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White Countries and Brown Countries

When President Donald Trump tells four sitting members of the United States Congress, all women of color, to “go back” to their countries and fix those countries’ problems, he’s playing to a widely held stereotype: that the most successful, best run countries in the world are run by white people, and that countries run by people of color are failures, always and everywhere. White countries are rich, democratic and safe; brown countries are poor, authoritarian and violent.

It’s past time to challenge that stereotype.

For my money, the best single measure of a country’s governance is its position on the Democracy Index, which is compiled annually by the Economist Intelligence Unit, a subsidiary of the British publisher of The Economist magazine. The EIU assesses countries based on 60 criteria, grouped into five categories: electoral process and pluralism, civil liberties, functioning of government, political participation, and political culture. A country’s scores in the five categories are averaged to a final score, from one to ten. A country scoring between eight and ten is categorized as a “full democracy”; countries scoring between six and eight are “flawed democracies”; from four to six classifies as a “hybrid regime”; and below four is “authoritarian.”

It will surprise most Americans to learn that our latest score, from the 2018 index, was only 7.96, making the United States not a “full democracy,” but a “flawed democracy,” ranking 25th in the world. It would apparently surprise President Trump to learn that six of the countries that were rated higher than us have population majorities that would be considered minorities in the United States.

Uruguay, Mauritius and Costa Rica are all “full democracies,” ranking ten, eight, and five places above us. South Korea, Japan and Chile are “flawed democracies,” but still rank above the United States, at 21, 22 and 23.

Just one place after the United States is Cape Verde. Most Cape Verdeans have mixed European settler and African slave ancestry, and would be considered non-white in the U.S. Botswana follows just three places behind the United States.

Other non-white or Hispanic majority countries falling in the same “flawed democracy” category as the United States are, in order: Taiwan, South Africa, India, Timor-Leste, Trinidad and Tobago, Panama, Argentina, Jamaica, Suriname, Brazil, Colombia, Malaysia, Philippines, Guyana, Lesotho, Ghana, Peru, Dominican Republic, Mongolia, Tunisia, Indonesia, Singapore, Ecuador, Namibia, Paraguay, Sri Lanka, Mexico, Hong Kong, Senegal and Papua New Guinea.

Maybe, like our president, you care less about democracies and more about economies. We’re not at the top there, either. Depending which measure you use, the United States ranks 10th, 11th, or 13th in the world in per capita gross domestic product. Countries ranking above us include Qatar, Singapore, Brunei, the United Arab Emirates and Kuwait, plus the Chinese autonomous territories of Macau and Hong Kong.

Maybe what’s important to you is how safe a country is. President Trump’s attack on the four congresswomen included an allegation that their ancestral countries are dangerous, “crime infested” places, again playing to a stereotype that the safest countries are the whitest. Here, you may be less surprised: ranking countries by homicide rate, from the lowest rate to the highest, the United States comes in as one of the most dangerous in the world, tied for 142nd.

At such a dismal ranking, it’s pointless to list all of the non-white majority countries that are safer than ours. They include countries on every populated continent, countries from Angola to Zambia, including countries our State Department warns us not to travel to, like Iran and Pakistan and Sudan.

No fewer than 24 African countries have lower homicide rates than the United States, and a 25th, Zambia, is tied with us at 5.3 homicides per year per 100,000 population.

It’s outrageous to suggest that any American citizen doesn’t belong here, based on nothing more than her skin color and her politics. For Donald Trump to take his prejudice against Americans of color and project it out to the whole world only aggravates the outrage.

 

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Underestimating Donald Trump

Most commentators assessed President Donald Trump’s attack on “the Squad” – the four outspoken progressive freshman Democratic Congresswomen – as an attempt to aggravate Democratic divisions. Only a few understood that Trump’s motivation was actually the opposite: House Speaker Nancy Pelosi has recently distanced her party mainstream from the Squad, and he wanted to counter that, to unite Democrats behind their most visible leftists so he could portray them as the face of the Democratic Party, no matter who wins the party’s presidential nomination.

When the entire ideological spectrum of the Democratic Party rose up as one to denounce Trump’s racist attack, some commentators claimed that Trump’s attack had failed – he had united Democrats, not divided them. Only a few realized that Trump’s attack was wildly successful – he wanted to unite Democrats behind the Squad, and he succeeded.

