High Crimes and Misdemeanors


Late last January, just before the conclusion of President Trump’s impeachment trial, Alan Dershowitz — Democrat, Clinton supporter (both Clintons), constitutional scholar, Harvard Law School Professor, and member of the Trump defense team — announced that he’d changed his mind concerning the grounds for Federal impeachment.

Previously he had stated that “you don’t need a technical crime” to impeach a president. That was during the Clinton impeachment. But during the Trump trial he recanted: “The conduct has to be criminal in nature — it can’t be abuse of power; it can’t be obstruction of Congress. Those are precisely the arguments that the framers rejected.” On the face of it, the flip-flop stinks of partisanship.

Which Dershowitz is right? Good question . . . whatever your view of Donald J. Trump. Up front, let me state that I’m not a constitutional scholar, I’m neither a Republican nor a Democrat, and I’m definitely not a lawyer (though I’ve met one or two, and I tend to be argumentative). So this is your opportunity to skip to the next Liberty article. However, if you’re still reading, I’ll attempt to put recent impeachments in a historical context, reviewing past federal impeachments and removals from office for insights and precedents that might help inform present opinions.

On the face of it, Dershowitz's flip-flop stinks of partisanship.

The very first federal impeachment — and removal from office — under the new Constitution was not an ideal example of the process. In fact, it set a questionable precedent. In 1789 the French — inspired by our own revolution (or so many Americans thought) — overthrew their absolutist monarchy. The revolutionary government decided to share the virtues of its revolution with neighboring countries. In 1795 France defeated Spain during what has been termed the French Revolutionary Wars. As a result, Spain was forced to cede the Caribbean Island of Santo Domingo to France. Fearing that a similar fate might befall the Spanish territories of Florida and Louisiana, William Blount, a senator from Tennessee (and signer of the Declaration of Independence), conspired to have sturdy Great Britain take over those territories, to keep the unpredictable French from seizing them.

At the time, the US political scene was highly polarized between Federalists, who — in spite of the recent war for independence from Britain — admired the stability of that country’s institutions; and Republicans, who looked to France with gratitude for its help in defeating Britain and admired certain aspects of France’s Revolution. When President John Adams found out about Senator Blount’s machinations, he informed the House of Representatives and requested impeachment proceedings against Blount. Had the senator committed treason? But we were not at war with Britain. Perhaps a “high crime or misdemeanor”?

The House voted 41 to 30 for impeachment. The Senate tried Blount, but on January 11, 1799, voted 14 to 11 to dismiss the impeachment, arguing that impeachment did not extend to senators. They nonetheless expelled him from the Senate. The upshot was that the Senate decided that members of Congress were not considered “civil officers” for purposes of impeachment, and that the simpler procedures of Article I, Section 5 of the Constitution, which states that "each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member," were sufficient to remove members of Congress from office.

Had the senator committed treason? Perhaps a “high crime or misdemeanor”?

The next impeachment case, against Federal District Judge John Pickering, was even more muddled, so muddled in fact that both sides in the dispute agreed that Judge Pickering did not meet the standards for impeachment. Nonetheless, he was impeached. This time it was President Thomas Jefferson who, on February 4, 1803, reluctantly but formally initiated it: the first impeachment of a federal judge. The country was still very polarized — arguably much more so than today. Republicans — Jefferson, James Monroe, Aaron Burr, Patrick Henry, and other strong states’ rights advocates such as populist New York Governor George Clinton — were “at daggers drawn” with Federalists — Washington, Adams, Hamilton, Marshall (Madison was somewhere in the middle). Pickering was a Federalist. He was an easy target.

Pickering had drafted New Hampshire’s constitution and was appointed that state’s chief justice. But illness and a nervous disorder soon affected his performance — to such a degree that the state’s House of Representatives tried to remove him from office, failing by just one vote. To solve their Pickering problem, New Hampshire kicked the can upstairs. It prevailed upon President Washington to appoint the judge to the federal district court. Yet before long Pickering’s problems declined into a funk of insanity and the bottle.

After much political toing and froing, with Jefferson preferring resignation to impeachment as a solution, voluntary removal was explored. However, Pickering’s replacement would have been a Republican . . . anathema to the Federalists. And no one was willing to ask the judge to resign. So impeachment was pursued. Trouble was that the constitutional grounds for impeachment, “Treason, Bribery or other High Crimes and Misdemeanors,” were an awkward match for Pickering’s insanity and alcoholism. No one attempted to sponsor a constitutional amendment to broaden the grounds for impeachment. Amendment could happen only through a lengthy and cumbersome process, and after all, the Constitutional Convention had carefully limited the grounds, in recognition of the ways in which impeachment had been abused in Great Britain.

Rather than arguing the merits of the case on constitutional grounds, the Republican-controlled House sought an up-or-down vote on Pickering’s impeachment, without much discussion or formal written articles of impeachment. His insanity was ignored; and what little debate ensued was based on his alcoholism.

The country was still very polarized — arguably much more so than today. Republicans were “at daggers drawn” with Federalists.

In the Senate trial, Pickering lacked counsel. The one attorney asked to represent him declined on the ground that he could not represent an insane man in a criminal trial. New Hampshire Senator William Plumer (F) predicted the outcome: “an insane man will be convicted of high crimes and misdemeanors.” And he was; by a strict party vote with nineteen Republicans voting yea and all seven Federalists nay (eight senators abstained).

