Sunday, November 3, 2019

Sunday Reading

But Is It A Crime? — Jeffrey Toobin in The New Yorker on whether quid pro quo is a crime.

It’s long been clear that Presidents can be impeached for “high crimes and misdemeanors” that are not actual violations of federal criminal law. In an oft-cited passage from Federalist No. 65, Alexander Hamilton wrote that impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” They involve “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” This, at the moment, is the core of the case against Donald Trump for his interactions with the President of Ukraine—that he abused his power by using taxpayer dollars as a tool to extract information potentially damaging to a political rival.

But, if Trump’s behavior was an abuse of power, was it also a crime? The leading candidate for a relevant criminal statute is a familiar one in the federal courts, called the Hobbs Act. The law, named for the Alabama congressman who sponsored it, was enacted in 1946. It prohibits what’s known as “extortion under color of official right.” But what does that mean in plain English?

Samuel W. Buell, a professor at Duke Law School who is a former federal prosecutor and the author of “Capital Offenses: Business Crime and Punishment in America’s Corporate Age,” said, “The traditional way the Hobbs Act is used is when public officials solicit bribes. The idea is that there is an inherent power relationship between a public official and people who need things from that official. If the public official demands money, that’s seen as extortion, and thus a violation of the Hobbs Act.”

So what does that have to do with Trump and Ukraine? “The idea behind the case would be Trump conditioned the release of military aid to Ukraine on the President of Ukraine coming across with the dirt on the Biden family,” Buell said, adding, “He’s misusing official power to obtain things of value to him. That’s the heart of what the Hobbs Act is supposed to prohibit.” Buell draws an analogy to the Hobbs Act prosecution of Rod Blagojevich, the former governor of Illinois. “Lobbyists for a children’s hospital wanted Blagojevich to increase Medicaid reimbursement rates, which meant eight million dollars in revenue to the hospital,” Buell said. “But he put out the word through intermediaries that he would only do it if he got fifty thousand dollars in campaign contributions. That quid quo pro was a violation of the Hobbs Act. With Trump, the quid pro quo is taxpayer money in return for political dirt, but the idea is the same.”

There are problems with this theory, starting with the President’s constitutional prerogatives to conduct foreign policy under Article II. Trump, or his lawyers, could argue that such a case would criminalize the give-and-take of negotiation with foreign governments. International negotiations, by their very nature, involve exchanges of things of value. Quid pro quos are not only legal; they are the goal of most such interactions. The response to this argument would be that the terms of these sorts of negotiations must involve the national interest, not the political (or financial) fortunes of the President. Another problem relates to the question of mixed motives. If Trump also wanted to withhold aid to Ukraine because he thought that other countries were not kicking in a fair share of support—which was, clearly, a legal motive on his part—would that negate his improper motive on the Biden dirt? The proof issues for prosecutors would be daunting.

In some ways, the legal setting surrounding President Trump’s possible impeachment represents a kind of mirror image of the backdrop to President Clinton’s impeachment, in 1998. There, the core accusation was that Clinton lied under oath about his relationship with Monica Lewinsky. Perjury is clearly a federal crime, but the question in Clinton’s case was whether his misconduct involved an abuse of Presidential powers. With Trump, his intervention in Ukraine appears to have been an abuse of his powers, but, conceivably, not a crime.

The debate about the criminality of the President’s behavior with regard to Ukraine, on some level, will always remain a theoretical matter. Under Department of Justice policy, sitting Presidents cannot be indicted; impeachment and removal must always come first. But the President and his supporters have already started making the argument that he should not be impeached because there is no proof of any underlying crime. The provisions of the Hobbs Act show that Trump may be wrong about that.

Hold Your Applause — Jeet Heer in The Nation on Twitter’s ban on political ads.

Twitter CEO Jack Dorsey has learned that the fastest way to earn easy applause from progressives is to draw attention to the contrast between himself and Facebook head honcho Mark Zuckerberg. On Wednesday, Dorsey tweeted, “We’ve made the decision to stop all political advertising on Twitter globally. We believe political message reach should be earned, not bought.” This decision was an implicit but pointed rebuke to Facebook, which has been mired in controversy over its policy of not fact-checking political ads.

By taking a stance against political ads, Dorsey positioned himself as the anti-Zuckerberg. He was hailed as such by progressives. Representative Alexandria Ocasio-Cortez described Dorsey’s move as “a good call.” She added, “Not allowing for paid disinformation is one of the most basic, ethical decisions a company can make.” This sentiment was echoed by a leading centrist Democrat, Montana Governor Steve Bullock, who tweeted, “Good. Your turn, Facebook.”

While Facebook deserves all the scorn heaped on it, Twitter’s policy only creates a new set of problems. Despite their different paths, the two social media giants are both setting themselves up as the police of political discourse.

