The Mar-a-Lago Raid

Former President Trump is under investigation for a number of possible crimes—e.g., tax evasion, attack on the Capital on Jan. 6, illegal removal or destruction of federal government records. This note, written together with Odell Huff, deals only with the possible crimes in relation to which the FBI raided Trump’s home at Mar-a-Lago. The FBI obtained the search warrant for Mar-a-Lago as part of an investigation into Trump’s handling of presidential documents. The search warrant listed three federal criminal statutes:

  • violations of the Espionage Act regarding unauthorized retention of national defense information;
  • destroying or concealing records “with the intent to impede obstruct or influence” federal government activity;
  • illegal removal or destruction of federal government records (without respect to cause).

See Wikipedia’s extensive report: “FBI search of Mar-a-Lago.[1]

An immediate outcry from Donald Trump asked why such a raid was needed, claiming it was political, and called for a comparison of the mistreatment of government emails by then Secretary of State Hillary Clinton.

In Hillary Clinton’s case, which is reviewed in more detail in the second half of this note, her improper use of her personal computer for State Department messages, many of which she destroyed, was, in essence, forgiven. The FBI Director James Comey concluded (inappropriately, as it was properly a decision for the Justice Department to make) that: “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”[2]

Donald Trump

Was the raid on a former President justified and should Donald Trump be charged for the crimes he committed?

Executive Summary of Trump’s Document Handling

All documents and communications of American Presidents must be preserved and are the property of the National Archives and Records Administration (NARA). “The Presidential Records Act (44 USC §22) establishes that presidential records belong to the United States and must be surrendered to the Archivist of the United States at the end of a president’s term of office (or second term of office, if consecutive). Unauthorized removal and retention of classified information of the United States government is a criminal offense under U.S. federal law; it has been a felony since the enactment of the FISA Amendments Reauthorization Act of 2017, which was signed into law by President Donald Trump in January 2018 and increased the maximum term of imprisonment for this offense from one year to five years.”[3]

In violation of the Presidential Records Act, “Trump regularly shredded ‘both sensitive and mundane’ papers while at the White House, at Mar-a-Lago, and on Air Force One.”[4] Moreover, upon leaving the White House at the end of his term, Trump sent two vans full of White House material to Mar-a-Lago in what White House aides described as a chaotic rush (as if he didn’t think he would really be leaving).

In May 2021 NARA realized that they had not received all the documents they were required to preserve and began discussions with Trump’s documents team to get them. “Trump reportedly went through the boxes at Mar-a-Lago at the end of 2021…. In January 2022, NARA retrieved 15 boxes of documents, gifts, and other government property from Mar-a-Lago…. From these 15 boxes, archivists and federal agents determined that 184 unique documents (totaling 700 pages) had classification markings, of which 25 documents were marked ‘top secret’, 92 ‘secret’ and 67 ‘confidential’….

Among the more than 11,000 government documents recovered since January 2022, over 100, and possibly over 320, were classified and some included nuclear-related material. The seized documents also included FBI, CIA, and NSA information about national security interests. Two-thirds of the recovered classified material was obtained in the first half of 2022, while the rest (103 documents) was seized in the August search of Mar-a-Lago.”[5]

In short, Trump’s promises to return all of the documents he had illegally taken where not honored and the raid on Mar-a-Lago was a last resort effort to obtain them. It proved to be the only way of obtaining them and was thus necessary and justified.[6]

Trump has clearly violated the Presidential Records Act. He is also guilty of the unauthorized removal and retention of classified information of the United States government. With regard to the second of these crimes—unauthorized removal and retention of classified information—Trump’s claim that he had declassified everything is without merit. “A sitting president has broad Constitutional powers to classify (and declassify) information. However, stemming from claims by former President Trump that documents at Mar-a-Lago were declassified, a Congressional Research Service policy paper on the Mar-a-Lago search warrant highlights that the declassification process is bound by regulations: per 32 CFR §2001.25, it requires markings that are ‘uniformly and conspicuously applied to leave no doubt about the declassified status of the information and who authorized the declassification.’”[7]

We do not yet know whether Trump’s possession of Top Secret and Secret documents has jeopardized our national security.

Should Trump be charged for these crimes?

Donald Trump should be held to the same standards as was Hillary Clinton, who was not charged for her crimes.Clinton’s use of her own computer clearly violated State Department rules and procedures and her resistance and delay in turning over what phone records she didn’t destroy does not reflect well on her to say the least. According to The Washington Post’s Fact Checker, Glenn Kessler, “Clinton, in her tweet, suggests none of her emails were marked classified. That’s technically correct…. Clinton has good reason for making a distinction with Trump.” [8] However, both Kessler and Clinton are technically incorrect because at least three emails were marked with, according to FBI Director Comey, “portion markings,” and another “110 messages contained information that was classified at the time it was sent.”[9]

Nevertheless, Trump’s violations of record keeping requirements were dramatically more numerous and serious. The government-owned documents Trump sent to his Mar-o-Lago residence contained hundreds of conspicuously marked Top Secret, Secret, and Confidential documents, some of which could jeopardize American security and the security of allies (at this writing the official assessment of such potential damage has not been completed). These violations of the law were of an entirely different magnitude than those of Hillary Clinton.

Surely Trump should be indicted for these crimes (separately from whether he should be indicted for his efforts to overturn the election of 2020, Trump University fraud, and/or tax fraud). Equal treatment under the law seems to demand it. Former Presidents should not be above the law. The Justice Department would have to present its case and evidence in a court of law in front of a jury where Trump could defend himself under oath (if he chose to). Especially given the political overtones of the case and the fact that the Attorney General was appointed by Trump’s successor, the case would need to be strong enough to convince the vast majority of American’s that Trump was being treated fairly. 

The pros and cons of charging Trump are explored in more detail in the attached articles.[10],[11]

So Garland has a dilemma: Indict or don’t indict. Risk losing or decline to prosecute and let Trump walk away. In concluding that “Donald Trump Is Not Above the Law” and should be indicted, The New York Times acknowledged last month, “Pursuing prosecution of Mr. Trump could further entrench support for him and play into the conspiracy theories he has sought to stoke. It could inflame the bitter partisan divide, even to the point of civil unrest. If viewed as illegitimate, a trial could also further undermine confidence in the rule of law, whatever the eventual outcome.”[12]

Such a trial runs the risk of provoking significant civil unrest (yes, we seem to have sunk so low). It is not impossible that one of the twelve jurors would refuse to convict Trump. Thus, an alternative suggestion is to hold a Grand Jury hearing in which all of the evidence is laid out for all to see, leaving it to voters to determine Trump’s ultimate fate. We would personally prefer to see this dangerous man behind bars.

Chronology

The following is excerpted from the CNN published timeline of the case.[13]

May 2021

An official from NARA contacts Trump’s team after realizing that several important documents weren’t handed over before Trump left the White House. The missing documents include some of Trump’s correspondence with North Korean leader Kim Jong Un, as well as the map of Hurricane Dorian that Trump infamously altered with a sharpie pen.

Fall 2021

NARA grows frustrated with the slow pace of document turnover after several months of conversations with the Trump team. NARA reaches out to another Trump attorney to intervene. The archivist asks about several boxes of records that were apparently taken to Mar-a-Lago during Trump’s relocation to Florida. NARA still doesn’t receive the White House documents they are searching for.

January 2022

After months of discussions with Trump’s team, NARA retrieves 15 boxes of Trump White House records from Mar-a-Lago. The boxes contained some materials that were part of “special access programs,” known as SAP, which is a classification that includes protocols to significantly limit who would have access to the information. NARA says in a statement that some of the records it received at the end of Trump’s administration were “torn up by former President Trump,” and that White House officials had to tape them back together. Not all the torn-up documents were reconstructed, NARA says.

February 9, 2022

News outlets, including CNN, report that NARA asked the Justice Department to investigate Trump’s handling of White House records and whether he violated the Presidential Records Act and other laws related to classified information. The Presidential Records Act requires all records created by a sitting president to be turned over to the National Archives at the end of their administration.

April and May 2022

On April 7, NARA publicly acknowledges for the first time that the Justice Department is involved, and news outlets report that prosecutors have launched a criminal probe into Trump’s mishandling of classified documents. Around this time, FBI agents quietly interview Trump aides at Mar-a-Lago about the handling of presidential records as part of their widening investigation.

April 11, 2022

The FBI asks NARA for access to the 15 boxes it retrieved from Mar-a-Lago in January. The request was formally transmitted to NARA by President Joe Biden’s White House Counsel’s office, because the incumbent president controls presidential documents in NARA custody.

April 29, 2022

The Justice Department sends a letter to Trump’s lawyers as part of its effort to access the 15 boxes, notifying them that more than 100 classified documents, totaling more than 700 pages, were found in the boxes. The letter says the FBI and US intelligence agencies need “immediate access” to these materials because of “important national security interests.” Also on this day, Trump lawyers ask NARA to delay its plans to give the FBI access to these materials. Trump’s lawyers say they want time to examine the materials to see if anything is privileged, and that they are making a “protective assertion of executive privilege” over all the documents.

May 10, 2022

Debra Steidel Wall, the acting Archivist of the United States, who runs NARA, informs Trump’s lawyers that she is rejecting their claims of “protective” executive privilege over all the materials taken from Mar-a-Lago, and will therefore turn over the materials to the FBI and US intelligence agencies. In a four-page letter, Wall says she reached this decision after consulting with top lawyers from the Justice Department and the White House Counsel’s office.

May 11-12, 2022

The Justice Department subpoenas Trump, seeking documents with classification markings that are still at Mar-a-Lago. Trump directs his staff to search for any remaining classified material, to comply with the subpoena, according to a lawsuit he later filed.

