The Day After (Update)

There is an enormous amount of rejoicing, chortling, fingerpointing, anger, sorrow, etc. following President Donald Trump’s conviction in the trial in New York. My reactions are pretty closely aligned with those of James Joyner:

In the grand scheme of things, paying hush money to a porn star to avoid political embarrassment and then committing tax fraud in the service of that tawdry act is as easily dismissed as committing perjury about an illicit affair with a subordinate while testifying in a case about sexually harassing a different subordinate. Both are arguably disqualifying for high office and yet easily dismissed by supporters.

To be clear, while I thought Bill Clinton and Donald Trump were both morally unfit to serve as commander-in-chief before they were ever sworn in and had that reinforced by their behavior in office, the latter’s transgressions are considerably greater. While I thought Clinton rightly impeached for perjuring himself regarding Lewinsky, that was the height of his transgressions as President. Further, while I frequently disagreed with him on policy grounds, I have no reason to doubt that he spent his presidency trying to make the country a better place. Trump, by contrast, used his office as a personal piggybank and had no interest in anything but his own power and enrichment.

I think he’s discounting the Clintons’ desire to enrich themselves via the presidency a bit.

I think there is a slippery slope in nominating and voting for individuals who are “morally unfit to serve as commander-in-chief” and we are seeing that play out. As we have seen there are also slippery slopes in impeaching presidents, castigating reasonably decent individuals running for president as monsters, and challenging the results of presidential elections in the courts.

I guess we’re about to see if there is a slippery slope in prosecuting former presidents, too.

Update

Washington Post

Momentous as the verdict feels, it comes in what was neither the most important nor the most legally compelling of the cases against Mr. Trump. Special counsel Jack Smith’s federal prosecution regarding Jan. 6, 2021, involving both the scheme to draw up fraudulent slates of electors and the insurrection at the U.S. Capitol, implicates an alleged assault on democracy. The Mar-a-Lago classified-documents case cuts to Mr. Trump’s unfitness to serve as commander in chief. The obstruction charge, covering Mr. Trump’s alleged efforts to mislead investigators about his retention of papers from the White House, seems clear-cut. Yet these cases remain unresolved, as Mr. Trump successfully persuaded various judges, and the Supreme Court, to consider time-consuming procedural issues. Thursday’s verdict, by contrast, involved a hush money payment scheme to an adult-film actress.

This is not to say Thursday’s result was illegitimate — or, as Mr. Trump declared, the result of a “rigged, disgraceful trial.” The Biden campaign’s decision to hold a news conference outside the courthouse on Tuesday was doubly unfortunate because it belied an important reality: Contrary to accusations from Mr. Trump and his allies that probes into him are “witch hunts” and any outcome that disfavors him “rigged,” the case showed the opposite. An investigation occurred. An indictment was secured. A jury was selected, and in an orderly trial, Mr. Trump got due process of law. Only with six weeks of testimony from 22 witnesses and ample corroborating evidence was a verdict declared.

The jurors appear to have fulfilled their oath to assess the case with care, taking time to have relevant testimony and jury instructions laboriously reread to them. They also accepted a crucial civic duty amid trying circumstances, forbidden from discussing a subject of widespread attention with their friends and family, and risking blowback for their eventual decision, whichever way it went.

Wall Street Journal

Thursday’s guilty verdict wasn’t entirely surprising, given the jury pool in Manhattan. If Mr. Trump had lucked out, he might have drawn one or two stubborn skeptics, like the Henry Fonda character in “12 Angry Men,” resulting in at least a hung jury. Instead the fortunate one was Manhattan District Attorney Alvin Bragg, who filed the weakest of the four indictments of Mr. Trump, but who managed to drag his case first over the finish line.

Normally a felony conviction would be politically fatal for a candidate appearing on the ballot in five months. But normally a prosecutor wouldn’t have brought this case. Mr. Bragg, an elected Democrat, ran for office as the man ready to take on Mr. Trump. When the new DA didn’t indict shortly after winning office, his top Trump prosecutors loudly quit, increasing the pressure on Mr. Bragg to do, well, something. Even after a guilty verdict, the case he ended up filing looks like a legal stretch.

The evidence from the six-week trial fleshed out some of the facts. Stormy Daniels testified that she and Mr. Trump had a sexual rendezvous in 2006, which he keeps denying, if implausibly. In the runup to the 2016 election, Mr. Trump’s fixer Michael Cohen paid Ms. Daniels $130,000 to keep quiet. Mr. Trump reimbursed him, and then some, in 2017. According to the DA, the crime was disguising this repayment as legal fees to Mr. Cohen for work under a retainer that didn’t exist.

