Tuesday, June 4, 2019

Why Trump's Obstruction Matters: It May Be the Reason Mueller Could Not Establish Conspiracy

Special Counsel Robert Mueller’s public statement last week amounted to a simple plea: read what I wrote. The collective American failure to do so made that plea necessary.

It is not entirely the fault of the public. Attorney General William Barr deliberately mislead all of us about what Mueller wrote before any of us had a chance to read the report. Barr told us what to think, and many of us left it at that. Since the release of the redacted version, however, the evidence has been there and has been largely ignored.

The public generally relies on the press to interpret such documents, and the American news media has not done a particularly good job in this case.

The press has been relatively responsible in its treatment of Volume 2, which lays out the case that Donald Trump committed multiple acts of obstruction of justice. As Mueller made clear in his public statement, Trump only escaped indictment due to Department of Justice policy against indicting a sitting president.

The problem is that the focus on the obstruction in Volume 2 case has led us to ignore what precisely Trump was obstructing. The conventional wisdom on Watergate is that it was the cover-up that got Nixon, as if that unusually bright man stupidly committed obstruction of justice for no good reason. But historians of Watergate know well that Nixon covered up for a perfectly good reason: to avoid exposing his own criminal activity. The same is likely true here, and we have thus far failed to appreciate it.

In my reading, the greatest failing in the public and press understanding of the Mueller report pertains to Volume 1 on the investigation into Russian interference. Trump, of course, has repeatedly (and falsely) claimed that it concluded that there was “no collusion.” Trump’s lies are to be expected. What has been far worse has been the failure of the press (and members of Congress) to convey accurately what Mueller does say in Volume 1—and how what it actually says adds greater weight to the damning material in Volume 2.

In short, I think the report tells us that the Trump Campaign may well have conspired with the Russian government, but Trump’s obstruction prevented the investigation from proving it.

The failure of the press to communicate the real substance of the report cannot be blamed entirely on Barr. He accurately quoted the report in his initial letter: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Unfortunately, the careful language of the report—“did not establish”—is easy to misinterpret, and it became something else in many press accounts: that the report found “no evidence” of collusion. The New York Times, CBS News, and NPR all framed the issue that way. Trump’s defenders consistently have repeated that lie. Anyone who has read Volume 1 (as I have) knows that the report explicitly says it did find evidence of conspiracy—but that the evidence was “not sufficient.” Mueller’s public statement made a point of saying the Special Counsel’s Office (SCO) concluded not that there was no evidence, but “that there was insufficient evidence to charge a broader conspiracy.”

So what does that mean? The report explicitly tells us: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” (Vol. 1, p. 2) In short, the report tells us that there was evidence of conspiracy with the Russian government, but that it did not meet this high legal standard: “whether admissible evidence would probably be sufficient to obtain and sustain a conviction.” (Vol. 1, p. 8) It may be worth noting that modifier “admissible”—it seems to suggest that there is evidence that would not be admissible in court that would have been sufficient to establish a conspiracy.

Language matters. A careful reading of the report reveals that the SCO used a variety of phrases to describe what it did or did not find. When it found “no evidence,” it says so: “The investigation did not identify evidence that any U.S. persons conspired or coordinated with the IRA [Internet Research Agency, the Russian government’s social media manipulator].” (Vol., 1, p. 4) The report also forthrightly states: “The investigation did not find evidence that the Trump Campaign recovered any such Clinton emails.” (Vol. 1, p. 61) Also: “The investigation did not identify evidence that the Campaign passed or received any messages to or from the Russian government through CNI [Center for the National Interest] or [its director Dimitri] Simes.” (Vol. 1, p. 103)

These examples make it impossible to argue that “did not establish” means the same thing as “did not find evidence.” That misreading, however, has been immensely useful to Trump and his defenders.

A major consequence of the failure to understand Volume 1 and its argument is that the damning evidence of obstruction of justice by Trump in Volume 2 seems less significant than it should.

Barr himself has absurdly claimed that Trump’s obstruction behavior can be excused because he had been falsely accused: “If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt that this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for replacing an independent counsel.”

A fair reading of Volume 1 cannot sustain Barr’s claim “the evidence now suggests that the accusations against him were false.” The report does not conclude that the conspiracy charge was false. But the lie that Volume 1 found “no evidence” of conspiracy quite nicely serves Barr’s end (I give the press the benefit of the doubt that their error was due to laziness; Barr is too experienced a lawyer for that.)

According to Barr’s contorted defense, there can be no obstruction if there was no underlying crime. But Volume 1 makes clear two things: 1) there was an underlying crime of Russian interference in the election (a point Mueller hammered home not once but twice in his public statement) and 2) the failure to establish a second crime (a conspiracy between the Trump campaign and the Russian government) may be due precisely to Trump’s obstruction of justice.

