Sunday, December 18, 2016

The Trump Tower Versus The City Upon a Hill

UCLA basketball coach, John Wooden, once said: "Be more concerned with your character than your reputation, because your character is what you really are, while your reputation is merely what others think you are."  (see ESPN - Wooden Quotes). 

In contrast, Trump is more concerned with reputation than character.  Yet, he's running a leadership play that seems to be working - he's identified and communicated a small number of priorities (protect jobs, protect boarders, get better international deals for the US), he's got everyone's attention (twitter), and he seems to be outmaneuvering and keeping potential opponents off guard (i.e., Romney and Gore...).  The Trump Tower in New York embodies reputation over character, and some of the most powerful and important people in the world are traveling to the Tower for an audience with the President-elect. 

In modern society, do the ends justify the means, making character less important?  Has democracy become so messy and inefficient that we should consider the benefits of a strong leader, just to fix things and get results?  

What the Founders of the Constitution Thought About the Importance of Presidential Character

In fact, the Founders looked at this issue and concluded that if our leaders, especially the President, lack character, our system of government can implode. 

The Founders reviewed the Constitution in light of history, philosophy, religion, and - especially for purposes of this discussion - human nature.  Their insights, although over 200 years old, are relevant today because core human nature doesn't change.  

In the Federalist Papers - a series of essays written by Hamilton, Madison and Jay in support of ratification of the Constitution - Madison observed that freedom naturally leads to inequality because people have different levels of talent, different opinions, and a logical desire to acquire wealth and promote their own interests.  As a result, "factions" are inevitably formed in a free society to promote group interests and ideologies.  Once a faction becomes a majority, there is the threat that it will - out of rational individual and collective self interest - crush minorities and destroy freedom.  (See The Federalist Papers#10)

The Founders understood that - given human nature - private interests and public good are naturally going to be in conflict.  To address this, they concluded that self-government (versus monarchy) would only work with certain preconditions, especially (i) separation of powers and (ii) a "virtuous" citizenry and virtuous leaders (meaning that they would put public interests before private interests).  The threat of factions could be muted by Constitutional checks and balances, but that would not be enough to overcome the natural tendency to put personal interest and greed above the public good.  The people might normally act in their own self-interest, but an educated populace could at times consider the public interest, and especially, they could elect good leaders, who in turn would be more likely to be virtuous.  

As the most senior leader and the embodiment of the people, the standard for character and virtue was highest for the President.  In Federalist 68, Hamilton states as follows:

"Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue."  (See The Federalist Papers#68)

In our system government, the President ultimately has to be selfless, and able to step back and do what's best for the entire country.  

The Words of Presidents-Elect JFK and Trump

Nearly 400 years ago, future governor and Puritan John Winthrop wrote a poem about his vision of making Massachusetts Bay an inspiration for the entire world - a "city upon a hill, the eyes of all people are upon us."  (Winthrop's poem: "A Model of Christian Charity").  

In 1961, Winthrop's imagery was borrowed by President-Elect John F. Kennedy, shortly before his inauguration, when he spoke at the State House on Beacon Street in Boston about the characteristics that he hoped to bring to his new administration and to the Presidency.  (Text of JFK's City Upon A Hill Speech / 8 Minute Audio of JFK's speech). 

JFK's speech is an inspiring articulation of the ideal of Presidential character.  When compared to Trump's words, it is also a disturbing reminder of Trump's lack of character and the threat that he poses to democracy.   If you have 8 minutes, I recommend listening to JFK's speech.  He explained to the audience of Massachusetts legislators that for the two months since he won his election he had been working to carefully construct his new administration, guided by John Winthrop's words - "that we shall be as a city upon a hill, the eyes of all people are upon us."  

JFK said that the people he chose for his administration must be "aware of their great trust and their great responsibilities," and must have "competence and loyalty", but even those virtues would not be enough, because "For of those to whom much is given, much is required." And so, he said, history would judge him and his administration based on the answers to four questions:

"First, were we truly men of courage—with the courage to stand up to one's enemies—and the courage to stand up, when necessary, to one's associates—the courage to resist public pressure, as well as private greed?"