As James F. Simon in What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States summarizes these events:

The Pickering impeachment was a partisan brawl. The Republican leadership manipulated the system, willfully stretching the constitutional language for impeachment to ensnare the judge. The impeachment stood . . . for the proposition that an insane man could be found guilty of high crimes and misdemeanors. But if there was no honor on the Republicans’ side, the Federalists hardly displayed more. [They] were willing to keep an obviously deranged and thoroughly incompetent man on the federal bench indefinitely to foil Republican designs.

Score one for the early Dershowitz.

Cut to the Chase

The next federal impeachment was introduced on the very same day that Judge Pickering was convicted . . . and this was a big one, aimed at US Supreme Court Associate Justice Samuel Chase. Chase was not an endearing character. Also a signer of the Declaration of Independence, he was ungainly and overbearing, with a “face so broad and ruddy he was dubbed ‘Bacon Face.’” Although a fellow Federalist, Alexander Hamilton publicly criticized him for suspected shady business deals. Fed up with Justice Chase’s rabid support for the Alien and Sedition Acts (which effectively nullified the First Amendment’s guarantee of free speech and freedom of the press by criminalizing criticism of the president or Congress), his outspoken Federalist political opinions broadcast from and off the bench (shades of tweeting?), his vitriolic attacks on President Jefferson and his party, and his highly biased procedural rulings, Republicans set the ball rolling in January 1804. Chase had gone so far as to harangue a grand jury in Maryland that Republican policies would sink constitutional government “into a mobocracy . . . and [would] rapidly progress until peace and order, freedom and property, shall be destroyed.”

His insanity was ignored; and what little debate ensued was based on his alcoholism.

The eight articles of impeachment against Chase detailed some of these misconducts. His blatant partisanship during trials was unacceptable by any reasonable standard of judicial conduct. Yet the question remained: did such conduct constitute impeachable offenses? John Randolph, the Republican House manager at the impeachment, attempted to make the case that any judge who committed technical errors of judgment could be removed by the same impeachment method as one guilty of treason, bribery, or other high crimes or misdemeanors.

With the prior removal of Federalist Pickering and the present impeachment of Federalist Chase — both for nothing resembling treason, bribery, or high crimes or misdemeanors — Chief Justice Marshall worried that Republicans would convert the Constitution’s impeachment clause into a blunt political instrument.

Unlike Pickering, Chase proved to be energetic in mind and spirit. For two and a half hours during his Senate trial, he laid out in elaborate detail his response to each article, including countering that, in his instructions to the Maryland grand jury, he had proudly been exercising the precious right of every citizen under the First Amendment — including a Supreme Court justice — to express his political opinions. This was an irony verging on hypocrisy that no one missed from such a zealous supporter of the Sedition Acts. But he was his own best defense team.

Chase was ungainly and overbearing, with a “face so broad and ruddy he was dubbed ‘Bacon Face.’”

Randolph, arguing the prosecution’s case, stated that impeachment could not be confined to indictable criminal offenses, but must include dereliction of duty. And he intended to prove that Chase, with malign political intent, had perverted the federal judiciary with his overbearing manner and biased rulings, concluding that an indictable offense was not necessary to find Chase guilty.

Even in the highly polarized, Republican-controlled Senate — which reflected the state of the union — Chase was found not guilty on all eight charges. As Simon concludes, “Credit must be given to those Republicans who voted their conscience. Although disgusted with Chase’s conduct, they concluded that the charges against him did not rise to the level of high crimes and misdemeanors required by the Constitution. Had Chase been convicted, moderates in both parties realized, there might be no limit to prosecution of politically unpopular judges” (or any other “civil officers” including presidents).

Score one for the later Dershowitz.

Chasing Precedent and Presidents

Randolph’s argument, in spite of not meeting the constitutional standards for impeachment, was not without merit. After Chase’s acquittal, Randolph rushed over to the House in a huff and introduced a constitutional amendment to make it easier to remove federal judges. Badly written and ill-targeted, it failed.

For the next century-plus impeachment made no serious splashes. One accusation of abuse of power in 1830 against a federal judge, James Peck, ended in acquittal (whether because the charge of abuse of power did not meet constitutional standards or because the senators were not convinced of his guilt, I don’t know), while the first attempt to impeach a president, James Buchanan, for corruption in 1860, went nowhere.

This was an irony verging on hypocrisy that no one missed from such a zealous supporter of the Sedition Acts.

The Civil War and its aftermath claimed two victims: Judge West H. Humphries was convicted for aiding the Confederacy (ostensibly treason); and President Andrew Johnson, who was not convicted. Johnson opposed the radical Reconstructionists in Congress who wanted to punish secessionists and ensure full civil rights to the freed slaves. Johnson ran afoul of a hastily drawn statute — passed over his veto — providing that the president could not dismiss a member of his cabinet without congressional approval. Johnson fired Secretary of War Edwin Stanton, a radical Reconstructionist, and was impeached. He missed conviction by one vote. The Tenure of Office Act (1867), as that law was known, was repealed in 1887 and found likely to have been unconstitutional in 1926.

In 1912, Judge Robert W. Archbald was impeached and convicted for what looked like bribery, and in 1936 Judge Halstead L. Ritter suffered the same fate for tax evasion, definitely a crime. Ditto for Judge Harry Claiborne, Federal District of Nevada, in 1986.

In mid-1974, the House Judiciary committee recommended articles of impeachment against President Richard M. Nixon, accusing him of three things: obstruction of justice, abuse of power, and contempt of Congress. At the minimum he probably would have been impeached and convicted, at least on the obstruction of justice charge, a definite crime, had he not resigned, even though eight Republican senators would have needed to join the Democrat majority to convict.

Before the Clinton impeachment and the infamous blue dress, two federal judges, Alcee Hastings and Walter Nixon — both from southern district courts — were impeached and convicted (in 1988 and 1989, respectively), for the crime of perjury.