News outlets report that investigators subpoenaed NARA for access to the classified documents retrieved from Mar-a-Lago. The subpoena, which is part of the process to allow investigators to take possession of the documents from the NARA, is the first public indication of the Justice Department using a grand jury in its investigation.

June 2-3, 2022

According to a lawsuit the former President later filed, Trump invites FBI officials to come to Mar-a-Lago to retrieve the subpoenaed materials.

Four investigators, including a top Justice Department counterintelligence official, visit Mar-a-Lago seeking more information about classified material that had been taken to Florida. The four investigators meet with Trump’s attorneys and look around the basement room where the documents are being stored. Trump briefly stops by the meeting to say hello to the officials, but he does not answer any questions. During the meeting, the federal officials deal with the grand jury subpoena for some of the sensitive national security documents on the premises, and they take away the subpoenaed documents. At some point later in June, a Trump lawyer sends a letter to the Justice Department inaccurately asserting that there aren’t any more classified documents at Mar-a-Lago.

June 8, 2022

Trump’s attorneys receive a letter from federal investigators, asking them to further secure the room where documents are being stored. In response, Trump aides add a padlock to the room in the basement of Mar-a-Lago.

June 24, 2022

Federal investigators serve a subpoena to the Trump Organization, demanding surveillance video from Mar-a-Lago. Trump’s company complies with the subpoena and turns over the footage. CNN has reported that this was part of an effort to gather information about who had access to areas at the club where government documents were stored.

August 8, 2022

The FBI executes a search warrant at Mar-a-Lago—a major escalation of the classified documents investigation. The search focused on the area of the club where Trump’s offices and personal quarters are located. Federal agents remove boxes of material from the property. The search was the first time in American history that a former president’s home was searched as part of a criminal investigation.

August 11, 2022

Trump sends a message through one his lawyers to Attorney General Merrick Garland, saying he has “been hearing from people all over the country about the raid” who are “angry,” and that “whatever I can do to take the heat down, to bring the pressure down, just let us know,” according to a lawsuit he later filed. Hours later, after three days of silence, Garland makes a brief public statement about the investigation. He reveals that he personally approved the decision to seek a search warrant, and that the Justice Department will continue to apply the law “without fear or favor.” Garland also pushes back against what he called “unfounded attacks on the professionalism of the FBI and Justice Department.” Garland also announces that the Justice Department will ask a judge to unseal some of the search warrant documents, for the sake of transparency.

August 12, 2022

Federal Magistrate Judge Bruce Reinhart approves the unsealing of the Mar-a-Lago search warrant and its property receipt, at the Justice Department’s request and after Trump’s lawyers agree to the release. The warrant reveals the Justice Department is looking into possible violations of the Espionage Act, obstruction of justice and criminal handling of government records, as part of its investigation.

August 22, 2022

Trump files a federal lawsuit seeking the appointment of a third-party attorney known as a “special master” to independently review the materials that the FBI seized from Mar-a-Lago. In the lawsuit, Trump’s lawyers argue that the Justice Department can’t be trusted to do its own review for potentially privileged materials that should be siloed off from the criminal probe.

August 27, 2022

Federal District Judge Aileen Cannon, a Trump appointee who is presiding over Trump’s civil lawsuit, announces her “preliminary intent” to appoint a special master to examine the seized Mar-a-Lago materials.

September 1, 2022

Federal prosecutors clash with Trump’s lawyers at a high-stakes court hearing in Palm Beach, Florida, as part of Trump’s lawsuit seeking the special master appointment.

September 5, 2022

In a major ruling, Cannon grants Trump’s request for a special master to review the seized materials from Mar-a-Lago. She says the special master will have the power to look for documents covered under attorney-client privilege and executive privilege. The outcome is a major victory for Trump.

September 8, 2022

The Justice Department appeals Cannon’s decision in the special master case. Prosecutors also ask Cannon to temporarily block two key parts of her ruling while their appeal plays out: First, the part where she blocked the Justice Department from using any of the seized materials in their criminal probe while the materials were being reviewed by the special master, and second, the part of her ruling that required the Justice Department to hand over classified documents to the special master.

Hillary Clinton

Executive Summary of Hillary Clinton Email Controversy

During her tenure as United States Secretary of State (2009-2013) and later as the 2016 Democratic Presidential Candidate, Hillary Clinton drew controversy by using a private email server while Secretary of State for public communications rather than using official State Department email accounts maintained on federal servers. Clinton’s server was found to hold over 100 emails containing classified information, including 65 emails deemed “Secret” and 22 deemed “Top Secret.” An additional 2,093 emails not marked classified were retroactively designated confidential by the State Department.[14]

At the very beginning of her tenure as Secretary, the Bureau of Diplomatic Security had warned Clinton about the vulnerabilities of her use of a BlackBerry along with a private server, but Clinton ignored it and the Bureau took no action. While members of the Administration knew that Clinton used a private email address (clintonemail.com), no one outside of the State Department, certainly not President Obama, knew that she was using a private server maintained in her home by a private computer services firm. In October 2014, the State Department asked all previous Secretaries of State for all documents related to their time in office. Clinton responded in December 2014 by delivering 55,000 printed pages of emails that had been housed only on her server and its privately maintained backups (but with no copies of such correspondence in State Department records, as required by policy and by law). Omitted were over 30,000 emails she decided were personal. Federal rules required Clinton to preserve work emails before she left office, but she did not turn over her emails until 21 months after she left office. That Clinton used her private server exclusively for official work was not made public until March 2015 (more than two years after she left office), when The New York Times reported that the House Select Committee on Benghazi made the discovery.

The inspector general of the intelligence community reviewed the hardcopies delivered by Clinton and found “hundreds of potentially classified emails.” A “security referral” (but not criminal), to the Justice Department was made in late July 2015. Clinton and her private computer services companies finally relinquished the actual hardware servers and thumb drives to the FBI in August 2015. Clinton’s lawyer David E. Kendall said that emails, and all other data stored on the server, had earlier been erased prior to the device being turned over to the authorities.

Clinton repeatedly stated that her private server was “allowed by the State Department,” and that she never handled anything marked classified through her server. She repeatedly stated during her campaign that turning over 55,000 printed pages and then the hardware to the government “shows that I have been as transparent as I could.”

In May 2016, the Department’s Office of the Inspector General Steve A. Linick released an 83-page report about the State Department’s email practices. Aside from security risks, the report stated that “[Clinton] did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.” Each of these findings contradicted what Clinton and her aides had been saying up to that point. The FBI, through statements by Director Comey, later determined “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

My own conclusion is that while Secretary of State, Hillary Clinton deliberately and knowingly violated State Department policy by exclusively using a private server to conduct public as well as private business. While there is no evidence her intention was to specifically mishandle classified information, the clear intent was to retain control (delete forever) anything that could be harmful to her expected campaign for president, classified or not. By submitting 55,000 printed pages of official emails, after having deleted over 30,000 emails she alone decided were personal, and then not turning over the (totally erased) hard drives and thumb drives until almost a year later, she successfully circumvented both FOIA and the Presidential Records Act in order to advance and protect her campaign. The world will never know what she erased, only some of which was only partially recovered after forensic analysis of the scrubbed hardware.

Chronology

The following chronology focuses on requests for cooperation with the investigation of her email practices from Secretary and then Presidential Candidate Clinton and her responses. This review largely draws on the cited Wikipedia article and includes other sourced information.

2009 – 2013

At the outset of her tenure as Sec of State, setting up a secure desktop computer in her office was suggested, but Clinton was unfamiliar with their use and opted for the convenience of her BlackBerry, not the State Department and government protocol of a secured desktop computer. Efforts to find a secure solution were “abandoned by Clinton,” and she was warned by State Department security personnel about the vulnerability of an unsecured BlackBerry to hacking. She affirmed her knowledge of the danger, and was reportedly told that the Bureau of Diplomatic Security had obtained intelligence about her vulnerability while she was on a trip to Asia, but continued to use her BlackBerry outside her office. For the first two months of its use – January 2009 through March 29, 2009 – the web page [sign-in portal for users to access the server] was reportedly not secured with a TLS certificate, meaning that information transmitted using the service was unencrypted and may have been vulnerable to interception.

December 2012 – March 2013

Near the end of Clinton’s term, a nonprofit group called Citizens for Responsibility and Ethics in Washington (CREW), filed a FOIA request seeking records about her email. CREW received a response in May 2013: “no records responsive to your request were located.” Emails sent to Clinton’s private clintonemail.com address were first discovered in March 2013, when a hacker named “Guccifer” widely distributed emails sent to Clinton from former President Bill Clinton aide Sidney Blumenthal, which Guccifer obtained by illegally accessing Blumenthal’s email account. The emails dealt with the 2012 Benghazi attack and other issues in Libya and revealed the existence of her clintonemail.com address.

October – December 2014

In October 2014, the State Department sent letters to Clinton and all previous Secretaries of State back to Madeleine Albright requesting emails and documents related to their work while in office. On December 5, 2014, Clinton lawyers delivered 12 file boxes filled with printed paper containing more than 30,000 emails rather than their easier to analyze original electronic version. Clinton withheld almost 32,000 emails deemed to be of a personal nature. Datto, Inc., which provided data backup service for Clinton’s email, agreed to give the FBI the hardware that stored the backups.

March 2015

A March 2, 2015, New York Times article broke the story that the Benghazi panel had discovered that Clinton exclusively used her own private email server rather than a government-issued one throughout her time as Secretary of State, and that her aides took no action to preserve emails sent or received from her personal accounts as required by law.

After the existence of the server became publicly known on March 2, 2015, the Select Committee on Benghazi issued a subpoena for Benghazi-related emails two days later. Clinton chief of staff Cheryl Mills sent an email to PRN [Clinton’s computer services provider, Platte River Networks] on March 9 mentioning the committee’s retention request. The PRN technician then had what he described to the FBI as an “oh shit moment,” realizing he had not set the personal emails to be deleted as instructed months earlier. The technician then erased the emails using a free utility, BleachBit, sometime between March 25 and 31.