Trump’s attack on the Squad – representatives Alexandria Ocasio-Cortez of New York, Ilhan Omar of Minnesota, Ayanna Pressley of Massachusetts, and Rashida Tlaib of Michigan – was racist, consistent with Trump’s recurring suggestion that racial and religious minorities’ right to dissent is less robust than white Americans’ right to dissent. It was un-American in its contentions that political dissent equals disloyalty, that criticism of a sitting American government constitutes hatred of America, and that people who are unhappy with government policy should leave the country. (Trump was a strident dissenter during Barack Obama’s presidency, deeply and vociferously unhappy with Obama’s government – but nobody ever suggested that he should “go back” to Germany.)

I don’t for a minute suggest that Democrats should not have united behind the Squad. Valuing diversity is a core principle, maybe the core principle, of today’s Democratic Party; strong and unequivocal rejection of racism is mandatory for a party aspiring to reflect the wide multi-cultural reality of 21st century America. Democrats had no choice but to stand with the Squad. But that’s what made Trump’s gambit so brilliant – that and the certain knowledge that his party, his Fox News cheering section, and his voter base would exact no price from him for his racism.

This kind of Democrat-baiting is not a new tactic for Trump. In recent weeks, Trump’s administration made a point to announce, loudly and repeatedly, that massive, nationwide immigration “raids” were coming, which would lead to the arrest and deportation of thousands of illegal immigrants. Nobody with any experience in law enforcement would ever announce a raid in advance – in fact, the element of surprise is what makes it a raid. If you know when they’re coming and you stick around, it’s not a raid, it’s a meeting.

Some commentators said the point of announcing the raids was to intimidate immigrants. Some said the point was to reassure the xenophobic elements of the Trump base that Trump is still on the case, making America white again.

Both are probably true, but there was a third point of announcing the raids: to get Democrats to condemn the raids. Here, I think Democrats had a choice, and we blew it. Democrats universally condemned the raids, very often in harsh and sweeping language, even though the raids were allegedly to be directed at illegal immigrants whose cases had run their full legal course, culminating in final orders of deportation. Thus Trump forced Democrats into a position in which he can reasonably argue they oppose all immigration enforcement.

Last year, I argued that Trump was caricaturing Democrats’ position on immigration, and I wrote that there is no Democrat who favors open borders and abandonment of immigration enforcement. Judging by Democratic reaction to last weekend’s immigration raids, I’m not sure I can still say that.

My point is not to re-hash immigration policy. I’ve argued before, and I don’t want to re-argue now, that Democrats need to find a policy that allows for immigration at a sustainable pace, neither a flood nor a trickle. My point here is that Trump is effectively painting Democrats as extreme. With an approval rating that hasn’t topped 50 percent for even a single day of his presidency, the only way for Trump to win re-election is to convince a relatively small number of voters in the moderate center that, however much they dislike him, Democrats would be worse.

As a retired lawyer and former litigator, I know that the best way to turn a winning case into a losing one is to underestimate your adversary. Democrats can’t afford to underestimate Trump in 2020.

Trump is neither stupid nor delusional, as satisfying as it might be to think so. On the contrary, he has proven time and again that he has a finely honed instinct for dividing the country into “us” and “them,” and for pushing just barely enough voters across the line from abhorrence to pinched-nose acceptance of his corrupt vulgarity.

As we approach 2020, Democrats need to be more careful.

Twitter Blocking and the First Amendment

On Tuesday, a federal appeals court ruled that President Donald Trump violated the First Amendment when he blocked Twitter users from accessing his account because they criticized him. On Wednesday, the New York Times reported the filing of two lawsuits against Representative Alexandria Ocasio-Cortez by people she had blocked from her Twitter account.

Joseph Saladino, a candidate for a congressional seat from Staten Island and Brooklyn, primarily known, as Joey Salads, for his racist You Tube prank videos, ventured that his lawsuit is a test, a “social experiment to see if the standards will apply equally” to liberals and conservatives – whether the courts will “rule the same way against A.O.C. as Trump.”

Dov Hikind, a former New York assembly member who reliably generates more heat than light, tweeted thusly: “No one is above the law. If the courts ruled POTUS can’t block people on Twitter, why would @AOC think she can get away with silencing her critics?” (I observe that @AOC’s supposed effort to “silence” Hikind must have failed, since he’s still talking.)