At the minimum Nixon probably would have been impeached and convicted, at least on the obstruction of justice charge, a definite crime.

Make no mistake about it. President Clinton was not impeached for moistening his Monte Cristo on Lewinski’s lips. He was impeached for lying about it under oath — perjury. He committed a crime, yet he was not removed from office. What happened? Simply put, senators did not believe that the underlying event about which he lied — fellatio, a legal, albeit in this context, embarrassing activity — warranted removing a president from office. The Senators voted their consciences, disagreeing with the letter of the law.

Libertarians know this as the concept of jury nullification, or the doctrine of the fully Informed jury. Although nullification is not an official part of criminal procedure, it is the logical consequence of two rules governing the systems in which it exists. As Wikipedia puts it, “Jurors cannot be punished for reaching a ‘wrong’ decision (such as acquitting a defendant despite [his] guilt being proven beyond a reasonable doubt); and, a defendant who is acquitted cannot be tried again for the same alleged crime in front of another jury.”

John Jay, America’s first Supreme Court chief justice, recognized the right of every juror to vote his conscience notwithstanding the technical guilt of the accused. In his instructions to the jury in the 1794 Georgia v. Brailsford case, he said:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.

Jay emphasized that although juries retained that right, it should be exercised sparingly. During the days of the Fugitive Slave Law a great deal of nullification was exercised by northern juries. Renewed focus on the doctrine sprang up during the Vietnam War when a number of draftees refused to serve . . . and, coincidentally, with the founding of the Libertarian Party, which has taken up the task of widely disseminating the concept. More current controversies have developed some reasons for its current application. In a 1998 article, Vanderbilt University law professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases."

Senators did not believe that the underlying event about which Clinton lied — fellatio, a legal, albeit in this context, embarrassing activity — warranted removing a president from office.

But is jury nullification reciprocal? Can it condemn as well as acquit? Logically, it seems so. As Wikipedia further elaborates: “Likewise, a jury can convict a defendant guilty even if no law was actually broken, although such a conviction may be overturned on appeal.” If a jury can find a perp not guilty based on its conscientious assessment of the law, then it must be able to find someone guilty, even though the evidence, according to the law, points to his innocence — because the jury is “following its conscience.” Doubtless this happened many times during Reconstruction and the Jim Crow era, and even more recently during Arizona governor Evan Mecham’s impeachment — which really took off when he used the word “pickanniny” (though this was a state, not a Federal proceeding). While a jury’s guilty verdict can be contested through the appeals process, this was usually a dead end during Reconstruction and Jim Crow, and of course for impeachment trials, which are not subject to appeal.

So where do Dershowitz’s “must break a law” and “need not break a law” standards apply in the Clinton impeachment? Contrary to initial suspicions, Dershowitz did not then indulge in partisanship. Ironically, although he averred that impeachment did not require a crime, he was a Clinton partisan who opposed his impeachment. Additionally, he believed (and still does) that impeachment is tantamount to a revolution or coup d’état without guns and must not be invoked except under the direst circumstances.

Trumpster Diving

Which brings us to the impeachment trial of Donald J. Trump. House managers drew up two impeachment articles against President Trump: abuse of power and obstruction of Congress. Obstruction of Congress is similar to contempt of Congress, a tried and true charge recognized since the 1790s. However, due to the Constitution’s separation of powers clauses, whether the charge can be lobbed at and have it stick to the president without a Supreme Court hearing and ruling, is, ahem . . . a Mexican standoff. On the one hand, Congress issued subpoenas to the executive expecting compliance; on the other hand, the executive refused, claiming executive privilege. Most knowledgeable observers believe the conflict should have properly landed on the Supreme Court’s lap, because it was a separation of powers conflict. However, the House managers were in a rush. Had the conflict been resolved in the Supreme Court to the benefit of the House managers, and had President Trump refused to comply, then, in this writer’s opinion, a “high crime” would have been committed and unambiguous grounds for removal from office would have been triggered.

Might these abuses of power warrant impeachment, or are they analogous to blowjobs?

And what about the abuse of power charge? Abuse of power is a portentous, go-to accusation when a public official’s conduct is unbecoming yet short of criminality. But it is a concept difficult to precisely define — like Justice Potter Stewart’s quip about his inability to define pornography, yet his certitude that “I know it when I see it.” Perhaps that is why the Constitution’s framers did not include it in their list of impeachable offenses. Donald Trump’s inclusion of his name on the COVID-19 relief checks to give the unwashed the impression that — recalling the previous, glibly-labeled “Obama bucks” — he was personally responsible for the windfall is, in my opinion, an abuse of power. Ditto for Bill Clinton’s gratuitous pardon of Marc Rich on Clinton’s last day in office. Rich had been indicted on 65 criminal counts including the biggest tax evasion charge in the US to date. Clinton later expressed regret at the pardon — a clear indication that he believed he’d abused his power. Might these abuses of power warrant impeachment, or are they analogous to “blowjobs”? (In the interest of fairness, the latter case might have been considered from the Constitution’s perspective of “bribery,” since Rich (or his wife) had contributed $1,500,000 to the Clintons and their party. But in the context of impeachment, it’s a moot point, since the following day Clinton was out of office.)

Donald Trump’s abuse of power accusation concerned his request to Ukraine’s president, Volodymyr Zelensky, to investigate Joe Biden and his son Hunter’s financial dealings with Burisma Holdings, a Ukrainian energy company, for — you guessed it — abuse of power while Joe was vice president. The accusation against Trump, on the other hand, looked at his request to Zelensky from an entirely different perspective: it accused the president of misusing his power to dig up dirt on a potential political rival.