On the law, though, the case was a bizarre turducken, with alleged crimes stuffed inside other crimes. By the time Mr. Bragg showed up on the scene, the Stormy business was old enough that Mr. Trump couldn’t be hit with misdemeanor falsification of records, because the statute of limitations had expired. To elevate these counts into felonies, the DA said Mr. Trump cooked the books with an intent to commit or cover up a second offense.

What crime was that? At first Mr. Bragg was cagey. He eventually settled on a New York election law, rarely enforced, that prohibits conspiracies to promote political candidates “by unlawful means.” This explains why prosecutors spent so much trial time on David Pecker, the National Enquirer boss. His outfit paid $150,000 in 2016 to silence another woman, Karen McDougal, who also says she had an extracurricular affair with Mr. Trump. Mr. Bragg’s argument is that they were all in cahoots, more or less, to steal the election.

Yet what “unlawful means” did this alleged conspiracy use? The DA’s argument was that there were three: First, the hush money was effectively an illegally large donation to Mr. Trump’s campaign. Second, more business filings were falsified, including bank records for Mr. Cohen’s wire transfer to Ms. Daniels. Third, false statements were made to tax authorities, since Mr. Trump’s repayment of Mr. Cohen was structured as income and “grossed up” to cover the taxes he would need to pay on it.

In some ways this Russian nesting doll structure, to use another analogy, defies logic.

New York Times

In a humble courtroom in Lower Manhattan on Thursday, a former president and current Republican standard-bearer was convicted of 34 felony counts of falsifying business records. The jury’s decision, and the facts presented at the trial, offer yet another reminder — perhaps the starkest to date — of the many reasons Donald Trump is unfit for office.

The guilty verdict in the former president’s hush-money case was reached by a unanimous jury of 12 randomly selected New Yorkers, who found that Mr. Trump, the presumptive Republican nominee for president, was guilty of falsifying business records to prevent voters from learning about a sexual encounter that he believed would have been politically damaging.

Americans may wonder about the significance of this moment. The Constitution does not prohibit those with a criminal conviction from being elected or serving as commander in chief, even if they are behind bars. The nation’s founders left that decision in the hands of voters. Many experts have also expressed skepticism about the significance of this case and its legal underpinnings, which employed an unusual legal theory to seek a felony charge for what is more commonly a misdemeanor, and Mr. Trump will undoubtedly seek an appeal.

Yet the greatest good to come out of this sordid case is the proof that the rule of law binds everyone, even former presidents. Under extraordinary circumstances, the trial was conducted much like any other criminal trial in the city. That 12 Americans could sit in judgment of the former and potentially future president is a remarkable display of the democratic principles that Americans prize at work.

Washington Examiner

The term “kangaroo court” has seemed an apt and amusing term to apply to the trial of former President Donald Trump in Manhattan during the past month. But now that, for the first time in history, a former president has been found guilty of felony indictments, it cannot be regarded as anything other than a dark day for the nation. Jurors decided Trump was guilty on all 34 counts, carrying the possibility of more than 100 years of jail time for business record violations that occurred over a decade ago.

It is a dark day, not because of the guilty verdicts but because this trial has been a travesty from start to finish. It is clear, first of all, that no one other than Trump would have been charged in this way. No one other than Trump would have had a prosecutor concoct such an absurd and disgraceful list of charges and twist the law to do so. It is indisputable that no person has ever been prosecuted as a felon for the misdemeanor recordkeeping crimes as Trump was. It’s odd, isn’t it, that the only person ever so charged should be a former president, the much-hated opponent of the current incumbent, who is leading in the polls only five months before Election Day. The only reason Trump was charged and convicted of this crime is because he is Trump. This is what banana republics do.

Nate Silver

My expectation is that Biden will see some improvement in his numbers — perhaps something roughly equivalent to a mini convention bounce — and the question is mostly about how steep it is and how long it persists. In particular, I’ll want to see whether any decline for Trump survives past the first debate on June 27 or instead the debate reverts the race to where it was previously.

If there isn’t some sort of bounce for Biden, however — even a temporary one — then obviously that will count as a highly bearish signal for him. Improved consumer perceptions about the economy haven’t really improved Biden’s numbers much, and nor has a period of comparatively favorable news coverage. (The “vibes” within the pundit class don’t translate in any reliable way to those among swing voters.) The poker term for being in a dicey spot but where your odds have a chance to improve is “having outs”, meaning that you might catch some good cards to redeem your position. The possibility of a criminal conviction was one of the best outs Biden had left — and if it doesn’t move the numbers, I’m not sure what will.