In the Volume 1 summary of charging decisions, the report states that the evidence of conspiracy was not sufficient but does not leave it at that—it explains why the evidence was insufficient: “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress … Those lies impaired the investigation of Russian election interference.” (Vol. 1, p. 10) In addition, the “investigation did not always yield admissible information or testimony” due to Fifth Amendment claims, attorney-client privilege, and First Amendment protections of journalists. Even worse, some evidence was destroyed or hidden: “some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data.” (Vol. 1, p. 10)

The significance of that last point cannot be overstated. It is crucial to the SCO’s inability to establish a conspiracy: “the Office was not able to corroborate witness statements through comparison to contemporaneous communications.” (Vol. 1, p. 10) In other words, they had testimony that showed conspiracy, but the documentary evidence that might have met the legal standard for conspiracy was destroyed or unavailable.

Due to these limitations on the investigation, the report states unequivocally that its account of Russian interference, in particular the possible conspiracy between the Trump campaign and Russian government, is not definitive: “the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a different light) the events described in the report.” (Vol. 1, p. 10)

That statement could cut either way, of course. Perhaps the “unavailable information” would make the actions of Trump campaign officials look completely innocent. Given the entirety of the introduction (and the above quotation is the final sentence of that introduction), it seems to me likely that the report is saying that while the investigation did not establish a criminal conspiracy, its authors are not confident that there was not one.

This reading of Volume 1 casts the findings of Volume 2 in an entirely “different light.” The standard reading of the report is that the two volumes are entirely separate. Given that the report is organized that way, that’s natural, especially when we consider that Volume 1 says the investigation did not establish a criminal conspiracy and Volume 2 then goes further and explicitly refuses to exonerate Trump on obstruction of justice. They seem to come to two separate conclusions on two separate subjects. Barr has adroitly used that fact to try to neutralize Volume 2.

If we read the two volumes as one story, however, another picture emerges: The investigation failed to establish conspiracy in part because Donald Trump obstructed justice by dangling a pardon to Paul Manafort.

The key unknown in Volume 1 is the precise nature of Manafort’s contacts with Russians during the campaign.  The description of the roadblocks the investigation encountered establishing conspiracy closely fits Manafort’s case. “Manafort lied to the Office and the grand jury concerning his interactions and communications with Konstantin Kilimnik.” (Vol. 1, p. 10) The report notes that it was not “able to gain access to all of Manafort’s electronic communications (in some instances, messages were sent using encryption applications).” (Vol. 1, p. 130)

The investigation established that Manafort shared internal polling data with Kilimnik, but could not ascertain with certainty why. Thus, it uses the same language on this question as it does on conspiracy in general: “The investigation did not establish that Manafort otherwise coordinated with the Russian government on its election-interference efforts.” (Vol. 1, p. 131) (Given the earlier description of what that phrase means, this means that they did have evidence—likely testimony from Rick Gates—but that they could not corroborate it with documents.)

Since we know that the Russian election activities involved social media manipulation to help Trump and hurt Clinton, it is no great stretch to imagine the answer to that question—Manafort gave Kilimnik the polling data to aid in precisely targeting Russian election-interference activities—but as a legal matter the SCO was stymied. It seems likely that the cooperation agreement with Manafort led the investigators to believe that they would finally get answers to that fundamental question.

Then, in one of the strangest twists in the entire saga, Manafort violated the agreement and lied to them. Why?

This is where the two volumes come together. Most accounts of the obstruction case have focused (as Barr did) on Trump’s efforts to have Mueller fired. Buried amidst the multiple and varied instances of Trump’s obstructive actions, however, is the more significant section on Manafort. Its conclusion is among the strongest statements in the report: “Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort not to cooperate with the government.” (Vol. 2, p. 132)  Trump “discussed with aides … whether Manafort knew any information that would be harmful to the President.” (Vol. 2, p. 123) The obstruction activity even continued after Manafort’s plea agreement (Vol. 2, p. 127), and Trump continued to hint at pardon after Manafort’s failure to abide by the agreement (which practically insured significant jail time for Manafort) became publicly known. (Vol. 2, p. 128)

Unlike other instances, in which the report bends over backwards to give Trump the benefit of the doubt (as in whether or not he was trying to influence the jury in Manafort’s trial), the report states “the evidence supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.” (Vol. 2, pp. 132-133) 

Put all of this together, and the report seems to me to be saying that there might well have been a conspiracy between the Trump campaign and the Russian government, that the key figure in that conspiracy was Paul Manafort, and that Trump’s obstruction of justice was instrumental in blocking the investigation’s ability to establish that conspiracy by convincing Manafort to lie to investigators.

When we strip away Mueller’s careful legal language, that’s what remains.