Was it partisanship? Or careful weighing of the evidence per the Constitution’s strictures? Or even a reliance on jury nullification?

Interpreting Trump’s “perfect phone call” from the first perspective trumps the second allegation, since it proffers reasonable doubt. And, anyway, digging up dirt on one’s political opponent — especially if the dirt is real — is not a crime (unless of course one resorts to criminal behavior, as in the Watergate break-in).

At the Senate trial President Trump was acquitted, mostly along party lines. Was it partisanship? Or careful weighing of the evidence per the Constitution’s strictures? Or even a reliance on jury nullification? The last explanation — that the senators voted according to their consciences — provides a counter of sorts to Dershowitz’s assertion that impeachment must be for criminal behavior. Should it be?

According to John Jay’s interpretation of how juries should decide guilt — on the facts of the case — Dershowitz’s later interpretation, that an impeachable offense must be based on an actual crime, is correct. However, once Jay’s admission of a jury’s right to decide the propriety of the law is added, then anything goes: a jury can follow its conscience irrespective of the facts in a case.

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Are We There Yet?


Americans are beginning to protest the “lockdown.” The impulse is libertarian, and some libertarians are loudly supporting it. I’m not — at least, not yet. Maybe I will. I think it’s time to loosen the tourniquet. But let’s not lose our heads and cry tyranny. If you read some of the polemics out there, you’d think we were in Nazi Germany, and we’re not.

First of all, it’s not a “lockdown.” Certain industries are closed, and that is a serious matter, but ordinary people are not locked down, at least not where I live. I’m in deep-blue, Democrat Seattle, which has “closed” the public parks, meaning that the parking lots are taped off, but people are still walking, and running, and biking and picnicking, six feet apart. I walk freely to the grocery store, to the hardware and to the Chinese restaurant next door, for takeout. The hardware makes everyone use hand sanitizer at the door. The local grocery has put up a glass barrier at the check stand, like the ones for bank tellers. The Asian supermarket makes all employees wear masks. Asians are more willing than others to wear masks. Most people I see aren’t wearing them.

It's time to loosen the tourniquet. But let’s not lose our heads and cry tyranny.

What I’m still hearing from the fevered shores of the Right is the thought that the coronavirus is a manufactured panic, a political gambit by the Powers That Be to slip us into tyranny — the evil rule of Dr. Anthony Fauci and Bill Gates. And I think: you jokers don’t know what tyranny is. The government sending you money so you can stop working is not Stalinism. And if the coronavirus panic has an insidious political motive, Italy, Spain, France, and the UK have all fallen for it, as have China, South Korea, Japan, and Singapore. Are they all hoodwinked? By whom? Is Boris Johnson in on it?

Let’s get real here. Fighting epidemics cannot be done by the market. It’s a government job — and not a nice one. And government has a history of it. Back in 2011, I reviewed on this page Michael Willrich’s book Pox, an American History. Pox is the story of the public health campaign against smallpox from 1899 to 1902. Smallpox was a killer. In my review, I wrote, “Smallpox was highly contagious, so that an infected person was a threat to everyone around him who was unvaccinated. First symptoms appeared more than a week after exposure, so fighting the epidemic by treating sick people was a strategy of being perpetually behind. The disease could, however, be stamped out by vaccinating the healthy.”

The public debate right now is not about vaccination, though it may come to that. Compulsory vaccination is a more invasive, unlibertarian policy than social distancing and shutdown — but it is the policy that defeated smallpox. In the early 20th century the libertarians battled against compulsory vaccination all the way to the Supreme Court. And in Jacobson v. Massachusetts 197 U.S. 11 (1905), they lost.

Fighting epidemics cannot be done by the market. It’s a government job — and not a nice one.

Legally, the analogy was with war. The argument that fetched the Supreme Court in Jacobson was that an epidemic is a microbial invasion. The Court said that just as the government must have the power to defend against the invasion of a foreign army, it must have the power to defend against the invasion of a foreign microbe.

Libertarians will immediately brand this a dangerous proposition. And it is. State power is full of dangerous propositions. The US Bill of Rights is festooned with such terms as “due process,” “probable cause,” “just compensation,” “cruel and unusual” and “public use” all of them open to interpretation by judges. A strict libertarian, seeing the document for the first time, might proclaim it as worthless as the Stalin constitution of 1936. But it’s a good deal better than that, because Americans have (mostly) made it so.

Libertarians like to think in principles. It is a good thing, in moderation. It clarifies thought. But few of the best principles for normal life produce good results in extreme circumstances. Sometimes you have to accept a dangerous principle because it’s the only one that works. But you limit it. You put a fence around it — as tight as you can.

Libertarians will immediately brand this a dangerous proposition. And it is. State power is full of dangerous propositions.

I’m arguing here that people need to focus on fencing in the dangerous-but-necessary responses to the epidemic, not simply crying tyranny. Fear of political overreach is justified. The tourniquet can be put on too tight or maintained for too long. It may be loosened up in the wrong way. My state’s governor, Jay Inslee, recently declared that when restaurants open up, they will have to record the name and address of everyone who eats there, so that government health workers may track down and forcibly quarantine persons who may have been infected. I have been asked what I thought of this, with the implication that probably a libertarian wouldn’t like it. I was about to say I find the thought annoying, though upon reflection, it’s no big deal giving my name and address, because in the epidemic I have been paying everything by bank card, so they have my name and address already. The unease is over the prospect of being locked down for 14 days because someone in the restaurant was infected. But I really don’t object to that, either. To be sure, it is a sacrifice of the individual to the collective, but of a sort I can accept. An epidemic of life-threatening disease is an emergency, serious, unexpected, and unusual. It is an actual crisis in which “we are all in it together,” and not just a problem that some political activist labels that way. The sacrifice demanded is of short duration. It is small compared with the threat of the disease and really does help fight the disease. The prospect of quarantine applies to everyone in the restaurant. And if I want, I can avoid the whole thing by eating at home.