Only to a simple mind are the Twitter accounts of the President of the United States and a freshman member of Congress identical. I don’t know whether the U.S. Supreme Court will agree or disagree with the ruling against Trump, much less how the courts will rule in the cases against Ocasio-Cortez. But I know that the ruling against Trump doesn’t transfer mechanically to every public official who has a Twitter account. There are important distinctions between legislative and executive officials, and even more so between individual legislators and the president.

The decision in the Trump Twitter case involved Trump’s blocking of Twitter users because, he conceded, they criticized him in replies to his tweets.

Trump’s first argument was that his Twitter account is a personal account, not a governmental account – that he operates his account in his capacity as a private citizen, not in his official capacity as president. That was an especially hard argument, given that Trump and White House officials, including a former press secretary, have repeatedly referred to Trump’s tweets as “official statements of the President.” The appeals court described Trump’s use of the Twitter account “as an important tool of governance and executive outreach” – he uses tweets to make personnel changes, to engage foreign leaders, to make policy and initiate programs, and to conduct other governmental business, and he has described (in a tweet, of course) his use of Twitter as “MODERN DAY PRESIDENTIAL.”

Ultimately, even the attorneys defending Trump’s position conceded that Trump did not use Twitter for purely private purposes independent of his presidency, and the court had no trouble concluding that Trump’s Twitter account functions as a governmental account – that Trump uses his account as in his official capacity as president, not purely in his capacity as a private citizen.

Next, Trump argued that even if his Twitter account is a governmental account, his action in blocking Twitter users was a private action, not a governmental one. The court gave short shrift to that argument: if he tweets in his official capacity, he blocks those who disagree with his tweets also in his official capacity.

Finally, Trump argued that even if he operates his Twitter account in his official capacity as president, the account isn’t a public forum for private speech, but is government speech. Of course, Trump’s tweets themselves are government speech, and the First Amendment does not require government speakers to treat all viewpoints equally – government officials are permitted to state their own opinions, and are not required to express other views.

But when government sets up a forum for general public discussion, it may not exclude people from that discussion based on hostility to their points of view. The court easily concluded that Trump’s Twitter account is such a public forum. Twitter is a platform that provides a full set of interactive features, allowing users to reply to tweets, to reply to other replies, to “like,” to re-tweet, in a free-wheeling public discussion. So when Trump used his Twitter account, with all of those publicly accessible interactive features, for governmental purposes, he created a public forum, from which users may not be excluded based on their viewpoints.

Congresswoman Ocasio-Cortez’s Twitter account has the same interactive features. And Ocasio-Cortez has used her account to tweet about public issues. But it’s not self-evident from the decision in the Trump case that Ocasio-Cortez has created a public forum.

First, legislators are different than executives. Within the range of her legal authority, an executive speaks for the government, establishing government policy, initiating and administering government programs. As a general matter, individual legislators can’t establish government policy, and can’t initiate or administer government programs. No individual legislator speaks for the government, and Ocasio-Cortez doesn’t speak for even so much as a House subcommittee. She speaks for herself, in a fashion that at least arguably more resembles private speech than official speech.

The courts might conclude that a legislator’s expression of her opinions on public issues is part of the legislator’s governmental function, and therefore that a legislator’s use of a publicly accessible interactive platform like Twitter to express her opinions does in fact create a public forum. I wouldn’t be especially troubled by such a conclusion. But it doesn’t follow directly from the Trump decision.

Second, the president is different from other executives. The president is uniquely important, being in charge of the entire executive branch, and presidential records have a unique legal status. The Presidential Records Act of 1978, a post-Watergate reform intended to prevent presidents from taking their records with them when they leave office, provides that documents that “relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President” are the property of the United States government, and must be preserved for posterity. The appeals court in Trump’s case observed that “the National Archives, the agency of government responsible for maintaining the government’s records, has concluded that the President’s tweets are official records” that belong to the United States government and must be preserved.

The president’s statements, whether this president’s or any other’s, whether on Twitter or in a more traditional forum, are uniquely important to the country – to the conduct of politics and government today, and to history. And therefore commentary on, and replies to, the president’s statements are uniquely important.

Whether these distinctions will be enough to produce different outcomes in the cases against Ocasio-Cortez than in the case against Trump, I can’t say. But they are real distinctions, and serious people – unlike Dov Hikind and Joey Salads – will take account of them.

