Limitations of the Law

Michael Bekesha makes a point in his op-ed in the Wall Street Journal:

This should never have happened. The Presidential Records Act allows the president to decide what records to return and what records to keep at the end of his presidency. And the National Archives and Records Administration can’t do anything about it. I know because I’m the lawyer who lost the “Clinton sock drawer” case.

In 2009, historian Taylor Branch published “The Clinton Tapes: Wrestling History With the President.” The book is based on recordings of Mr. Branch’s 79 meetings with Bill Clinton between Jan. 20, 1993, and Jan. 20, 2001. According to Mr. Branch, the audiotapes preserved not only Mr. Clinton’s thoughts on issues he faced while president, but also some actual events, such as phone conversations. Among them:

  • Mr. Clinton calling several U.S. senators and trying to persuade them to vote against an amendment by Sen. John McCain requiring the immediate withdrawal of troops from Somalia
  • Mr. Clinton’s side of a phone call with Rep. William Natcher (D., Ky.) in which the president explained that his reasoning for joining the North American Free Trade Agreement was based on technical forecasts in his presidential briefings.
  • Mr. Clinton’s side of a phone conversation with Secretary of State Warren Christopher about a diplomatic impasse over Bosnia.
  • Mr. Clinton seeking advice from Mr. Branch on pending foreign-policy decisions such as military involvement in Haiti and possibly easing the embargo of Cuba

The White House made the audiotapes. Nancy Hernreich, then director of Oval Office operations, set up the meetings between Messrs. Clinton and Branch and was involved in the logistics of the recordings. Did that make them presidential records?

The National Archives and Records Administration was never given the recordings. As Mr. Branch tells it, Mr. Clinton hid them in his sock drawer to keep them away from the public and took them with him when he left office.

When Judicial Watch made a FOIA request for the tapes and they lost on these ground:

Judge Jackson added that “the PRA contains no provision obligating or even permitting the Archivist to assume control over records that the President ‘categorized’ and ‘filed separately’ as personal records. At the conclusion of the President’s term, the Archivist only ‘assumes responsibility for the Presidential records.’ . . . PRA does not confer any mandatory or even discretionary authority on the Archivist to classify records. Under the statute, this responsibility is left solely to the President.”

That is very closely related to the point I’ve made in several posts about the constitutionality and enforceability of the PRA.

Said another way the charges filed against President Trump are not open and shut. I’m not staking a position out one way or the other—just pointing out that it’s complicated and may not be settled law.

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The Lack of Suspense Is Killing Me

Was anybody surprised that President Trump entered a “Not Guilty” plea this afternoon? I certainly wasn’t.

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Improving Healthcare for Minorities and the Poor

I found this piece by Scott Atlas on improving healthcare for minorities and the poor at RealClearPolitics interesting. The article itself is a sort of grab bag of complaints about the U. S. healthcare system and, particularly, Medicaid. Here’s a snippet:

The goal should be to increase access to high-quality health care and improve health, not simply to label people as “insured.” But Medicaid patients fare worse than patients using private insurance in study after study – even after standardizing for medical differences among patients. Those bad outcomes include more frequent complications and more deaths in treated cancers, heart procedures, transplants, and major surgeries. A 2013 Oregon randomized study’s most striking conclusion was that Medicaid fails to improve physical health beyond no insurance at all.

and here’s an example of what he’s complaining about:

Infant mortality rates have been improving in the U.S. since 1995, with the lowest in history for all races recorded in 2020, but infant mortality rate by race of the mother for blacks (10.38) remains double to triple that of infants born to whites (4.4), Hispanics (4.69), or Asians (3.14). Similarly, Hispanic Americans and whites have a life expectancy six years longer than blacks, not counting data since the pandemic.

That difference in health outcomes has been put forth as a key reason to expand single-payer health insurance in the United States. An inexplicably ignored logical flaw in that argument is that those very same health disparities for minorities are seen in the countries with the longest history of single-payer healthcare systems. For instance, in the government-run system of Canada, Inuit and First Nation infant mortality was two to four times that of non-indigenous Canadians and Quebecois. The same goes for the United Kingdom, where black Caribbean and black African infant mortality rates are double those of whites.

Decreasing infant mortality is a worthy goal but achieving it is not trivial. The very examples cited above illustrate the problems. Under the British system everyone is insured under the same system of national health. If the black mothers in the UK experience the same level of infant mortality as they do here in the States, it calls into question bringing everybody under the same system as a solution. Canada, where insurance is handled by the provinces, has problems on roughly the same scale. The infant mortality rate among Hispanics is roughly the same as among whites regardless of income.

