Lawsuit against Trump could easily succeed; raised issue of government secrecy

 

Gordon L. Weil

Donald Trump’s Stormy Daniels hush money case has been getting prime media attention, but it matters far less than one potential federal case that could expose him to great legal jeopardy.

Some cases Trump faces may be relatively minor, hard to prove or purely political, but his holding onto presidential documents places him in what looks like a clear violation of federal law. The facts are beyond dispute.

Prime attention focuses on his keeping highly classified documents with inadequate safeguards. Trump’s hoarding may have endangered national security. The case has also raised new questions about just what information should be classified and kept secret.

Under the Presidential Records Act, a former president must promptly turn over to the National Archives all of his official papers. That allows his successors to know the policies and practices they inherit. The requirement was especially important when the outgoing President Trump prevented an orderly transition to the Biden administration.

The law requires turning over all documents, not only those labeled classified. The most sensitive files can include descriptions of intelligence methods, delicate data about foreign leaders and, worst of all, identification of secret American agents in hostile locations. Was any such information in Trump’s unlocked desk drawer? What did he keep and why?

Trump claims that he had the power to declassify documents, even if it only occurred in his own mind. Without proper public notice, that won’t wash. Could a citizen have obtained them through a Freedom of Information request? Of course not. People wouldn’t even know about their existence. Trump falsely implied his right to personalized declassification.

This case has raised questions about classified documents. Some of the documents found at Trump’s home and at sites controlled by Joe Biden and Mike Pence when they were vice president are undoubtedly routine and should not have been classified. But, in Trump’s case, some were obviously highly sensitive.

There’s no question that too many documents are classified, sometimes for reasons far removed from national security. And most of them never lose their protection, even after it is no longer justified.

Knowledge is power, and in their quest to demonstrate their key roles on major issues, some people in Washington like to create classified documents and keep others from seeing them. In a place where turf battles matter, the classified keep-away game is a major weapon. Or officials may classify to make sure their mistakes won’t be uncovered.

Government can use classification as a way of keeping secrets from the people on whose behalf it supposedly operates. Arrogant officials can make decisions affecting Americans based on information, possibly questionable, to which the public has no access. Without transparency, democracy suffers.

Here is where the media comes in. Its job is to reveal the secrets that threaten individual rights or cover up illegal actions. By definition, reporters are outsiders, so they may depend on whistleblowers to reveal the hidden truth. And they must be able to operate free from government control unless directly tied to national security or public safety.

The federal government claims to favor whistleblowers, but that promise is often broken. President Obama pursued them with a vengeance. Republicans tried mightily to uncover the whistleblower who revealed that Trump pressured Ukraine’s President Zelensky in hopes that he would investigate Joe Biden’s son during the 2020 presidential campaign.

Perhaps the most famous whistleblower was Daniel Ellsberg. In 1971, he gave to two major newspapers the Pentagon Papers, documents revealing the government had lied to Americans about the Vietnam War. The government tried to block publication, but the Supreme Court, recognizing press freedom, let the papers print. Federal charges against Ellsworth also failed.

Ellsworth is now dying and has been interviewed about breaking government secrecy. He says that classification “is a protection system against the revelation of mistakes, false predictions, embarrassments of various kinds and maybe even crimes.”

A critic claimed he undermined democracy by violating secrecy rules adopted by elected officials. He says those rules can protect those officials “from the possibility that their rivals will pick these things up and beat them over the head with it. Their rivals for office, for instance.” Could his concern explain Trump’s actions?

Long ago, Supreme Court Justice Louis Brandeis made a statement criticizing unwarranted secrecy that has been boiled down to the saying “sunlight is the best disinfectant.”

The First Amendment’s guarantee of free speech and a free press may be broader in the U.S. than anywhere else in the world. It helps protect the people from a government that would hide information from them. The American system supposedly depends on people making their own judgments after hearing both the truth and the lies.

Though not his intention, Trump’s documents violation may have brought new public attention to the use and misuse of government secrecy.