 

Concentration Camps

The American Heritage Dictionary defines a concentration camp as

“A camp where persons are confined, usually without hearings and typically under harsh conditions, often as a result of their membership in a group the government has identified as dangerous or undesirable.”

Although surely there were others, probably back to ancient times, the first internment centers that I’ve been able to find that fully meet the American Heritage definition were set up by order of President Martin Van Buren in 1838, for detention of Cherokee Indians pending their forced relocation westward.

The first interment centers to be called “concentration camps” were established by the Spanish military in an effort to suppress Cuba independence uprising during the Ten Years War, from 1868 to 1878. The Spanish again established concentration camps in 1896 during the Cuban Rebellion, which became the Spanish-American War in 1898.

Americans set up concentration camps during the Philippine-American War of 1899 – 1902, and the British did the same during the Second Boer War of 1899 – 1902. These camps confined non-combatants, without individualized judicial or other formal process, based solely on membership in an ethnic or national group, under harsh conditions, for purposes of subjugating a rebellious population.

Then came the Nazis, whose first concentration camp in 1933 was for the confinement of union organizers and anti-Nazi activists. In 1934, internment was expanded to “undesirables” more generally, including Roma, Slavs, gay people, disabled people, liberal intellectuals, and, of course, Jews.

The camps’ purpose rapidly expanded from suppression of dissent and political opposition. By 1939, the camps provided slave labor to support the war effort. Although the purpose of the labor camps was not technically extermination, internees were disposable and easily replaced, and their treatment was sufficiently brutal that average life expectancy in those camps was maybe three or four months.

In 1941, the Nazis began building concentration camps explicitly for extermination. People, most numerously Jews, were sent to these camps not to work, even for short periods of time, but to be killed on the day of arrival.

I think President Donald Trump’s internment camps for mostly Hispanic immigrants seeking asylum in the United States, meet the American Heritage definition of concentration camps. Internees are confined without judicial process, based solely on their membership in the group of people who cross the Mexican-American border to seek asylum. Internment conditions are harsh, and internment is intended at least in part to deter asylum-seeking, a legal exercise of rights guaranteed by international and federal law. The Trump administration regards asylum-seekers as both dangerous and undesirable; internment is its solution to the perceived threat posed by those asylum-seekers.

Nonetheless, the term “concentration camp” does not call to the 21st century American mind images of Boers, or Filipinos, or Cubans, or Native Americans, confined in tents behind fences in harsh but not usually deadly conditions. The term “concentration camp” calls to our minds images of gas chambers built for the purpose of Jewish genocide. Those of us who oppose Trump’s immigration policies should not describe Trump’s detention facilities for asylum-seekers as “concentration camps.”

The Nazi Holocaust stands out, and should stand out, as unique. Brutality runs through human history, but there are degrees of brutality, and it’s important to maintain a vocabulary that distinguishes those degrees. No other genocide in all of human history combined the explicit intent, scope, and technological efficiency of the Nazi Holocaust. The term “concentration camps” should thus be reserved to describe the Nazis’ labor camps and extermination camps, and should not be used to describe the kind of internment camps that preceded the Nazis, however unfair, unjust, illegal, short-sighted, or inhumane those internment camps are.

Trump’s facilities are clearly internment camps, and surely that term is strong enough to express our condemnation of a policy we regard as illegal, uncivilized, even barbaric.

 

From Mafia to Marriage in 50 Years

There was a time not so long ago that bars were the center of the gay cultural universe. Well into the 1980s in America’s large cities, and even later in our smaller towns, gay bars provided what was in many cases the only social space available to lesbians and gay men.

In New York as elsewhere, gay bars were typically run by organized crime figures who vigorously loathed gay people. The bars operated largely outside of the law, and conditions inside were poor. But the bars were what we had. We weren’t welcome to be ourselves in heterosexual society – not at work, not at school, most certainly not in church, not even in our families – but we were welcome to each other in the bars.

The original Stonewall Inn was a Prohibition-era speakeasy on Seventh Avenue South. It was raided and closed, but was relocated to Christopher Street and re-opened in 1934, after the end of Prohibition. It operated as a restaurant and bar for 30 years, until fire destroyed its interior. In 1966, three Mafiosi from the Genovese crime family bought the building and re-opened it as a gay bar in 1967.