Ilya Shapiro

The Donald Trump verdict is a travesty of justice. I say this not as a Trump-lover—I don’t love any politician, preferring transactional relationships regarding policy—but as a lover of the rule of law. From the moment that Manhattan DA Alvin Bragg chose to indict Trump for nearly decade-old offenses that Bragg himself had previously declined to prosecute, the circus came to town. The jury’s findings of guilt on all 34 counts of falsifying business records are almost anticlimactic, putting the cherry on top of multiple scoops of misused legal authority.

You can read elsewhere analyses of the allegations about how the former president funneled business funds through his convicted-felon consigliere Michael Cohen to his mistress Stormy Daniels so that she wouldn’t spill the beans on their affair in the midst of the 2016 campaign. As I understand it, the business-records violations became felonies because they’re in furtherance of a campaign-finance violation—this is what allowed Bragg even to bring charges, given that the statute of limitations would otherwise have run out on the first, underlying actions. But you wouldn’t get this from following the trial, which left most observers scratching their heads at what the crimes were that Trump had supposedly committed.

Mind you, I didn’t follow the trial that closely, either. Because that fact pattern is what lawyers call a stretch, and because it was so blatantly Bragg’s politicized persecution of his party’s bête noire, the legal play-by-play seemed beside the point. Salacious details notwithstanding, I couldn’t get myself worked up about the minutiae of long-ago accounting practices relating to a nondisclosure agreement. But I do have a JD and work in legal policy, which should give me a better understanding of what’s going on. And yet, I still don’t understand these 34 convictions.

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Witnessing History

As you have undoubtedly heard President Trump was found guilty on all counts in the NYC trial. I believe that is the first time in U. S. history a former president has been found guilty of a felony after serving his term as president.

I suspect we’ll witness a lot more history in coming weeks. It may be memorable but I doubt it will be fun.

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President Biden’s Move

What is President Biden’s best move after the jury brings in a verdict in President Trump’s trial in NYC? The editors of the Wall Street Journal advise maintaining a low profile:

Mr. Biden is better advised to say nothing. Even a platitude—a statement in the event of a conviction that the will of the jury should be respected—will sound like an expression of satisfaction by a President whose allies convicted a political opponent. Mr. Biden’s son Hunter is slated to go on trial on felony charges in early June. Will he comment on that proceeding, too?

The issue here is presidential decorum and political judgment. The President has already come close to taunting Mr. Trump for his legal predicament.

Sadly, maintaining a low profile does not play to the president’s strong suit. Any president’s. They continue:

Mr. Biden was elected in 2020 in large part as the anti-Trump who would restore calm and dignity to the Oval Office. But one irony of the Biden Presidency has been its habit of imitating Mr. Trump’s political style of over-the-top rhetoric and disdain for political norms.

That’s never been clearer than in the decision by multiple Democratic prosecutors to indict a presidential opponent for the first time in history. Democrats thought the Manhattan trial would hurt Mr. Trump, but so far he’s gained in the polls. Now they think a guilty verdict will take him down, and they want to gloat about it. But voters may conclude that stretching the law to turn a misdemeanor offense into a felony is more politically significant as an abuse of the justice system.

If Mr. Biden tries to exploit a conviction as a campaign theme, voters will have even more reason to believe Mr. Trump when he says the prosecution was political from the start.

So, what’s the president’s best course of action?

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What It Doesn’t Say

I found this lengthy account of life on the front lines in Ukraine by Mari Saito at Reuters a bit narrative for my taste but it made for vivid reading:

The artillery fire begins just before dawn. A soldier steps into a darkened trench and lights a cigarette, carefully cupping the flame with his free hand. A boom and crackle of outgoing fire sound in the distance.

Viktor, the infantryman, ducks his head under a canopy of camouflage netting and looks up at the brightening sky. The incessant buzz of a drone sounds overhead, moving a dozen meters from one end of the trench to linger just above him.

Viktor swallows. A moment later, the buzzing sound moves on.

“One of ours,” the 37-year-old soldier says, bringing the cigarette back up to his lips.

The one thing the piece does not say is that producing munitions as fast as the Ukrainians need them is beyond NATO’s ability at this point and will be for the foreseeable future. Examples: in aggregate NATO countries produce as many tanks in a year as Russia does in a month. Russia is producing artillery shells at three times the pace that NATO is.

