Posted on by rjonakait

Panama Redux

The Republicans almost produced a government shutdown again and may have merely postponed it for a few months. As a result, the Speaker of the House may be out in the cold in several weeks and the GOP may then show its fractures even more clearly. While this brouhaha was going on, Trump was talking about seizing the Panama Canal. This all brings to mind my previous post about the Panama Canal treaties, which I have reproduced below.

Knowledgeable people find the roots of the Republican Party’s current dysfunction in the hyperpartisanship practiced by Newt Gingrich when he became Speaker of the House in 1995. Others find tentacles spreading from the Tea Party movement, which emerged in 2009 and brought conspiracy theories into mainstream politics. But seeds were planted twenty years earlier with the now largely forgotten battle over the Panama Canal treaties. In his book, Drawing the Line at the Big Ditch: The Panama Canal Treaties and the Rise of the Right (2008), Adam Clymer explains how the fight over the Panama Canal Treaties helped fuel the rise of the modern Right.

Both treaties were signed in 1977. One treaty gave the United States the right to use force to assure that the canal would remain open to ships of all nations. The second treaty gave Panama control over the canal starting in 2000.

In order to take effect, the treaties not only had to be signed by the leaders of Panama and the United States. They also had to be ratified by appropriate bodies within those countries. After Panama did so in a plebiscite, a political battle ensued in the United States Senate over their ratifications. According to Clymer, this led to the emergence of Richard Viguerie, a founder of modern conservatism, the use of direct-mail marketing, and the rise of single-issue PACs designed to raise money and defeat moderate Republicans.

Although it was President Jimmy Carter who signed the pacts, the negotiations had started under President Nixon. The treaties were thought desirable because they gave America the right to assure the canal’s neutrality, and they removed a flashpoint for much of Latin America, and Panama in particular, by giving Panama control over the canal. Those supporting the treaties maintained that they would increase the security of the canal by helping to remove the threats of guerrilla attacks, which were almost impossible for America and Panama to prevent. 

The treaties were backed by prominent conservatives, including Henry Kissinger and William Buckley, but they were also attacked by other conservatives in near-hysterical terms. Opponents maintained that this was a surrender of American sovereignty, and furthermore, the military leader of Panama was pro-Communist. Marxists would control the canal and Panama, and the harm to the U.S. as a result would be disastrous.

What is surprising to a modern surveyor of the political scene is that some Senators supported the treaty simply because they thought it was the right thing to do even though they knew that their ratification votes would harm them politically. The single-issue PACs targeted some of these Senators, and, through direct-mail marketing (enter Richard Viguerie), inflamed a cadre of voters. Republicans who supported the treaties were defeated in primaries when they stood for reelection. Their overall record did not matter. Their vote on this one issue doomed their political careers. On the other hand, Ronald Reagan opposed the Treaty, and some, including Bill Buckley, maintained that the treaty controversy helped elect Reagan president.

This issue is now largely forgotten even though its aftermath continues to affect the United States. A lesson from the controversy has been absorbed, even if that lesson’s source is not remembered. Republican politicians now fear that if they don’t toe some single-issue lines, a portion of conservatives will target them and defeat them in the primaries. The result is that the politicians cannot develop nuanced positions; compromises are verboten. Instead, the “wrong” stance on individual issues can result in a primary defeat even if the politician accepts the conservative line on other matters. If I don’t completely accept the NRA’s positions, I may be defeated in the primary. If I adopt a moderate stance on abortion, I may be defeated in the primaries. If I have concerns about tax cuts, I may be, in today’s terms, “primaried.” And so on. The result is a lockstep, hard-right conservatism. Back in 1978, some conservative Senators studied a complex situation and decided that a ratification vote for the Panama Canal treaties was in the best interests of the country. What is remembered is not that their position was right, but that some lost their political careers as a result.

History, of course, has shown the proponents to be correct. The Canal functions just fine. Panama is not a hotbed of anti-American Communism. Those who were wrong, however, did not pay a price for their belief; they continued in office. And most of us have forgotten the debate.

