rest of the states of Europe and perhaps just less than Germany and France. But more than that it was independence from the United Kingdom itself, it’s own insular empire and beyond this from history itself.

There is significant evidence that Russia employed money and propaganda to help the referendum along, probably doing more damage to Britain that decades of Cold War era espionage and proxy wars. But as with the analogous case in the US, this clearly wasn’t the entirety of the problem. The roots of the disaster were British or rather English. Russia just helped along the self-immolation.

Britain certainly isn’t a failed state. But it has spent the last two and half years as what we might term a failed government or a failed political structure, caught in a hopeless feedback loop, with no political formation (party) able to put the core question to a decision since both parties are significantly split on the Brexit question.

The hapless May captures so much of the nonsense in her own ministry. Actually a Remain supporter, she embraced the challenge of making Brexit a reality in order to become Prime Minister after David Cameron resigned and the actual authors of the calamity either could not or would not lead a government.

Thinking about the Magical Elixir of MMT by Josh Marshall

Editor’s Blog – Talking Points Memo / by Josh Marshall / now

I find that as often as not I agree with Matt Bruenig on policy matters. But those points of agreement can be obscured for me by differences of temperament and politics. Here though I find myself entirely in agreement with him on something called Modern Monetary Theory. You may not even have heard this phrase before. But you should and probably will soon. If you haven’t, you should familiarize yourself with it because it bulks very large in many current debates within the Democratic party that you have heard about. It’s a big deal. Bruenig aptly describes it as “about using word games to make people believe that the US can have Northern European levels of government spending without Northern European levels of taxation.”

It’s not easy to simply explain what MMT is because it operates at several distinct and not always closely related levels.

At its simplest MMT states that government spending is not funded by taxing money or borrowing it. Taxes serve other purposes but getting money to pay for things is not actually one of them. As one of its top popularizing advocates put it, “Taxing the super rich at 70 or 80 percent is good in itself, because those people have too much money and are screwing up the world with it. But you don’t need it to fund an agenda.” In fact, all government spending, says MMT, is funded by printing money. At a very high level of abstraction there’s a way in which this redefinition of terms makes a certain sense. Indeed, there are elements of MMT that are similar to basic Keynesian economic theory – sort of Keynesianism on steroids or perhaps Keynesianism without a theory of inflation. For a more knowledgable and technical discussion see these two columns (one and two) Paul Krugman wrote on the question of MMT earlier this month. For pro-MMT arguments Stephanie Kelton is probably the most prominent advocate. You can see her arguments at her website.

To me, the discussions about MMT are very hard to pin down because it’s a bit hard to make sense of what level of practicality MMT advocates are trying to make their arguments. It can be a bit baffling like having a discussion about quantum physics and then hearing from the person you’re talking to that quantum physics makes some dramatic new things possible in the skyscraper you’re planning to build. That is quite likely completely untrue. So it is at a minimum quite unsettling. But again, to me the practical issues are not technical but political. And those I feel more comfortable speaking to.

If you look at the Green New Deal, you’ll see that it is actually a mix of two things. One is an extremely aggressive plan to address the climate crisis basically on all fronts: technology, infrastructure, regulation, etc. This is of course vastly expensive. But it’s not the biggest cost. But the really big spending isn’t for things that most of us would recognize as tied to climate or the environment at all. It’s basically the full social democratic policy package: universal healthcare, job guarantees, some version of a universal guaranteed income, free or no-debt higher education, etc.

Many of the things in the latter category are things that most Democrats believe in, others are quite controversial. Probably the bulk are things where the controversy comes down to matters of degree. The point I want to focus on here though is that these things are extremely expensive. (You can find a good discussion of these point in this and other columns by Noah Smith.)

If you look at the advocacy conversations surrounding the Green New Deal and various of these programs on the left and you get to how to pay for it … well, this is where MMT comes in. Setting aside the technical merits MMT increasingly serves as a placeholder to explain that the whole question is bogus. It’s not a matter of where do you get the money. The US government creates dollars and is in charge of how many dollars there are. So the whole question of where the government will get them is silly.

Here for example is The Intercept’s Ryan Grim this month in his email newsletter noting Alexandria Ocasio-Cortez flummoxing NPR’s Steve Inskeep with MMT.

Ocasio-Cortez was interviewed on Morning Edition today and when asked how to pay for a Green New Deal, talked about decoupling the concepts of tax revenue and government spending, which is the cornerstone of Modern Monetary Theory. Amazing to hear that on NPR. Not sure Steve Inskeep quite got it; it could take a little while to sink in.

A month earlier he made the same point on Twitter: “Here’s @AOC talking up Modern Monetary Theory as an answer to how the government can fund a progressive agenda. She’s right.”

One of the seductive things about this popularization of MMT is that it piggybacks on something most Democrats rightly and strongly believe: that deficit hawkery is a greatly overstated concern that is supposedly the biggest deal in the world when Democrats are trying to increase spending and becomes magically irrelevant when Republicans want to cut taxes. Remember that we spent the first four years of Obama’s presidency being told by Republicans that Obama’s fairly moderate post-crisis spending had us months away from an apocalyptic debt crisis.

Debt markets give us pretty accurate reads of impending debt crises and lenders spent years essentially paying the US to borrow their money. That was stupid and mendacious, scare-mongering in favor of austerity. The biggest problem the global economy faces at the moment and in some ways has for a couple decades isn’t inflation but lack of aggregate demand. But with MMT “deficits don’t matter” as perhaps a shorthand for ‘the danger of deficits is greatly overstated’ has become literally deficits don’t matter or more broadly that deficits don’t even exist.

I have no doubt that there are MMT advocates reading this now saying, no, you’re not getting what MMT says or you’re caricaturing it. Maybe. But what I’m able to speak to is how it is playing out in a political context. As Bruenig explains, if you want Northern European-style social democracy you’re going to need to have significantly or dramatically higher rates of taxation. And not only much higher rates on the uber wealthy but generally higher rates on a much broader range of the population. Whatever the theoretical merits of MMT, it’s political role is simply to say that core fiscal policy realities simply don’t exist. Or to put it more concretely, because taxing and spending and debt and money supply are all part of one equation, well, let’s not worry about it! How do you fund it? Well, MMT!

All of this might be notional and sort of irrelevant to our immediate political moment if it weren’t for the fact that MMT is actually central to the Green New Deal and thus at the center of political debate among Democrats without, seemingly, most people even realizing it. We’re seeing top presidential candidates signing on to it without seemingly realizing what’s in it or the levels of taxation that are built into or that there’s no actual plan for where any of those revenues come from – even if they’re sort of hokum’d away with MMT finger-waving.

As Bruenig puts it, MMT is amounting to “using word games to make people believe that the US can have Northern European levels of government spending without Northern European levels of taxation.” Bruenig probably supports 100% move in that direction. Maybe I support 50%. But if we’re going to have this debate we should really have it with our eyes open about what we’re talking about. That makes sense just in terms of being in touch with reality. But it’s equally important politically because if you go into a big political fight having bamboozled ourselves in advance that will not end well.