Contrast Trump - his words (tweets) are often motivated by response to criticism. 

"Secondly, were we truly men of judgment—with perceptive judgment of the future as well as the past—of our own mistakes as well as the mistakes of others—with enough wisdom to know that we did not know, and enough candor to admit it?"

Trump - rarely admits a mistake, which limits his capacity to learn.  

"Third, were we truly men of integrity—men who never ran out on either the principles in which they believed or the people who believed in them—men who believed in us—men whom neither financial gain nor political ambition could ever divert from the fulfillment of our sacred trust?"

Trump - so far he has refused to divest his holdings and disclose his tax forms, as other Presidents have done.

"Finally, were we truly men of dedication—with an honor mortgaged to no single individual or group, and compromised by no private obligation or aim, but devoted solely to serving the public good and the national interest."

Trump - promotes his own point of view - rather than stepping back and truly focusing on the public good and national interest.  

The insights of Winthrop, the Founders, and JFK are as relevant today as in their own days.  As brilliant as the Constitution is, it only works if our leaders have the character to put public interest above personal gain.  

In late November, when fascists openly yelled "Hail Trump" with NAZI solutes to celebrate Trump's election victory, Trump waited two days, and then had a spokesperson issue a general statement that he "denounces racism".  (see Vanity Fair).  He never came forward himself to condemn the racists who were supporting him.  Doing the right thing - or failing to do so - take on an outsized importance for the President.  

It is up to each of us to conduct ourselves with character and virtue, to point out failures of the President to act with character and virtue, and to communicate and hold accountable our leadership in all branches of government to ensure the Constitutional checks and balances are upheld. 

Character is not partisan.  

Sunday, December 11, 2016

Foreign Policy Checks/Balances - The Senate's Bipartisan Reaction

This article discusses Trump's reaction to the cyber-hacking attack, and the bipartisan Congressional opposition to that.  I put these events into context by summarizing the relative roles of the President and the Senate in carrying out US foreign policy under the Constitution.  

The Russian Cyber Attack on America is About US Interests and US Foreign Policy - NOT Partisan Domestic Politics

Last month, the US Director of National Intelligence - James Clapper - stated with high confidence that Russia hacked the Democratic National Committee (DNC), stole emails and then leaked them.  Russia cyber-attacked the United States to try to cast doubt on, and thus injure, the sacred institution of American elections.   (see Wall St Journal).

The partisan political uproar over whether the Russian hack impacted the election outcome divides the US in a way that the Russians are exploiting.  It is unlikely that the election outcome was directly impacted by Russia, and that can be investigated - but the real issue that we can't lose sight of is that we were attacked by Russia.  

When a thief breaks into your house and is caught by the police, you don't: let him rob you anyway and then turn on your own spouse for letting the robbery happen, declare that law enforcement is incompetent, and warm up to that robber because he's complemented you and done business with you in the past - you kick the criminal out of your house! 

Yet, Trump did those things - he warmed up to the robber, attacked the "spouse" (Democrats), and attacked law enforcement (the CIA).  

Trump rejected the intel of the Central Intelligence Agency, the Federal Bureau of Investigations and the National Security Agency, and tried to cast doubt, stating that maybe it was Russia, maybe it was China or it "could be some guy in his home in New Jersey."  (see Time).  He further blamed Democrats (see WSJ: Trump Blames Democratsand attacked the credibility of the entire CIA, issuing a statement that “these are the same people that said Saddam Hussein had weapons of mass destruction,” adding that the election was over and that it was time to “move on.”  (see NY Times).  

“To have the president-elect of the United States simply reject the fact-based narrative that the intelligence community puts together because it conflicts with his a priori assumptions — wow,” said Michael V. Hayden, the Director of the NSA and the CIA under President George W. Bush.  "The data matters," Hayden said. "[Trump] continues to reject the Russians did it... and claims that it was politicized intelligence." (see CNN). 