The Stonewall was a seedy place. There was no running water behind the bar, so glasses were rinsed in tubs and re-used. There were no fire exits. The bathrooms were filthy. The bar had no liquor license. The pre-Serpico New York Police Department dispatched an officer to the bar each week to pick up a cash bribe, in exchange for which the NYPD overlooked legal violations and tipped off the Stonewall’s management when police raids were coming.

Some historians maintain that the Stonewall’s owners extorted its wealthier patrons by threatening to expose their homosexuality – to the point that the Stonewall may have made more money from extortion than from liquor sales. It’s not like the customers could complain to the police, or to the State Liquor Authority, or to their elected representatives.

Still, the Stonewall was one of the only gay men’s bars in New York that permitted dancing, and it was one of the largest gay bars in the city, so it was popular.

Police raids of gay bars were routine in the 1960s. A typical police raid went like this:

Police entered the bar, the lights were turned on, and patrons were lined up and asked for identification. Anyone dressed counter to the sex shown on his or her identification was arrested, and the rule for women was excruciatingly specific: any woman not wearing three items of “feminine clothing” was arrested. Any two members of the same sex seen touching or dancing were arrested. Bar employees were arrested, liquor was confiscated, and the bar was closed. Arrestees were packed off in paddy wagons and booked. Most quickly pleaded guilty to whatever the police chose to charge, taking the option least likely to lead to public exposure and social ostracism, including loss of employment and banishment by family. Most arrestees could look to nobody, absolutely nobody, for sympathy or support – and certainly not to the police or the judges, not even to defense lawyers.

New York Mayor Robert Wagner notoriously sent the NYPD on a bar-closing binge in 1964, to “clean up” the city for World’s Fair tourists. It was a fact of gay life; if you were gay in New York in the 1960s, you got used to being the filth that had to be swept out whenever the city needed a little spiffing up for visitors.

The Stonewall Inn’s regular payoffs to the police usually bought the owners advance notice of police raids, and raids were usually conducted early in the evening so the bar could clean up and re-open after the raid was over. So it’s not clear why the police raided the Stonewall late on the night of June 27-28, 1969, without notice to the owners. One historian has concluded that the police take from the Stonewall’s extortion racket had dropped off, so they decided to close the place.

In any event, the police raided the Stonewall Inn 50 years ago this month, on June 28, 1969, at 1:30 a.m. The raid began as raids typically began. The lights were turned on, the music was turned off, and the police blocked the exit. The patrons, just over 200 of them, were ordered to line up and hand over their IDs, except for the men in drag, who were ordered to the bathrooms for sex verification inspections by female police officers.

But something snapped that night. The burden of a lifetime of humiliations became too great to bear. Some of the customers refused to produce identification and were arrested. But the paddy wagons hadn’t arrived yet, so there was a short wait. Meanwhile, those not arrested were forcibly ejected from the bar – but they didn’t scurry away in shame as they were supposed to. They gathered in the street outside the bar, taunting the police. Scuffles ensued, the critical one by some reports being between a lesbian and her arresting officer, who hit her on the head with his baton after she complained that the handcuffs were too tight. She turned to the crowd and demanded, “Why won’t you guys do something?”

The crowd exploded in violence. When they tried to overturn a police wagon, some of the police fled in their vehicles. The rest barricaded themselves inside the Stonewall, along with a reporter from the Village Voice, which had offices across the street. The mob threw garbage, rocks, anything they could grab, breaking the Stonewall’s windows. They pulled up a parking meter and used it as a battering ram against the barricaded door.

Forty-five minutes into the melee, police reinforcements arrived, but were unable to restore order until 4 a.m. That morning, witnesses reported a sense of wonder at what felt like a great blow struck for justice and humanity. On Sunday, June 29, the New York Times ran a one-column story about the incident on page 33, its headline revealing its bias: “4 Policemen Hurt in ‘Village’ Raid.” Violence continued sporadically outside the Stonewall and in the neighborhood for six days.

The Stonewall riot was not the first time that gay and lesbian bar patrons had resisted police raids. But the Stonewall riot was the one that ignited the modern gay rights movement, not just in New York, not just in the United States, but world-wide.