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An Important Lesson About Election and Voter Fraud by Josh Marshall

Editor’s Blog – Talking Points Memo / by Josh Marshall / 5h
As Republicans have played a rearguard defense in what turns out to be an egregious instance of election fraud in the 2018 congressional election in North Carolina’s 9th district, they’ve sometimes resorted to the curious claim that at least they’re vindicated. Contrary to Democrats’ claims, voter fraud really does happen! Even if it’s our candidates doing it. This is not only too clever by half. It is an intentional conflation. What Democrats and voting rights advocates say is that voter impersonation fraud is rare to the point of non-existence. Voter and election fraud is rare but not unknown. (The distinction is critical because voter ID laws, the top voter suppression method justified by claims of fraud, only has any relevance to voter impersonation fraud.) And that gets us to a critical lesson or rather a series of them from this incident in North Carolina.

Any expert on voting or voting and election fraud will tell you that when fraud does happen, it is overwhelmingly with absentee ballots. Overwhelmingly. There was a big case in Miami mayoral election 20 years ago.

I’m not here to beat up on the absentee ballot system, though it definitely needs some tightening up. But why this is the case explains some important principles about how to think about the whole issue of voting rights, voter fraud and election security.

If you or I really wanted to, we might be able to commit voter impersonation fraud. I could register a second time in another neighborhood, maybe with a slightly different version of my name, finding another address where someone wouldn’t see the mailings coming to someone who doesn’t live there. At the next election I’d go vote with that fraudulent registration after I voted my legitimate one. But why would I? It’s actually not that hard to get caught. The penalties are pretty stiff. And my one fraudulent vote is almost guaranteed never to change the result in any election I care about. I could do ten fraudulent registrations and votes. But that would dramatically increase my chances of getting caught while still almost guaranteeing that I wouldn’t accomplish anything.

If I’m really so hardcore about helping my candidates win, I can accomplish a lot more with zero legal risk by just doing legitimate campaign work. Quite simply, it doesn’t make sense even by the cynical standard, which is the biggest reason it’s so rare. But it points to a more general reality. Voter or election fraud only works if you can do it at scale. And to do it at scale you need to operate on the election administration side rather than the voting side of the equation. That’s the only way a relatively small number of people can potentially change an election outcome.

This is why real voter and election fraud became became so much rarer in the second half of the 20th century, as Rick Hasen helped me understand: reforms and increased safeguards in election administration that made fraud much more difficult. (Basically, don’t leave a single administrator in single party dominated areas alone with the ballots.)

Here we should note a corollary that applies to all criminal activity to a degree but is especially relevant to elections. The chances of getting caught are directly tied to the number of people involved – more people who can talk, more people who can screw up, more communications that can raise suspicion. Indeed, the chances of getting caught as you add more people likely rises not arithmetically but exponentially. Only on the administration side can you move big numbers with, potentially, small numbers of people.

Which brings us back to absentee ballots.

Absentee ballots are a curious wrinkle in the system, a sort of exception case version of early voting before our modern concept of early voting really become a thing. Critically, it provides a porous opening where partisans and bad actors can nudge their way over onto the administration side of the process, as the North Carolina example illustrates. McCrae Dowless’s crew broke the law at a number of different points. There’s also a big range in how absentee voting is regulated in different states – some more restrictive, more permissive. But it goes without saying that there is simply no mechanism by which his crew or any other GOTV operation could do anything remotely comparable with conventional voting. There’s just no good angle in.

In other words, the same dynamics that make voter impersonation fraud vanishingly rare and virtually always ineffectual make absentee ballot voting a logical place for fraudster to focus. (Let’s remember: absentee ballot fraud is more common but still very uncommon in general.) More broadly, there’s an important lesson here for voting rights. The dangers aren’t coming from individual voters. So virtually all the things that make voting harder don’t move the ball on election security. They just make it harder for people to vote.

This isn’t a big surprise. The entire anti-voter fraud movement is based on dishonesty and bad faith. It’s a voter suppression movement. Still, it’s political power rests on convincing people that their bad faith claims are valid. The North Carolina case provides a good illustration of why they are not.

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The Jussie Smollett Smokescreen by Matt Ford

The New Republic / by Matt Ford / 2h
There were plenty of contenders for the biggest news story this week. North Carolina officials ordered a new election on Thursday in the state’s 9th congressional district after hearing testimony about widespread absentee-ballot fraud during last fall’s race. Dramatic testimony from the son of Mark Harris, the Republican candidate who officially received the most votes last November, revealed that he had warned his father last year that a local political operative’s ballot collection plan was likely illegal. The Republican Party often invokes the illusory menace of widespread voter fraud; now they’ve had an election victory overturned for election fraud themselves.

Another contender would be the arrest of Christopher Hasson, a Coast Guard lieutenant in Maryland, for allegedly planning to carry out a targeted killing spree against prominent journalists and Democratic lawmakers. Federal prosecutors warned a judge earlier this week that he sought “to murder innocent civilians on a scale rarely seen in this country.” Hasson’s plan, court filings suggest, was to use the killings as part of a broader campaign to secure a “white homeland” within the United States. It’s the second time in six months that one of President Donald Trump’s supporters has been arrested while allegedly plotting to kill his political opponents.

But one story received more media coverage than either of those, or any other this week: the arrest of Empire actor Jussie Smollett for filing a false police report in Chicago. Smollett, who is black and gay, told police earlier this month that he had been attacked by two white men who shouted “This is MAGA country,” used racial and homophobic slurs, poured an unidentified liquid on him, and tied a noose around his neck. Investigators now say that Smollett paid two other men to help stage the apparent hate crime, potentially out of frustration with his salary and screen time on the popular Fox drama. Smollett denies the allegations.

Critics seized on the Smollett episode to make broad pronouncements about the American left and the journalists that covered his story. There’s a certain irony about this, as the frenzy of coverage has obscured other news stories that tell deeper truths about the current political moment. For all the ways in which conservatives claim that mainstream news outlets are biased towards liberals, the last week shows how conservative narratives still get privileged in mainstream political discourse.

Smollett’s story prompted a flurry of attention from the beginning; his arrest turned it into a blizzard of commentary. Cable news covered every twist and turn in elaborate detail. The New York Times sent multiple push alerts to apprise mobile readers of new developments. Major publications saw deeper meaning. The Atlantic’s John McWhorter opined that Smollett’s alleged fraud reflected the broader problem of racial “victimhood chic” in contemporary American culture. USA Today’s James Robbins argued that the “real issue” was “how easily and quickly people latch onto hoaxes like the one attributed to Smollett, aiding and abetting the farce absent any solid evidence to support it.”