Facts are not political; facts are facts.  Should a President-elect reject the facts, including about critical national security issues, attack individuals depending on whether they agree or disagree with him, and who attack core US institutions?  

The Bipartisan Congressional Response to Trump

U.S. Senators -- John McCain (R-AZ), Chairman of the Senate Committee on Armed Services, Lindsey Graham (R-SC), Member of the Senate Committee on Armed Services, Charles E. Schumer (D-NY), Senate Democratic Leader-elect, and Jack Reed (D-RI), Ranking Member of the Senate Committee on Armed Services -- issued a press release today stating that the "recent reports of Russian interference in our election should alarm every American", that these issues "cut to the heart of a free society", and that we need to and will work in a bipartisan way to protect our democratic institutions.  

Joint Statement on Reports That Russia Interfered with the 2016 Election, December 11, 2016 (Senate Armed Services Press Release, emphasis added).

It is hard to get Democrats and Republicans to put partisan politics aside, but Trump's response to Russia's attack on American was apparently enough.  

What does this Senate response say about the broader questions of Constitutional checks and balances on Trump's ability to set foreign policy?  

Who Decides American Foreign Policy Under the Constitution?  

The President and the Congress (especially the Senate) have a shared role in determining foreign policy, which because it is not always clearly defined, has been described as an "invitation to struggle".  (see Edward Corwin Wiki).  

The Founders tended to favor a strong role for the Congress in foreign policy because they viewed it as the more democratic branch, and having just rid themselves of a king, they were skeptical of giving the President excessive power.  However, in practice and over time, Presidents have tended to take a leading role in setting foreign policy due to their inherent advantages, especially the need in a modern society to move at the speed of technology, and the need for secrecy when national security is threatened.  See The Imperial Presidency, by Arthur Schlesinger, Jr.  

The President
Under the Constitution, the President is the head of the government, the embodiment of the US, and Commander in Chief of the military (see Constitution, Article II, Section 2).  The President is uniquely positioned to establish policy and a national agenda, and to communicate that agenda to the public, which is exactly what President-Elect Trump has already begun to do with his statements about wanting to get closer with Russia.  

Once policy is established, the President has significant control over its implementation through the huge federal bureaucracies that impact foreign policy, including the State Department, the Defense Department, and the Intel agencies.  Once a President commits the country to a course of action diplomatically, it can be hard to alter.  

The President nominates and appoints cabinet members, ambassadors and other public officials, subject to the advice and consent of the Senate (see below).  

Presidents have treaty making powers, which are subject to two thirds Senate approval, but can instead use executive agreements, over which they have greater control.  They also have the power to receive foreign ambassadors and, in effect, to recognize foreign governments. 
The Congress, Especially, the Senate
Under Article II, Section 2, Clause 2 of the Constitution, the Senate has "advice and consent" rights, including with respect to approval of key cabinet positions: 

"[The President] ... shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States..."

Under a change in Senate procedural rules in 2013, approval of Presidential nominations requires a simple majority rather than a vote of 60 Senators (which is still required to approve Supreme Court Justice nominees).  (See Huffington Post).  

The upcoming review of Trump's appointments should not be a rubber stamp.  Citizens should pay attention and put pressure on Republican Senators to do what's right, act in a nonpartisan way, and ensure that the people Trump nominates are qualified.  Trump may be entitled to nominate someone who favors deregulation over the regulatory mission of a particular agency, but Trump cannot, for example, be permitted to put someone in place who has close ties with Russia and conflicted interests that are not consistent with what's best for America.  

Although Congress can be disadvantaged versus the President in setting foreign policy, Congress can take a range of actions including appropriate scrutiny and rejection of  unqualified or conflicted cabinet nominations, investigations by oversight committees, passage of resolutions, and policy statements intended to influence public debate.   

The Congress also has the "power of the purse", meaning that they have to approve the budget, but as a practical matter, once the government is funded, the President is generally able to conduct foreign policy. 