Why did Mueller come out and make that public statement last week? Why did he reemphasize the crime of Russian election interference? My reading of the complete report leads me to conclude that he was telling us that Trump’s obstruction matters, not just as a simple matter of principle (as most have interpreted it) but because that obstruction blocked the investigation and may well have successfully hidden a conspiracy between the campaign and the Russian government.

As Mueller said, that “deserves the attention of every American.”

Tuesday, July 24, 2018

C-SPAN 3 Interview

In April, I gave a paper at the Organization of American Historians conference in Sacramento, titled "The Air War: How the Great Debate Over World War II Revolutionized Politics on the Radio."

C-SPAN 3 interviewed me at the conference, and the interview recently aired. You can watch it below.


Saturday, February 10, 2018

The Nunes Memo, “Bias,” and the Skills of the Historian

[This post was originally published on HNN.]

It struck me while reading the instantly infamous Nunes memo that we’d all be better off if we were all trained as historians.

OK, I already thought that. Maybe it is just because I have been working on the syllabus for my historical research methods class, but the memo and the knee-jerk reactions to it both prove to me once again how important it is to have the historian’s understanding of how to use primary source information.

The entire “argument” (such as it is) depends on the idea that a FISA warrant based—to any extent—on the so-called Steele dossier is inherently tainted, because the research done by the author, former British intelligence agent Christopher Steele, was paid for at some point by Democrats. Since the warrant targeted Carter Page, who had been part of the Trump campaign, the motive of the funders (not the researcher, it bears noting) to get “dirt” on Trump somehow discredits everything Steele found.

The memo contains not a single argument that the evidence used to obtain the warrant against Carter Page was actually false—only that it is somehow untrustworthy due to the alleged motive behind the research that produced the evidence.

In history, we deal with this problem all the time. We uncover evidence in primary sources, and must judge its credibility. Do we have reason to believe that the person who produced the evidence might have an agenda that should cause us to doubt the veracity of the evidence? What do we do if the answer to that question is “yes,” or even “maybe”?

I do a primary source exercise in my methods class that does just this: presents the students with conflicting primary source accounts of an event. I then explain why the people who produced the evidence might have self-serving reasons for portraying the event in a particular light.

Most students, when first faced with this dilemma, immediately say “bias!” and dismiss the evidence as worthless. That is the reaction the Nunes memo seems intended to produce among the general public.

But that is not how the historian reacts. Yes, the source of the evidence may have some bias. That does not, however, by itself mean that the information is false. It does mean that when weighing its validity, the historian must look for other, independent, corroborating evidence before trusting it.

It seems likely that is what the officials who used the Steele dossier to obtain the FISA warrant did: they compared what Steele wrote to other information they had about Carter Page to see if it lined up.

People defending Nunes are pointing to this line in the memo as evidence that the allegedly flawed evidence from the dossier was used to unfairly target Page for surveillance: “Deputy Director McCabe testified before the committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.”

While there is some dispute about whether this is an accurate characterization of McCabe’s testimony, it is hardly a smoking gun that proves the warrant had no factual, evidentiary basis.

Let’s take the memo’s assertion about McCabe’s testimony at face value and assume it is completely accurate. If, as seems likely given other reporting on Page, the intelligence community had other, independently-sourced evidence causing them to suspect Page of suspicious contacts with Russian intelligence, then Steele’s information may have been the corroboration they needed to move forward with the warrant. Thus, there would not have been a warrant without it.

But the logic of that also works the other way: if all they had was the Steele dossier information—without corroboration—then there also would be no warrant. Unless McCabe said that the warrant request was based solely on the Steele information, this actually shows that the information in the dossier had corroboration that legitimately outweighed any potential taint due to the funding source of Steele’s research. It shows that the charge that the FBI failed to take into account any potential political bias is false. And then the whole flimsy assertion behind the memo falls apart completely.

If you’ve been trained in evaluating evidence, this way of thinking comes naturally. The uninformed, however, fall for the incredibly flawed assertions in the Nunes memo. People who don’t understand anything about law or evidence dismiss the dossier as the “fruit of the poisonous tree,” but in fact that phrase refers to evidence that is obtained illegally. It has nothing to do with potential bias. The charge is not that Steele's evidence was obtained illegally, but that it is was somehow "biased" and thus untrustworthy. Every legal case, like every historical case, involves judging the trustworthiness of evidence. Yes, you need to consider from whence the evidence comes. But you do not dismiss it out of hand just because there might be some whiff of “bias” from the source of the information.

That’s a skill that historical training imparts. The inability of a large number of Americans—including ostensibly well-educated ones—to understand that shows how much we suffer from our historical illiteracy.