No, I don’t object to it.

Somebody did, though, because Inslee withdrew the order the next day. In his new order, restaurants will be asked to present a sign-in list to patrons, but the patrons won’t have to give their names and addresses to be served.

The government can send everyone little green pieces of paper, but somebody has to produce the goods and services the little green pieces of paper are supposed to buy.

I don’t oppose all power on behalf of public health, but power does need to be questioned. In March, the federal health authorities said the shutdowns were necessary to “flatten the curve,” so that the hospitals wouldn’t run out of ICU beds and ventilators. It was a good argument, and it carried the day. The governors cried crisis and demanded immediate aid, and President Trump sent the Army Corps of Engineers to build field hospitals, including one near me. And the shutdowns worked. The curve flattened. The field hospital built near me was not needed. Now the people on CNN and some Democratic governors are moving the goal posts. They are arguing that officials should not let up, because the curve may turn upward. They talk of some restrictions lasting for the next 18 months.

That is not only moving the goalposts but taking them down and promising to put them up later. I don’t think the motives of those arguing for this are mainly to increase their power, but that is the effect, and when libertarians point it out, they are not wrong. Some of the public health people are pushing for policies that may seem reasonable to a microbiologist, but not to ordinary citizens. They argue, “We’ve got to follow the science,” but opening up is not a scientific decision. It is a political decision. The politicians who decide it should consult the scientists — but other people, too. My sense is that the governors who are easing up have their ears to the ground. They know their decisions will increase the risk of infection. But there is also a cost to human health of postponing medical screenings and elective surgeries, and a more general cost of interrupting educations and careers and leaving people idle. Rents and mortgages and car loans need to be paid. People need to work. The government can send them little green pieces of paper, but somebody has to produce the goods and services the little green pieces of paper are supposed to buy.

The Great Coronavirus Shutdown is something people now living have never experienced before. When it is over, Americans need to consider how much of it, if any, was worth it, and whether they would go through it again. Part of that question will hinge on how bad the epidemic actually was. How long did it last? Did the virus come back? What was the final death toll under the policy followed in the various states? What was the death toll in Sweden, where policy was looser than in America, and in East Asia, where it was tighter? It is a matter of fact that the microbe itself is less deadly than the influenza of 1918, and unlike then, most of the deaths are of those near the end of life or with other medical conditions. What that means is a matter of opinion. We are a practical people, but we are not a culture that sets our old and sick out to die.

Trump is no scientist; he flails, he bullies, he talks up quackish remedies, then abandons them. But he does know about life and the limits of sacrifices.

And how often do we expect to do this? Once a century? Once a decade? Do we all now agree that in future shutdowns, everything should be paid by Uncle Sam, with borrowing in trillion-dollar heaps? I note that Senator Bernie Sanders is already insisting that when we have a vaccine, it must be free to all Americans. And I think: why? It’s not free for the companies to invent it. It won’t be free to produce it or to administer it. Why should it be free to have it? (How much would you pay for a vaccine right now?)

I’m asked if, based on the situation right now, I think government officials should be able to order more shutdowns whenever they think it necessary for the public health. My short answer is yes. But in the United States, the power to do that is divided among more than one official, and also subject to judicial review and the criticism of rival politicians, the legal bar, the academy, the news media, and public protesters. Most of all, it is subject to the anger of the people at the next election.

The verdict on the Great Coronavirus Shutdown will be decided in November. Already we’re hearing Democrats make the case that Trump did too little. Every day they’re on CNN, blaming The Donald for 85,000 dead and calling for officials to “listen to the science” and keep commerce shut down. And they have a case. Trump is no scientist; he flails, he bullies, he talks up quackish remedies, then abandons them. He is not a “war president.” But he does know about life and the limits of sacrifices. I just heard him on TV bellowing, “vaccine or no vaccine, we’re back.” Bombast? Yes. And also necessary.

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The Permeator


In about 1987 I was sitting in a steakhouse in northern Georgia, sort of killing time, as I did so often those days, and — showing my great ability at multitasking — was reading while dining.

The waitress won my heart by asking what I was reading. I showed her it was a collection, allegedly complete, of the works of Shakespeare. When I said, "But I don't see the big deal: All he did was take a bunch of famous quotations and string them together," she laughed, earning a bigger tip.

Then she said something I've remembered all these years: "My husband reads Shakespeare to me."

He, she said, was a teacher, and they would sit together at home after their respective jobs and he would read to her.

I have often thought what a happy family they should have been and still should be. I hope.

In one of my college classes, we had to write some short essay, about what I don't remember, but I do remember titling mine "TV or not TV?" And I remember a sportswriter being soundly, though only verbally, thumped when he wrote of a ballplayer's possible medical diagnosis, "TB or not TB?"

Suddenly I remember something much more subtle: I was working at a motel in San Diego in about 1971 and a visitor asked how to get to a street named "Rosencrantz." Smart alecky me, instead of asking him whether he meant “Rosecrans,” and telling him where it was, I told him, "Rosencrantz and Guildenstern are dead." At least I started to tell him, but I restrained myself — a very, very rare happenstance.