At a March 10, 2015 press conference, Clinton said all personal emails were deleted from her server, and she rejected the suggestion that she turn her server over to an “independent arbiter” to prove that she did not destroy any work-related emails and that “the server will remain private.”[15] The Clinton campaign said that she complied with NARA regulations because “more than 90% of those emails should have already been captured in the State Department’s email system before she provided them with paper copies.”

On March 27, 2015, Republican Congressman Trey Gowdy, Chairman of the Select Committee on Benghazi, asserted that sometime after October 2014, Clinton “unilaterally decided to wipe her server [which remained in her possession at that time] clean” and “summarily decided to delete all emails.” Clinton’s attorney, David E. Kendall, said that day that an examination showed that no copies of any of Clinton’s emails remained on the server. Kendall said the server was reconfigured to only retain emails for 60 days after Clinton lawyers had decided which emails needed to be turned over.

April 2015

Dan Metcalfe, a former head of the Justice Department’s Office of Information and Privacy, said this [exclusive use of a private server] gave her even tighter control over her emails by not involving a third party such as Google and helped prevent their disclosure by Congressional subpoena. He added: “She managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever,” making it “a blatant circumvention of the FOIA by someone who unquestionably knows better.” (According to State Department spokesperson Marie Harf, use by government officials of personal email for government business is permissible under the Federal Records Act, so long as relevant official communications, including all work-related emails, are preserved by the agency.)

June – August 2015

On June 22, 2015, the Benghazi panel released emails between Clinton and Sidney Blumenthal, who had been recently deposed by the committee. Committee chairman Gowdy issued a press release criticizing Clinton for not providing the emails to the State Department. Clinton had said she provided all work-related emails to the State Department, and that only emails of a personal nature on her private server were destroyed. The State Department confirmed that 10 emails and parts of five others from Sidney Blumenthal regarding Benghazi, which the committee had made public on June 22, could not be located in the Department’s records, but that the 46 other, previously unreleased Libya-related Blumenthal emails published by the committee, were in the Department’s records. In response, Clinton campaign spokesman Nick Merrill, when asked about the discrepancy said: “She has turned over 55,000 pages of materials to the State Department, including all emails in her possession from Mr. Blumenthal.” Republican Committee members found emails that Clinton failed to produce. Clinton campaign staff accused Gowdy and Republicans of “clinging to their invented scandal.”

A June 29, 2015, memorandum from the Inspector General of the State Department, Steve A. Linick, said that a review of the 55,000-page email release found “hundreds of potentially classified emails.” A July 17, 2015, follow-up memo, sent jointly by Linick and the Intelligence Community (IC) inspector general, I. Charles McCullough III, to Under Secretary of State for Management Patrick F. Kennedy, stated that they had confirmed that several of the emails contained classified information that was not marked as classified, at least one of which was publicly released. On July 24, 2015, Linick and McCullough said they had discovered classified information on Clinton’s email account. Investigators from their office, searching a randomly chosen sample of 40 emails, found four that contained classified information that originated from U.S. intelligence agencies, including the Central Intelligence Agency (CIA) and the National Security Agency (NSA). Their statement said that the information they found was classified when sent, remained so as of their inspection, and “never should have been transmitted via an unclassified personal system.” Clinton’s presidential campaign and the State Department disputed the letter, and questioned whether the emails had been over-classified by an arbitrary process. According to an unnamed source, a secondary review by the CIA and the National Geospatial-Intelligence Agency endorsed the earlier inspectors general findings concluding that the emails (one of which concerned North Korea’s nuclear weapons program) were “Top Secret” when received by Clinton through her private server in 2009 and 2011, a conclusion also disputed by the Clinton campaign.

The inspector general of the intelligence community said her emails contained classified information and made a “security referral” to the Justice Department in late July 2015. Clinton directed her campaign in mid-August to turn over her computer server to the FBI. Clinton said her personal email account was “allowed by the State Department.” Federal rules required Clinton to preserve work emails before she left office, but she did not turn over her emails until 21 months after she left office. Clinton said “turning over my server” to the government shows “I have been as transparent as I could” about her emails.

Clinton’s IT contractors turned over her personal email server to the FBI on August 12, 2015, as well as thumb drives containing copies of her emails. In a letter describing the matter to Senator Ron Johnson, Chairman of the Senate Homeland Security Committee, Clinton’s lawyer David E. Kendall said that emails, and all other data stored on the server, had earlier been erased prior to the device being turned over to the authorities, and that both he and another lawyer had been given security clearances by the State Department to handle thumb drives containing about 30,000 emails that Clinton subsequently also turned over to authorities.

September 2015

Bloomberg News reported in September 2015 that the FBI had recovered some of the deleted emails. Since this episode, Clinton critics have accused her or her aides of deleting emails that were under subpoena, alleging the server had been “bleached” or “acid-washed” by a “very expensive” process in an effort to destroy evidence.

October 2015

On October 22, 2015, Clinton testified before the committee and answered the Select Committee on Benghazi members’ questions for eleven hours before the Committee in a public hearing. The New York Times reported that “the long day of often-testy exchanges between committee members and their prominent witness revealed little new information about an episode that has been the subject of seven previous investigations … Perhaps stung by recent admissions that the pursuit of Mrs. Clinton’s emails was politically motivated, Republican lawmakers on the panel for the most part avoided any mention of her use of a private email server.”

February 2016

Clinton maintained she did not send or receive any confidential emails from her personal server. In a Democratic debate with Bernie Sanders on February 4, 2016, Clinton said, “I never sent or received any classified material.” This statement was false, as had been clearly stated earlier by the inspector general of the security community in July 2015.

May 2016

In May 2016, the Department’s Office of the Inspector General Steve A. Linick released an 83-page report about the State Department’s email practices. Aside from security risks, the report stated that “she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.” Each of these findings contradicted what Clinton and her aides had been saying up to that point. The report also stated that Clinton and her senior aides declined to speak with the investigators, while the previous four Secretaries of State did so.

June – July 2016

In various interviews, Clinton has said that “I did not send classified material, and I did not receive any material that was marked or designated classified.” However, in June and July 2016, a number of news outlets reported that Clinton’s emails did include messages with some paragraphs marked with a “(c)” for “Confidential.” The FBI investigation found that 110 messages contained information that was classified at the time it was sent. Sixty-five of those emails were found to contain information classified as “Secret;” more than 20 contained “Top-Secret” information. Three emails, out of 30,000, were found to be marked as classified, although they lacked classified headers and were only marked with a small “c” in parentheses, described as “portion markings” by FBI Director Comey. Comey added it was possible Clinton was not “technically sophisticated” enough to understand what the three classified markings meant which is consistent with Clinton’s claim that she wasn’t aware of the meaning of such markings.

In a Meet the Press interview on July 2, 2016, she stated: “Let me repeat what I have repeated for many months now, I never received nor sent any material that was marked classified.”

On July 5, 2016, FBI Director Comey announced in a statement he read to press and television reporters at FBI headquarters in Washington, DC, that the FBI had completed its investigation and was referring it to the Justice Department with the recommendation “that no charges are appropriate in this case.” He added, “Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.” With regard to mishandling of classified information, Comey said, “there is evidence that they [Clinton and her team] were extremely careless in their handling of very sensitive, highly classified information.” The investigation found 110 emails that should have been regarded as classified at the time they were sent; another 2,000 emails were retroactively classified which means they were not classified at the time they were sent. Comey said that “any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding … should have known that an unclassified system was no place for that conversation.”

June 2017

On June 23, 2017, several members of the Senate Judiciary Committee opened a bipartisan inquiry into whether former Attorney General Lynch interfered in the FBI’s investigation into Hillary Clinton’s use of a private email server. The investigation found Clinton’s use of personal email server increased the risk of compromising State Department information, but “there was no persuasive evidence of systemic, deliberate mishandling of classified information.”


[1] Wikipedia contributors, “FBI search of Mar-a-Lago,” Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=FBI_search_of_Mar-a-Lago&oldid=1109931185 (accessed September 10, 2022).

[2] Wikipedia contributors, “Hillary Clinton email controversy,” Wikipedia, The Free Encyclopedia, https://en.wikipedia.org/w/index.php?title=Hillary_Clinton_email_controversy&oldid=1104229653 (accessed August 10, 2022).

[3] Op. cit. Wikipedia, “FBI Search of Mar-a-Lago.”

[4] Ibid.

[5] Ibid.

[6] CNN, “Bill Barr ‘skeptical’ Trump declassified Mar-a-Lago papers,” YouTube video, 6:38, Sept. 3, 2022, https://www.youtube.com/watch?v=5zJUge5hdzo.

[7] Wikipedia, “FBI Search of Mar-a-Lago.”

[8] Kessler, Glen. “Hillary Clinton’s claim that ‘zero emails’ were marked classified,” Sept. 8, 2022, The Washington Post, https://www.washingtonpost.com/politics/2022/09/08/hillary-clintons-claim-that-zero-emails-were-marked-classified/.

[9] Wikipedia, “Hillary Clinton email controversy.”

[10] Linker, Damon, “The Case Against Prosecuting Donald Trump,” Persuasion, Sept. 2, 2022, https://www.persuasion.community/p/the-case-against-prosecuting-donald?utm_source=email.

[11] Shugerman, Jed, and Rozenshtein, Alan Z., “The Case for Prosecuting Donald Trump,” Persuasion, Aug. 31, 2022, https://www.persuasion.community/p/the-case-for-prosecuting-donald-trump?utm_source=email.

[12] Zurin, James D., “Indict Trump Over the Mar-a-Lago Documents? Don’t Indict? There’s a Third Option.” Washington Monthly, Sept. 7, 2022, https://washingtonmonthly.com/2022/09/07/indict-trump-over-the-mar-a-lago-documents-dont-indict-theres-a-third-option/.