Tuesday, May 30, 2017

Why Trump's Snub of NATO Matters

[This post was first published on HNN: http://historynewsnetwork.org/blog/153934#sthash.nbZ5tfZy.dpuf]

Donald Trump went to a NATO meeting last week and never explicitly stated his commitment to Article 5, which states that an attack on one member is an attack on all.

Why is this such a big deal? Because he’s undermining U.S. national interests.

I often have the chance to teach about the creation of NATO, in four different courses I teach (Western Civilization since 1815, U.S. History since 1865, American Diplomatic History, and U.S. since 1945). Whenever I do, I make a point of stressing what an incredible and important departure it was in American foreign policy.

When I tell students that the U.S. created and joined the North Atlantic alliance in 1949, I always ask them when the U.S. last had entered a formal alliance. They often guess World War II, and then World War I. Students understandably assume that since the U.S. fought along side other nations in both the First and Second World Wars, and we casually refer to America’s “allies” in those wars, that there were treaties of alliance. But there were none—in each case, the U.S. quite deliberately maintained its formal separation from those it called its “allies.”

NATO was the first formal alliance for the U.S. in nearly 150 years. In 1800, the Adams administration negotiated an end to the French alliance of 1778 that had helped the Americans win the Revolutionary War, and the U.S. had not agreed to a single treaty of alliance since. When revolutionary France went to war with Britain (America’s largest trading partner) in the 1790s, the alliance seriously complicated not only American foreign policy, but American domestic politics as well, and soured Americans on the idea of any binding foreign commitments.

After its war with Britain ended in 1815, the U.S. assiduously avoided involvement in European political affairs. Its response to conflicts in Europe was essentially “none of our business.” When both World Wars broke out, the American response was to declare its neutrality. In 1949, that changed.

American membership in NATO represented a fundamental shift in American foreign policy. For nearly a century and a half, Americans insisted on complete freedom of action in foreign policy. No binding commitments would threaten to drag the U.S. into a foreign war. That determination was the single largest factor in the Senate’s rejection of Woodrow Wilson’s vision for the League of Nations after World War I. With NATO, the U.S. reversed course and said that it would immediately go to war if one if its allies were attacked. Why such a dramatic change?

The lesson of the two World Wars, in the minds of American foreign policy makers, was that the U.S. could not avoid involvement in a major European war. The only way to stay out of such a war, they decided, was to make sure that one never broke out again. The only way to do that was deterrence through a binding collective security agreement. Send the message to a potential aggressor (the Soviet Union at the time) that American neutrality was unequivocally a thing of the past: if World War III broke out, the (nuclear armed) U.S. would be in it on Day One. That certainty would deter any potential aggression and prevent another war.

That certainty is what Donald Trump recklessly undermined last week. NATO’s effectiveness depends on certainty, and he created uncertainty. During the campaign, Trump suggested that America's commitment to honoring Article 5 would become conditional. When asked if the U.S. under a Trump administration would defend the Baltic states if attacked by Russia, he said “If they fill their obligations to us.” That one small word, “if,” has the potential to undermine the entire alliance. The whole point of NATO was to take the “if” out of the calculation.

Last week, Trump had an opportunity as president to repair the damage he had done as a candidate, and he passed on it. Administration officials assured reporters beforehand that Trump would “publicly endorse NATO’s mutual defense commitment.” But he did no such thing. He briefly mentioned it in the context of NATO coming to America’s aid after 9/11, but never stated his commitment to reciprocate. Instead, he harped once again on the need for NATO nations to pay “their fair share.”

There’s nothing inherently wrong with reminding members that they have agreed to spend 2% of GDP on defense. Trump, by refusing to state his commitment to Article 5 while making that demand, however, is turning NATO into just another “deal.” He has said in the past that he thinks the U.S. is being “taken advantage of” in NATO. In his transactional framing of the alliance, European members are paying for American protection, and to get them to pay up, he is implicitly threatening to refuse to honor America’s commitment. This is his simple-minded idea of what constitutes “tough” leadership.

As with so many other aspects of his disastrous presidency, Trump here is misapplying his business approach to realms where it is not only not applicable but downright destructive. NATO is not a “deal.” It is not a protection racket. The American creation of NATO was meant to serve American interests. It has done so for nearly 70 years. Undermining the alliance with his childish and churlish attitude is self-defeating. It undeniably damages American interests. The only open question is whether Trump is doing so out of ignorance and foolishness, or for far more disturbing and sinister reasons.

Sunday, December 18, 2016

The Election of 2016 and American Identity

[This post was originally published on HNN: http://historynewsnetwork.org/blog/153856]

Not all presidential elections are created equal. Every election is a choice, of course, but the choices are not equally consequential. In some cases, the country seems largely set on what to do, and is debating little more than how to do it (Kennedy-Nixon in 1960). In others, there are more substantial questions of what we as a nation should do (Reagan-Carter in 1980). The most consequential ones, however, come down to the question of who we are as a people, how we define America as a state.