Recently I reread a Poul Anderson book, A Midsummer Tempest, in which Shakespeare is known as The Historian, and the great Anderson introduces, as very live and very real characters, Caliban, Ariel, Oberon, and Titania, among a cast of thousands, so many of whom help Prince Rupert in his war in Cavalier support of the king. Beautifully written.

I could keep listing these things — including, for example, the motion picture credits of some decades back with “Additional dialogue by Bill Shakespeare.” All of them show how the influence of one person can penetrate time, space, and minds.

But there need to be individual minds in contact.

In a Fox Trot comic strip, also of a few years ago, the less than scholarly Paige is having to read one of the plays, which just thrills her English-major mom. Paige, however, is completely stymied.

"What language is this?" she screams. "Martian?"

Her geeky, nerdy little brother looks at the text and responds, "No, no — if it were Martian I could probably read it."

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Written vs. “Unwritten” Constitutions


On August 28, 2019 Boris Johnson, Britain’s Prime Minister, suspended (or in Brit-speak, prorogued) Parliament to prevent it from meddling in his Brexit plans. Many Britons were outraged. Parliament, after all, is the paramount branch of government. Though seemingly a legal move, the suspension (in this case) violated established norms and practices or, as they say across the pond, it was “bad form” verging on authoritarianism. Less than a month later, after a series of legal challenges, the Supreme Court of the United Kingdom ruled the suspension null and void.

In response, Johnson promised — in an earthier phrase employed by others in government — to “get the judges sorted” by establishing a commission on the constitution, democracy, and the separation of powers in order to, possibly, consider pruning the court’s powers of judicial review and its ability to challenge the legality of executive actions. Perhaps, even, “the country’s most senior . . . judges” would “sit in the House of Lords . . . rather than in a separate Supreme Court” (as the February 20, 2020 issue of The Economist reported).

Could this — the curtailment of the legitimate power of one of the branches of government by one or more of the other two — in Oscar Lewis’ famous phrase, “happen here”? Senate Minority Leader Chuck Schumer (D-NY), oblivious to the Constitution’s separation of powers clauses, threatened Supreme Court justices on March 11: "I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price! You won’t know what hit you if you go forward with these awful decisions." (His comment was prompted by oral arguments concerning a Louisiana abortion bill before the court.) So much for his pedigree from Harvard Law.

As they say across the pond, it was “bad form” verging on authoritarianism.

In contrast, there seems to be little danger to the separation of powers clauses from the executive branch — so far — under President Donald Trump. Though he exercises the presidency’s executive privilege with determination, as evidenced by his refusal to kowtow to the many demands of the 116th Congress which impinge on that privilege, he opts to have the disputes be adjudicated by the judiciary. And he didn’t attend Harvard Law.

A greater threat to the separation of powers was the Judicial Procedures Reform Bill of 1937, proposed by President Franklin D. Roosevelt to add more justices to the US Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. Though technically not an infringement on the Supreme Court’s bailiwick, and retaining the constitution’s strict separation of powers provisions (Articles I, II, and III), the bill was an artful attempt by the executive and legislative branches to control — albeit only temporarily — the judicial branch. I say temporarily, because judges’ lifespans are finite, their views are not perfectly predictable, and control of the Senate, which ratifies the appointment of judges, is often in flux. Bad luck, delays in committee, and general disapproval among the public killed Roosevelt’s bill.

But FDR’s attempt to pack the court wasn’t the first time that the executive and legislative branches had ganged up on the judiciary. Not 13 years after the ratification of the Constitution, John Adams, our second president and a Federalist (on the Right) — in cahoots with a Federalist-controlled Congress — attempted to “pack” the judiciary with like-minded Federalists, though in a slightly different manner from FDR. His means was the Judicial Act of 1801.

Chuck Schumer, oblivious to the Constitution’s separation of powers clauses, threatened Supreme Court justices: "You won’t know what hit you if you go forward with these awful decisions."

Adams had lost his reelection bid in 1800, running against Thomas Jefferson, a Democratic-Republican (on the Left, and otherwise known as the Republicans). In addition to the Federalists’ loss of the presidency, they lost control of both houses of Congress. Jefferson’s Republicans had won a stunning victory. In spite of George Washington being identified (and identifying) as a Federalist, the Federalists’ stock had plummeted when they had sponsored — and then enforced to the hilt — the Alien and Sedition Acts of 1798, which effectively nullified the First Amendment’s guarantee of free speech and freedom of the press by criminalizing criticism of the President or Congress. To the Republicans — and a majority of voters — that was a step too far.

The Midnight Judges Act, as the Judiciary Act of 1801 has been colorfully labeled (the act was largely executed within a scant two days before Jefferson was to assume office), created 16 new federal judgeships to sit in the circuit courts. In the interest of bipartisanship, some of the new judges were Republicans. The new judges would relieve the Supreme Court’s justices from having to “ride circuit,” an onerous responsibility for elderly men traveling long distances over muddy or corduroy roads on horseback or carriage. Fairly soon after Jefferson and the Republicans took office, the circuit judgeships created under the Judicial Act of 1801 were abolished (although judges appointed by the act with lifetime tenure remained in office), and the Supreme Court justices resumed and continued riding circuit until 1879.

Rock, Paper, Scissors

When it was ratified, the Constitution did not go far enough in specifying how the legislative, executive and judicial branches were to interact or mesh with one another, only that each was separate, and by implication, equal. Alexander Hamilton had elaborated his vision of how the federal judiciary meshed with the other branches in Federalist #78. But that vision lacked the power of law. Like characters in Monty Python’s “The Philosophers’ Football Match” skit, each branch believed it reserved the right to interpret the rules — the Constitution — as it saw fit, a right also assumed by many to apply to the states, based on the perception of their autonomy.