[13] Cohen, Marshall et al, “Timeline: The Justice Department criminal inquiry into Trump taking classified documents to Mar-a-Lago,” CNN, Sept. 8, 2022, https://www.cnn.com/2022/08/09/politics/doj-investigation-trump-documents-timeline/index.html.

[14] Wikipedia, “Hillary Clinton email controversy.”

[15] Kiely, Eugene. “More Spin on Clinton Emails.” FactCheck.org, 8 September 2015. www.factcheck.org/2015/09/more-spin-on-clinton-emails/. Accessed 13 August 2022.

President Biden Attacks Internal Enemies

President Biden addressed the nation on September 1 from the site of America’s founding. In many respects it was a positive, uplifting speech reminiscent of Ronald Reagan’s wonderful speeches. Though I disagree with many of the details of his recent policy victories, it is normal for a president to promote them. But there was another part of his speech that has become very controversial.

“When President Biden stood before Independence Hall in Philadelphia on Thursday night, he warned that American democracy stands at the precipice… — one that, he said, comes from within the country’s borders. ‘Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our republic,’ Biden said.”  “Biden-danger within us”

The President of the United States is both the leader and head of state for the entire country and the head of his political party. Did President Biden cross the line between defending the country from serious attacks and partisanship when he made his speech? Biden was not criticizing Trump’s protectionist, isolationist policies as I have done (and I have praised Trump’s tax reform and reduction of excessive regulations). Those are partisan political issues. If we don’t like someone’s policies, we can vote against them. Biden was making a much more serious charge. He clarified that:

 “’I don’t consider any Trump supporter to be a threat to the country. I do think anyone who calls for the use of violence, fails to condemn violence when it’s used, refuses to acknowledge that an election has been won, insists on changing the way in which you count the votes — that is a threat to democracy.’ Yet Trump supporters generally do all of those things, backing the former president’s calls to overturn the 2020 election and elect candidates who vow to rewrite election rules, and supporting his promise to pardon those who attacked the U.S. Capitol on Jan. 6, 2021….

“Rep. Marjorie Taylor Greene (R-Ga.) [stated that], ‘Joe Biden just declared all of us enemies of the state.’”  “Biden-danger within US”

The critical question is who does Rep. Green mean by “all of us?” All Republicans or all who believe and promote what she does? And what does Rep. Green believe?

“Last month [Aug 2020] , The New York Times reported on Greene’s past statements referring to Q as a “patriot” and pushing the idea that Q was working to take down a supposed cabal of Satan-worshipping pedophiles.

“QAnon is a far-right conspiracy theory that falsely claims, among other things, that an individual known only as Q with supposed “Q-Level” government security clearance has been leaking high-level information. The theories allege a global network of child sex traffickers is orchestrating a plot against President Trump. QAnon followers believe Democrats are behind the plot.” Rep Green more recently said that she has changed her mind about QAnon. “Marjorie Taylor Greene has several ties to conspiracy hate groups”

Wikipedia’s summary includes that “Greene has promoted far-right, white-supremacist, and antisemitic conspiracy theories, including the white genocide conspiracy theoryQAnon, and Pizzagate, as well as other extremist conspiracy theories “Marjorie Taylor Greene”

So, if President Biden means those like Marjorie Taylor Greene, then I fully agree with him that they don’t support American values. But are they dangerous? We don’t generally get too agitated by nut cakes who believe that the Earth is flat (there truly are such people out there on the loose) or that we are being visited by space travelers.

Several things make those like MTG very dangerous and justify President Biden’s warning. The primary danger is Donald Trump himself and the significant number of his True Believers. Trump tried in various ways to overturn the results of his losing Presidential race against Biden climaxing with the attack of the Capitol on Jan 6, 2021, in a final attempt to overturn the elections, which Trump continues to claim he won. He has not, does not, and presumably will not adhere to the rule of law. While we have already seen considerable evidence of his crimes, we must await the final judgement of the Justice Department whether to formally charge him.

“Trump told a right-wing radio host that, if he returns to power, he plans “full pardons with an apology to many” who attacked the Capitol. He also claimed he is ‘financially supporting’ some of those charged in the insurrection to defend them from ‘sick’ prosecutors and ‘nasty’ judges. Oath Keepers? Proud Boys? Unclear.”  “Kevin McCarthy – Joe Biden-semi-fascism – Trump”

Trump’s people have used violence before, as Trump quietly watched, and are threatening to use it again. Former Senator John McCain friend Sen Lindsey Graham, now a Trump worshiper, said on Fox News that “there will be riots in the streets” if the Justice Department indicts former president Donald Trump on charges related to his stashing classified documents in his Palm Beach, Fla., home.” If that doesn’t frighten you for the future of our country, read Jonathan Rauch’s account of what Trump’s reelection could look like: “Trump 2024 reelection-Viktor Orban Hungary”

The second reason for serious concern is that the Republican Party has either given in to Trump or gone silent. Given some of the Trump supported candidates the Republican Party is offering in the November general elections, it could be in serios trouble. More recently, Trump has turned his attack directly on Republicans who do not bow to him.

“Trump (who doesn’t do subtle or even not-so-subtle) blasted McConnell as a “broken down hack” who isn’t doing enough to help Republicans win.”  “Will Trump topple Mitch McConnell”

Trump further stated that: “The party is furious at [Mitch]. We have to put up with him for a period of time, but eventually, he’ll be gone. He’s bad news.”  “Trump rages about GOP” 

In a statement posted to Truth Social on [August 27], Trump criticized McConnell for a statement he made that week about the crop of GOP Senate hopefuls, before making a dig at Chao, McConnell’s wife of 29 years, calling her ‘crazy.’

‘Chao served as Transportation secretary during the Trump administration for nearly four years, resigning one day after the Jan. 6, 2021, attack on the Capitol. In a letter to Transportation Department staff, she called the riot “entirely avoidable” and said she was ‘deeply troubled’ by the event.

“Chao previously served eight years as Labor Department secretary under former President George W. Bush.

I waited in vail for the Republican (real Republicans) backlash. “Senate Minority Leader Mitch McConnell (R-Ky.) on Tuesday said he does not have a reaction to former President Trump’s statement over the weekend that labeled his wife, former Trump administration Transportation Secretary Elaine Chao, ‘crazy.’

“Asked in Kentucky if he had any reaction to Trump’s statement, McConnell responded simply, ‘no.’”  “McConnell asked if he has reaction to Trump’s attack on wife Elaine Chao says no”

If the Republican Party does not stand up and defend its principles and those of our constitution and country, I will be worried. Very worried. As should everyone else who believes in America’s constitutional democracy. “Republican Rep Adam Kinzinger says we have no leadership”

If we can keep it

From the founding of the American republic, we have had different views on policies to improve our “more perfect union.” That we have lived and flourished together is the result of several important features of American society that we should never take for granted.

The first is a constitution that establishes a limited government that provides maximum scope for each of us to live our individual lives as we see fit. The potential frictions from our different views are thus minimized.

But the individual freedom structure of our government and its accompanying laws are not enough to explain our relative success. Civil society can only flourish within that structure if our values are virtuous and our cultural norms support tolerance and cooperation. Such norms derive from tradition but evolve with experience of what works. This was the insight of Fusionism—the need for both freedom (limited government and free markets) and good values. “Popularizer [William F] Buckley and politician [Ronald] Reagan took the productive tension between freedom and heritage and translated it into political action under the term “fusionism.” “Conservative nationalist or fusionist manque”

“As far as viewing individual freedom as the supreme principle, Mr. Fusionism Frank Meyer explained in his “Western Civilization,” that freedom did rank first politically, as what he called the ‘criterion principle, the guide.’ But ‘the application of principle to circumstances demands a prudential art’ derived from ‘the intricate fibers of tradition and civilization, carried in the minds of men from generation to generation…. The compelling, if secondary, claims of other principles, though not decisive to judgment in the political sphere in the way that freedom is, do nevertheless bear upon every concrete political problem.’ So, practical action requires balancing freedom and beliefs.” 

Culture informs how we use our freedom. Our personal survival and flourishing (self-interest) naturally have priority. But our cultural and moral values help inform our behavior toward ourselves and toward our neighbors that best serve our flourishing and happiness. Our personal welfare also depends on how we treat others.  In the fusionist spirit, two of the critical elements of successful societies are trust in the institutions that govern them and respect for those with whom they disagree.

Political debate in America today is too often merely finger pointing and damning the other side as disingenuous—treating them as enemies rather than partners in brainstorming sessions to find the best solution to opposing views. The pros and cons of proposals and an understanding of the sincere needs and concerns of the other side and the development of compromises and consensus are not possible in such an environment. Our defense of free speech is critical but of limited value if we are just shouting at each other and forget that listening is an important part of a productive conversation.

More deeply disturbing and dangerous is the widespread loss of confidence in our institutions. How best to protect ourselves and our families and our community from Covid-19, for example, should not be a political issue. We should be able to rely on the best advice coming from our public health agencies as they gather and evaluate the evidence. But these institutions bent to political pressures and lost public confidence. “Should you get vaccinated for covid-19”   “The unnecessary fight over covid-19”

More disturbing still is former President Donald Trump’s persistent lies to his supporters that he actually won the 2020 election, thus undermining trust in our elections. That Trump makes such claims is less surprising than that so many of his supporter believe it despite the almost total failure of any evidence presented in court (thus under oath) to establish voter fraud or miscounting, and the rejection of such claims by Trump’s campaign manager, Bill Stepien, and  Trump’s appointed Attorney General, William Barr, who called the claims “BS.” There is no way anyone really seeking the truth can still believe Trump’s claim of a stolen election. But a lot of people still seem to.