China-Russia summit highlights conflict over world order

Gordon L. Weil

The summit between China’s Xi Jinping and Russia’s Vladimir Putin amounted to a love fest between a power thirsty Communist and failed empire builder.

Xi has taken total control of his country, crushed self-rule in Hong Kong and resorts to obvious lies to justify his aggressive intent.  Putin faces an arrest warrant for kidnapping children, bombs to pieces a country that wants to face west and resorts to obvious lies to justify his aggressive intent. 

China’s boss makes two sharply conflicting claims.  He says that he wants to mediate a peaceful end to the Russia-Ukraine war.  Yet he favors Russia and won’t be visiting Volodymyr Zelensky in Kiev. Maybe a phone call. He is openly hostile to the extension of western style democracy, just what Ukraine seeks.

Upon arriving in Moscow, Xi stated that China and Russia shared the goal of multi-polar world not one under the American democratic model.  While China enjoys basking in the glow of American and European prosperity, by harvesting investments and pushing cut-rate exports, it opposes the system that makes that possible.

Nuclear armed Russia with vast territory and cheap oil for sale is becoming China’s junior partner.  Xi strokes Putin’s ego and backs his efforts to keep Europe in turmoil.  They may have differences, but their alliance, founded on hostility to the U.S., grows stronger.

Why does China seek to win a competition with the U.S.?  For one thing, there is power for its own sake.  Xi is tired of his country taking second place among world powers.  Thanks to its huge population, it will soon have a larger economy than the U.S.  For him, that is just the start.

Perhaps even more important may be Xi’s worry about the global spread of popular rule under variations of the American system of government.  China is controlled by the Communist Party with no dissent allowed. That control would likely end if the people were allowed free elections.  Preventing the spread of democracy and undermining its popularity is essential.

For Putin, China’s policy and his own anguish about NATO are just about the same.  While NATO has no designs on Russian territory, Putin harbors his country’s historical worry that Western Europe will invade the motherland. He wants Ukraine as Russia’s buffer, no matter what the Ukrainians want.

This is how the U.S. and its friends see the two major powers settling in as their long-term adversaries.  The divide may not equal the Cold War between the West and the Soviet Union, but it is a bitter rivalry.  Beyond a matter of survival, it is a no-holds-barred competition to subvert the other side and win dominance in Asia, Africa and even Latin America.

America and Europe plus Japan (the world’s third largest national economy), Britain, Canada, Australia and South Korea together are immensely richer and more powerful than China-Russia. They are beginning to respond.  For example, as Xi visited Putin in Moscow, Japanese Prime Minister Fumio Kishida visited Zelensky in Kiev.

The success of the response to the China-Russia challenge depends on America and its allies acting as partners.  The U.S. must favor international cooperation over outmoded isolation.

As the West responds to the new challenge, it should recognize its vulnerability. Problems with democracy and free enterprise, despite their surpassing value, serve to help China and Russia to discredit them. It’s essential to see ourselves as others see us.

In what should be the world’s most prosperous country, homeless people struggle for shelter and the drug economy is practically a country within a country. In some cities, the police and the people are in conflict.  The problems of the third world and resulting massive immigration issues have so far revealed a leaderless and dumfounded system worldwide.

Freedom is abused by partisan politicians who undermine democracy in their own quest for power.  Imagine an attack on the Capitol to overturn an election or a presidential candidate who concludes the Ukraine war is merely a “territorial dispute” or politicians who tamper with voting to guarantee their permanent hold on office.

Big corporations and their wealthy ruling class avoid paying for their privileges and oppose reasonable regulations.  That leaves government strapped for funds to provide essential services and unable to prevent bank failures or nail tax cheats.  Greed overcomes loyalty, endangering the people the government is supposed to represent and serve.

To some degree, the biggest challenge comes more from ourselves than from our avowed adversaries.  I always remember the admonition of my favorite mythical presidential candidate, the long-ago comic strip’s Pogo Possum: “We have met the enemy and he is us.”