In what now seems impossible, Democrats and Republicans joined together to ratify the treaties. Fifty-two Democrats and sixteen Republicans voted for ratification, while ten Democrats and twenty-two Republicans voted against. We have seen little of such bipartisanship since the Panama Canal treaties. On the other hand, since that 1977 controversy we have seen many conservatives benefit even when proved wrong.

The Republican party has been on a forty-year path to its present dysfunction.

Posted on by rjonakait

Snippets

It’s been a long time. In 1841, fifty-two years after the Constitution went into effect, John Tyler became the first vice-president to ascend to a vacant presidency. Only two dozen years later, Andrew Johnson succeeded the assassinated Abraham Lincoln. In 1881, Vice-President Chester A. Arthur became President as the result of the murder of James A. Garfield. Two decades later, Theodore Roosevelt became President because of the assassination of William McKinley. Twenty-two years later, Calvin Coolidge ascended to the presidency after Warren G. Harding’s death. After another twenty-two years, Harry S. Truman became President upon the death of FDR. Eighteen years later, in 1963, Lyndon B. Johnson became President after the assassination of John F. Kennedy. And only eleven years later, after the resignation of Richard Nixon, Vice-President Gerald Ford became President. Since then, however, no Veep has moved up to a vacant presidency, the longest stretch in our history since Tyler took the high office. With the possibility of an aged president who seems to indicate declining cognitive powers and a gun-toting population, are we due again for a vice-present to become president?

The Twenty-fifth Amendment to the Constitution lists procedures for declaring a president unable to carry out the powers and duties of the office. The Vice-President then becomes Acting President. Rumor has it that people around JD Vance, perhaps funded by Peter Thiel, are already studying this provision so if Trump wins, six months later Vance can be president.

A perceptive analyst said: “The people for public trusts are the people who can be trusted in private.”

Some Trump supporters, who, when asked about some of Trump’s problematic, sometimes frightening statements, say that Trump does not really mean it when he says that he will use the army against Americans, get rid of Obamacare, impose 100% or higher tariffs, etc. In other words, these Trumpistas support Trump because theyse don’t believe what he says. Amazing.

“The whole problem with the world is that fools and fanatics are always so certain of themselves, and wiser people so full of doubts.” Bertrand Russell.

I have friends and acquaintances who ask how, at this point, anyone could vote for Trump. Many of these people, however, would find it close to impossible to vote for a Republican even if the Democratic candidate were Bob Menendez or Eric Adams. Of course, there are many people who truly support Trump, but there are many who simply can’t vote for a Democrat. Some are voters who we might call hold-your-nose-and-vote-for-Trump, but since Trump heads the Republican ticket, they will vote for him. The crucial time is not now. It was in 2016 when he became the Republican standard bearer. Trump did get more votes than any other single candidate in the 2016 Republican primaries, but he did not get a majority of the ballots cast. However, under Republican rules, he got the majority of the delegates. Eight years ago, a majority of Republicans did not want Trump, and since then, a majority of Americans overall have not wanted him. But he may be our president again.

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When the President Does It. . . He’s Immune (Concluded)

 Is Presidential Immunity Necessary?

The Court said that a president must have immunity for official acts because prosecutions can intrude on the authority and functions of the executive branch.  Roberts writes:

“The hesitation to execute the duties of his office fearlessly and fairly that might happen when a President is making decisions under a pall of potential prosecution raises unique risks to the effective functioning of government. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, the independence of the Executive Branch may be significantly undermined.”

This rationale is remarkable. Up until this decision, it had been widely assumed that a president could be prosecuted after leaving office. Every president until now, if he thought about it at all, would have assumed that he did not have immunity when an ex-president. Meanwhile, the presidency has been extensively, even exhaustively, studied. Untold volumes of presidential papers have been compiled. Uncounted books and papers about the lives of presidents and their decision making have been published. (More than 16,000 publications about Lincoln alone.) If there have been any instances, much less numerous ones, where a president made a decision based on the possibility of a future prosecution, the Court does not tell us about it. On the other hand, if the threat of prosecution has had a powerful effect on presidents, there should be many historical examples of distorted decision making that resulted.