I would argue that 2016 was the last of these.

It was so because Donald Trump made it so.

The 2008 campaign easily could have been one of those, with the Democrats choosing the first African-American major party nominee, with all that choice symbolized about what kind of country this is. While there were certainly moments in the campaign that threatened to veer in that direction, the Republican nominee, Sen. John McCain, stopped his campaign from exploiting that approach.  When a woman at one of his town hall meetings said she thought Obama was “an Arab,” McCain stopped her: “No, ma'am. He's a decent family man [and] citizen that I just happen to have disagreements with on fundamental issues and that's what this campaign's all about. He's not [an Arab].” McCain was given the chance to make it a campaign that said I am one of “us” and he is one of “them,” and he insisted it should instead be a campaign about issues.

Those two words—“No, ma’am”—made clear that McCain was determined not to take the low road. He would talk about what we should do, not who we are. He would say “no” to his supporters when they went down that other road. They are also the words Donald Trump never uttered in his campaign rallies, no matter what vile shouts his deliberate rabble-rousing provoked.

Long before he became a candidate, Trump took the low road by becoming the most famous “birther” in America, again and again claiming that he was finding proof that Barack Obama was not born in the US, asserting that Obama was secretly some non-American “other.” What McCain disavowed, Trump took up—with glee.  McCain thought there were things more important than winning, an attitude Trump clearly views with utter disdain. To Trump, decency is for losers.

Trump’s birtherism was more than just a way to attract attention (though that may have been its chief attraction for him personally). It was in practice an attempt to repudiate the vision of America that Obama’s presidency represented, an America that defines itself by core beliefs that are available to all people, no matter their race, ethnicity, or religion—rather than by an immutable national type of person.

It is no coincidence that Trump then literally began his campaign by demonizing Mexicans as criminals and rapists. His opening salvo against Mexicans set the tone that he never abandoned: these “other” people are different, they are not good, they do not belong here, they are not “us.” His attack on Judge Curiel demonstrated this perfectly. He said the judge could not be fair to him in the Trump University case because “he’s Mexican.” The fact that the judge was born and raised in the United States did not matter to Trump. “He’s Mexican. I’m building a wall.” For Trump, Curiel’s ethnic heritage was who he was. His birthplace, his profession, his devotion to the law and the Constitution were all irrelevant to Trump. The judge’s identity was his ethnicity, and it was Mexican, not American.

He added to the ethnic dimension a religious one by calling for a ban on Muslims coming into the US. He did not call for a ban on extremists or terrorists. He called for a ban on everyone who adhered to a specific religion. He told CNN: “I think Islam hates us.” Not some Muslims, not even some people from some countries that are predominantly Muslim. “Islam hates us,” he said—ignoring the many American Muslims who are “us.” What that lays bare is that for Trump, Muslims are not “us.” They may be here, but they don’t really belong here, because they are not really of “us.”

His positions and policies (and the rhetoric he used to promote them) made it clear that his slogan—“Make America Great Again”—meant that the US should be defined in racial, ethnic, and religious terms: as a predominantly white, Christian country again. His unabashed bigotry throughout his campaign challenged every American to decide: is this who we are? Is America defined by racial, ethnic, and religious traits or is it not?

As I see it, there have long been two competing visions of what the United States is: a country based on an idea or a nation like all the others.

The first argues that the United States is not any particular ethnicity, language, culture, or religion—some of the traits that usually comprise a “nation.” Instead, the United States is fundamentally an idea, one whose basic tenets were argued in the Declaration of Independence and given practical application in the Constitution. At its core, America is the embodiment of the liberalism that emerged from the Enlightenment, which took as a self-evident truth that all people are equal, that all people are fundamentally the same, no matter where they live. They all have basic rights as humans, rights that no government can grant or deny, but only respect or violate. Because this fundamental liberal idea erased the traditional lines that divided people based on race, ethnicity, or religion, it was a “universalist” (or, to use a common term of derision among Trump supporters, “globalist”) concept. It was open to everyone, everywhere. By extension, the American idea (and America itself) was open to everyone, everywhere.

Unlike the situation in other “nations,” since America was an idea, one could become an American by learning about and devoting oneself to that idea. This fact is embodied today in the citizenship test given to those wishing to become Americans: it is a civics test, with questions about American history and government. The final step is taking an oath of allegiance, in which one pledges to support and defend not the “homeland” but the Constitution. The oath is not to territory or blood, but to what we believe and how we do things: to become an American means to believe in certain ideas and commit to living by them.