Role of Citizens and the Media

Citizens don't determine foreign policy, but we have an important role, including to hold the President, Senators, and Congressmen/women accountable, and if nothing else, citizens have the vote.  The media plays a key role by shining a light on foreign policy debate.  

If you are interested in following up with your representatives, the following Committees have foreign policy oversight responsibilities:

Why might Trump want the US to move closer to Russia?   

A detailed discussion of America's foreign policy is beyond the scope of this article. In general, it must be based on what's in the best interests of America, and the State Department has said (across Republican and Democratic administrations) that US foreign policy should include the protection of American security, and the promotion of American economic interests and democratic ideals, including freedom and human rights.  

All foreign officials, and especially the President, must be free of conflicts or even the appearance of conflicts of interest, after transparent disclosures.  

Trump has expressed his desire to move America closer to Russia.  In assessing that policy, it is fair  to objectively consider factors such as the following:

  • Russia is a totalitarian state, with a record of human rights abuses, and recent aggressions that violated international law.  To what extent do these factors weigh against moving closer to Russia?
  • How should Russia's historic opposition to America - including a 40 year cold war that we won - factor into our policy?  
  • Given Russia's huge nuclear arms stock pile, will moving closer with Russia decrease or increase nuclear arms risks?
  • Pending the results of our intelligence agency and Senate investigations, how should Russia's recent cyber attacks impact our policy toward Russia?
  • What benefits does America get from moving closer to Russia and what are the costs?
  • What is the basis for the assertion that aligning with Russia helps US interests versus ISIS?  To what extent does such an alignment negatively impact our ability to fight ISIS and/or involve potential human rights abuses?
  • What are the US's economic interests relating to Russia?  
  • What have been the impacts of the sanctions against Russia?
  • Is there a concern that a number of Trump's cabinet appointments have close ties to Russia and Putin?  What are those ties? 
  • After nonpartisan Senate review and investigation of Trump's cabinet appointments, do we have full disclosure (including tax returns) of potential conflicts of interest, and are the nominees qualified to represent American interests?
  • Note: the issue of Trump's tax returns and conflicts are not partisan issues - it is in every American's interest to have Trump follow the norms of other Presidents, which in turn will remove the potential taint of conflict from his proposed policies.  
Acceptance of the Invitation to Struggle

Trump has, and will have going forward, tremendous advantages and powers to choose his cabinet and set American foreign policy, subject to the Constitution, but other branches of government, especially the Senate, have and should play a role.  

Sunday, December 4, 2016

The Tweets of a President - Part II

Last week, President-elect Trump tweeted:  "In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally."  (emphasis added)

There has been no reported evidence (including from Mr. Trump) to support that statement.  In fact, Trump's own lawyers in the Michigan recount case filed papers with the court that stated "All available evidence suggests that the 2016 general election was not tainted by fraud or mistake."  (see MSNBC Article).  Newt Gingrich told USA TODAY that there's no such evidence, suggested that Trump needed someone to review his tweets, and admitted that it "
makes you wonder about whatever else he's doing. It undermines much more than a single tweet."  (see USA Today Article).

Sean Hannity, who openly supports Trump in a way that is much more in the nature of a propaganda outlet than an independent member of the media, attacked CNN for not agreeing with Trump about the "millions of people who voted illegally", but Hannity did not even try to offer any proof in support of Trump's claim.  

Facts are Facts

Facts are not political - facts are facts.  If millions of Americans engaged in voter fraud such that Trump should have won by a larger margin, that should absolutely come to light.   But if - as is the case - that didn't happen, then to fool people into thinking it did happen is totalitarian propaganda that erodes the foundations of democracy.  

Because - as discussed below - Trump's tweets are largely protected by the First Amendment, there's a need for public officials, the media and private citizens to hold him accountable to the truth.  Today, that is not happening.  

On Sixty Minutes, which aired on December 4, 2016, Scott Pelley asked Congressman Paul Ryan to comment on Trump's tweet about voter fraud.  Ryan refused to say that the President's statement was untrue, stating that he didn't care and that he wasn't focused on Trump's tweets.  The Constitution builds in separation of powers among the executive, legislative and judicial branches of government, but for those protections to work, government officials have to be willing to stand up for what's right.  
Ryan's failure to debunk a lie - which many believe because it comes from the President-elect - is disappointing, given his leadership role in Congress.  