Unfortunately, it gets worse. We all listened to Trump’s failed effort to persuade George Secretary of State Brad Raffensperger to find 11,780 more votes for him. “Trump-Raffensperger call transcript on Georgia vote”   When such efforts were exhausted, Trump explored ways to overturn the election results in Congress with the help of “legal” advice from John Eastman and Rudy Giuliani. The final desperate plan was to convince Vice President Mike Pence to reject the Electoral College vote and declare Trump President. The scheme was illegal. The Vice President’s legal adviser, Greg Jacob, explained the illegal nature of the plan to its author, John Eastman, and to the Vice President as did Judge Michael Luttig. VP Pence refused Trump’s pressure to overturn the election, for which we must all be very grateful.

In response to Pence’s refusal to violate the law, “Trump tweeted that Pence ‘didn’t have the courage to do what should have been done,’ prompting rioters Trump had sent to the Capital to “chant ‘hang Mike Pence’ and erect mock gallows.  Committee Vice Chair Liz Cheney has described testimony from Trump aides saying he responded by saying Pence ‘deserves it.’” “How did Trump respond when mob chanted hang Mike Pence?”

The mob that attacked the Capital on Jan 6, 2021 was sent by Donald Trump. “Five people died during the attack or in the immediate aftermath.”  “January 6 attack on capitol-guide to what we now know”  “A grand jury has accused Proud Boys leader Enrique Tarrio and four associates with seditious conspiracy tied to the Jan. 6 attack on the Capitol.” “Proud Boys leader charged with seditious conspiracy related to Jan 6”   “Stewart Rhodes, the founder and leader of the far-right Oath Keepers militia group, and 10 other members or associates have been charged with seditious conspiracy in the violent attack on the U.S. Capitol.”  “Stewart Rhodes arrested-Oath Keepers-Jan 6 insurrection” Two of them have pleaded guilty so far.

Trump’s behavior on Jan 6, such as his long delay in taking any action, remains somewhat cloudy because some of the key Republicans involved that day have refused the subpoenas to testify before the Jan 6 Commission:

“Those gaps are largely the result of the refusal of key Trump allies to participate in the investigation, a list that includes his former chief of staff Mark Meadows as well as his most prominent defenders on Capitol Hill: GOP Reps. Kevin McCarthy (Calif.), Jim Jordan (Ohio), Scott Perry (Pa.), Andy Biggs (Ariz.) and Mo Brooks (Ala.), all of whom have rejected congressional subpoenas to appear before the panel” “Jan 6 committee is telling a story but plenty of gaps remain”

This is an outrage. It is disrespectful to those of us, hopefully all Americans, who want and deserve to know the full truth of what happened that day (and before).

What if Trump is allowed to run again in 2024 and claims that he has won even if he hasn’t?  Will our institutions and public trust in them withstand the better trained and better prepared Trump insurgents next time. Judge Luttig issued a strong “warning to a country whose democracy, he said, is on ‘a knife’s edge.’”

 “Ignoring Jan 6 hearings Michael Luttig explains why you shouldn’t”   “Read Luttig statement”

Trump seems to be preparing for such an event.  “Speaking during a Faith and Freedom event in Nashville, Tenn., Trump said [of] the defendants charged in the Capitol riot… if I become president, someday if I decide to do it, I will be looking at them very, very seriously for pardons. Very, very seriously….” “Trump-says-he-would-look-very-very-seriously-at-pardons-for-jan-6-defendants-if-reelected”

I hope that he won’t be allowed to run:  “The criminal case against Donald Trump”

China and the United States

“Biden describes the China challenge as a global, ideological struggle between democracies and autocracies…. Any event from the pandemic to the Olympics will occasion commentary, particularly in the United States, of who “won,” China or America, and what it means for the epic struggle for global supremacy.” “There is no unified front against China”

I am not sure what it is that we want to win. We don’t seem to mind selling planes and bombs to other autocracies (Saudi Arabia, Qatar, etc.). Anything to keep the defense industry’s profits flowing short of yet another war seems a (relatively) good deal. And why might “global supremacy” matter?

Winning things sounds to me like rooting for our own basketball team and cheering when it wins the championship. How do we go about striving to have the best basketball team? First, we recruit the best basketball players we can find and hire the best coach to train them. Everyone must play by the agreed rules, and we win by playing the best game. In short, our efforts go into being the best team possible, not into poisoning the drinking water of the other teams.

But sporting contests are zero sum. One side wins and the other losses. Global cooperation and trade is win–win. The goods we produce and sell (for example) to China, with which to pay for the goods we buy from China make us and China both richer. The citizens of both countries benefit from this exchange. Win–win. Sharing information on the source, nature, and potential cure of a virus (which knows no borders) benefits all of us. Win–win.

The world’s output is maximized when our productive assets (labor and capital) are allocated to their most productive uses globally. That requires that market prices reflect the true productivity and value of each activity. Thus, the world as a whole benefits from rules governing government interferences in market prices and allocations. The World Trade Organization is the forum for agreeing on these rules of fair trade and enforcing them. “Econ 101- Trade in very simple terms”

The airplanes built by Boeing and Airbus benefit from government support of one sort or another. For years they have fought one another over whether this support conformed to fair trade rules. A settlement has finally been reached. “Boeing – Airbus settlement”

Trade restriction in the name of national security, while potentially legitimate, can easily cross the line into wealth reducing protectionism. Does the use of Huawei 5G equipment really threaten U.S. national security or U.S. business interests (protectionism). Some of these cases are hard to call but we must look carefully at narrow business interests in protecting their markets to the detriment of the rest of us. “Huawei ban could crush US aid efforts”

Global supremacy suggests that we would set these rules. To be successful the rules of international trade must be very broadly followed. Thus, their formulation must be a collective undertaking. It is fine for the U.S. to exert influence in setting these rules, but unfortunately, we have a poor record of even following them. We have caused the demise of the WTO dispute resolution body. We have strangely and counterproductively withdrawn from the Trans-Pacific Partnership (TPP), which was then replaced by the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). These set high standards for more open trade that China will hopefully have to meet to join. The self-image of supremacy has corrupted U.S. behavior. Former President Trump’s protectionist tariffs on trade with China, EU, Canada, etc., which President Biden has so far failed to remove, have further reduced U.S. and world income. “Trade protection and corruption”

So, what should our policy be toward China? China has no intention or interest in attacking the United States. They care about their own economies and their own neighborhoods. We should keep our nose and military home to look after our own neighborhood. We should work with China (and Russia and others) to formulate win-win rules for international interactions and behavior. We should apply the mechanisms of the WTO and other international bodies, and diplomacy more generally, to hold China (and others) to the agreed rules. But we must abide by them as well. The rule of law is not just for others.

We should fix the problems in our own economy. We should work to make our domestic rules of commerce fair and efficient so that our economy will be the best in the world. We should work with other countries, including China, to maximize the productivity of their resources because we and everyone else will benefit (win-win).

The United States was founded on principles that have served us well providing a model that the rest of the world would do well to follow. The idea that we should (or can) impose our principles on others rather than provide an example like “a shining city on a hill,” is a violation of those very principles. We have repeatedly failed to uphold those principles, but we keep trying. We must continue trying and must try harder.

Never Again

On this 20th anniversary of the 9/11 attack on America, many of us are saying “NEVER AGAIN”. What those saying it mean will determine the future of our country.

If “never again” means to you that we will never allow attacks on our homeland again, you are saying that out of your fear you chose safety over liberty. You support the authoritarian, repressive measures of the so-called Patriot Act and the related government intrusions in our privacy and liberties in the name of greater security. This is not the spirit of those Americans who continue to get into their cars to drive to work or wherever despite automobile accidents killing ten times more Americans every year as American soldiers who have died in Afghanistan in the past 20 years.

For me and thankfully for many other Americans, it means that we will never again surrender to the fear that blinded us to the tragic mistakes of American aggression in Afghanistan, Iraq, Libya, Somalia, Syria, and Uganda. Lawrence Wilkerson explains our self-destructive behavior in the following interview. COL Wilkerson was a senior official in the Bush administration when it launched the Iraq invasion. Now he calls it a mistake born of rage and fear. https://www.cnn.com/videos/tv/2021/09/10/amanpour-wilkerson-9-11.cnn

We have the most powerful military in the world. No military force could protect us at home (to the extent that our safety depends on military force) better. When it comes to its effectiveness in offensive attacks on other countries, its effectiveness is less clear and its effectiveness in efforts to rebuild the countries it has occupied…… well this fantastic three hour discussion reveals it as worse than zero https://www.youtube.com/watch?v=GkjsjBknWfo

We once revered and defended our liberty above all else and we were respected and envied around the world. We prospered. Over the last twenty years we have gradually, year by year, squandered our cherished traditions and our standing and respect in the world has declined as a result. Former President Trump signed an agreement with the Taliban promising to remove all American troops from Afghanistan by May 1 of this year. It was a bad agreement, but our departure was many years overdue. President Biden extended our stay for a few more months but has now honored Trump’s commitment. Why our military was unable to prepare properly for our withdrawal from Afghanistan with this two-year notice is a mystery we need to investigate.  

Never again should mean that we never again act out of fear. https://wcoats.blog/2021/09/05/nation-building-in-afghanistan-2/

Why some still believe the Big Lie

Last Monday (May 3) Trump proclaimed that the 2020 election “will be, from this day forth, known as THE BIG LIE!” In reply Congresswoman Liz Cheney tweeted: “The 2020 presidential election was not stolen. Anyone who claims it was is spreading THE BIG LIE, turning their back on the rule of law, and poisoning our democratic system. 10:27 AM · May 3, 2021·       “More on Trump acquittal”

The voter frauds loudly proclaimed by Trump spokesmen in public were generally not repeated in court where those making such claims had to speak under oath. Where specific charges of vote tampering were made against voting machine companies such as Dominion Voting Systems, the objects of such attacks were protected by libel laws, which required proof, which was totally lacking. Libel suits brought by Dominion and others led to retractions and apologies by Fox news and many others for their fabrications.