The Court also voiced its concerns about “routine” prosecutions of former presidents for official acts. Roberts said that the dissents raise fears about “extreme hypotheticals where the president feels empowered to violate federal criminal law. The dissents overlook the more likely prospect of an Executive Branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. . . . Without immunity such types of prosecutions of ex-Presidents could quickly become routine.”

Of course, this is mere speculation without a historical basis. We have an n of one for such prosecutions. The Court seems to have swallowed the Kool Aid of Trump that his prosecution is fueled by partisanship, and if partisanship controls, we can expect more prosecutions. In any event, the supposed fear that political opponents will prosecute former presidents in the future for partisan reasons has neither history nor logic behind it. As noted above, these are the first prosecutions of a former president in our more than two century existence, even though during that time we have had many fierce, partisan alignments. The immunity advocates may say that the times are now different, but if so, they don’t want to recognize that the times may be different because Trump’s actions have been unprecedented.

There are natural, institutional restraints on the use of criminal charges for normal presidential decisions against former presidents. Most of what a president does—appoint a Secretary of State, prepare a budget, draft a new healthcare bill—is not even arguably criminal and will not lead to any criminal prosecution. Perhaps, however, ordering a drone strike that kills an American citizen claimed to be a terrorist leader in the Mideast or declaring an “emergency” to divert moneys to build a border wall that Congress has refused to fund might be at least arguably criminal. Even if so, successor administrations are highly unlikely to seek indictments for such actions no matter what the partisan climate. Criminal charges against a former president could mean that his successor has restricted his own freedom of action. Someday he may want to do something similar to what a predecessor did, but if he labeled it criminal through a prosecution, he wouldn’t be able to. Sitting presidents almost never want to limit their power. Indicting and trying predecessors for truly presidential acts has not happened and will not happen. The scare tactics about routine prosecutions, not supported by history or logic, are straw dogs.

Can Immunized Official Acts Be Used As Evidence?

The Supreme Court went beyond the creation of immunity for Trump. Roberts stated that the Government (i.e., the DOJ) had inappropriately proposed the use of immunized official acts as evidence in an allowed trial. Here’s an example of what that might mean: Assume that it is determined that Trump’s role in seeking to assemble fake electors is a private action, and he can be prosecuted. He might argue that he was only seeking to ensure election integrity, and anything that might look criminal arose out of good intentions and was not a crime. That contention would be undermined by evidence that he sought to have the Justice Department launch sham investigations into the election. Similar kinds of evidence seeking to show a corrupt intention are used regularly in trials. But the Supreme Court said it can’t be used in the prosecution of an ex-president, stating that using official acts to help prove issues in a prosecution for a private act “threatens to eviscerate the immunity we have recognized.”

They held further that the use of such evidence might distort presidential decision making. This assumption was unsupported. Moreover, it’s highly unlikely. The Court apparently believes that a president, while doing an official act for which he will get immunity, might consider that his action might be used in evidence in a criminal prosecution for a non-immunized act that he is not then doing and that he might never do. Follow that? Neither do I. Who thinks along such convoluted lines? Meanwhile, it is hard to see how presidential choices about corporate taxes, Chinese tariffs, the Affordable Care Act, and the like would ever have evidentiary value in a prosecution that may or may not happen for a private act. Come to think of it, would it be a bad thing if a president thought twice about seeking sham investigations into voter fraud?

The Court also said the evidentiary restriction is necessary because otherwise there will be “a unique risk that the jurors’ deliberations will be prejudiced by their views of the policies and the performance of the president.” Furthermore, “the ordinary trial tools may protect ordinary criminal defendants, but the immunity seeks to protect not the president himself but the institution of the presidency.” Not surprisingly, there are no citations in support of these propositions. Moreover, they ignore an obvious logical flaw. The Court can hide presidential behavior by not allowing evidence of it, but it can’t hide that a previous president is being tried. If the jurors are prejudiced by their views of his polices and performance, they will be prejudiced with or without the evidentiary restriction. Of course, normally this is handled during jury selection and by normal evidence rules as well as judicial admonitions about what evidence to consider and how it is to be used. Unless the Court is going to create more unknown trial procedures, the fact that an ex-president is on trial can’t be kept from the jury. If opinions about an ex-president are prejudicial, the prejudice will be there with or without the evidentiary restriction. However, that restriction will deny the jury important evidence making such a trial less fair.