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Out of the Mouths of Babes

This piece by Shelby Talcott at Semafor and the underlying Blueprint poll should be a wakeup call for everyone:

As part of the online poll of 943 18-30-year-old registered voters, Blueprint asked participants to respond to a series of questions about the American political system: 49% agreed to some extent that elections in the country don’t represent people like them; 51% agreed to some extent that the political system in the US “doesn’t work for people like me;” and 64% backed the statement that “America is in decline.” A whopping 65% agreed either strongly or somewhat that “nearly all politicians are corrupt, and make money from their political power” — only 7% disagreed.

“I think these statements blow me away, the scale of these numbers with young voters,” Evan Roth Smith, Blueprint’s lead pollster, told Semafor. “Young voters do not look at our politics and see any good guys. They see a dying empire led by bad people.”

You don’t need to be under 30 to feel that way. The author continues:

Broadly speaking, Blueprint’s polling reveals young voters in America are not doing okay. But the pessimism about the country, its leaders, and more is also a concerning trend for Biden — whether he’s directly responsible for why voters feel the way they do or not, he’s currently in office during a time when many seem to be.

Perhaps unemployment is not the metric that should be considered. Maybe underemployment, working multiple jobs, and discouraged workers should be taken more into consideration. Certainly, dismissing these concerns is not a working strategy.

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The New York Trial

The jury in the trial of President Donald Trump in New York has completed their first day of deliberations.

I honestly have no idea what their verdict will be. Based only on what I’ve heard about the judge’s jury instructions I will actually be surprised if he’s acquitted.

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What We’ve Lost

Tom Friedman’s New York Times column today is a lament for the qualities our society once had but no longer does. He refers to them as “mangroves”, large trees along the shoreline that protect it, filter toxins and pollutants, and nurture wildlife.

To my mind, one of the saddest things that has happened to America in my lifetime is how much we’ve lost so many of our mangroves. They are endangered everywhere today — but not just in nature. Our society itself has lost so many of its social, normative and political mangroves as well — all those things that used to filter toxic behaviors, buffer political extremism and nurture healthy communities and trusted institutions for young people to grow up in and which hold our society together.

Most of the column is devoted to the decline of shame, something he characterizes as one of those mangroves, with a focus on the New York trial of Donald Trump. My reactions to the column are multiple including:

  • He’s got the wrong end of the stick
  • What did he expect?
  • He’s about 30 years late

and I will try to explain why.

Cultural anthropologists have multiple ways of describing societies. Among them are the “guilt-shame spectrum” for identifying the different ways in which societies constrain the behavior of individuals. In general terms some societies do so by exploiting internalized guilt while others do so by using externalized shame. Historically, Western European cultures (including the United States) have been considered “guilt cultures” while most of the rest of the world have been considered “shame cultures”. I know that anthropologist Ruth Benedict contrasted American culture with Japanese culture using that distinction.

My key point is that historically we’ve never been a shame culture, we’ve always been a guilt culture. The question Mr. Friedman should be asking, rather than asking what has happened to shame, is why isn’t guilt restraining individuals from doing bad things in the first place?

Over the last 50 years dramatic changes have occurred in American culture. The role of mothers as the key individuals who inculcated cultural values in the young has eroded. Schools, which have been assumed to be picking up the slack, no longer do. That’s the implication of the cult of self-esteem that has overtaken them. If what you do is always just fine, you’ve abandoned both guilt and shame as means of constraining the behavior of individuals. in our present culture nothing has replaced guilt. Constraining individual behavior itself is apparently suspect.

I could list other factors. The decline of what I might call orthodox organized religions, e.g. Catholicism, Episcopalianism, High Church Lutheranism; that the overwhelming preponderance of the immigration to this country for the last 50 years has been from shame cultures, e.g. Mexico and Central America, China are among them.

Finally, to my last bullet point, where was Mr. Friedman when President Bill Clinton engaged in sexual activity with Monica Lewinsky in the White House? My recollection is that he was unconcerned about an erosion of norms but focused on the political implications and the implications for the presidency. That’s exactly how norms are eroded.

I didn’t vote for Bill Clinton and among the reasons that I didn’t was that I thought he was a low character, a view fully borne out by the scandal. I don’t expect presidents to be paragons of virtue, the worse for us. I think that paragons of virtue to not rise to the presidency but in my opinion cheating on one’s wife is disqualifying. Furthermore, my notion of contrition differs so radically from Mr. Clinton’s as to be irreconcilable. I believe that actual contrition means doing penance and an actual commitment to avoiding re-offending and the circumstances that could lead you to re-offend. Mr. Clinton comes from a very different tradition, apparently one in which you claim to be sorry and that’s that.

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What If “Lawfare” Doesn’t Work?