The other concept of the state is older and more traditional. The United States is a territory, a piece of land. It is also a particular group of people with unique, identifiable national traits that set them apart from others. Trump’s constant refrain about “the wall” perfectly captures this sense of territory in concrete terms. He says that the borders are absolutely essential to defining the nation: “A nation without borders is not a nation at all.” After the Orlando shooting, Trump tied the idea of the nation explicitly to immigration. Eliding the fact that the killer himself was born in the US, he noted that his parents were immigrants and said: “If we don't get tough and if we don't get smart, and fast, we're not going to have our country anymore. There will be nothing, absolutely nothing left.” Immigrants, he suggested, will destroy the country.

This is why the border must be, in his words, “strong” or “secure.” Keeping “our” country means keeping the wrong people out. Otherwise there will be “people who don’t belong here.” While in theory this could be merely about a given immigrant’s legal status, Trump’s rhetoric and proposals give the lie to that—the Orlando killer’s parents were not “illegal” after all, but they were Afghans and Muslims. The wall won’t be on the border with Canada, either. He singles out Mexicans and Muslims, which has the effect of defining who exactly the people who do “belong here” are—those who are white and Christian. Trump’s nonsensical promise that “we are going to start saying ‘Merry Christmas’ again” signals that he will make America Christian again. He told Tony Perkins: “I see more and more, especially, in particular, Christianity, Christians, their power is being taken away.” The passive voice masks who precisely is doing the taking away, but it is not hard to imagine who he means: it must be non-Christians, maybe secularists, maybe Muslims. Either way, “them,” and not “us.” (It is also noteworthy that he says Christians had “power”—which suggests a previous supremacy that’s been lost.)

By striking these themes, Trump has appealed to this traditional, more tribal concept of what America is, or should be: not an idea based on universal principles, but a state rooted in a particular place and with a specific, dominant identity comprised of racial, ethnic, and religious traits that should never change.

The irony is that in doing so, Trump is effectively saying the United States is not really distinctive, at least not in the way it usually thinks of itself. It is a nation like all other nations. Trump has, in fact, explicitly rejected American exceptionalism: “I don't think it's a very nice term. We're exceptional; you're not…. I don't want to say, ‘We're exceptional. We're more exceptional.’ Because essentially we're saying we're more outstanding than you.” While he couched this is business terms, claiming that since the US was being bested in trade it could not claim to be better, he was openly and consciously rejecting a basic tenet of Republican orthodoxy since at least Ronald Reagan. Coming from the standard bearer of the 2016 Republican Party, which has beat the “American exceptionalism” drum relentlessly (especially in the Obama years), that is rather stunning—but it also makes sense from another perspective.

Jelani Cobb wrote recently in the New Yorker that Trump’s political rise represents the “death of American exceptionalism.” He states: “The United States’ claim to moral primacy in the world, the idea of American exceptionalism, rests upon the argument that this is a nation set apart.” By emulating the “anti-immigrant, authoritarian, and nationalist movements we’ve witnessed in Germany, the U.K., Turkey, and France,” Cobb argues, Trump forfeits that American “claim to moral superiority.”

I agree with Cobb, but I think it goes even deeper than he suggests: it is a rejection of the idea-based definition of what America is and a reversion to an older, European one. American exceptionalism not only encompassed a moral claim, not only set the United States apart from other nations. It even—or maybe especially—set the US apart from those places from which most of its founding generation fled: the states of Europe. Here in America, the thinking went, the people will create something new and different, based on first principles and following the dictates of reason, unrestrained by tradition, culture, religion—by anything but the best ideas. In Thomas Paine’s famous words, “we have it in our power to begin the world over again.” The United States would show the world what could be accomplished when free people creating a new state had the chance to write on John Locke’s tabula rosa. (It should go without saying that this was never literally true, but rather an ideal to which people aspired.)

In doing so, Americans were effectively saying: “We are not our European ancestors. We are different. They are tribal, we are not.” For most of the 19th century and well into the 20th, American isolationism was based on the foundational idea that the US, despite its ancestry, was decidedly not European. It would not be ruled by Europe and it would not be drawn into Europe’s tribal squabbles. The US was different—and better. It may have been borne of Europe, but it would supersede it and show it a better way.

More often than not in recent decades, it has been American conservatives who have shown disdain for Europe, sneering at the idea that the US should look to Europe for ideas or leadership of any kind: in law, in public policy, in diplomacy. But scratch the surface and what we see is not contempt for Europe per se but for liberalism as it has developed in Europe since the end of World War II. As right-wing, anti-liberal movements have grown in Europe, so has American conservatism’s appreciation for what Europe has to teach Americans.