Trump-aligned pundits also chastised mainstream news outlets for wrongfully demonizing the president’s supporters. “If it advances the narrative that Donald Trump is evil and his supporters are bad and America is scary and racist and sexist, homophobic, xenophobic, Islamophobic, the media mob will shift into full gear without performing any due diligence,” Fox News’ Sean Hannity told his viewers. Even Trump weighed in. “@JussieSmollett What about MAGA and the tens of millions of people you insulted with your racist and dangerous comments!? #MAGA?” he wrote on Twitter on Thursday.

An underlying theme here is that hate crimes are often either exaggerated or fictitious. Reality suggests otherwise. The same day of Smollett’s indictment, federal prosecutors in Utah filed federal hate-crime charges against a Salt Lake City man who allegedly walked into a tire store, shouted that he wanted to “kill Mexicans,” and struck two Hispanic men with a metal pole. Earlier that week, Indiana police arrested a man for allegedly shooting and killing a 21-year-old Muslim man in a road-rage incident. Witnesses and the alleged gunman himself told investigators that he shouted slurs about Islam and Muhammad before opening fire. Neither attack received widespread attention from pundits or tweets from the president.

So what stories get crowded out instead? The North Carolina election-fraud story should, in theory at least, be a major embarrassment for a party that’s made fears of widespread voter fraud central to their messaging over the past decade. The disparity in coverage surrounding Hasson’s arrest is even more striking. The Justice Department didn’t issue any press announcements about the case, as it often does during major terrorism-related arrests. The Intercept noted that the department is six times likelier to issue press releases in terror cases involving Muslim suspects than non-Muslim suspects.

Political violence isn’t necessarily exclusive to the right, of course: A gunman who once volunteered for Bernie Sanders’s campaign tried to assassinate multiple Republican lawmakers during a congressional baseball practice in 2017. But there’s an enlightening difference in how each side responds to it. After the gunman’s history became public, Sanders immediately took to the Senate floor after the attack and denounced the gunman’s actions. Trump has yet to comment publicly on Hasson’s arrest or denounce it himself, even among the flurry of tweets he regularly sends.

When asked about the president’s silence on Friday, White House Press Secretary Sarah Huckabee Sanders told reporters that he is “typically one of the first people to condemn the violence, and the media is the first people to blame the president.” Trump, for his part, continues to describe journalists as “the enemy of the people.” Last weekend, he publicly agreed with a claim that his opponents are trying to stage a coup against him.

Whenever the president’s supporters commit violence, or are arrested before they can do so, the political right often responds with denialism. When prominent Democrats received mail bombs in the weeks before last year’s midterms, Trump’s media allies expressed disbelief that one of Trump’s supporters could be responsible for a wave of attempted mail bombings targeting prominent Democrats. That disbelief turned to silence after the arrest of Cesar Sayoc, who had attended Trump rallies and spread conspiracy theories online about Democratic politicians and donors. But this week, there was barely any need to deny the growing crisis of right-wing domestic terrorism in the U.S. It turns out that distraction is an even more effective tactic.

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Will the Democrats Kill the Green Party by Stealing Its Best Idea? by Emily Atkin

The Green New Deal used to be the eco-socialist party's signature proposal. Now the Greens, without Jill Stein, are trying to find their voice.
By EMILY ATKIN
February 22, 2019
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Alexandria Ocasio-Cortez, the wunderkind congresswoman from New York, has been getting most of the credit for the Green New Deal, an ambitious plan to fight global warming that has become increasingly popular among Democrats. But Howie Hawkins wants to set the record straight. “A lot of people think AOC thought it up,” he told me by phone Wednesday. “But I’m the original Green New Dealer.”

Former New York Times Executive Kerrie Gillis Joins The New Republic as Publisher
Hawkins, a 66-year-old Green Party member from New York, says he was the first American political candidate to run on the promise of a Green New Deal. During his run for governor in 2010, he proposed a plan to fight climate change “with the same urgency, speed, and commitment of resources that our country demonstrated in converting to war production for the mobilization for World War II.” To reduce New York’s carbon emissions to net zero over ten years, Hawkins’s plan would “devote resources to and create jobs in renewable energy, public transit and organic agriculture,” the New York Times reported. And those resources would come from progressive tax reform, including massive taxes on the rich.

Some greens are now irked at the Democrats’ attempt to claim ownership of the idea. “It’s a little frustrating to not have a dialogue between those of use who have been working on the Green New Deal for quite some time, and people who want to keep it solely in the realm of the Democratic Party,” said Ian Schlakman, a Baltimore-based Green Party member who’s running for president. “There are some Democrats who acknowledge the existence of third parties and independents. Congresswoman Cortez is not one of those people.”

Hawkins—who told me he’s launching a presidential exploratory committee in the coming weeks—also thinks the Green New Deal is being unfairly co-opted. But he’s happy that it’s become mainstream, because now the Green Party can expose the Democrats for the corporatists they truly are. “It’s our opportunity to explain how the Democratic establishment ... chopped away the pieces,” he said.

The question is whether the public will listen. Once widely accused of spoiling a presidential election that led to two wars, the Green Party has been mostly relegated to a political punchline, thanks in part to the foibles of its former leader Jill Stein. Now, the Green New Deal—which helped to differentiate the eco-socialists Greens from the Democrats—has been coopted. The Democrats are even warming to socialist ideas. So does America even need a Green Party anymore? Or does America need it now more than ever?

The Green Party barely registered notice in 1996 when it fielded its first presidential candidate, who only made it onto the ballot in 22 states. But four years later, nominee Ralph Nader qualified in 43 states and won about 2.7 percent of the popular vote nationwide. Because he drew 95,000 votes in Florida, the famously decisive state in that election, he was accused of handing the presidency to George W. Bush. Nader and his supporters—among others—reject the argument that he spoiled the election, but there’s no denying that the 2000 election established the Greens’ legitimacy and influence as a third party.

Nearly two decades later, the Green Party has lost some of both—though it might still have enough support to tip the results of a presidential election. The party’s two-time nominee, Jill Stein, received just .4 percent of the vote in 2012, but 1.1 percent in 2016. The latter was “enough votes to tip the scales for Donald Trump in Michigan, Pennsylvania, and Wisconsin,” claimed Vanity Fair. (More accurately, her vote total in the three key states of Wisconsin, Michigan, and Pennsylvania was higher than Trump’s margin of victory, but there’s no evidence that Stein’s supporters would have voted for Clinton otherwise. They may have chosen no one at all.) Stein also potentially compromised her party’s legitimacy with her connection to multiple scandals related to the Russia investigation—not to mention her curious comments on vaccines and the health affects of Wi-Fi.