Did It Matter that Justices Alito and Thomas Did Not Recuse Themselves?

Cries went out that Justices Thomas and Alito should recuse themselves because their wives’ activities produced conflicts of interest. The two, of course, still joined the majority. At first glance, this did not seem to matter since the Court split six to three along ideological and political lines. If Justices Thomas and Alito had not sat, the split would have been four to three with the same result. But that overlooks some important points.

Justice Amy Coney Barrett wrote a concurring opinion that largely agreed with Roberts’s opinion. However, she withheld complete agreement by writing that the attempt to organize alternative electors was a private act, and she saw no plausible argument for barring a prosecution for this conduct. If Thomas and Alito had not sat, there would have been only three votes for remanding for a trial court determination of whether this conduct received immunity. Instead, the Court would have held that that the prosecution could proceed on these grounds.

In addition, she also concluded that the evidentiary restriction created by the Court was wrong. The three dissenting judges also came to the conclusion. The four would have been the majority on this issue if Thomas and Alito had been recused. In short, their failure to recuse mattered. 

Who Benefits Most from the Decision?

Trump v. United States (seldom has there been a better name for a Supreme Court case—Trump against the United States) was a major victory for the former president. Because of these rulings and remands back to the lower court, no trial will be held for quite some time, if ever.  The normal rule is that appeals are held only after all the trial court proceedings have been completed. The Court held, however, that interlocutory appeals can be taken on the immunity issues. That means whenever the trial court decides about immunity — which will take time to allow for briefing, arguments, consideration, and decision making — an appeal on these issues can be taken immediately, and the trial held in abeyance. Then there will be more briefing, arguments, consideration, and decision making in the Court of Appeals. And then there will be an attempt to take the appeal to the Supreme Court. Don’t hold your breath waiting for a trial’s outcome. If Trump is tried, it may not be for years, and by then the case will be in a bastardized form and far from what the prosecution has alleged.

According to some the decision is also a major victory for the institution of the president, but it is also a limitation on the presidency. The Court has taken away part of what it says is a quintessential executive power—the authority to investigate and prosecute crimes. In giving immunity to a former president, the Court has limited the power of the sitting president to investigate and prosecute. The Court, without any apparent consideration of it, has removed from all presidents the quintessential power of determining whether the prosecution of a former president is in the national interest.

The Court, by leaving many issues open with little or clouded guidance, has arrogated power to the judiciary. What is a “core” official act? Is the immunity for a non-core act absolute or presumptive? If it is presumptive, how, if at all, can the presumption be overcome? What is the line between a private act by a president and an official one? We have no evidence that past presidents ever made decisions concerned about a future prosecution, but after this decision a president may be emboldened to push the boundary on criminal actions because of the newly created immunity. However, because of the many open questions, a president may not be sure about his freedom from prosecution. By Roberts’s analysis they still can’t in all circumstances “boldly and fearlessly” carry out their duties. They must wait until the courts decide these open issues. The decision gave the president extraordinary authority; it also gave the courts potent powers.

Of course, the immunity created for Trump should apply to other presidents. Would you advise Biden to use this new opportunity? For example, Biden could order the FBI or intelligence agencies to surveil Trump and all his advisers or to disrupt communications among them. Or perhaps surveil Justice Thomas to see if, despite disclaimers, he and his wife do talk politics. Biden would be giving such orders to members of the executive branch, and his actions would now have absolute immunity.

Conclusion

Almost fifty years ago, David Frost asked then ex-President Nixon whether the president could do something illegal in certain situations such as against antiwar groups and others if he decides “it’s in the best interests of the country or something.” Nixon famously replied, “Well, when the president does it, that means that it is not illegal.” Nixon was mocked for his answer. The present Supreme Court did not say that all official presidential acts were automatically legal; they said only(?) that the president had immunity for them. But is something criminal if the perpetrator can never by prosecuted for it? The mockery of Nixon should end. And of course, there is now the question of whether Nixon should have had immunity for Watergate. Nixon’s role was to talk with his advisers in the executive branch that set off the chain of events that led to Watergate. Would those conversations now have to be considered core presidential actions for which he had absolute immunity?