Before Stonewall, the prevailing approach to gay protests was that advocated by the great pioneering gay activist, Frank Kameny. Kameny’s strategy was to present lesbians and gay men as “people just like you,” to persuade heterosexuals that we deserve the same rights as you. At Kameny’s protests, male protesters wore suits and ties; female protesters wore skirts and blouses. No same-sex touching was permitted, because the “sex” part of homosexuality reminded heterosexuals all too viscerally that, in the end, we are not quite exactly like you.

Stonewall introduced a more militant approach to gay activism, and the movement became more demanding and less polite. Nobody could possibly have expected how fast change would come. Fifty years later, it’s hard to remember how long ago 1969 was.

On the first anniversary of the Stonewall riot, on June 28, 1970, activists in New York, Chicago and Los Angeles staged Christopher Street Liberation Day commemorations, the first gay pride marches in American history. The Times covered the New York march, this time on the front page, under the headline “Thousands of Homosexuals Hold A Protest Rally in Central Park.” (Times reporters weren’t allowed to call us “gay” until 1987, and then only as an adjective, not a noun; openly gay people were “admitted homosexuals” or “avowed homosexuals” until the mid-1990s.)

By the second anniversary of the riots, gay rights advocacy organizations were operating in every major American city and in Australia, Canada and Western Europe. Kameny remembered that, at the time of Stonewall, there were 50 or 60 gay rights advocacy organizations in the country, but two years later there were at least 2,500.

In 1986, the New York City Council adopted legislation prohibiting discrimination based on sexual orientation. The New York State legislature followed in 2002. In 1980, the New York Court of Appeals struck down the state’s law criminalizing gay and lesbian sex; the U.S. Supreme Court followed in 2003. In 2004, Massachusetts became the first state to legalize same-sex marriage. New York followed in 2011, and the Supreme Court invalidated same-sex marriage prohibitions nationwide in 2015. Today, same-sex marriages are recognized in 30 countries on six continents.

The entire month of June is semi-officially designated LGBT Pride Month, not just in the United States but in much of the world. New York uses it as a tourist draw, and New York’s 50th anniversary commemoration of the Stonewall riots on June 30 will probably command attendance in the millions. The Times coverage of Pride Month constitutes a virtual anthology, running the full range from “The Fight is Still Happening for the Rest of Us,” a sobering review of the continuing struggles of LGBT Americans in the more conservative communities of the Midwest, to “Pride Events: Here’s How to Celebrate,” a festive listing of “over 25 options for commemorating the 50th anniversary of the Stonewall uprising and celebrating Pride Month.”

The Mafia-owned iteration of the Stonewall Inn closed for good a few weeks after the riots. The Stonewall has re-opened and re-closed several times since then, most recently re-opening in 2007. It’s still a gay bar, and it’s still called the Stonewall, although it’s a lot nicer now than 50 years ago, and not Mafia-owned, and it rents out space for wedding receptions.

The building became a national historic landmark in 2000, in 2015 it was designated a New York City landmark, and in 2016 it became a New York State historic site. Christopher Park, a small triangular park across the street from the Stonewall, is home to two same-sex couples sculpted by George Segal and installed in 1992. Christopher Park was designated a national monument by President Barack Obama on June 24, 2016, under the jurisdiction of the National Park Service. These were the first New York City, New York State, and federal designations based on a site’s significance to LGBT history.

I don’t mean to suggest that hatred of LGBT people, ostracism of LGBT people, violence against LGBT people, or discrimination against LGBT people is over. But today, on the fiftieth anniversary of the Stonewall riot, I think it’s worth taking a moment to marvel at the distance we’ve traveled, and, in the scheme of things, at the remarkably short time we took to travel it.

 

Missing the Point

The early reactions to yesterday’s dramatic statement by former Special Counsel Robert Mueller III have been more predictable than edifying. President Donald Trump’s opponents found vindication of their desire for further investigation of the President, either as part of Congress’s oversight function or as part of a formal impeachment inquiry. President Trump’s supporters continued to recite their mantra, “no collusion, no obstruction.”

Both sides are largely missing an important point, and it’s all the more dismaying because Mueller went out of his way to focus on it. Mueller described Russian interference in the 2016 U.S. presidential election as a “systematic,” “sophisticated,” and “concerted attack on our political system.” His words echoed the report his office completed two months ago, which characterized the Russian attack as “sweeping and systematic.” The point required emphasis because it has been obvious that very few of the people publicly commenting on the report have actually read very much of it.