There appears to be a pretty close correlation between low birthweight babies and infant mortality and there appears to be a correlation between substance use in pregnancy and low birthweight babies. Could it be that social issues have more to do with it than care or genetics?

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Where Should We Be Focusing Our Interest?

I agree with this observation in Walter Russell Mead’s latest Wall Street Journal column:

As is traditional, Latin populists are blaming capitalism and the U.S. for the otherwise inexplicable failure of their pet policies. They are also rolling out the red carpet for America’s opponents, literally in the case of Iran’s President Ebrahim Raisi, who is following up his navy’s recent visit to the region with official visits to Cuba, Nicaragua and Venezuela.

Ties with Russia and China are booming. Moscow has resumed its Cold War efforts to subsidize a Cuban economy that somehow, despite 60 years of enlightened socialist planning, remains unable to meet the basic needs of the population.

But Moscow’s efforts are dwarfed by Beijing’s. Chinese trade with Latin America and the Caribbean rocketed from $18 billion in 2002 to $450 billion 20 years later and is projected to reach $700 billion by 2035. From lithium mining in Bolivia to strategic ports at both ends of the Panama Canal, Chinese companies are getting involved in vital infrastructure. Eleven or more space facilities across five countries in the region give Beijing sophisticated tracking and surveillance capabilities, and China hopes to expand this network.

The steady incursions of U.S. rivals into the Western Hemisphere would have touched off a political firestorm at any time since James Monroe issued his famous doctrine. But Latin America and the Caribbean are the last remaining places where the American foreign-policy establishment appears to cling to post-Cold War complacency about America’s rivals. Just as the establishment once scoffed at the idea that Russian ambitions in the former Soviet republics could pose a threat to European peace, or that China’s military buildup around Taiwan could affect American interests, it now blandly dismisses the idea that focused Chinese, Russian and Iranian activism in the Western Hemisphere could undermine American security.

At this point there is barely a stable government in all of Latin America. Our relations with our southern neighbors have hardly been worse even as our Hispanic population has never been greater.

I find it hard to understand why we’re focusing so little attention on Central and South America and so much practically everywhere else.

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Strong Enough?

Here’s the kernel of Alan Dershowitz’s Wall Street Journal op-ed:

Mr. Smith has made a stronger case against Mr. Trump than many observers, including me, expected. The question remains: Is it strong enough to justify an indictment of the leading candidate to challenge the president in next year’s election? Even with the recorded statements, this case isn’t nearly as strong as the one that led to President Richard Nixon’s resignation in 1974. Nixon was almost certainly guilty of destroying evidence, bribing witnesses and other acts of obstruction. Many of the charges in this case are matters of degree. Nor have prosecutors any evidence that Mr. Trump’s actions damaged national security more than those of Mr. Biden, Mr. Pence and Mrs. Clinton did.

When an incumbent administration prosecutes the leading candidate against the president, it should have a case that is so compelling that it attracts the kind of bipartisan support that forced Nixon to resign. No such support is currently apparent, since many Republicans continue to be troubled by the targeting of Mr. Trump. Mr. Smith will have to convince not only a Miami jury but the American public, on both sides of the partisan divide.

Mr. Dershowitz is correct that President Trump in his truculent attitude towards his accusers has created some of his own problems:

Mr. Smith had a lot of help from Mr. Trump. Had the former president cooperated with investigators and immediately returned all the classified material in his possession, as Messrs. Biden and Pence did, charges would have been unlikely.

Unmentioned is that it is also possible that the multiple baseless or, at the very least, weak accusations made against Mr. Trump by his political opponents since before the election has rendered the bipartisan consensus referred to above by Mr. Dershowitz on Watergate less likely.

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Question About the Indictment

If President Trump is tried on the charges in the indictment and not convicted or if the case is dismissed in the courts, will you be satisfied with the outcome?

I’ll be satisfied with the outcome whatever it might be. I also think the charges are serious.

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Profligacy

At EconLib Scott Sumner points out something interesting and distressing: the federal deficit as a percentage of GDP relative to the unemployment rate is incredibly high. Historically, a low rate of unemployment is associated with a balanced budget. Not today. Here’s his prediction:

I stand by my claim that (at the time) 2019 fiscal policy was the most reckless in American history, even though each of the next 4 years ended up being even more reckless. In terms of vertical distance above the dotted line, 2020 was the very worst, then 2021, then 2023 (estimated—red dot), then 2022, and then 2019 (roughly tied with 2009.)