The media is flawed, including because of the 24 hour news cycle, profit motive and erosion of professional ethics.  That said, there are many people in the "mainstream" media who are doing valuable work, who are experts at fact finding, and who are just motivated to find the truth.  But the partisan attacks on the media in an effort to completely delegitimize it - together with the increased reliance on "echo chamber" social media (where people seek reinforcement of their own ideology rather than objective facts) - have caused some American's to ignore completely major media outlets, opening the door for propaganda.

Ronald Reagan's Words Versus Trump's Words About What Makes America Great

Consider the treatment of the First Amendment by President Ronald Reagan, when he spoke on May 31, 1988 at Moscow State University, after America won the Cold War. 

Reagan stated:

"Freedom is the recognition that no single person, no single authority or government has a monopoly on the truth but that every individual life is infinitely precious.... 

In fact, one of the largest personal computer firms in the United States was started by two college students, no older than you, in the garage behind their home.... [Note: Steve Job's father was a Syrian immigrant...]

We Americans make no secret of our belief in freedom. In fact, it's something of a national pastime. ... About 1,000 local television stations, 8,500 radio stations, and 1,700 daily newspapers -- each one an independent, private enterprise, fiercely independent of the Government -- report on the candidates, grill them in interviews, and bring them together for debates. In the end, the people vote; they decide who will be the next President....

Go to any American town, to take just an example, and you'll see dozens of churches, representing many different beliefs -- in many places, synagogues and mosques -- and you'll see families of every conceivable nationality worshiping together...  

Go into any schoolroom, and there you will see children being taught the Declaration of Independence, that they are endowed by their Creator with certain unalienable rights -- among them life, liberty, and the pursuit of happiness -- that no government can justly deny; the guarantees in their Constitution for freedom of speech, freedom of assembly, and freedom of religion...

Go into any courtroom, and there will preside an independent judge, beholden to no government power..." 

Does Trump believe that American's greatness is based on a free market of ideas, the Constitution and the rule of law, or does Trump think that he alone is the sole source of the truth?  

Applying the First Amendment to Trump's Tweets

Understanding the First Amendment helps to illustrate the risks posed by Trump.  

There is a huge body of First Amendment law, which is nuanced, subject to change over time, and sometimes logically inconsistent, but below are 4 questions that help to clarify some of the basics of how to apply the First Amendment to Trump's tweets:  

(i)       why does the First Amendment matter?
(ii)      what is the content of the communications (the tweets)?
(iii)     in what capacity is Trump speaking (tweeting)? 
(iv)     where is the speech happening?

Why Does the First Amendment Matter (and What Does it Say About Our Values as Americans)?

As is often the case, the "why" is the most important question.

In totalitarian states, there is only one point of view - that of the government, which typically controls the media and is willing to jail journalists.  In a democracy, individual citizens vote for their representatives, and need to exchange ideas, make informed decisions, debate opinions, communicate opposition, and engage with and criticize their representatives about government policies.  Because government has so much power over individual liberty, the law recognizes the need of citizens to be able to critique elected officials without fear.  

A professional media also plays a critical role, as an independent fact-finder and shiner of light on government activities.  That is why in addition to the Executive, Legislative and Judicial branches of government, the media is sometimes referred to as the "Fourth Estate."

Supreme Court Justice Brandeis, in the Whitney v. California, 274 U.S. 357 (1927) case explained the belief in a free market of ideas, combined with protection of minority opinions:  

"Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject... Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."

Moreover, the freedom to speak our minds, and to learn from and disagree with others in pursuit of the truth, isn’t just something that's needed to be a good US citizen, it is a core human value.  It is why most Americans believe that the government should not tell us what to think, and why we are so lucky to live in the US and not in a totalitarian state.  

What Communications Are and Are Not Protected Speech Under the First Amendment?