As Cobb points out, what is striking about Trump is how much his program resembles that of right-wing extremists in European states who reject that better way America sought to offer in favor of the old European way. Trump’s program is not uniquely American. Arguably, it is following an ancient pattern set in Europe that is rearing its ugly head again in the 21st century. (Trump himself said his election would be “Brexit times 10”—bigger, but not original.) Trump is following more than he is leading, copying a formula that has had some success elsewhere, one that is far from uniquely American. It is, if anything, uniquely European—in the worst sense.

Recently the New York Times had an article on how the far-right European movements have adopted Vladimir Putin as their hero, for his defense of “traditional values.” It quotes an American white Christian nationalist praising Putin: “I see President Putin as the leader of the free world.” (His definition of “free” must be markedly different from the one that has dominated in American political culture, but the framing is telling. Theirs is not the freedom of the Enlightenment, but rather freedom from the threat of the non-western or non-traditional “other.”)

Most American pundits, still caught in a cold-war paradigm, marveled at Trump’s embrace of Putin, and could not understand how it failed to discredit him as it seemingly should have (even this past weekend’s stories on the CIA’s conclusion that Russia sought to help Trump in the election has yet to leave a mark on him). Those critics failed to see that a new paradigm has completely eclipsed that of the cold war. They missed the fact that, despite his KGB pedigree, Putin has transformed himself into “a symbol of strength, racial purity and traditional Christian values in a world under threat from Islam, immigrants and rootless cosmopolitan elites.” In the new paradigm, these are the new enemies, the real enemies of the 21st century. Communists have been vanquished. Islamists, immigrants, globalists, “others” of all kinds, have taken their place. The cold war was a battle of ideologies; this is a battle of identities.

If this take is correct, the combination of Trump’s willingness to jettison American exceptionalism and his embrace of Putinism as “real” leadership portends a significant transformation of what it means to be an American. Rather than a country built on ideas and principles, which defines itself by its devotion to those principles, Trump’s America is simply one (albeit the most powerful) of the many western tribes beating back the “uncivilized” hordes that threaten to undermine the white, Christian traditional identity of the west. In such a world, embracing Putin as a partner makes sense—even if he does have journalists and other political enemies murdered or imprisoned. Embracing anti-liberal autocrats and dictators in order to destroy ISIS becomes not a necessary evil, but a positive good, a desirable state of affairs, a restoration of an ancient European unity against the infidel.

Implicit in this view is a rejection of Enlightenment liberalism. Once you jettison the commitment to an idea and embrace a politics based on racial, ethnic, and religious identity, showing a reckless disregard for democratic norms and processes (as Trump reflexively does) is natural, since those things have no inherent value. How we do things does not matter—all that matters is who we are and what we must do to protect that essential identity. Since American identity is not defined by principles of any kind, it is not important to have principles of any kind. The only standard by which to judge right and wrong is success in defending the homeland from the “other.” So Trump can blithely pledge to restore “waterboarding and a hell of a lot worse than waterboarding” with no qualms whatsoever. After all, he asserts, “torture works.”

Trump has made clear repeatedly that that is his only standard: what works. When asked by the Wall Street Journal after the election whether he had gone too far with his rhetoric during the campaign, he said flatly: “No. I won.” His worldview is entirely instrumental: what works is right, what fails is wrong. Nothing could be more fundamentally opposed to a commitment to liberal process, which values process as a good in itself, as the glue that holds together people with different views and beliefs.

When Marxists, following the logic of economic determinism, claimed that class created identity, fascists countered with racial determinism: the blood determined identity. What has always set liberalism apart from these extremist ideologies is the belief that people create their own identities. As rational beings, we can create who we are by deciding what we believe. We are not merely the products of race, or ethnicity, or class. We are who we choose to be.

What made this election so consequential is that it posed the question of who Americans are as a people as clearly as it has been since 1860. Hillary Clinton’s campaign recognized this with its slogan: “Stronger Together.” Trump’s strategy was to encourage white Christian nationalism, and Clinton’s was to say we cannot go back to some tribal concept of American identity. What has disturbed so many of us about Trump’s elevation to the presidency is not simply that our candidate didn’t win. It is that the choice that 46.2% of the voters made is so antithetical to our vision of what America can and should be. It threatens a reversion to a more primitive tribalism that has proved so horrifically destructive in the past. We know the history. We know the danger. That is why this was no normal election and this will be no normal presidency. This country is about to be tested as it has not been since the 1860s, and the outcome is not at all clear.

Wednesday, March 30, 2016

Orrin Hatch's Embarrassing New York Times Op-ed

This piece was originally published on History News Network

Senator Orrin Hatch took to the New York Times op-ed page to try to make the case for the Senate refusing to take up President Obama’s Supreme Court nominee.

It didn’t go well.

He starts by praising the late Antonin Scalia, implying that the rules should be different when replacing one of the “greatest jurists in our nation’s history.” The obvious reply is that it does not matter who the president is replacing. All openings on the Court are created equal.