The Xi-Putin meeting unveiled their united hostility to Western values and their intent to defeat our hopes and ambitions.  It should also motivate the West to enhance and promote those values in deed as well as word. 

America has crisis of confidence

Gordon L. Weil

Welcome to this month’s crisis of confidence.

A bank failure, the debt ceiling conflict and the proposed Maine state budget have something in common. They all raise doubt about our confidence in institutions on which we depend.

The underlying cause is politics.  The effect of this loss of confidence in our government may be more important than how each issue is resolved.

The Silicon Valley Bank failed because of truly poor management.  Its executives invested their depositors’ funds unwisely, making it impossible for them to get their money out of the bank when they needed it.  What started with a trickle of withdrawals became a flood, and the bank failed.  Depositors in other banks panicked.  The problem spread, endangering the economy.

In 2008, banks got into trouble and some failed. The federal government shored up others. The lesson was learned, and Congress added new rules improving the chances that banks would hold enough available reserves to meet stepped up depositor withdrawals.

The biggest banks, the ones considered “too big to fail” because of the possibly massive effect of failure, are subject to “stress tests” to ensure their reserves are adequate.  So were other medium-size banks, but many, including SVB, disliked being checked.  The Trump administration backed off the scrutiny on all but the biggest.

The reversal was pushed by a dislike of what was claimed to be government overregulation. Unfortunately, the banking system turned out to need the safeguards.  Fortunately, there was a back-up.

To stop the panic right away, federal government regulators took over SVB and said depositors would get all their money.  Remember that little sign on the bank that says “Member FDIC.”  It means something. The Federal Deposit Insurance Corporation, funded by banks, has the cash to cover the crash.

Nobody complains when the FDIC and the Federal Reserve, both government agencies, save the banking system.  But Republican deregulators now warn against using tax dollars to bail out the banks.  The federal agencies are not using taxpayer money and don’t need to.  But, if attacking “big” government scores political points, the opponents of regulation don’t back off.

Similarly, the partisan battle over raising the debt ceiling calls into question whether Washington will do a backdoor reversal, this time of spending decisions it has already made.  That raises doubts about the federal government’s ability to pay its debts, and the world’s financial system loses confidence in the most important currency – the U.S. dollar.

The reason why the dollar is the world’s main money is that the U.S. has a long history of paying what it owes lenders.  Plus, it’s the world’s largest economy. That creates great confidence in the dollar and, as a result, in the U.S.

If the U.S. defaults on its debt, weakening confidence in the dollar, number-two China is ready to offer its currency as the alternative.  American world power probably depends as much on the strength of the dollar as on the strength of the armed forces.  It boils down to a question of confidence: can the world still rely on America?

President Biden might solve the problem himself and ignore GOP attempts to hold the debt ceiling hostage to reversing previous spending decisions. The Constitution says the U.S. pays its debts. So, there may be no need for a debt ceiling bill at all, and Biden could prevent a crisis of confidence.

This can even happen in Maine.

In a 2004 referendum, Maine voters decided that the state should pay 55% of basic school costs. In another vote, they raised taxes on the wealthiest to pay for the added state budget cost.  The Legislature promptly overruled the voters and reversed the tax increase but capped state spending plus making a start on reaching 55%.

Under Gov. Janet Mills, the state now has enough money to pay the 55% and stay under the cap, which it has observed aside from funding the school adder.  Now, as part of her budget, she proposes to break the deal that had been made.  Flush with funds, state government seems to believe the cap, now almost 20 years old, can also be flushed.

The Maine GOP says the state should keep to a deal that was made after the Legislature overruled two referendums. If Mills wants to bury the deal, she could either ask for a clean vote on the issue by the Legislature or send the question back to the voters.

The governor has the legislative votes to do what she wants. But the action, as in the other two cases, explains a frequently heard citizen reaction to government.

Some voters say that politicians don’t keep their word, abandoning promises meant to reassure voters when they think the voters aren’t looking.  Lacking confidence in government, why vote?