“The latest legal target to tuck its tail is the conservative cable news channel Newsmax, which released a statement Friday night apologizing to Eric Coomer, a top official at Dominion Voting Systems, who filed a suit against Newsmax in December.” “Slow painful death-trump allies voting machine conspiracy theories”

My favorite “apology” for falsely claiming voter fraud was from Sidney Powell, one of Trump’s shameless lawyers until even he had to distance himself from her.  “A key member of the legal team that sought to steal the 2020 election for Donald Trump is defending herself against a billion-dollar defamation lawsuit by arguing that “no reasonable person” could have mistaken her wild claims about election fraud last November as statements of fact.” “Sidney Powell-Trump election fraud claims”

I have struggled to understand how presumably decent people could continue to believe such obvious nonsense. The conservative Christian writer David French provides a partial explanation. “Prophecy is very important in Pentecostal Christianity…. Many millions of Americans spent the Trump era deeply loyal to Trump not because of policy arguments or political debate, but in large part because “prophets” told them he was specifically and specially anointed by God for this moment. These Americans were resistant to the election outcome because they were told—again and again—by voices they trusted that God promised Trump would win.”  “Making prophecy great again”  French is an interesting and thoughtful writer, and correctly notes that this belief is a problem for the Pentecostal church. 

But many more than these Pentecostals continue to repeat the big lie. According to Michael Gerson: “To be a loyal Republican, one must be either a sucker or a liar. And because this defining falsehood is so obviously and laughably false, we can safely assume that most Republican leaders who embrace it fall into the second category.” “Trump republicans big lie”

We have many serious policy issues to discuss. We seriously need to get beyond The Big Lie.

What to do with Social Media?

Social media is changing how we get news and debate public issues. How should its contents be regulated and by whom? The answer should reflect the fundamental importance of free and open speech for forming broadly supported public policies and social attitudes.

The quality of public discussion in the United States today has deteriorated. There are even some who wish to end debate on some issues altogether (the cancel culture). Take two recent examples:

In reaction to Georgia’s new Voting Rights Act President Biden said: “Parts of our country are backsliding into the days of Jim Crow, passing laws that harken back to the era of poll taxes — when Black people were made to guess how many beans, how many jelly beans, in a jar or count the number of bubbles in a bar of soap before they could cast their ballot.” “Biden US backsliding-Jim Crow”

Representative Maxine Waters traveled to Brooklyn Center, Minnesota, to join crowds protesting the police shooting of Duante Wright. On that occasion, “A reporter then asked, if Chauvin isn’t convicted on all charges, “What should protesters do?”

“Well, we gotta stay on the street,” Waters said. “And we’ve got to get more active. We’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.”

For her complete comments see: “In her own words-Maxine Waters”

In response to Water’s words Representative Marjorie Taylor Greene tweeted:

_________________________________  

@RepMaxineWaters you don’t live in Minnesota.

You crossed state lines and incited riots, violence against police, shootings at the MN NG, and threatened a jury as a sitting US Congresswoman.@SpeakerPelosi surely you will expel this criminal from Congress and uphold the law! pic.twitter.com/twH52VwFTP

— Marjorie Taylor Greene 🇺🇸 (@mtgreenee) April 19, 2021

_________________________________ 

“Marjorie Taylor Greene says Maxine Waters incited riots calls for her expulsion from congress”

‘Maxine Waters-Kevin McCarthy Minnesota police”

President Biden’s and Representative Greene’s comments both earn four Pinocchios. Senator Ted Cruz’s comments about Waters’ statement were just as bad. But then we are used to politicians lying to us, especially in the heat of campaigns. However, they do not contribute to the constructive dialog needed over these and other pressing public issues.  

With regard to Georgia’s new Voting Law, assessments are mixed. For example: “Rather than allowing voters to request ballots six months from Election Day, the new law says voters can start requesting ballots 78 days out; counties can begin sending ballots to voters just 29 days before Election Day, rather than the previous 49 days.” “Georgia voting law explained”

This hardly strikes me as voter suppression. I grew up in Bakersfield California and our voting precinct voted in our garage. As a kid I was fascinated by it all (though not thrilled with having to clean the garage for the occasion). There was no such thing as early voting except for absentee ballets by military service men and women. No drop boxes or any of that stuff. You came to our garage on election day or you didn’t vote. But there is surely a place for serious pros and cons of each provision of the law. As the press has been overwhelmingly (almost hysterically) negative (despite Georgia’s Governor and Secretary of State’s refusal to yield to Trump’s pressure to overturn his election defeat in Georgia) here is a more measured defense of the new law: “Exclusive 21 black leaders defend Georgia voting law as proper honest reform”

The real question is why were changes in Georgia’s voting law needed in the first place? What weaknesses were being addressed? Even with this new law, Georgia’s law is more permissive than those of Biden’s Delaware. In a negative, but more balanced assessment, Derek Thompson stated that:  “Georgia’s voting rights have long been more accommodating than those of deep-blue states including not only Delaware, but also Connecticut, Massachusetts, New Hampshire, and New York.” “Georgia voting rights fiasco”

Maxine Waters didn’t, and often doesn’t, use the best judgement in where, when and what she said, but she didn’t say anything that she should not be allowed to say whether you agree with her or not.  Referring to Reps. Waters and Rashida Tlaib, D-Mich, Newt Gingrich wrote that:

“House Democrats have produced two radical demagogues whose policies would endanger the lives of innocent Americans, lead to the breakdown of society, and undermine the U.S. Constitution.”  “Repudiate Tlaib and Waters promote mob rule Newt Gingrich” This is precisely the sort of name calling that impedes the serious dialogue over concrete issues and proposals that we so badly need. Demonizing opponents–turning opponents into enemies–is a tactic of the weak (think Vladimir Putin).

Rep Waters’ charge that protesters should get more confrontational did not strike me as an incitement to violence anymore (and rather less) than former President Trump’s call for his assembled supporters on January 6 to march to the Capital and “fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” The brief submitted by Trump’s lawyers for his impeachment trail stated the “his call for the crowd to ‘fight like hell,’ was not meant to be taken literally.” OK, then perhaps he should keep it to himself. This reminds me of my favorite “apology” for lying about voter fraud that kept Trump from remaining in the White House. In response to a liable suit by the voting software company Dominion Voting Systems,  Sidney Powell stated in court that “’no reasonable person would conclude’ that her accusations of Dominion being part of an election-rigging scheme with ties to Venezuela ‘were truly statements of fact.’” “Sidney Powell-Dominion-No reasonable person”  Sadly I know some very fine people who did (or do) believe her nonsense.

But what if Biden’s, Trump’s, Waters’ and Greene’s comments were suppressed–erased–rather than challenged? These were opinions, however off the mark, rather than statements of fact. What if someone (named Trump) claims that Barack Obama was not born in the U.S. and thus not eligible to run for President (despite irrefutable evidence to the contrary)? I will spare you the very long list of such lies. And, to finally get to my real topic, what should social media do about it?  

Unlike newspapers and magazines, which are responsible for the accuracy of their content, Facebook and Twitter and Tiktok (I am too old to be current with all of the other newer platforms) “merely” provide the vehicle by which its users (you and me) distribute our content. The government does have laws that limit speech.  “Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats….and defamation that causes harm to reputation….”  “United States free speech exceptions”. What is not legally allowed generally, should not be allowed on social media. But in my opinion, those are the only restrictions that should be allowed in the law.  The last thing we want is Nancy Pelosi or Ten Cruz deciding what is allowed and not allowed on Twitter.

In short, beyond speech that is already restricted by law, the government should leave social media free to set their own policies for what they permit on their platforms.  But what should those policies be? In my opinion, all opinions should be allowed, even those, and especially those, that the platform operators consider wrong or repugnant. Bad policy prescriptions should best be countered by counter arguments not by censorship. It is not possible to over emphasize the benefit to America of free and open debate. Bad ideas are best countered and refuted by good ideas.  You are not likely to find a better statement of these views and a better defense of free speech than in Jonathan Rauch’s Kindly Inquisitors: The New Attacks on Free Thought.

But what about clearly fake news? Unfortunately, the distinction between fact and opinion is not always 100 percent clear. Tweeter should not have removed Donald Trump’s pages, though full of lies. Facebook should not have removed QAnon’s totally ridiculous conspiracy claims to take another extreme example. Many far less controversial posts have been removed as well for very unclear reasons. Facebook and other social media are working diligently to strike the right balance but are not there yet in my opinion. When Facebook or other social media platforms have good reason to doubt facts posted on their platforms, rather than remove (censure) them it would be better for Facebook to attach its warning and perhaps a link to more reliable information.

If Facebook (or any other platform) chooses to forbid hate speech, it would be better to rely on user complaints than its AI algorithm to determine what is hate speech. In an amusing, but not so amusing, example of the pitfalls of reliance on programmatic detection of disallowed speech, Facebook removed a post of a section of the Declaration of Independence because of its “nasty” reference to American Indians.  “Facebook censored a post for hate speech-it was the Declaration of Independence”

It is often argued that given the realities of network externalities (everyone wants to be where everyone else is), Facebook and Twitter are virtual monopolies and that this justifies more intrusive government regulation.  But the competition has expanded to include at the top of the list: YouTube, Instagram, Snapchat, Tumblr, Twitter, and Pinterest. Even Trump plans to launch his own platform. Facebook and the other popular platforms must ultimately please their users or they will be replaced even if network externalities are hard to overcome. It has happened before and can happen again. Government intervention to regulate platform content beyond the restrictions already in the law would be contrary to our traditional freedom of speech and potentially dangerous.