Hatch then asserts that Obama has “contempt” for Scalia’s judicial philosophy. That may or may not be true, but in any case, it is irrelevant. When the electorate once again decisively elected Obama as president in 2012, it did not include an asterisk that said he could only replace justices with whom he agreed.

His next point is that when a senator, Obama opposed two of President Bush’s nominees. Again, this is irrelevant. No one is claiming that Hatch or any other Republican has to support Obama’s nominee—just that Judge Garland deserves a hearing and a vote. Republicans now are as free as Obama was then to oppose the confirmation of the nominee.

Hatch then moves on to even more absurdly irrelevant points, such as his assertion that Obama has “consistently exceeded the scope of his legitimate constitutional authority.” Putting aside how questionable that point is, what Hatch seems to be suggesting is that if senators think such a thing about a president, the president loses the right to exercise legitimate constitutional powers. The Constitution provides Congress with a remedy for a president who exceeds the scope of legitimate constitutional authority: impeachment. The simple fact that a Republican House has not taken up impeachment reveals Hatch’s point for the nonsense it is.

He then notes that the American people have chosen a Democratic president and Republican Senate. Fair enough. But that in no way leads to Hatch’s conclusion that the Senate can therefore ignore the nomination. What that “split decision” suggests is that the Democratic president should nominate a person who is not his political ideal, but a compromise candidate more acceptable to that Republican Senate. By choosing Merrick Garland, that is precisely what Obama has done. He is respecting the idea of checks and balances, both institutionally and politically. He did not chose someone who was a darling of the Democratic left, but someone who has (in the past) been repeatedly praised by Republicans, including Hatch himself. By refusing to even consider the nominee of the elected president, it is Hatch and the Senate Republicans who are not respecting the “split decision” of the American people, not the president. They are saying that the smaller subset of the American public that elected those Senate Republicans can simply ignore the decision of the entire national electorate in the last presidential election.

For an historian, perhaps the most offensive point Hatch makes is this: “Throughout its history, the Senate has never confirmed a nominee to fill a Supreme Court vacancy that occurred this late in a term-limited president’s time in office.” As a history teacher, I am used to the instinct unprepared undergraduates have to bolster a poor argument with the “throughout history” trick. I expect better of United States Senators.

Hatch shows his contempt for his readers with this tortured construction. To make his “throughout its history” line work, Hatch needs to make that history awfully short. He does that with the phrase “term-limited.” The 22nd Amendment, which imposes term limits on presidents, has only been in effect for 65 years. So this particular “throughout its history” means for 65 years—less than Hatch’s own life span.

As I pointed out in my previous piece on this subject, there has only been one other vacancy during that period that was “this late” in a president’s term: LBJ’s nomination of Abe Fortas in 1968. Yes, Fortas was not confirmed as Chief Justice. That nomination received a hearing, however, and a vote. It was not met with this disingenuous nonsense that “we never do this.” And as Hatch well knows, 1968 was one of the most contentious elections years in American history. Somehow, the Senate still did its job.

That leads to the next part of Hatch’s “kitchen sink” piece. He blames the “toxic presidential election” for Republican irresponsibility on this nomination. Anyone paying any attention knows that the current toxicity is almost entirely on his party’s side. Hillary Clinton and Bernie Sanders have mostly conducted their primary contest on a high, substantive level. Hatch calls this the “nastiest election year in recent memory.” He neglects to mention that the nastiness is almost entirely on the Republican side. By some inexplicable logic, the fact that the Republican Party is wallowing in the political gutter means that the Democratic president’s nominee for the Supreme Court should not be treated like any other nominee.

Lastly, Hatch notes: “I have witnessed firsthand the deterioration of the confirmation process. Neither party has clean hands on this front.” That is true. It is also true that what Hatch proposes as the responsible course of action is in fact an extraordinary escalation of the politicization of the nomination process far beyond what either party has done in the past. It shows contempt for the 2012 electorate that elected Barack Obama. It shows contempt for the president personally. It shows contempt for American history.

Nothing in Hatch’s piece changes any of that.

If Hatch and his fellow Republicans want to vote against Judge Garland, they have every right to do so. But they should stop being cowards. They should make a substantive argument against him, vote against him, and accept the political consequences of that vote. They should stop pretending that this reckless path they have chosen is anything but a desperate attempt to hold onto a Supreme Court majority.

Sunday, March 6, 2016

BBC 5 Radio Interview on Ted Cruz and his Phony Supreme Court "Tradition"

On February 25, BBC 5 Radio program "Up All Night" with Rhod Sharp interviewed me about the Supreme Court vacancy and the post I wrote about Ted Cruz. The audio file is below.