Welcome to the new world where, according to the Supreme Court, presidents for the first time, can make decisions boldly and fearlessly because they have immunity from criminal prosecution. Meanwhile, many of us see a new world where presidents are above the law and can commit crimes without accountability.

Posted on by rjonakait

Remember the Panama Canal Treaties

Knowledgeable people find the roots of the Republican Party’s dysfunction in the hyperpartisanship practiced by Newt Gingrich when he became Speaker of the House in 1995. Others find tentacles spreading from the Tea Party movement which emerged in 2009 and brought conspiracy theories into mainstream politics. But seeds were planted twenty years earlier with the now largely forgotten battle over the Panama Canal treaties, which I learned about when I read Drawing the Line at the Big Ditch: The Panama Canal Treaties and the Rise of the Right (2008) by Adam Clymer.

Clymer explains how the fight over the Panama Canal Treaties helped fuel the rise of the modern Right. Both treaties were signed in 1977. One treaty gave the United States the right to use force to assure that the canal would remain open to ships of all nations. The second treaty gave Panama control over the canal starting in 2000.

In order to take effect, the treaties not only had to be signed by the leaders of Panama and the United States, they also had to be ratified by appropriate bodies within those countries. After Panama did so in a plebiscite, a political battle ensued in the United States Senate over their ratifications. According to Clymer, this led to the emergence of Richard Viguerie, a founder of modern conservatism, the use of direct-mail marketing, and the rise of single-issue PACs designed to raise money and defeat moderate Republicans.

Although it was President Jimmy Carter who signed the pacts, the negotiations had started under President Nixon. The treaties were thought desirable because they gave America the right to assure the canal’s neutrality, and they removed a flashpoint for much of Latin America, and Panama in particular, by giving Panama control over the canal. Those supporting the treaties maintained that they would increase the security of the canal by helping to remove the threats of guerrilla attacks, which were almost impossible for America and Panama to defend against. 

The treaties were backed by some prominent conservatives, including Henry Kissinger and William Buckley, but they were also attacked by other conservatives in near-hysterical terms. Opponents maintained that this was a surrender of American sovereignty, and furthermore, the military leader of Panama was pro-Communist. Marxists would control the canal and Panama, and the harm to the U.S. as a result would be tremendous.

What is surprising to a modern surveyor of the political scene is that some Senators supported the treaty simply because they thought it was the right thing to do even though they knew that their ratification votes would harm them politically. The single-issue PACs targeted some of these Senators and through direct-mail marketing, inflamed a cadre of voters. Republicans who supported the treaties were defeated in primaries when they stood for reelection. Their overall record did not matter. Their vote on this one issue doomed their political careers. On the other hand, Ronald Reagan opposed the Treaty, and some, including Bill Buckley, maintained that the treaty controversy helped elect Reagan president.

 This is an issue that is now largely forgotten even though its aftermath still affects the United States. A lesson from the controversy has been absorbed, even if that lesson’s source is not remembered. Republican politicians are in fear that if they don’t toe some single-issue lines, a portion of conservatives will target them and defeat them in the primaries. The result is that the politicians cannot develop nuanced positions; compromises are verboten. Instead, the “wrong” stance on individual issues can result in a primary defeat even if the politician accepts the conservative line on other matters. If I don’t completely accept the NRA’s positions, I may be defeated in the primary. If I adopt a moderate stance on abortion, I may be defeated in the primaries. If I have concerns about tax cuts, I may be defeated in the primaries. And so on. The result is a lockstep, hard-right conservatism. Back in 1978, some conservative Senators studied a complex situation and decided that a ratification vote for the Panama Canal treaties was in the best interests of the country. What is remembered is not that their position was right, but that some lost their political careers as a result.

History, of course, has shown them to be right. The Canal functions just fine. Panama is not a hotbed of anti-American Communism. Those who were wrong, however, did not pay a price for their belief. They continued in office. And most of us have forgotten the debate.