Democrats believe, with ample reason, that Donald Trump will use Facebook’s laissez-faire rules to spread lies on social media in his bid for reelection. In a New York Times op-ed on Thursday, Aaron Sorkin, who scripted The Social Network (2010), a biographical film about Zuckerberg, claimed the Facebook policy allows “crazy lies” to be “pumped into the water supply that corrupt the most important decisions we make together. Lies that have a very real and incredibly dangerous effect on our elections and our lives and our children’s lives.” Currently, Facebook is running an ad that claims, falsely and with genuine absurdist brio, that Joe Biden, with the aim of protecting his son Hunter Biden, gave a billion dollars to a Ukrainian official.

Zuckerberg argues that such surrealist slanders have to be allowed in the interest of free expression. The underlying contention is that Facebook is a platform, not a publisher, so can’t be held liable for false information and advertising in the way a newspaper or magazine would. But this self-conceptualization of Facebook as a neutral platform is at odds with reality. It functions for countless users as a source of news and, in fact, has supplanted many publications. In effect, Facebook wants to have the advantages of being a publisher, including collecting ad revenue, without the responsibilities.

The invocation of free expression is all the more disingenuous since Facebook doesn’t hesitate to reject political ads on arbitrary grounds. To protest its purported policy, Adriel Hampton has registered to run for governor of California in 2022 and tried to place dishonest ads on Facebook, including one claiming South Carolina Senator Lindsey Graham embraces the Green New Deal. Facebook has rejected Hampton’s ads, telling CNN, “This person has made clear he registered as a candidate to get around our policies, so his content, including ads, will continue to be eligible for third-party fact-checking.”

In making this decision, Facebook has made itself the arbiter of who is and isn’t a serious political candidate. The rule is that Facebook will give absolute free speech to politicians—but also gets to decide who is a politician. Facebook’s position is that it is acceptable to lie, as Trump does, to hold on to power—but not acceptable to lie in order to call attention to Facebook’s ad policy. In the guise of free speech absolutism, Facebook has arrogated to itself the right to define the parameters of political discourse.

The same problem of a private company’s policing the boundaries of political debate bedevils Twitter’s ostensibly different policy. As tech writer Will Oremus noted on OneZero, Twitter defines “political” in a way that will hamper labor unions, environmentalists, and activists of all sorts. Twitter defines political ads as “1/ Ads that refer to an election or a candidate, or 2/ Ads that advocate for or against legislative issues of national importance (such as: climate change, healthcare, immigration, national security, taxes).”

The second category creates a problem. Under prevailing conventions, advocating for consumption is never political speech, merely commercial speech. Conversely, advocating for changes in consumption or other aspects of the economic system is always political. Under Twitter’s rules, General Motors could buy an ad promoting a gas-guzzling car, but Greta Thunberg couldn’t buy an ad advocating climate action.

“This perverse dynamic isn’t limited to climate change,” Oremus observes. “Presumably, tech companies will still be able to run ads touting their commitment to user privacy, but watchdog groups will be barred from running ads suggesting that we need better privacy regulations. Big corporations will be able to boast about how they treat workers, but unions won’t be able to push for prevailing wage laws or workplace safety laws.”

No less than Facebook, Twitter has assumed a role that shouldn’t be held by a private business: the right to set the boundaries of political debate. In both cases, the root problem is that the proper authority for making such decisions, the democratically governed state, has abdicated responsibility. Social media needs to be regulated, with rules about what sort of political ads it can take. Failure to regulate leaves that crucial task in the hands of businessmen like Zuckerberg and Dorsey, who aren’t up to the job.

Doonesbury — Buzzword! Buzzword!

Did you move your clocks back last night (if you were in DST)?

3 barks and woofs on “Sunday Reading

  1. I am not sure this is the point Jeet Heer is making, but it seems to me that
    the organization that should be held responsible for policing Trump’s lies
    is the organization that supports him, the RNC. Make it a law that the
    organization that sponsors a candidate be held responsible for that candidates
    actions. Both the DNC and the RNC

  2. Fox News isn’t a platform. Look at the name: News. It’s a publisher, and enables partisan lying 24/7, not to mention having all men in suits and all women in mini skirted cocktail party dresses sitting on sofas and stools wearing fuck me heels, each with enough hair and makeup for ten people.

    And we expect Facebook to be saintly? (Actually of course it would be simple for them to do what Twitter did. God knows there’s enough political idiocy communicated for free there already.)

    We should get all political propaganda under control, if anyone can figure out any election and lobbying related laws that the Supreme Court won’t knock down. Yeah, I know, we need a Democratic Senate first.

  3. Forget Facebook, it’s the Twitter feed, according to my reading of today’s Times, that will get him reelected. There’s not much we can do about it if what lies he posts and misinformation he repeats from God knows where (Putin?) are retweeted over and over again until we all hide our heads and say “who gives a damn?” to our everlasting regret.

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