Mueller also emphasized that it was the Russian attack on the American political system that impelled the initiation of the investigation. The investigation was not initiated to prevent Donald Trump from becoming president, but to prevent foreign interference in American elections. The Trump campaign came into the investigation only because reports of Russian intelligence outreach to Trump campaign officials, beginning with George Papadopoulos, reached investigators.

I’ve argued a number of times that the Mueller investigation was first and foremost a counter-intelligence investigation, not a criminal one. As Mueller pointed out yesterday, the Justice Department order creating the Office of Special Counsel and appointing Mueller stated as its purpose “ensur[ing] a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.” The extent of any “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” was stated only as an included component of the counter-intelligence investigation.

With his “no collusion” rhetoric, President Trump quite successfully turned the public discussion from the very serious issue of Russian election interference to the very dubious proposition that Trump had conspired with the Russians who interfered in the election. He was abetted by many of his detractors, who were seduced into hoping, even expecting, that the Mueller investigation would uncover collusion between Vladimir Putin and Donald Trump – even that Putin was “running” Trump as a Russian agent.

Good grief.

After unsuccessfully trying in his report to re-focus attention on Russian election interference, Mueller tried again yesterday. So far, he seems again to have been largely unsuccessful. Trump’s opponents mostly want to talk about the considerable evidence of obstruction of justice detailed in the Mueller report. And Trump’s supporters mostly want to talk about the lack of any criminal accusation against Trump in the Mueller report.

*          *          *

As a general matter, I’m not big on gestures, by which I mean taking an action as a statement of principles rather than as a means to effect a change, defined in Wictionary as “an act or a remark made as a formality or as a sign of attitude.” In today’s parlance, that might be called “virtue signaling.”

I’ve been opposed to opening formal “impeachment proceedings” because I think it would be just a gesture, given the nearly metaphysical impossibility of obtaining a Trump conviction in Majority Leader Mitch McConnell’s Senate. I also see no need to formally name the House of Representatives’ various committee investigations as “impeachment proceedings” because I see no substantive value in putting that name on investigations that Congress is clearly entitled to conduct without the impeachment label.

I understand and respect the opposing arguments, most prominently that the absence of formal impeachment proceedings signals this president and future presidents that Trump’s conduct is acceptable. But on balance I disagree that calling an investigation an impeachment inquiry is the sole or essential means to condemn Trump’s conduct.

And there are many such investigations in play. NBC News compiled an impressive list of 50 investigations by 14 House committees into Trump and his administration. That’s a pretty strong statement of disapproval of Trump’s conduct.

Only the House Intelligence Committee is investigating Russian election interference. A number of other committees are investigating interference-adjacent matters, like Trump’s obstructions of Mueller’s investigation and Trump’s easing of sanctions against Russian oligarch Oleg Deripaska.

The Intelligence Committee’s investigation is important, because our government must have the fullest possible understanding of Russian intelligence and espionage methods. But obtaining that understanding should not in and of itself be the purpose of the investigation. The real purpose of the investigation should be to lay the most solid foundation possible for defense against future attacks.

The focus of these investigations should not be primarily retrospective, and should not be unduly distracted by the question of Trump’s involvement, as he put it yesterday, in Russia “helping me get elected.” With just over 17 months until the next presidential election, Congress must focus on what needs to be done, what has been done, and what remains to be done, to secure the 2020 election from foreign interference.

Since American elections are primarily administered by the states, the House must focus on state-level identification and implementation of best practices. But the states operate in this area with assistance from several federal agencies, including the Election Assistance Commission, the FBI, and the Department of Homeland Security. The House should also focus on those agencies’ efforts to secure our elections.

The investigation should also produce legislation relating both to the mechanics of voting and vote-counting and to the conduct of candidates and their campaign officials. On the latter point, legislation has been introduced in both houses of Congress to require that an offer of assistance from a foreign government be reported. But much more is needed.

President Trump has consistently denied that Russia interfered in our elections, insisting that he won the election on his own, and that any outside interference was inconsequential. Anyone who has read the first volume of the Mueller report knows that Trump’s position is factually indefensible. The “sophisticated” and “systematic” effort by Russian intelligence operatives to suppress voting by pro-Hillary Clinton demographics and to damage Clinton by strategically timed release of stolen e-mails certainly had a significant effect on the vote. And given the narrowness of the vote in the three states that gave Trump his electoral victory, it’s almost inconceivable that Russian interference wasn’t decisive.