However — and probably because the Supreme Court couldn’t initiate much of anything — the Court, as the “Third Branch,” was perceived as the least important, least powerful branch, and therefore the least respected. When conflict inevitably arose over jurisdictional overlaps by the branches, fundamental constitutional crisis loomed.

When it was ratified, the Constitution did not go far enough in specifying how the legislative, executive and judicial branches were to interact or mesh with one another.

For the nation’s first 12 years, Federalists controlled the presidency, Congress and Supreme Court, so little conflict arose. Consequently, the Supreme Court’s secondary — ahem, tertiary — importance was further reinforced in the public’s mind. It seemed of so little import that when first offered a seat on the court by President Adams in 1798, John Marshall — the fourth and, arguably, greatest Supreme Court chief justice — turned it down.

But with the radical Jefferson about to take office in 1801. President Adams appointed Marshall, a lawyer, former congressman, diplomat, secretary of state, and moderate Federalist, as chief justice of the Supreme Court, a position he this time accepted. Conflict immediately arose. William Marbury, one of the appointed “midnight judges” failed to be officially notified of his appointment by Jefferson’s Secretary of State, James Madison — no other than one of the primary authors of the Constitution, and the person whose job it was to inform Marbury. The stage was set for a showdown between the Executive, Legislative and yes, the Judiciary branches when Marbury filed suit to have his judgeship appointment honored.

It is beyond the scope of this article to examine in detail the case of Marbury v. Madison. Not only is it complex, but its reasoning is subtle. Suffice it to say that it set a fundamental precedent for the Court’s power of judicial review — the authority of the Supreme Court to rule on the constitutionality of Congressional legislation (in this particular case, the Judiciary Act of 1789). As Marshall summarized, “It is emphatically the province and duty of the judicial department to say what the law is.” Republicans failed to notice the full import of the decision’s underlying result because Madison, the defendant, was let off the hook. With the Court’s power of judicial review entrenched in the decision, the basic relationship between the legislature and the judiciary was firmly established. But what about the Court’s relationship with the president?

The stage was set for a showdown between the Executive, Legislative and yes, the Judiciary branches when Marbury filed suit.

Marbury v. Madison went further, clarifying the Court’s role vis à vis the executive. As James F. Simon says in What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States, “Marshall’s opinion also served notice that the Court, not the President, would be the ultimate judge of claims of executive privilege, an authority of seismic proportions [emphasis added].” That authority was further cemented in the treason trial of Aaron Burr, Jefferson’s estranged former vice president. In what he thought would be a tricky move, Burr requested that the Court subpoena President Jefferson to testify . . . a request or order Burr knew Jefferson would be unlikely to comply with, given his uncompromising belief in the president’s absolute independence from the judiciary.

But Marshall again outwitted Jefferson. Reasoning that since the president could be impeached under Article II, Section 4 of the Constitution, Marshall opined that he was subject to the law. Proceeding in what seemed a spirit of compromise, instead of requiring the president’s personal appearance to testify at the trial (under the 6th Amendment’s guarantees), Marshall announced that he’d be satisfied with the relevant documents and even allowed the president to redact whatever he believed to be of a political or national security nature irrelevant to the question at hand. Jefferson agreed but stipulated that, based on executive privilege, he did not have to comply. Still, he’d been hooked. He swallowed the bait. As Simon says, Marshall’s “opinion in U.S. v. Burr was later cited as precedent for the US Supreme Court’s position that no one, not even the president, is above the law . . . 167 years after the Burr trial in U.S. v. Nixon, when Chief Justice Warren Burger, writing for a unanimous Court, rejected President Richard Nixon’s claim of executive privilege, insisting that he must turn over the Watergate tapes to the special prosecutor . . . Nixon released the tapes.”

With those decisions, John Marshall created a framework analogous to the rock-paper-scissors game for the relationship among the three branches of the US government, while keeping to the separation of powers principle in our written Constitution. Yet Jefferson, upon reflection, didn’t like the outcomes: “The opinion which gives to the judges the right to decide what laws are constitutional, and what not . . . would make the judiciary a despotic branch.” Like Boris Johnson today, Jefferson concocted a “plan to support a constitutional amendment to curb the independence of the judiciary,” as Simon puts it. Fortunately, legislative delays and waning enthusiasm killed the proposal.

Burr requested that the Court subpoena President Jefferson to testify, an order Burr knew Jefferson would be unlikely to comply with, given his uncompromising belief in the president’s absolute independence from the judiciary.

The short answer to the question posed at the beginning of this article — can the executive or legislative branches of the US government fundamentally alter the Supreme Court’s independence — is no. Though the US has amendment procedures for changing the Constitution, these require supermajorities of Congress and the states (participation of the executive is irrelevant).

Rock, Rock, Rock

Great Britain’s unwritten constitution is an amalgam of conventions (traditions, norms, customs, etc.), and court judgments (precedent). It is constantly changing as the particular ingredients change or are added to. It may be changed by changes in judicial decisions or customs or by a simple act of Parliament without any special procedure or special majority. It is what some in the US would call — and advocate — a “living constitution.”

As to a separation of powers in Britain . . . it’s a mixed bag. The monarch, or head of state — as opposed to the head of government (two positions combined in the presidency of the United States) — enjoys the “royal prerogative,” a body of customary authority, privilege, and immunity attached to the monarchy. He or she has sovereign immunity, under which the monarch may do no wrong under the law. Yet the prerogative of immunity seemed to be no impediment to the deposition of one Stuart king and the deposition and beheading of another; in fact, it was an issue that led to those events.