Stein has suggested she won’t seek the party’s nomination in 2020, so there’s potential for a new Green voice. But it’s not yet clear who that will be. Aside from Hawkins and Schlakman, only 12 people have officially declared their candidacy for the Green Party nomination. It’s hard to tell which are serious. Kanye Deez Nutz West most likely is not. But Dario Hunter is, and he’s about as diverse as candidates come: black, gay, Iranian, and Jewish. He’s also an ordained rabbi, a former environmental attorney, and a school board member in Youngstown, Ohio. These qualities all make him an ideal new voice for the party, he said. “If we want to cut through the lack of attention given [to Greens], we need someone who has a loud and clear voice and a tough skin,” he said. “It takes a tough skin to be an openly gay black son-of-an immigrant Jewish rabbi.”

Why should there be attention given to Greens, though, now that Democrats have embraced the Green New Deal? Simple, said Hunter: “This Democratic version of the Green New Deal is watered down. It pales in comparison to ours.”

The Green Party’s Green New Deal is indeed more expansive. It includes far more detail than Ocasio-Cortez’s resolution, and a much more aggressive, socialist reorganization of society. The two plans have the same goal of 100 percent renewable energy by the year 2030, and they both call for universal health care and a federal job guarantee. But the Green Party’s plan calls for single-payer Medicare for All, tuition-free college, and “democratically run, publicly owned utilities.” To pay for it, the Greens call for major progressive tax and financial reform, including a 90 percent tax on bonuses for bailed out bankers, and a reduction in military spending by 50 percent.

Greens say their Green New Deal is the only version that’s going to reduce emissions to the degree scientists say is necessary to prevent climate catastrophe, because it’s the only one that’s truly socialist. “The mobilization that would need to take place to solve climate change would have to upend the capitalist economy,” Schlakman said. Hawkins agreed. “You can’t have an economy structured around endless growth,” he said. “Growth has to happen on a basis that is ecologically sustainable, and that won’t happen if you leave it to market incentives.” The Democratic Green New Deal flirts with these ideas, but doesn’t fully commit to them.

This is why some Greens say the 2020 presidential race is not a challenge so much as an opportunity to expose Democrats. “There is this growing cafeteria socialism where Democrats pick and choose elements here and there and put them on a platter because they sound conducive to running a progressive-sounding campaign,” Hunter said. “If you are espousing Medicare for All and free college for everyone, but ultimately still allowing for capitalist interests to run amok … then you are not a socialist. You’re just running on a platform that draws people in falsely.”

Calling Ocasio-Cortez a fake progressive is a risky game, given that she’s one of the most popular Democrats in America. But it does seem like the natural place for the Green Party to go in 2020. Third parties, after all, are historically for people who not only dislike the two major parties, but don’t believe the major parties will ever change. “I think if you work within the Democratic system, you have to be incredibly honest about who the Democrats are, which is that they are pro-capitalism, very moderate, and don’t want to move very far left to tackle the changes we see worldwide,” Shlakman said. “Sure there’s an avenue for socialists to upend the Democratic Party from the inside, but they’d really have to be at war with their own party. And I don’t see that in Cortez.”

The chances of a socialist revolution within the Democratic Party is unlikely. Only one of its presidential candidates even uses that term to refer to himself, with the modifier “democratic”—and Sanders isn’t even a member of the party. So the Green Party surely still appeals to those who want the American economy to become fully eco-socialist—an inconsequential niche of voters, electorally speaking. But that’s not to say the party is without political influence. The Greens’ history as a spoiler threat might keep the Democrats honest, ensuring they don’t nominate a moderate who won’t at least entertain Medicare for All and the Green New Deal.

Then again, leftist voters may be so motivated to remove Trump from office that they’d hold their noses and vote for, say, Amy Klobuchar or Joe Biden.

“Keep thinking that,” Hunter warned. “We’ll be out here knocking on doors.”

Emily Atkin is a staff writer at The New Republic.
@emorwee

Clarence Thomas wants to crush the free press just like Southern segregationists of the 1960s. By Will Bunch

Updated: February 21, 2019 - 2:00 PM
by Will Bunch

There was another time in America — when a young cadet named Donald Trump was still parading the grounds at New York Military Academy and the Supreme Court consisted of nine old white men — when a gaggle of high-level elected officials declared that journalists were an enemy of the people.

And that’s not the worst part. What’s really scary is that attacks on a free press that were centered in Alabama during the early 1960s nearly worked — and that their malicious campaign might have shut down the civil rights movement led by Dr. Martin Luther King Jr., before it got off very far off the ground, thus continuing to deny African-Americans the right to vote or even use the same water fountain as a white person.
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    How Clarence Thomas used a civil case against Bill Cosby to call for a reexamination of libel laws

In 1960, as King — the well-known leader of the Rosa Parks-sparked Montgomery bus boycott — was looking to expand his movement against Southern segregation, officials in Alabama charged the young minister with perjury. A group calling itself the Committee to Defend Martin Luther King and the Struggle for Freedom in the South placed a full-page ad in the New York Times calling attention to the case and seeking to raise money for King’s defense. It was headlined “Heed Their Rising Voices.”

Alabama’s white, pro-segregation leaders had other ideas. Having vowed “massive resistance” to racial integration, top officials — beginning with Montgomery’s public safety commissioner L.B. Sullivan, later joined by Alabama’s governor — sued the New York Times as well as prominent black ministers for libel over the allegations in the ad, Bringing their cases in state court before all-white juries who’d been whipped into a frenzy against “outside agitators” by their political leaders, Sullivan eventually won a $500,000 judgment — a sum that would have been highly damaging to the Times in those days.

But even worse, the case had a chilling impact on coverage of the civil rights movement by the New York Times and other Northern newspapers right at a critical moment for King and other activists. They desperately needed publicity outside the South — to raise money, rally public support, and woo Northern members of Congress to their cause. But the legal proceedings, and fear of being served with court papers, kept the Times’ legendary reporter on the civil rights beat, Claude Sitton, out of Alabama for much of a two-year period.

Hank Klibanoff, the former Inquirer journalist who co-authored (with former Inquirer editor Gene Roberts) the Pulitizer Prize-winning book The Race Beat about journalism and the civil rights movement, told me that Sitton chafed under the notion that government officials could prevent him from covering a story. One night, he said, the Times man lost his cool over the phone with his editors as he missed another Alabama scoop. Sitton snapped: “How long are you gonna let the damn lawyers run the newspaper!”

The answer, it turned out, was until 1964. That’s the year that the case called New York Times Co. v. Sullivan finally reached the U.S. Supreme Court and justices issued a landmark 9-0 ruling that said public officials couldn’t sue journalists for libel except in the unlikely event that a newspaper knowingly published a recklessly false story. Subsequent court cases would extend that standard to any public figure.

Today, few people know this story behind New York Times Co. v. Sullivan, but the impact of that ruling has shaped modern American politics, by freeing investigative journalists to expose not only national scandals such as Watergate or the conduct of the Vietnam War but hundreds of cases of local graft and corruption — all without fear of unwarranted libel suits as a form of harassment. This modern notion of this role that an unfettered free press plays in our democracy is now so ingrained it’s easy to take for granted.