The real message: low trust in government can threaten democracy.

Dangerous proposal for ‘national divorce’

Gordon L. Weil

Let’s get a divorce.

Rep. Marjorie Taylor Greene (R-GA) has loudly proposed a “national divorce” for the U.S. There are what the law calls “irreconcilable differences” between the Red states and the Blue states, so we should split up. Silly as that sounds, her proposal offers the chance for remembering just who this “odd couple” is.

Former GOP Rep. Liz Chaney says the proposal amounts to a call for secession from the U.S. But national divorce is neither legal nor possible in this law-abiding country. That’s what the Civil War settled. So Greene, a right-wing extremist, is really proposing the impossible.

In her view, the Blue states, those under Democratic (though she insists on “Democrat”) control, are imposing their woke will on the rest of the country. Everything from Social Security to environmental protection are part of a Democratic plot to replace freedom with socialism in her view.

Because the country is so closely divided, she wants to stop the Democrats by political separation, which would prevent them forcing their policies on Red states. The barrier would be high. If a Blue stater moved into a Red state, they would be banned from voting for five years. The same would have to be true in the other direction.

Her proposal has historical roots that have been torn out. The original American deal was based on a compromise about slavery. The U.S. accepted both slave and free states, and the choice was left to each state.

At first, there was an even balance. But free states would outnumber slave states, which worried that a national majority would end the practice. So they wanted to pick up and move out: national divorce. President Lincoln proposed to guarantee their system even if it could not extend elsewhere. But the slave states did not trust him and, as Lincoln lamented, “the war came.”

When the dust settled, slavery ended. The victors amended the Constitution to ensure that the federal government would gain much greater control of the states. Congressional majorities, formed by either side, could make laws that applied to all states. That’s what Greene does not like – majority rule.

The U.S. was built on an ingenious system of government. It would produce the world’s first functional federation with power shared between the national authority and the states that had created it. The combination would produce a great world power, while keeping governments that were close to the people. This was the second great compromise that made America.

Over time, the powers of the federal government grew. The Great Depression of the 1930s was an economic catastrophe that had to be met on a national level after it was shown that the states and private business failed to resolve it. New institutions and policies were developed for modern times.

In the decades of prosperity that have followed, the original opponents of federal action, mainly the Republicans, have come to chafe under those institutions and policies. In effect, they would turn back the clock. In Greene’s theory, states ought to be able to opt out.

The system has been based on the belief that future political differences would be resolved through new compromises. But increased equal treatment of African Americans, culminating in the election of Barack Obama as president, after the deep division caused by the Vietnam War, led to hostility to government in the Red states met by self-righteousness in the Blue states.

For the system to work requires both sides to be willing to compromise. In some communities and in some states, that was possible. But in Washington, the sides hardened. Compromise has become so rare that what should have been a common practice became a rare achievement. Members seldom negotiate; they often bloviate.

Compromise has been defined as a deal under which each side is equally unhappy. It’s based on the concept of “win a few, lose a few.”

But when each side believes in “winner takes all,” compromise is impossible. This fact has been brought home by the belief that when the GOP took control of the House this January, the possibility for action by a divided Congress virtually ended.

Greene, a dangerous partisan, sees no hope for cooperation. For her, the Democrats are simply bad guys, out to crush freedom in the name of big government. Just free the Red states from federal control and they’ll be able to preserve their ways.

But “divorce” would not stop there. Red states could continue to confront blue states. For example, the conservative Supreme Court ruled that abortion policy should be left entirely to the states, as Greene proposes. Now, conservatives seek a national judicial ban on a long-used abortion medication, even halting its use in states opting to allow abortions.

Utah’s GOP Gov. Spencer Cox has an answer to Greene: "We don’t need a divorce; we need marriage counseling."

Has Putin's nuclear treaty move increased danger?