I need to preface this post, as I generally do, with the observation that I did not vote for Donald Trump in 2016 or 2020 and I do not plan to vote for him in 2024. There are multiple reasons including that I do not believe he is able to deliver but for me the main reason is character. I simply do not believe it is possible to be in the real estate business in New York City without shading the law at least a bit.

With respect to the various cases against Mr. Trump making their way through the courts, I am content, as usual, to let the legal system take its course. I don’t think the outcome in any of the trials is a slam-dunk or predetermined. That has left me without a lot of room for commentary.

I do have one question, however. What will the Democrats do if Trump gets through ALL of the trials without being convicted of anything?

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What’s the U. S. “Foreign Policy”?

Many (many) years ago when I was an undergraduate I took a year-long course in American diplomatic history. I spent the entire year arguing with the professor about his primary thesis which was that the United States does not have a foreign policy and never has had. My objection, to use the terminology I would use now rather than that I used then, was that the United States has an emergent foreign policy, formed from the various sometimes conflicting objectives of different individuals and organization in the country. The White House. The State Department. The Department of Defense. Individual diplomats in the State Department and officers in the Department of Defense. Companies with foreign trade. Individual Americans.

In a jeremiad in Foreign Affairs Hal Brands paints a very bleak picture of what an “America first” foreign policy would look like and do:

What would become of the world if the United States became a normal great power? This isn’t to ask what would happen if the United States retreated into outright isolationism. It’s simply to ask what would happen if the country behaved in the same narrowly self-interested, frequently exploitive way as many great powers throughout history—if it rejected the idea that it has a special responsibility to shape a liberal order that benefits the wider world. That would be an epic departure from 80 years of American strategy. But it’s not an outlandish prospect anymore.

Siding with my teacher of those many years ago I do not believe that the United States has ever had the policy that it had “a special responsibility to shape a liberal order that benefits the wider world” and I honestly have no idea of where he would get such an idea. I would challenge Dr. Brands to explain how any of the following (starting after the conclusion of World War II) achieved that effect:

  • The Korean War
  • The Vietnam War
  • The Gulf War
  • Our intervention in the Yugoslavian civil war
  • The invasion and 20 year occupation of Afghanistan
  • The invasion and occupation of Iraq
  • Our intervention in the Libyan civil war

and those are just to name a few. I can name a dozen other things that we did not do which might have had that effect but precious few that did.

I believe there are people in the State Department and Department of Defense who have a policy of primacy—not merely primacy from a global standpoint but primacy in every theater of operations. Europe, the Middle East, the Far East, etc. I think an argument can be made that each of the conflicts above was an assertion or attempt at assertion of primacy only tangentially related to “a liberal order”.

Take the invasion and occupation of Afghanistan, for example. I don’t see how it had anything to do with a liberal order. I think that one could make a reasonable argument that the Taliban-led government of Afghanistan posed a mortal threat to the United States due to its support and hosting of terrorism. I did not make that argument but I think it was reasonable. I do not see how continuing to make that argument while allowing the Taliban to reassert control over Afghanistan is equally reasonable. That’s not to say that leaving was not the right choice. It was a terrible mistake from the outset.

We certainly didn’t further our interests. We spent a lot of money and lost a lot of lives, ultimately demonstrating that our efforts were futile against a determined native resistance, the opposite of primacy if anything.

Of all of the conflicts listed above only two, the Korean War and the Gulf War, had Security Council authorization, once again the opposite of a liberal order. In the case of Libya we had Security Council authorization to protect civilians but not to prevent the Libyan government from protecting itself.

Note, too, that all other major economies, e.g. UK, France, Germany, Russia, China, have been merrily pursuing their own national interests during the entire period. That raises a question I wish that Dr. Brands would answer. What does he expect to happen if the U. S. pursues a liberal international order as the basis of its foreign policy while every other country on the globe pursues their own parochial national interests? I would expect, well, pretty much what has happened. U. S. diplomatic and military primacy would fade as U. S. economic primacy at least from a relative standpoint declined.

None of the above should be construed as my voting for an “America first” foreign policy. More a renunciation of primacy and a few steps in the direction of non-interventionism with “America sometimes”.

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Jack at 2


Today is Jack’s second birthday. Take a bow, Jack!

With Kara gone Jack has become my daily walking buddy. We walk at least five miles a day together, more on weekends.

Jack combines considerable charm with willfulness. If he doesn’t want to do something, he won’t do it, darn you. The bowing behavior comes naturally. I believe it might be innate—his grandfather and, I believe, his father both do it, too.

I’m hoping this will be a big year for Jack. For one thing I’m hoping to take some pack hikes with him to get him started on his Working Samoyed title.

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