Until the people who run this country threaten to take it away.

That’s why the opinion issued this week by Supreme Court Justice Clarence Thomas — in a libel case involving comedian Bill Cosby and one of his sexual-assault accusers — stating that he wants the High Court to take a second look at New York Times Co v. Sullivan, that the 1964 ruling and later cases that strengthened it were "policy-driven decisions masquerading as constitutional law.”

Thomas argued that since there’s no specific language in the Constitution protecting public figures, the Sullivan case was wrongly decided. It’s a point that embraces the justice’s so-called Originalist view of the Constitution, but Thomas could not have picked a more fraught time to make it. For one thing, Thomas’ position aligns closely with that of President Trump — a life-long tabloid celebrity who declared as a candidate that he wanted to make it easier to sue journalists for libel. Since then, Trump has appointed two of the other eight justices and one of them, Neil Gorsuch, concurred with Thomas’ statement.

More importantly, the legal thunder bolt came at a moment when press freedom is under verbal and occasionally physical assault from the president and his supporters. Just hours after Thomas’ opinion, Trump tweeted that the New York Times is “a true ENEMY OF THE PEOPLE,” a Stalin-flavored threat that the president has resorted to on nearly two dozen occasions. And shortly after that, an active Coast Guard member with a large cache of weapons was arrested and charged with threatening to kill journalists from MSNBC and CNN (as well as Democratic politicians.) Christopher Hasson was stopped in time — but the Trump rally attendee who recently jumped into the press area and pummeled a BBC cameraman was not.

If threats and physical bullying doesn’t chill press freedom, the idea that the president of the United States could, at some future date, sue the New York Times over stories he doesn’t like, like this week’s report on his alleged efforts to interfere in federal probes of him and his allies, is downright terrifying. Donald Trump and Clarence Thomas long for an America where powerful people like them cannot be held accountable.

What’s more, the notion that the only black member of the Supreme Count — named to the seat as a replacement for civil right icon Thurgood Marshall — wants to blow up the court ruling that aided Martin Luther King in taking down segregation is beyond irony.

Christopher Schmidt, a professor at Chicago-Kent College of Law who focuses on the Supreme Court, wrote a lengthy history of the New York Times Co. v. Sullivan case on its 50th anniversary. He found that pro-segregation Southern officials used a variety of legal tools — tax investigations, student discipline, regulation of protests — in seeking to squelch the civil rights movement. But libel lawsuits — particularly in Alabama — proved an especially effective tactic...for a time.

“They used this as a legal tool to send a message to civil rights activists — and to the press,” Schmidt told me. Sullivan was just one of five Alabama officials who sued the New York Times over the King ad; in addition, a sheriff sued the Ladies Home Journal seeking $3 million for a story on police brutality, and CBS News and Times reporter Harrison Salisbury, who accused Birmingham’s white establishment of racism, were also targeted in the courts. That form of harassment-by-lawsuit — and the burdens for news organizations to mount a legal defense — might have lasted for years if not for the Sullivan ruling.

Schmidt said it wouldn’t be easy today for Thomas to get the five votes necessary to overturn the 1964 ruling, since two of the Supreme Court’s conservative majority — Chief Justice John Roberts and Justice Samuel Alito — don’t share his Originalist philosophy. But maybe that wasn’t so much Thomas’ point as simply raising the question of whether the role that journalism plays in a democratic society is even essential, at a moment when a president who works to spin his own reality out of fiction is about to seek re-election.

On the other hand, Thomas’ judicial broadside could backfire — but only if it helps to remind everyday Americans that we can’t take it for granted that investigative journalism will always be there to ask tough questions of the high and mighty. That’s why it’s also important to remember the history of how ill-intention politicians nearly spiked the story of Martin Luther King.

I asked Klibanoff to imagine what America would look like without the bold press protections that were defined in the original 1964 decision. He said, “You would see one tombstone after another for all of the stories that never made it to print.”
by Will Bunch
Posted: February 21, 2019 - 2:00 PM
Will Bunch | @will_bunch | bunchw@phillynews.com

More Thoughts on the End of the Mueller probe – Talking Points Memo / by Josh Marshall / now

We’re now getting a clearer picture of what appears to be the conclusion of the Mueller probe. The Post followed CNN’s initial report.

The initial CNN report was solid and now appears confirmed by other reports. But it was jagged, a few chunks of information that were hard to make sense of. The Post piece adds important context and fused the pieces together in a clearer way. At least implicit in the Post’s version of events is that this appears to coming from Mueller’s side. I mean that not just in the sense that it appears to be driven by Mueller rather than some outside force shutting down his operation. I mean it also in the sense it’s not clear to me that the people on the DOJ side, or at least the people talking to reporters, really know what Mueller has planned. There are obviously a range of potential scenarios.

Along that line I wanted to point you to a very helpful run-down by Garrett Graff. Graff is very sharp and has followed the investigation minutely. Equally important he wrote a biography of Mueller before Mueller became a household name. So he has real characterological insight into the man, which is helpful here.

One point which I saw from I think Marcy Wheeler is that there’s another, probably more accurate, way to look at the timing of all this: It likely wasn’t Barr coming in and doing something. It was much more likely Mueller waiting for Barr to be in place to act. That doesn’t mean he was ready six months ago and waited or really had six more months of work but cut it short. But Mueller likely had a real interest in not reporting or concluding during the Whitaker interregnum. Even setting aside the substantive concerns about Whitaker’s unfitness for the job, he was only there in an acting basis. There were also real questions about whether he was even legally Attorney General at all. Given an action of this consequence, with so much at stake about public confidence in what was happening and the legal durability of any result, that makes a lot of sense.

Barr is a former Attorney General who was duly confirmed in the role. Whatever the substantive questions about him, he’s a legitimate Attorney General. He also apparently has a personal relationship with Mueller – not surprising since they’ve both operated at the highest echelons of federal law enforcement. This timing also makes sense of Rod Rosenstein’s departure, though it’s pretty much a given that Barr would bring in his own person to be deputy. That’s entirely normal.

Fundamentally we simply don’t know what is going to happen next week or whenever this conclusion happens. Graff has a good explanation of the range of possibilities. More broadly, based on the subsequent reporting, I think it’s better to see this as ‘Mueller thinks he’s answered the big question, so he’s wrapping up’. As Graff notes, that could be a range of possibilities from just telling Barr that he’s done with a minimal discussion of why he didn’t charge others (and implicitly that he didn’t find collusion) to something far more dramatic.

One final point to note which to me tends to confirm the above points. There’s a passage in the Post article that seems quite significant to me.

According to people familiar with the special counsel’s work, Mueller has envisioned it as an investigative assignment, not necessarily a prosecutorial one, and for that reason does not plan to keep the office running to see to the end all of the indictments it has filed.