There are measures that the government might take to make competition easier. When phone companies were required to give ownership of phone numbers to the subscriber, making them easily portable from one phone company to another, competition received an important boost. Something similar might be done with social media data of users (e.g., username, friends, pictures and posts).

A much more challenging area concerns social media algorithms for directing users to others with similar interests (or beliefs) in order to better target the advertising that pays for it all. If users only see or hear the views of the likeminded, unhealthy ego chambers can be created and promulgated. Agreeing on constructive approaches to dealing with this danger will require more public discussion.

Summary: Demonizing political opponents is bad for democracy. Opponents are not enemies. There needs to be enough common ground for most of us to stand on if we are to remain a viable country. Free speech has been a very important feature of America and its flourishing. It is best to protect free speech and counter misinformation and bad ideas with rebuttal and better ideas. No opinion should be censured. Social media should flag questionable information rather than remove.

A liberal dad complained about the one-sided liberal (in the American rather than classical sense) education his children had received in college because, he said, “they are completely unable to defend what they believe.”

The Rule of Law: China and the U.S.

The rule of law has been an essential and critical foundation of successful free market economies. It provides the certainty of property rights and contracts needed for entrepreneurs to risk their capital in business undertakings. But as our business and other activities cross borders, whose laws apply?

“Among the earliest examples of legal codes concerning maritime affairs is the Byzantine Lex Rhodia, promulgated between 600 and 800 C.E. to govern trade and navigation in the Mediterranean.” https://en.wikipedia.org/wiki/Law_of_the_sea  Leaping forward, international air travel, satellite communications, spectrum allocation for radio, TV, internet, and other telephonic transmission would be impossible without firm agreements among countries–the international rule of law.

Laws facilitate commerce–buying and selling–by establishing rules for doing so (e.g. contract enforcement rules) that are stable and applicable to all. They lower the costs and reduce the risks of trading. The United States Constitution recognizes the importance of this in the commerce clause of Article I Section 8, which is used to prevent individual states from taxing or otherwise interfering with interstate commerce. Achieving the same law-based freedom to trade across national borders is more difficult, requiring the negotiation of agreements and treaties that establish common rules between sovereign nations.

The World Trade Organization (WTO) develops and enforces the rule of law in the area of cross border trade. The difficulty of achieving global agreement on the rules of various aspects of trade is reflected in the fact that no new agreements have been reached since the establishment of the WTO (taking over the General Agreement of Trade and Tariffs) on January 1, 1995. “The WTO agreements cover goods, services and intellectual property. They spell out the principles of liberalization, and the permitted exceptions. They include individual countries’ commitments to lower customs tariffs and other trade barriers, and to open and keep open services markets. They set procedures for settling disputes.” the WTO – what is it?

China was admitted to the WTO as a developing country on December 11, 2001. Chinese officials immediately expressed the desire to understand and conform to the international rules required by the WTO and requested technical assistant from the IMF for doing so. In July of 2002, the IMF sent me to Beijing to review their needs with them.  They were particularly keen to have an American banking supervisor to advise them. I had a perfect candidate who was just finishing a two-year posting to Hong Kong. Everyone I spoke to in Beijing, as well as my Chinese colleagues at the IMF, stated that virtually all Chinese officials agreed on where China wanted to go–full liberalization according to WTO rules. They only differed with regard to how fast they thought they should move to get there.

Our condition was that our resident banking supervision advisor had to have his office located with the other Chinese banking supervisors and that he would have an open door. This was enthusiastically accepted by the Deputy Governor who apparently had not informed the Governor of these details. Unfortunately, when the Governor was presented the contract of his signature, he killed the arrangement. I was, however, able to enjoy wonderful tours of the Great Wall, the Forbidden City, and dine on the best Peking Duck I have ever had.  

An economically rising China is lifting millions of people out of poverty. We rightly welcome its newly productive economy contributing to increasing world output and living standards. The challenge is to square China’s authoritarian political regime with an international free market trading system. The vehicle has been the WTO and other international rule setting bodies that exist to harmonize diverse economies in the direction of freer and more open trade. The rules were being set by the dominant, largely free market economies that China wanted to join.

Beyond an American led WTO itself, the multilateral trade agreement that established the highest standards yet for tariff reduction and the incorporation of more modern trade issues such as non-trade barriers, services, protection of intellectual property, minimum labor standards, and dispute resolution (the rule of law cannot meaningfully exist without credible dispute resolution procedures) was the Trans-Pacific Partnership (TPP) negotiated between 2006 and 2015. The TPP agreement between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam, and the United States was announced on October 5, 2015.

Three days later, on October 8, I spoke in New York City at a seminar hosted by the Chinese Chamber of Commerce of New York on the internationalization of China’s currency, the renminbi. All of the talk by the Chinese attending was about the TPP. Why was China excluded? Could they join? My reply was that China would be very welcomed to join when they were able to meet the treaty’s conditions. TPP was another powerful magnet pulling China into the liberal international trading order.  

A recent report from the Peterson Institute of International Economics (June 23, 2020) stated that: “The Trans-Pacific Partnership (TPP) was designed in 2016 to be almost China-proof, with stringent obligations requiring transparency and trade liberalization. As former US Trade Representative Michael Froman put it, Chinese participation would be welcomed only when China could meet TPP’s terms, which it was far from doing. The United States was not keeping China out; China was just not ready to come in.” “China and Trans Pacific Partnership-in or out”

Broadly speaking, the aim of the WTO is to increasingly move its member countries toward the freest trade possible with fair competition (a level playing field), thus promoting a more productive allocation of economic resources and lifting global incomes.  The organization is not without its problems. But rather than working to strengthen the WTO, President Trump turned to negotiating bilateral trade agreements and raising rather than lowering import tariffs. Clearly bilateral agreements are easier to conclude than are global or broad multilateral agreements. Trump focused on China and its large bilateral trade surplus with the U.S. out of the mistaken belief that its surplus (our deficit) was harmful to the U.S. and that reducing it would increase American jobs. “Who pays Uncle Sam’s deficits”

In one of his most short-sighted actions from a sadly long list, President Trump withdrew the U.S. from the TPP on January 23, 2017. In addition to tweaking a few existing trade agreements, such as the North American Free Trade Agreement (NAFTA) by incorporated many of the newer provisions of the TPP and the United States-Japan Trade Agreement and the United States-Japan Digital Trade Agreement, and imposing protective tariffs on solar panels, washing machines, steel and aluminum imports in the name of national security and “America First,” the Trump administration has focused its trade war bilaterally on China (with occasional pot shots at our friends in Europe and elsewhere).  “Trade Office fact-sheets and-annual-report”   A Brookings Institution study assessed the result of all of this for the American economy and workers as follows: “American firms and consumers paid the vast majority of the cost of Trump’s tariffs. While tariffs benefited some workers in import-competing industries, they hurt workers in sectors that rely on imported inputs and those in exporting industries facing retaliation from trade partners. Trump’s tariffs did not help the U.S. negotiate better trade agreements or significantly improve national security.”  “Did-Trump’s-tariffs-benefit-American-workers-and-national-security”

The remaining eleven countries that had signed the TPP agreed in January 2018 on a revised treaty they renamed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership” (CPTPP).  CPTPP is substantially the same as TPP, but omits 20 provisions that had been of particular interest to the U.S. These provisions can be relatively easily restored should the U.S. choose to rejoin. “Trade and Globalization”

With the increasing power of Xi Jinping, China’s President and the General Secretary/Chairman of the Central Committee of the Chinese Communist Party (now for life), China has played an increasingly active role in the IMF, WB, WTO and other international bodies. In addition, it has launched several regional organizations that it leads (the Asian Infrastructure Investment Bank, the New Development Bank–BRICS, and the Belt and Road Initiative) “The Asian Infrastructure Investment Bank and the SDR”  Xi Jinping claimed that the AIIB would adhere to the highest international standards. But as President Trump and others have noted, there are a number of important areas in which China does not abide by the WTO rules. The policy question is what should be done about it.

The Cato Institution began a recent review of China’s trade practices as follows: “There is a growing bipartisan sentiment in Washington that Chinese trade practices are a problem, since these practices are unfair to American companies in a number of ways. But there is disagreement about the appropriate response. Can multilateral institutions be of use here? Or is unilateralism the only way?” Their conclusion is that the WTO and other multilateral institutions would be the most effective way of continuing to pull China into compliance with the international rule-based system. “Disciplining China’s trade practices at the WTO-how -WTO complaints can help”

President Trump has unilaterally gone the other way. He has blocked Huawei, the world’s leading seller of 5G technology and smartphones, from U.S. 5G mobile phone systems and urged our European allies to do the same because of Huawei’s links with the Chinese government. He is attempting to block the sales of U.S. and other non-Chinese manufacturers of the semiconductor chips used in Huawei and other Chinese products to China.  “A-brewing-US-China-tech-cold-war-rattles-the-semiconductor-industry”  He is trying to ban TikTok, WeChat and other popular Chinese products from U.S. markets and raising tariffs on an increasing number of Chinese products imported into the U.S. Some of these measures might be justified on national security grounds but some seem more protectionist of U.S. companies that are not otherwise competitive.

We are basically forcing China to build its own alternative rules and approach to trade. It is even offering its own global tracking system in place of the GPS system the U.S. has given the world and they seem well along in dividing the World Wide Web and other Internet protocols into two worlds. https://www.voanews.com/east-asia-pacific/voa-news-china/chinas-rival-gps-navigation-carries-big-risks

A November 20, 2020 article by William Pesek highlights what Trump’s misguided trade war with China is producing: “On his presidential watch, Donald Trump did manage to make one thing great: economic cooperation within North Asia.