The consequence of the reckless fiscal policy will not be a financial crisis. Nor will it be a default. Even the permanent monetization of the debt is unlikely, in my view. The most likely consequence will be higher future taxes and slower economic growth. This will lead to reduced living standards. It might also push politics in a more “populist” direction, with consequences that are difficult to predict (but unlikely to be desirable.)

When you combine the extraordinary spending over the last four years in the presence of historically low unemployment rates, that’s the result. The problem I see is that a lot of the spending is “baked in”: interest on the debt, healthcare spending, and Social Security. We can reduce defense spending but doing so without reducing our commitments is hard to accomplish.

Raising taxes on the rich is easier said than done. You can raise the marginal rates but that won’t necessarily increase revenue. If higher taxes are indeed the likelihood, much of those will necessarily come in the form of increasing the taxes of the not particularly rich. They’re a lot easier to tax.

I wonder why Dr. Sumner doesn’t think that “permanent monetization of the debt” is the obvious solution to the problems that are being created?

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What’s Going On?

I would think we can all agree with this statement from the editors’ of the Washington Post’s remarks on the federal indictment of President Trump:

Something has gone deeply wrong when, in a historic first, federal prosecutors reach the point of filing criminal charges against a former and possibly future president.

Here’s what they think has gone wrong:

The 38-count indictment against Mr. Trump and an aide, unsealed on Friday, includes disturbing details: “Secret. This is secret information. Look, look at this,” the onetime commander in chief says in a transcript of a recording during which he described a “plan of attack” prepared by the Defense Department against a foreign adversary. His audience, according to the indictment, included a writer, a publisher and two members of his staff, none of whom had a security clearance. This was only one episode of gross mishandling of hundreds of pages of materials that included papers on U.S. nuclear programs and this nation’s potential vulnerabilities to attack.

Boxes were moved from a ballroom stage to a storage closet to a bathroom and shower, at one point spilling onto the floor (“Oh no oh no,” texted an employee). Mar-a-Lago hosted tens of thousands of guests at 150 social events, including weddings and movie premieres, during the time the documents were on the premises.

It’s not only the alleged cavalier treatment of classified materials. It is also the extensive effort to avoid compliance with legitimate demands, from which a clear, prosecutable picture of obstruction emerges. Consider Mr. Trump’s alleged instructions to valet and body man Waltine Nauta, also indicted, to hide boxes from his team’s attorney, the FBI and the grand jury; the suggestion to his attorney to make false representations to the FBI and grand jury as well as to conceal or destroy some of the documents called for in a subpoena; and the submission to the FBI and grand jury declaring all relevant documents had been handed over when they had not. Mr. Trump reportedly even asked after receiving a subpoena for the documents’ return: “Well look, isn’t it better if there are no documents?”

The editors of the Wall Street Journal on the other hand have a somewhat different view of what has gone wrong. Like the Post they open with something on which we presumably can agree:

Whether you love or hate Donald Trump, his indictment by President Biden’s Justice Department is a fraught moment for American democracy. For the first time in U.S. history, the prosecutorial power of the federal government has been used against a former President who is also running against the sitting President.

and then turn to their take on what has gone wrong:

The indictment levels 37 charges against Mr. Trump that are related to his handling of classified documents, including at his Mar-a-Lago club, since he left the White House. Thirty-one of the counts are for violating the ancient and seldom-enforced Espionage Act for the “willful retention of national defense information.”

But it’s striking, and legally notable, that the indictment never mentions the Presidential Records Act (PRA) that allows a President access to documents, both classified and unclassified, once he leaves office. It allows for good-faith negotiation with the National Archives. Yet the indictment assumes that Mr. Trump had no right to take any classified documents.

This doesn’t fit the spirit or letter of the PRA, which was written by Congress to recognize that such documents had previously been the property of former Presidents. If the Espionage Act means Presidents can’t retain any classified documents, then the PRA is all but meaningless. This will be part of Mr. Trump’s defense.

The other counts are related to failing to turn over the documents or obstructing the attempts by the Justice Department and FBI to obtain them. One allegation is that during a meeting with a writer and three others, none of whom held security clearances, Mr. Trump “showed and described a ‘plan of attack’” from the Defense Department. “As president I could have declassified it,” he said on audio tape. “Now I can’t, you know, but this is still a secret.”

The feds also say Mr. Trump tried to cover up his classified stash by “suggesting that his attorney hide or destroy documents,” as well as by telling an aide to move boxes to conceal them from his lawyer and the FBI.