The takeaway from the Post is that this makes sense of Mueller’s apparent willingness to hand off the job while a number of the cases remain to be prosecuted. That makes sense. But if this characterization is accurate it suggests something else that is equally important. If it’s investigative assignment that tells me he saw it as core to his brief to determine whether collusion had happened. Or to put it more precisely, to determine whether there had been substantive contacts or coordination between members of the Trump campaign and Russia or a full blown conspiracy. As I’ve said for years now, an answer to that core question is much more important than whether this or that person spends whatever period of time in jail. If that is how he saw the assignment I suspect he is only finishing the probe because he thinks he’s answered the question. And he will at least be reporting back the answer to his superior at the DOJ, i.e., Bill Barr.

What the answer is or how much is revealed, basically what’s going to happen, we just don’t know. We just don’t know and I don’t think anyone really does.

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Democracy for Republicans by Jacob T. Levy

Democracy for Republicans

BY  

JACOB T. LEVY

FEBRUARY 20, 2019

Various politicians, activists, and thinkers, some of them here at Niskanen, are already making plans for what a post-Trump center-right will be. Both those who are actively “Never Trump” and those in the furrowed-brow caucus expressing occasional concern at intemperate tweets recognize the possibility that sooner or later there will be a need to shape a very different Republican Party. That means there will be opportunities for those with ideas about how to distance themselves from the disgrace of the current era.

One sign of seriousness for such people would be a commitment to building a Republican Party that can win free and fair elections, a Republican Party whose strategy rests on appealing to pluralities or majorities and that can embrace more voters rather than fewer. A serious post-Trump agenda requires a Republican commitment to democracy.

The indictment of Republicans on this count is familiar but no less accurate for that. (My colleague Will Wilkinson has written about it often.) At the federal level, Republicans have won a plurality of the popular votes cast in a presidential election only once in the last thirty years. They’ve managed majorities of the electorate for the U.S. House twice over the same time span. The Senate isn’t elected all at once and so comparisons with the electorate are harder, but the discrepancy between total votes cast and Senate outcomes has grown to historic highs, and to the advantage of Republicans. At no point in the last 25 years have self-identified Republicans outnumbered self-identified Democrats among the electorate. But this Republican minority has controlled the presidency, the House, and the Senate disproportionately often over those years, winning the presidency twice on the basis of Electoral College-popular vote mismatches, and building up what has been calculated as roughly a 7 percent bonus in the House such that if Democrats had won the national popular vote by 6 percent instead of 8.6 percent last November, they probably would not have recaptured control. And, like the Federalist Party facing electoral extinction in 1800, Republicans have worked to secure themselves a permanent redoubt in the judiciary. Mitch McConnell, leading a Senate majority that represented a minority of the electorate, held open the Supreme Court vacancy left by Antonin Scalia’s death in 2016 and refused to allow the Obama administration to expose Russian interference in the election in a bipartisan way in order to secure the victory (in the Electoral College) of Donald Trump, who would then fill the seat and cement a probably decades-long conservative majority on the Supreme Court.

A favorite reply to the complaint about the Electoral College outcomes is to note that campaign strategies are endogenous to the electoral rules, and that it is impossible to infer what would have happened if both campaigns had been trying to win the popular vote instead. That reply is probablyright as to 2000, when the popular vote margin was .5 percent and candidate popularity as measured by opinion polls was essentially tied. It’s probably impossible to know the counterfactual as to who would have won if both campaigns had been seeking popular majorities all along. It is certainly wrong as to 2016, when the popular vote margin was much larger, when there was a hard ceiling on Trump’s support nationwide, when polling consistently showed a Clinton lead even after the Comey letter, and when the urban-rural divide in voting strength was much larger than in 2000. (If you are trying to run up large popular margins, you have to be able to focus get-out-the-vote efforts in concentrated areas with large populations and a large majority favoring your candidate, i.e., cities.)

At the state level, matters are different but no better. The starkest symbol of the Republican approach to state politics is provided by the fact that two GOP secretaries of state, Kris Kobach of Kansas and Brian Kemp of Georgia, served as chief election officers and pursued extremely aggressive purges of voting rolls while running for governor. (Kemp won, Kobach lost.) After the 2018 election, Republican legislatures in Michigan and Wisconsin rewrote the separation of powers in their states, using bills signed by lame-duck Republican incumbents to change the rules of the game for their incoming Democratic successors. (The same had happened in North Carolina in 2016.) And Republican legislatures have conducted a decade-long assault on voting rights in the states, ratcheting up identification requirements, conducting scare campaigns against immigrant voters that chill participation by Latino citizens, rolling back early voting and absentee voting, and playing games with the opening hours and numbers of polling places in Democratic-leaning cities. The best current research suggests that the voter ID laws in particular have not had much effect on turnout, but that’s not for lack of trying on the part of Republicans.

And the state and federal levels interact. The Republican failure to command majorities of votes cast at the federal level is all the more striking given the state-level efforts to limit the electorate in the first place. And the Republican-dominated Supreme Court gutted the Voting Rights Act in the 2013 decision Shelby County v. Holder, opening the floodgates to almost-entirely-Republican state-level efforts to restrict access to the ballot.

The Republican Party is now the beneficiary of all the countermajoritarian mechanisms that make it difficult to translate voting pluralities or majorities into electoral wins, including those that were deliberate creations of constitutional design, those that evolved more or less accidentally, and those that were opportunistically engineered in recent decades. It is moreover the beneficiary of actions that selectively suppress voter turnout and eligibility to vote. Democrats more often than not command popular-vote pluralities even though many Democratic-leaning voters are discouraged or prohibited from getting to the ballot box at all.

The Trump administration has tried to blow smoke about all this, asserting, in defiance of all evidence, that millions of illegal votes cost Trump the popular vote in 2016. In reality, Trump’s victory stands as the culmination of a Republican willingness to give up on trying to reach pluralities or majorities of voters, and to be willing to grab any narrow victory by any means necessary, and in particular by aggressively trying to discount the votes of African-Americans, Hispanics, and Native Americans relative to those of whites. McConnell’s machinations in 2016 tie the whole Republican enterprise of minoritarian election-rigging to Trump, and if he goes down in disgrace, the enterprise that secured his victory should go with him.

The intellectual distrust of democracy

It’s often hard to know how directly to connect political ideas and political practice. What GOP politicians have done has been explicable as power-seeking. But conservative, center-right, and market-liberal thinkers and politicians have a longstanding suspicion of arguments that put a great deal of emphasis on majoritarian democracy. Even at levels much more sophisticated than the mindless invocation of “a republic, not a democracy” (neither of those words meant what you think they did in the 18th century, and the sense in which the contrast made sense then does not apply to any significant dispute today), intellectuals of the center-right and right have not put much normative pressure on allied politicians to be good democrats, because they have their doubts about the priority or even the value of democracy.