Gordon L. Weil

The Ukraine war came home to Americans when Putin quit Russia’s last nuclear arms control agreement with the U.S.  But the potentially renewed threat of nuclear confrontation, part of the Cold War between the U.S. and the Soviet Union, has been mostly ignored.   

To understand the new situation, I interviewed John Holum, former U.S. Under-Secretary of State responsible for arms control in the Clinton Administration, for an expert analysis.  Here are key points from that interview.

Weil: How important is Putin’s move to suspend the New START nuclear treaty?

Holum: There’s no way to know.  It could be purely Ukraine related, a way to add leverage.  The practical significance of this step in isolation is not great, because there haven’t been inspections since 2020 due to Covid and subsequently we were prepared to renew the inspections and he balked because of Ukraine. If it’s a change in nuclear doctrine, that would be a huge deal.  We have to treat it that way until we know for sure.

W: Should we be more concerned?

H: Yes, almost all the [arms control] treaties we were dealing with are gone.  The Bush Administration withdrew from the Anti-Ballistic Missile Treaty.  Trump pulled out of the Intermediate Nuclear Forces Agreement and Open Skies Treaty. In invading Ukraine, Putin violated an agreement under which Ukraine gave up their nuclear weapons in exchange for an agreement by Russia to respect their territorial integrity.  Previous strategic arms control agreements have expired.  Now Russia is saying we’re going to abandon the last remaining one with the U.S. All that’s left are multi-country agreements. What has been carefully constructed going back to the Eisenhower Administration (1953-61) will be gone.

W: What about Russia?

H: It’s a pretty foolish step on Putin’s part. The Russian economy is one-tenth of the American economy to say nothing of Europe.  Many think the Soviet Union collapsed because it couldn’t keep up in the arms race.  Does he really want to do that again?  And it would further cement Russia’s status as an outlaw state, equivalent to North Korea.  It may be something Putin is doing; I don’t think it’s the consensus view of Russian leadership.

W: Does this bring back something like the Cold War?

H: Yes, it does. Remember that the technology both for monitoring compliance and for destruction have advanced dramatically since those early days.  We have the potential of hypersonic weapons that would eliminate early warning times. We can monitor launching vehicles like planes and missiles, but inspections remain necessary to monitor the number of nuclear warheads.

W: Are we now living more dangerously?

H: I think we are. If this is a major change by Russia, then I think we’re in a world of trouble. We need to hope that saner heads will prevail in Russia.  I want to go back to the possibility that this may be a minor step, but we are still in trouble for the reasons I’ve mentioned.

W: Though while we must treat this move as a change in the nuclear danger, we don’t automatically get support around the world from countries who question the U.S.

H: We may think we can reverse doubts about the U.S., but we have a world that can see that Trump pulled out of an Iran nuclear deal [the U.S. ended a multi-party agreement and Iran can now have nuclear weapons] and other agreements. Once that’s happened people can think it can happen again.  After Trump, our word is less valued.

W: What should the U.S. do in the current situation?

H: Intelligence may give us a better fix on what has just happened. Regardless of what’s said, we have to respond to what’s actually being done. When Putin threatens the use of tactical nuclear weapons, you have to take that seriously. You have to be planning now how to deal with it. If Russian doctrine is changing, we have to begin by rebuilding faith in nuclear nonproliferation with all nuclear weapon states agreeing to negotiate in good faith to reduce and then eliminate their arsenals. Preventing a weapons build-up is in Russia’s interest. By walking away from an agreement, Russia is rejecting that bargain, so the global community should join in the response.

We should, however, be wary of getting back into a reflexive arms race.  Instead of a tit-for-tat reaction, we should always determine whether our forces are sufficient to maintain an unquestioned deterrent. [Interview ends.]

After my interview with Holum, the Russian president seemed to be having second thoughts about his rash move.  But Holum’s worries deserve priority attention and U.S. readiness to deal with an irresponsible outburst  from the world’s second nuclear power.

American leaders need to take the situation seriously and not see Putin’s move as only an empty threat.   The world just became a more dangerous place.