Courts have recognized certain narrow categories of speech that are entitled to essentially no First Amendment protection, such as speech related to child pornography, treason, and that causes imminent threat of violence and lawlessness.  

Courts also tend to inspect the content of speech and apply a hierarchy to it - speech related to the political process gets the highest levels of protection, and other speech, such as Hollywood gossip, would get less protection. 

I note that Trump's tweet about wanting to criminalize flag burning is understandable, but not consistent with our current interpretation of the Constitution.  Thus, the Supreme Court has found that one of the most vile and sickening forms of speech – the burning of the American flag – is in fact political speech, protected by the First Amendment.  Texas v Johnson, 491 U.S. 397 (1989) (the majority - both liberals and conservatives, including the late Justice Scalia - supported this decision finding that, "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.")

Why Does Libel Get First Amendment Protection?  

Trump has also written that he wants to "open up" the libel laws, to make it easier to sue the media for false statements.  He was likely paying attention when Peter Thiel helped fund a lawsuit that put out of business the Gawker web site.  Gawker had previously outed Mr. Thiel, which was despicable, but the idea of making it easier for billionaires to sue out of existence media companies that print bad things about them is a threat to the First Amendment.  

In any event, Trump's statement underscores his lack of understanding of the law.  There is actually no federal libel law; rather, each state has its own libel laws.  Thus, to "open up" these laws would require him to lobby 50 separate state legislatures, which isn't likely to happen.

More importantly, his statement ignores the First Amendment precedent established by the Supreme Court.  In NY Times v. Sullivan, 376 U.S. 254 (1964), the Court held that factual errors in a story about someone who is a public official is not enough to subject the media to damages in a lawsuit.  Rather, there has to be a higher showing of "actual malice" (essentially, that the story was not just untrue, but also that the publisher of the story knew it was false and published it anyway).  

That higher legal standard is a recognition that if the media were to be sued for every factual mistake, their coverage of public officials would be chilled by the threat of such lawsuits.  

In the Sullivan case, an Alabama official sued for libel based on some factual misstatements in a newspaper advertisement relating to the arrest of Dr. Martin Luther King Jr., including that the ad overstated the number of times that Dr. King had been arrested by the Alabama police.  After an all white Alabama jury ruled in Mr. Sullivan's favor, the Supreme Court unanimously - liberals and conservatives - reversed, finding that the interest of reporting of information about public officials outweighed the risk of factual misstatements sometimes being made.  376 U.S. at 272.

Although perhaps not likely, it is possible that Mr. Trump himself could be sued for libel during his Presidency for the statements he makes about others.  If so, he would be the beneficiary of the those same First Amendment protections.  

In What Capacity Will Trump be Speaking?

The First Amendment protects against government or “state” action, not against private actions.  In practice, it can be hard to distinguish between private and government actions, as there can be overlap.   Tweets by their nature will not typically involve state action (core state action is the passage and enforcement of a law that impacts speech rights).  Government officials also have free speech rights to communicate support for their own government policies.  

It remains to be seen what he will say and do as President, but we can expect that Trump will have significant freedom to express his points of view on Twitter, including lies (subject to the libel laws), and attacks on the media (even if unfair).  

Where is the Speech Happening? 

First Amendment protections may differ depending on where the speech happens.  For example, free speech rights are greater in a public park than in a privately owned shopping mall.  Similarly, traditionally, the government (Federal Communications Commission - FCC) regulated obscenity on TV, but similar regulations have not been extended to the internet.  

Twitter is today a place where speech is unregulated by the government - although Twitter itself can and has set limitations on speech (as it is not a state actor).  

Demand the Truth We Deserve

In sum, Trump’s tweets are likely to be protected speech, he will be the most powerful person in the world, and he will have the loudest voice in the free market of ideas.  

Responsible citizens should demand that their representatives tell the truth.  Responsible citizens should also hold themselves personally accountable to the truth, and be open to getting information from non-partisan sources.  I note that having a reasonable discussion with people who disagree with you is one of the best ways to sharpen your own arguments...