There are many overlapping reasons for this. During the decades when the central battle of political ideas was between capitalism and socialism, those who favored the former worried that majoritarianism tended toward the latter. The many, so it was thought, will always be easy to persuade to tax the wealthy few, if not expropriate them outright. The heroic individual entrepreneur facing a hostile democratic mob figured large in the political-economic imagination of the postwar (really the post-New Deal) right. The desire of the democratic many to vote themselves bread and circuses at the public expense was a constant rhetorical trope. The success of undemocratic but market-oriented Hong Kong was widely celebrated, most famously in Milton and Rose Friedman’s Free to Choose (in print and on television). More recently, market-liberal thinkers have made a great deal out of the social science literature on voter ignorance, over and over again debunking the idea that democratic majorities automatically know best, that majority will is proof of the wisdom of the political action that follows. Those who understand the way that markets process dispersed information often believe that political decisions compare unfavorably to market processes. And writings by the Founders add prestige to a suspicion that democracy amounts to mob rule.

All of this encourages American conservatism and market liberalism to overlook the deep relationship between democratic government and modern commercial capitalism, a relationship that was unknown to the Founders because it postdates them. The kind of positive-sum market economy that has transformed the world since 1800 through compounding productivity increases and economic growth is very different from the ancient Rome riven by class conflicts over zero-sum land distribution, but the Founders understood the Roman precedents better than they understood the world that was about to emerge. And that economic world emerged with,not against, the development of a kind of democratic government they also did not foresee, government by contending, permanent political parties alternating in power by competing for votes in a mass-suffrage society. As North, Wallis, and Weingast show in Violence and Social Orders, we should really understand democratization and the rise of commercial capitalism as part of the same process, one they characterize as the rise of the open-access order. The organizational and legal tools that coalitions of elites had previously reserved for themselves as tools of rent extraction — enforceable contracts, the right to incorporate, secure property ownership, political caucusing, and of course the franchise — were broadly democratized over a surprisingly short span of decades. And so the corporation, which had been a vehicle for mercantilist and protectionist monopoly granted by royal privilege, became a generally accessible organizational form usable for almost any legally permissible collective activity; elite parliamentary caucus groups developed into mass-membership-based political parties; and the share of the adult population with formal political voice skyrocketed, approaching 100 percent in just over a century. This was the era of the takeoff in capitalist economic growth — not, as all those examples from classical antiquity suggested to 18th-century thinkers, an era when the expanding franchise led to the expropriation of the rich and the destruction of private wealth.

As I suggested in the prior essay in this series, Benjamin Constant perceived that the emerging new order would face a different kind of threat. While he understood all too well the dangers posed to it by revolutionary mobs, he also saw that those who comfortably enjoyed the fruits of modern commerce could easily be tempted away from the democratic defense of it. Democratic politics is both time-consuming and uncertain, and so, he thought, the middle and moneyed classes would be easily swayed by the Bonapartist temptation: the autocrat who promised to deploy the security apparatus of the state in defense of order and stability, and without requiring the time or energy of political engagement. And so it has been. The political scientist Daniel Ziblatt, who rose to public fame along with his co-author Steven Levitsky for his analysis of the breakdown of democratic norms and the rise of authoritarian populism in How Democracies Die, documented in an earlier book how historically, conservative parties have been the crucial hinge in whether democracy emerges and stabilizes in the first place. Especially when they are weak, they may give in to the temptation to use the security forces to solidify existing privilege, and they can prevent democratization altogether. (Constant, no friend to socialism, wrote further about the risk of coups d’etat and constitutional violations carried out in defense of existing property relations in his Principles of Politics.)

Two things should be noted here. One is that it upends the classical republican idea that the threat to constitutional government comes chiefly from the redistributionist mob, the stereotypical seekers of bread, circuses, and land reform. While there have been deeply despotic socialist regimes in modernity, these have almost never come about through the domestic subversion of democratic governments; they have been imposed by external military domination or else have replaced domestic oligarchic autocracies of one type or another. The fear of the redistributionist mob exercises a powerful hold on the conservative imagination, and has often served as an excuse for repression and constitutional violation. But we should understand that excuse as an excuse.

The second thing to note is that stability of existing ownership is not the same as liberal markets and commercial society. When conservative parties subvert democracy in the name of fighting redistribution or socialism, market liberals often let themselves be fooled into thinking that what’s being defended is something like the kind of capitalism they support. But ownership is not commerce. (Locke is not Smith, and Smith is the truer source of market liberalism.) It was the abolition of entail and primogeniture, the conversion of landed estates into ordinary factors of production to be bought and sold, that helped to launch commercial society, not the creation of the landed estates in the first place. The violent defense of existing ownership is a return to the regime of rent-seeking by traditional elites that the open-access order displaced. That we use “rent” to describe both the general category of unearned returns to privilege and the specific case of returns to incumbent landowners is not a coincidence. For a microcosm of what the prioritization of the privileges of incumbent owners over the interests of a freely exchanging market means, consider NIMBY barriers to building construction in many American cities, ably surveyed by my Niskanen colleagues Brink Lindsey and Steven Teles in The Captured Economy.

And so the distrust of democracy among market-sympathetic liberal and conservative thinkers is a deep and pernicious mistake. It typically juxtaposes democratic decision-making to market decision-making, as if “democracy” were just a synonym for “politics” or “the state,” as if the contrast to “democratic” were “economic” rather than “autocratic.” We should sharply distinguish the question of how much the state ought to do from the question of how much democratic control of the state there ought to be, and thereby stop allowing market-liberal critiques of too much politicsto be used as any kind of intellectual cover for the erosion of democratic government.

And cover is all it is. Taken all together, really-existing American limits on fairly representative and competitive democracy are laughably unrelated to the principled justifications intellectuals offer for some or another corrective to untrammeled majoritarianism. The interlocking and mutually-reinforcing system of state and federal constraints on democracy across branches doesn’t select for more-competent voters, or promote more liberty-respecting outcomes, or create a countermajoritarian political culture. The package of existing limits on majority political rule don’t generate markets or liberty or limits on politics; it just generates minority political rule.

The independent judiciary is and needs to remain counter-majoritarian in order to constrain the scope of state power as such. But the case for countermajoritarianism in the elected branches that settle who is in charge of state power is very much weaker. Even the Senate, the most constitutionally-defensible component of the package (and one I have defended in my own writing on federalism over the years) at this point overrepresents the economic interests of primary industries and the nationwide ideological positions of rural whites much more than it represents the states qua states, its notional justification in the system. And that notional justification itself rested on balancing out state governments, a House, and (since the Twelfth Amendment and the rise of parties) a presidency that are responsive to the majority, and loses its force in the present arrangement.