In what now seems impossible, Democrats and Republicans joined together to ratify the treaties. Fifty-two Democrats and sixteen Republicans voted for ratification, while ten Democrats and twenty-two Republicans voted against. We have seen little of such bipartisanship since the Panama Canal treaties. On the other hand, since that 1977 controversy we have seen many conservatives benefit even when proved wrong.

The Republican party has been on a forty-year path to its present dysfunction.

Posted on by rjonakait · 1 Comment

Forgive Yourself

          Should Trump be criminally prosecuted after he leaves office? Many assume that a president cannot be prosecuted while in office but can be later. Even so, that an ex-president can be prosecuted does not necessarily mean that he should be, and my feelings about such a prosecution are mixed.

          Deciding not to bring valid criminal charges seems to place the president above the law, and that does not seem right. On the other hand, a prosecution brought by a political rival tends to make the country look like a despotic state in which political rivals get jailed by those in power. In addition, I am concerned that the Trumpistas may become even stronger and more entrenched by a Trump prosecution. My opinion: Trump should be prosecuted only if he committed a crime of such clear venality that it would be apparent to most people that this was not simply a political prosecution.

          However, if Trump pardons himself before leaving office, the next administration will have almost a duty to prosecute him. The self-pardon brings up two issues: 1) Can there be a pardon when a person has not been convicted or even charged with an offense? 2) Can a president pardon himself? There is an accepted answer to the first question, but not the second.

          It seems strange to many that a pardon can be issued for crimes that have not been charged, but we have two famous examples of such clemency in our history: On Christmas Day 1868, President Andrew Johnson pardoned all confederates even though the southerners had not been charged with crimes. And on September 8, 1974, President Gerald Ford pardoned Richard Nixon even though Nixon had not been indicted or charged. Nothing in the Constitution and nothing said by the Founders authorizes such preemptive pardons and nothing forbids them, but the actions of Johnson and Ford have been accepted as legitimate. Thus, pundits proclaim that a president can pardon people for crimes that have not been charged.

          (There is an important difference between those two pardons. Johnson pardoned the confederates “for the offence of treason against the United States, or of adhering to their enemies in the late civil war.” Ford issued a blanket amnesty for any and all crimes, known and unknown, during a specific period. Ford granted Nixon a pardon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974.”)

So, while there is precedent for pardons of unindicted crimes, we have no historical precedent for a president pardoning himself. Arguments have been advanced both in favor and against that power. If Trump does issue an I-forgive-myself decree, I may explore the competing arguments, but suffice it to say now that it is not certain whether presidents are allowed to self-pardon. However, neither the constitutional text, the constitutional debates, nor court decisions made it clear that a president could preemptively pardon, but the actions of Johnson and Ford have served as precedents legitimizing that power. (Jimmy Carter on his first full day in the Presidency in 1977 granted amnesty to all who evaded the draft during the Vietnam War era. While many praised or condemned the wisdom of his action, no one seems to have questioned his authority to grant the preemptive pardons.)

          And that is why if Trump pardons himself, the Justice Department, assuming it has appropriate grounds to do so, should indict the Donald. There are clear dangers in presidents being able to pardon themselves. They can then freely commit crimes knowing that they can escape criminal punishment by being able to pardon themselves. If Trump pardons himself and that action is left unchallenged, it may become assumed that a president has such authority, just as it is now accepted that presidents have a preemptive pardon power. A self-pardon should be challenged so that the courts are forced to rule on its legitimacy. Thus, the scenario goes, Trump is indicted. Trump, presumably through an attorney—please, please, let it be streaky-faced and incoherent Rudy Giuliani—will move to dismiss the charges, citing the pardon. Courts will have to rule on this motion, and that ruling will presumably make its way to the Supreme Court. In the end we would have more than Trump’s opinion that he has the ability to pardon himself.

          Thus, I am hesitant about trying Trump for crimes unless he pardons himself, and then there definitely should be a criminal prosecution. I expect that others share these views, and thus we have a somewhat bizarre situation where if Trump does not pardon himself, he is less likely to be federally indicted than if he does.

          Of course, if Trump wants a pardon, he should work out a deal with his Vice-President and say, “Mike, I will resign if you, when you are President, will pardon me. Pinkie swear?” But since it is not clear that the two are even talking these days, this will be a hard conversation for Trump to initiate.