As usual, Mr. Trump is his own worst enemy. “This would have gone nowhere,” former Attorney General Bill Barr told CBS recently, “had the President just returned the documents. But he jerked them around for a year and a half.”

That being said, if prosecutors think that this will absolve them of the political implications of their decision to charge Mr. Trump, they fail to understand what they’ve unleashed.

Let’s make a little list of the questions that have been raised by this matter:

  • Is the Espionage Act of 1917 applicable?
  • Is the Espionage Act of 1917 enforceable?
  • Is the Espionage Act of 1917 “seldom-enforced” and why?
  • Is the Espionage Act of 1917 constitutional?
  • Is the Presidential Records Act applicable?
  • Is the Presidential Records Act enforceable?
  • Is the Presidential Records Act enforced and why?
  • Is the Presidential Records Act constitutional?

These are matters of law, policy, and politics. Just for the record my view is that

  1. Either the Presidential Records Act shouldn’t exist, the Espionage Act of 1917 shouldn’t exist, or both shouldn’t exist and
  2. Intent should have nothing to do with it and
  3. If the Espionage Act of 1917 applies to presidents it raises serious separation of powers issues and
  4. If the Espionage Act of 1917 is applicable every living president should be indicted under it.

We already have prima facie cases that Presidents Trump, Biden, and Clinton are guilty of violating it and I think we can safely assume that every other living president has, too. Also probably hundreds of high-ranking officials past and present should be indicted for violating it. I have no problem with that.

There’s so much going on in this matter it’s hard for me to see it having been resolved before November 2024. The only way that might happen is if President Trump pled guilty and it’s hard for me to imagine that.

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Dissynergy

Speaking of working at cross-purposes, the editors of the Wall Street Journal remark on how the Biden Administration’s economic and environmental strategies are working against each other:

On Tuesday the U.S. Army Corps of Engineers revoked a Clean Water Act permit granted by the Trump Administration for the NewRange copper and nickel mine in Minnesota’s Duluth Complex. The area isn’t virgin land. The Duluth site is part of the fabled Iron Range, which provided 70% of the iron ore that America used during World War II.

“Minnesota’s Iron Range has played a vital role in helping build America,” candidate Biden proclaimed in September 2020. “U.S. manufacturing and mining was the Arsenal of Democracy in World War II. It must be part of the Arsenal of American Prosperity today, helping power an economic recovery for working families.” Apparently not.

His Administration picked the anniversary of D-Day to deep-six the NewRange mine, which would provide minerals to power electric vehicles and his green-energy transition. The U.S. will have to import the minerals from arsenals of autocracy like Russia and China.

In other acts of economic masochism, the Interior Department last month delayed a decision on whether to let Alaska build a 211-mile road to a critical minerals mining area. The project was initially approved by Trump regulators, but Biden officials agreed to conduct a second review after green groups sued. The Administration also recently put on ice a copper mine in Arizona.

And last Friday Interior removed from oil and gas development hundreds of thousands of acres of public land in New Mexico within 10 miles of the Chaco Culture National Historical Park. The Administration sided with green lobbyists over the Navajo Nation, which opposed the land withdrawal and stood to reap tens of millions of dollars in oil and gas royalties.

If coming up with good policies were easy, anybody could do it.

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The Chinese EVs Are Coming

in his Washington Post column Fareed Zakharia predicts:

Ten years ago, China exported a relatively small number of cars. Today, it is the world’s leading exporter of automobiles, handily ousting Japan from that position. It is especially strong in electric vehicles. Two of every three EVs made in the world are made in China. As we think about China’s weaknesses these days (and it has several), it is worth remembering China’s formidable strengths and the degree to which it is intertwined into the global economy. Nio’s cars are designed in Munich. It has research and development centers in San Jose and Oxford, England, as well as in Beijing and Shanghai. It does its manufacturing in Hefei, China.

At the present state of the art electric vehicles are more practical in China and Europe than they are here. Chinese commute distances are a fraction of those here.

There are other barriers as well. Here in the U. S. most states require that automobiles be sold through dealerships. It’s complicated but that’s the gist of it. In other words to get market penetration here it isn’t enough to have the cars to sell; you’ve got to build an organization and that can be tough. Frequently, foreign manufacturers forge relationships with auto companies that already have those organizations and I expect the Chinese to do that, too, but it won’t happen overnight. The Europeans are quite comfortable with protectionism which may prove a barrier to EVs manufactured in China.

I’ll keep my eyes opened.

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