I can imagine a defense of the Electoral College that makes a virtue out of its occasionally nonmajoritarian outcomes. Those outcomes could teach us not to fetishize the results of an election, not to equate a procedural victory with the unified popular will, still less with moral truth. Teaching people not to overinflate how much an electoral victory morally means would be productive and valuable, and the victors could govern in an appropriately chastened way, understanding the element of chance in their victory. I’m fond of quoting the philosopher Bernard Williams’ dictum about the importance but difficulty of remembering that a victory in politics“does not in itself announce that the other party was morally wrong or, indeed, wrong at all. What it immediately announces is that they have lost.” The occasional popular-Electoral mismatch could drive this lesson home and remind everyone not to treat victory as implying vox populi as in turn implying vox dei.

But this is nothing like what actually happens. Post-2016 Trump and post-2000 Bush instead governed with an almost fanatical determination to pretend that their victories did represent a unified national will. Trump’s brand of politics in particular leaves no room for that modest sense that victory was just something that happened to happen. He instead throws himself into the attitude that winning proves he was right about everything, that it provides a universal absolution for any previous wrongs, that it means he was chosen by The People, his critics are enemies of The People, his opponents are actually traitors. And his supporters embrace all of this. If a countermajoritarian or semimajoritarian institution like the Electoral College yields political winners who pretend to have supermajoritarian legitimacy rather than winners with a chastened sense of political contingency, then it’s not serving any useful purpose of checking majority power or passion. It’s just giving a minority the power of a majority, and encouraging the minority to keep re-engineering the rules to immunize itself from political challenge.

Electorate-rigging is rent-seeking

Winning a majority vote doesn’t have all the moral importance that the romantic conception of a democratic will imputes to it. But that doesn’t somehow make the inabilityto win a majority vote into a virtue. Countermajoritarianism has some place as a check on untrammeled power, but it is not itself a foundation for political legitimacy.

Imagine if Democrats had won the popular vote for the House by only 5 percent or 6 percent and had failed to flip control of the chamber, at a time when the Republican Senate majority represents an electoral minority, and a president whose legitimacy is deeply compromised on other grounds to begin with was chosen by an electoral minority, and that president and Senate are locking in control of the Supreme Court for years to come. And, faced with the knowledge of their shrinking popular base, imagine that Congress and president further enabling state-level disenfranchisement efforts.

When incumbent owners and industries shape the rules to prevent themselves from facing free and fair competition, supporters of open markets have no difficulty in condemning that as rent-seeking. The attempt to engineer electorates to one’s liking — through selective identification requirements or restricted ballot places and hours, through gerrymandering, through felon disenfranchisement, and so on, and so on — is also rent-seeking. It is the effort to replace general, impersonal, rule-of-law-type decision-making procedures with self-reinforcing power for incumbent elites. Political power is both itself a valuable good and is the key instrumental good in the pursuit of rents. Empowering political coalitions to constantly reselect their own electorates, rewrite the separation of powers rules under which they operate, and redefine the rules of competition in their own interest just isto enshrine rent-seeking as standard operating procedure.

Rolling back the political economy of rent-seeking and favoring universal, impersonal, rule-of-law policy has been a priority of my Niskanen colleagues since even before there has been a Niskanen Center. Steven Teles coined the marvelously ugly word “kludgeocracy” to describe how much of American policy works: don’t admit what you’re doing, don’t be transparent about costs, don’t make the rules easy to understand, jury-rig a regime of complexity and exceptions that is ripe for opportunism and rent-seeking. That describes American democratic procedures, not just American public finance. The rules for voting can be made needlessly obscure and complex just as much as the tax code can, and with the same consequences. We can’t prioritize the policy reforms of constraining rent-seeking and protecting open access to markets and universal access to equal state benefits while ignoring the political processes built to protect those rents. While there is always an element of arbitrariness and artifice in the choice of procedures, while jurisdictional rules don’t correspond to universal truths, there is a difference between aiming at universal access under general rules and aiming to, as the 4th U.S. Circuit Court of Appeals put it, build a gerrymander that “would target African-Americans with almost surgical precision.”

And in the United States, the incumbent elites seeking to entrench their power against fair competition have almost always been whites. They haven’t always been Republicans, as the Republican Party was not always the party of white domination; but today it is, and they are. Occasional efforts to break that power and open the channels of political competition are always met by protests in the name of not only countermajoritarian republicanism but also federalism and state autonomy. The Fifteenth Amendment, however, includes an express grant of legislative power to Congress, the power to take action to ensure that states do not discriminate by race in access to the ballot box. This was the purpose of the Voting Rights Act. The Supreme Court gutted enforcement of the VRA in the misguided Shelby County v. Holder in 2013. Probably the most important reform is to undo that. The Court complained that states and localities were subject to special scrutiny based on 40-year-old information; Congress can reply with a new round of findings and a new formula, restoring the preclearance system. One of my main questions for Republicans who present themselves as representing a break with Trumpism is whether they are willing to endorse such a re-establishment of the VRA. If they are not, then at best they have misunderstood what made the system so vulnerable to Trumpism in the first place, and at worst they intend to keep Trump’s minoritarian and white-supremacist Republican Party intact without the embarrassing tweets and collusion.

Now, I don’t think that being a good-faith Republican reformer requires just signing on to all Democratic proposals for electoral reform, such as everything wrapped together in the Democrats’ HR 1. Besides the Voting Rights Act there is a great deal that everyone trying to make a break with the era of Trump should be able to agree on — requiring that presidential candidates disclose tax returns, for example — but there will certainly be room for debate on, say, campaign finance, statehood for D.C. and Puerto Rico, and expanding the size of the House. Indeed, I think it would be healthy for there to be different partisan voices and interests among the good-faith efforts to improve the political system, and unhealthy if Republicans cede that ground to Democrats entirely.

It would be good, in other words, to have a competition in the direction of freer, fairer, and more open-access elections, with competing ideas about what that means and what to prioritize. That’s compatible with making an issue out of instances of Democratic misconduct that themselves call for future-oriented, general, rule-governed remedies. But it means not an agenda based on fake panic about nonexistent undocumented-immigrant voting or almost nonexistent voter fraud, not an agenda about dressing up restriction as reform. I am not sure that there are currently any powerful Republicans who are willing to try to take part in those debates, Republicans who are willing to embrace the goal of building a party that can win pluralities and majorities of freer and more open elections. I am sure that it will be a good sign when there are.

In the conclusion of this series, I will discuss the relationship between this agenda of post-Trump democratization and the problems of using “moderation” as an umbrella concept for the path forward.

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Jacob T. Levy is Tomlinson Professor of Political Theory and Director of the Yan P. Lin Centre for the Study of Freedom and Global Orders in the Ancient and Modern Worlds at McGill University; author of Rationalism, Pluralism, and Freedom and scholarly articles including, most recently,”Contra Politanism” and “Political Libertarianism;” and a Niskanen Center Senior Fellow and Advisory Board Member.