Political campaign veterans know the value of opposition research, and would have paid dearly for access to Clinton’s e-mails – and indeed, the Mueller report details efforts by pro-Trump activists to do exactly that. In other words, campaign veterans universally believe that opposition research is valuable, and there’s no particular reason that opposition research feloniously conducted by Russian spies is any less valuable than the more legitimately obtained stuff.

Trump can’t admit any of that, so he will refuse to cooperate with any House effort to ensure defense against a repeat performance by the Russians. If the House can cast its investigation as a matter of national security, then the 2020 electorate, and history, even if not the Mitch McConnell Senate, will judge the Trump presidency as a national security failure.

 

The Assange Indictment

Julian Assange is no hero. He claims the high ground of press freedom, disclosing government and corporate secrets in purported service to the public’s right to know. But while arguing that executives can’t be entrusted with unchallenged power to decide what information we can and can’t know, Assange claims in effect the same power for himself.

The opinion pages of the mainstream media are all in a twist about Assange’s indictment last week on charges that include claims that Assange committed espionage by receiving classified government documents and publishing them on WikiLeaks. Much of the indictment is indeed disturbing – specifically, the charges that are based on nothing more than WikiLeaks’s well-publicized willingness to receive and publish stolen government documents. WikiLeaks goes much farther than mainstream media outlets to explicitly advertise its willingness to receive and publish such documents, but pretty much all media outlets would gladly take an opportunity to do so.

But the indictment alleges more than that, as anyone who has actually read it knows.

It’s sometimes said that the First Amendment protects a journalist’s right to publish government secrets, no matter how the journalist came upon those secrets. But that proposition isn’t true, and never has been, as even the mainstream media would acknowledge.

The New York Times, for instance, would never claim that it can burglarize someone’s home and steal information to publish. The Times would never claim that it can hack into someone’s computer to steal information to publish. Nor would the Times claim that it can help someone else do either of those things.

Counts 5 and 18 of the Assange indictment charge that Assange worked with an intelligence analyst, Bradley Manning (now Chelsea Manning), to hack a password that Manning wanted to use to steal documents he was not authorized to access. The attempt was unsuccessful – according to the indictment, Manning forwarded the encrypted password to Assange, who tried unsuccessfully to crack it.

I don’t believe mainstream media outlets would do that, and I’m disappointed that, by playing those allegations down, the mainstream media appears to be condoning it. (The Times editorial condemning the indictment mentions the computer hacking aspect of the indictment only obliquely, in a single reference that appears without context or explanation: “The Times does not condone breaking into government computers ….”)

Counts 15, 16 and 17 in the indictment charge that Assange published stolen government documents that identified intelligence sources. The indictment alleges that Assange knew that publication would put the lives of those sources at risk, and that he published anyway.

For instance, the indictment alleges that Assange published documents that identified intelligence sources who reported to American forces on the activities of Saddam Hussein’s government in Iraq and of the Taliban government in Afghanistan, including planned attacks on American and allied forces. The indictment notes that Osama bin Laden had Al Qaeda operatives comb through the WikiLeaks disclosures for information, presumably so that Al Qaeda could take revenge. The indictment refers to a New York Times article reporting that a Taliban official told the Times that the Taliban was studying the Wikileaks documents so that it could “punish” any “spies working for the U.S.”

If prosecutors can prove these allegations beyond a reasonable doubt, then I have no problem with the proposition that Assange might do time for espionage. The Times itself noted that, in its reporting, it rejects Assange’s indifference to the risk of harm to innocent third parties. The indictment alleges that Assange called it “regrettable,” but not his problem, that people might be killed on account of WikiLeaks’s publications.

Finally, the indictment contains a disturbing allegation that is not incorporated into the actual criminal charges. The indictment alleges that Assange threatened to disclose an “insurance file” that allegedly contains stolen government documents that would be “even more damaging” to the United States and its allies if disclosed. The indictment alleges that Assange threatened to disclose those documents if the government were to make any effort to prevent WikiLeaks’s other disclosures.

That sounds to me like extortion, and I’m sure the Times wouldn’t engage in that, either.

 

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