So chaotic and pernicious was the outgoing US president’s pivot away from Asia that China, Japan and South Korea are dropping the hatchet and joining hands. The unlikely union was formalized on November 15 with the signing of the 15-nation Regional Comprehensive Economic Partnership, or RCEP, free trade agreement.”  “US sidelined as China Korea and Japan unite”  The RCEP is a lighter more limited trade agreement than was the TPP (now the CPTPP) but it is led by China rather than the U.S.  Rather than converging to WTO standards it creates an alternative. 

“President Xi Jinping’s Friday [Nov 20, 2020] announcement of China’s intent to join the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), a high-standard mega regional trade pact, has been seen as a bold move to reassure the world of the country’s continuing commitment to reform and opening-up.” “News analysis: an uphill task for China to negotiate CPTPP accession agreement”  While Xi Jinping’s strategy for China’s ascension is to take over the leadership in forging the rules for the international order more to the liking of his regime, China’s younger and upcoming managerial and entrepreneurial class, many of whom studied in the U.S. and Europe, have seen and liked the freer and more open capitalist societies. Their patriotism and commitment to a rising China is informed by the knowledge that freer and more open economies thrive more than centrally controlled ones.  We should not overlook their potential for returning China to a path of liberalization and integration with the liberal international order enjoyed by the rest of us.

Xi Jinping and his government’s goal is to retain power by delivering rapid economic growth, which allows and requires a vibrant private sector, while overseeing tight political control. One example is provided by its Social Credit System.  “China’s social credit system-mark of progress or threat to privacy?”  This requires a different set of rules for cross border trade than set out by the WTO. But many of China’s world traveling citizens see China’s successful rise in more closely embracing free market capitalism. We should incentivize the later view.

President Trump’s trade policies have damaged the world’s rule-based trading system and hurt the American economy while turning China in a different direction. President elect Biden has indicated his interest in rejoining the TPP. He should give it and the rebuilding of the WTO and other multilateral bodies high priority.

Unions vs the Gig Economy

Americans largely support and benefit from a political/legal environment conducive to individual freedom and active entrepreneurship.  However, within that broad consensus, views vary over how large and prescriptive the role of government and mandatory bodies should be.  Should only doctors, lawyers, plumbers and hairdressers licensed by the state be allowed to provide their services?  Few things capture this difference more clearly and dramatically than whether cab drivers must be employees of the cab company or can work as little or as much as they chose as independent contractors– company employees or gig workers (uber drivers).

Licensed professionals, like union members, can help promote and certify a minimum standard of training and confidence. But historically they have also sheltered their members from competition. Unions provide a number of services to their members, but their overriding purpose is to confront employers with a united front from workers on wages and working conditions. They understandably exist to serve the interests of their members.  While the commercial success of the companies’ union workers work for is also in the interest of these workers in the long run (if companies are not profitable they cannot provide jobs and/or good wages) it is more remote from workers’ immediate interests.

Gig workers are independent contractors who individually agree with an employer (such as Uber or Lyft) on wages, hours, and working conditions. In fact, Uber and Lyft drivers decide on their own, hour by hour whether and when to work. Their financial reward rests more directly on satisfying their customers.  The brand name Uber or Lyft must also insure a minimum standard of service to their riders (quality and cleanliness of the car and honesty and politeness of the driver, etc.). https://wcoats.blog/2014/12/18/free-markets-uber-alles/

The incentives confronting union workers and gig workers thus differ. Union works, in the first instance, by confronting their employers seeking better working conditions and pay (wages and benefits) while gig workers are competing with other drivers to please their customers. The results can be mixed but the difference between a ride with a yellow cab driver and a Lyft driver can be rather dramatic. I never had a yellow cab driver leap out of the spotlessly clean car to open my door saying: “I hope that you enjoyed your ride.” But while Uber and Lyft provide us with better and cheaper rides, they also provide drivers with more and better options of when and where they work.  Some want to work only a few extra hours after a regular job. Some choose to put in long hours when in need of extra money. Like most transactions in a free market both drivers and riders benefit–its win, win.

My experiences with unions have not been good. My father was a Shell Oil union member.  His union went on strike long ago when my mother was pregnant with my younger brother. After a few months on strike it was growing obvious (according to my father) that it would end soon in failure from the union perspective. The union bosses feared that my father and others would return to work before the union had formally given up. They came to our house and told my pregnant mother that it would be quite unhealthy for her if my father returned to work.

While a student at the U of C Berkeley I had taken jobs for three summers with Shell Oil, one of the perks they give their workers’ children. Two summers were roustabouting in the oil fields of Kern County, California with regular Shell employees who never spoke of labor relations with the company. Instead they talked about their families and non-work activities.  The middle of the three summers with Shell, I was assigned to the supply yard behind Shell’s Kern County headquarters. I assisted the one employee there who loaded pipes and other oil field equipment onto trucks that then delivered the equipment to the fields I had worked in the summer before. Much of the time the two of us just hung out there waiting for the next truck, very unlike digging ditches to repair leaking pipes as I had done the previous summer in 112-degree summer heat. We drove around in the small portable crane used for loading the trucks. The entire time my “companion,” an avid union member, complained about how Shell Oil was exploiting us. After a few weeks I dreaded having to be around him.

After my brother and sister and I were out of the house my mother went back to school, first to finish high school and then to college and a teaching degree. She became a highly successful grammar schoolteacher who specialized in taking on (and taming) problem students. She complained frequently at the attitude and self-protective behavior of the teachers’ union members that was far more interested in protecting mediocre teachers than in teaching students.  Michelle Rhee only turned around the education system in Washington DC when she was able to break the strangle hold of the teacher’s union.

More recently we have seen yet again the destructive role of police unions in protecting bad cops in connection with the death of George Floyd in Minneapolis. “Police-unions-minneapolis-kroll” Much has been written about how deals with police unions has thwarted needed reforms in policing. There seemed to be broad nonpartisan support for such reforms before the “defund the police” nonsense killed it.

But there is a surprising bit of good news from the election earlier this month beyond replacing Trump.  In California, for example, the state was attempting to apply a law regulating employment (AB-5) to contract Uber and Lyft drivers, demanding that they be treated as employees rather than contractors. This would have destroyed Uber and Lyft’s business models and was strongly opposed by them and their drivers. “California’s Public Utilities Commission said in an order Tuesday [June 9, 2020] that Uber and Lyft drivers are “presumed to be employees” under AB-5, the state’s new gig work law.” “Uber-Lyft-drivers-declared-employees-by-California-regulators”  California voters rejected this union effort to kill the market for gig drivers.

As The Wall Street Journal put it: “Democrats and unions in California are shell-shocked. Voters last Tuesday rejected a referendum that would have allowed racial preferences in state hiring and college admissions, defeated a massive business property tax hike, and rescued tens of thousands of gig economy jobs.” https://www.wsj.com/articles/californias-progressive-thumping-11605136309?st=ra1kvgf2okxr35j&reflink=article_email_share

The following description of Proposition 22 appeared on California ballets:

PROP 22

EXEMPTS APP-BASED TRANSPORTATION AND DELIVERY COMPANIES FROM PROVIDING EMPLOYEE BENEFITS TO CERTAIN DRIVERS. INITIATIVE STATUTE.

SUMMARY

Put on the Ballot by Petition Signatures

Classifies app-based drivers as “independent contractors,” instead of “employees,” and provides independent-contractor drivers other compensation, unless certain criteria are met. Fiscal Impact: Minor increase in state income taxes paid by rideshare and delivery company drivers and investors.

WHAT YOUR VOTE MEANS

YES A YES vote on this measure means: App-based rideshare and delivery companies could hire drivers as independent contractors. Drivers could decide when, where, and how much to work but would not get standard benefits and protections that businesses must provide employees. 

NO A NO vote on this measure means: App-based rideshare and delivery companies would have to hire drivers as employees if the courts say that a recent state law makes drivers employees. Drivers would have less choice about when, where, and how much to work but would get standard benefits and protections that businesses must provide employees.

Proposition 22 passed with a 58.6% majority in a state that rejected Donald Trump by a wide margin (64% for Biden and 34% for Trump). This result is consistent with what I hope is true, namely that a majority of voters voted against Trump rather than embracing the more government dominated management of our lives promoted by the “socialist” wing of the Democratic party. With the more skillful and predictable management of a Biden administration and a Republican controlled Senate to block any excessive expansions of government, we might be lucky enough to keep the good measures taken over the past four years (tax reform, reduction of excessive regulations, strengthening the courts, and no new wars) and get rid of the anti-market, protectionist, executive overreach, and internationally disruptive measures of an ineffective and dishonest bully.

Saving our free society

The vast majority of every new generation want to make society a better place. They support policies that they believe will contribute to making society fairer and “nicer.” As they age their altruism may tilt toward self-enrichment and self-protection at the expense of fairness (cronyism), but initially their motives are pure. The key issue is what policies they believe will help make society a better place. “The-search-of-purpose-nature-and-nurture-genes-and-culture”

We can be thankful that American voters in throwing out a dishonest, divisive, egomaniac didn’t endorse the socialist wing of the Democratic Party.  We seem to have moved back to the broad center.  “Dan Mitchell–a victory for Biden-a defeat for the left”  It is hard to know where to look for and find the truth today, and our society will suffer because of that.  But as we review and debate the policy proposals of a Biden administration, we must remember that we are all looking for the truth about what will make our society better (fairer, freer, and more virtuous).  We must listen to each other’s concerns and carefully evaluate each other’s proposals. But we have a duty to ourselves and our neighbors to study history for what has worked and what hasn’t and to do our best to understand why limited government and maximum reliance on our own decisions and the decisions of our neighbors is the best framework in which to help make society better.

The growing number of today’s youth who look favorably at socialism (whatever they understand that to be) is worrying because it reflects an incorrect assessment of what socialism has always delivered. To today’s youth: If you really care about making society better, take the time to study the history of socialism and learn why it failed and is bound to fail and why societies that are freer and law abiding are both more virtuous and more prosperous. “Socialism-as-seen-by-millennials”