The British constitution is what some in the US would call — and advocate — a “living constitution.”

Prior to the Constitutional Reform Act of 2005, the British supreme court, legislature (Parliament), and executive (prime minister) were all members of Parliament. That piece of legislation carved out the judiciary as an independent agency. Since 2005, judicial power is now vested in the various judiciaries of the United Kingdom, who by constitution and statute have judicial independence of the Government. And that is what Boris Johnson has set his sights on: reinserting the judges of the Supreme Court into the House of Lords, Parliament’s upper house.

When the United States drew up its constitution, our founding fathers consciously abjured this kind of procedure, preferring a more immutable structure not subject to passing whims or the unconscious vicissitudes of ever-changing tradition over the course of time. As Marshall put it, “A Constitution is framed for ages to come, and is destined to approach immortality as nearly as human institutions can approach it.” But adjusting to the new regimen took time . . . even for Marshall.

At the beginning of the republic, American judges, “trained in the English common law, regularly applied common law [principles] in the federal courts, much to the chagrin of Jefferson and other Republicans, who believed that the only legitimate law was statutory, created by elected legislatures”, as Simon contends in What Kind of Nation. Prior to the Burr treason trial, Marshall had resorted to the common law definition of treason. But he had to eat his words in the Burr case when defense attorney John Wickham pointed out that the definition of treason in our Constitution was much narrower than the common law definition. Since the evidence against Burr did not meet the Constitution’s strict standards, Burr was acquitted.

Britain’s prime minister can be removed for any reason by a “vote of no confidence,” which only requires a simple majority. Imagine such a system in the US.

Much of the confusion between statutory and common law continues today. President Trump, not a slave to convention, is continually criticized for violating established norms and traditions, not only by the left but also by many Republicans and especially by The Economist, a free-market periodical out of London. Though in Britain it may be subject to parliamentary action for the prime minister or chief justice to be crass, vulgar, and narcissistic, inclined to tweet personal opinions implying policy positions, constantly resort to hyperbole, flipping the bird — actually or metaphorically — at his adversaries, paying off prostitutes, banning members of the media from his press conferences, and preferring fast-food burgers and cola to arugula with quinoa complemented by a tart pinot grigio, and indulging in other objectionable levels of moral turpitude, in the United States these are not unconstitutional behaviors and are certainly not “high crimes or misdemeanors.” Britain’s prime minister can be removed for any reason by a “vote of no confidence,” which only requires a simple majority. Imagine such a system in the US.

During the congressional term of 2015–2017, the Republican majority Congress would doubtless have dumped President Barack Obama. And on the 17 previous times in American history when the president belonged to one party and both houses of Congress were controlled by the opposition (the first instance was during President Washington’s second term, when the Republicans gained a majority in Congress), removal from office would have been a distinct possibility. In contrast to the British parliamentary system in which the executive and legislature are always of the same party — in order to “get things done” — American voters often consciously choose the twain from separate parties in order to keep the government from getting too much done.

But I digress. A parliamentary system is not intrinsic to an unwritten constitution. During the impeachment preliminaries in the House of Representatives, when the House managers subpoenaed documents from the executive, President Trump confounded those constitutional journeymen, Adam Schiff and Nancy Pelosi, by invoking executive privilege. He simply refused to comply. Schiff and Pelosi exhibited shock and indignation. They knew better . . . but they were in a hurry. Instead of appealing their subpoena demands to the Supreme Court — the appropriate procedure in a separation of powers dispute — they played politics and damned their case by basing it on the president’s failure to comply with Congress’s subpoenas under Article 2 of the constitution (obstruction of Congress), without judicial review. Had they followed proper procedure, perhaps things might have turned out differently.

In a future article I will offer some additional ideas about the American impeachment and removal process.

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Briefing Session


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Justin Amash: Libertarian Hero?


The Manhattan Libertarian Party sponsors a monthly "Libertarian Happy Hour" at a famous hotel in midtown. I go, sometimes, or used to go, before the Age of Coronavirus shut NYC down. The meeting is something of an intellectual salon, buttressed by beer and good hamburgers (although I do not drink alcohol, so much of that value is lost on me). In July of last year, I went, and one of the big news items we discussed was: Justin Amash has left the Republican Party.

"He'll join the Libertarian Party," I said. "It is where he belongs. He is a libertarian."

"No, he won't," said another man, who is wiser than I.

Amash has joined us. Did he do it because now he has something to gain?

"Why do you say that?" I asked.

"He has nothing to gain by joining us."

"I disagree," I said. But I was wrong — about that.

Now, Amash has joined us. Did he do it because now he has something to gain? What he gains, what he seeks, is clear: the Libertarian Party presidential nomination, and the fame and media coverage that entails.

So my question is: why did he wait until now to join? Why not months ago? Is it because he wants only to use us for our presidential nomination? Is he an opportunistic vulture, circling around us and then choosing his moment to swoop in? Or is he a libertarian hero — the Libertarian Party's first actual, real-life, registered Libertarian member of the United States Congress? Does he want a quid pro quo: he gives us a Libertarian in Congress, and we give him our presidential slot? Is that unethical, or would it be like any other trade of value for value in an economy? Why should we object to a trade?

I do not know whether he is a hero or a villain. But it does not matter, because nobody is going to vote for him in the general election, if he does in fact become the LP candidate.

Justin Amash has always been a small-l libertarian. His statements and voting records are clear. He has said that F.A. Hayek is his favorite theorist. During his time as a Republican in Congress, he would butt heads with GOP leadership because he was loyal to libertarian values, and they sometimes were not. But he has never been a capital-l Libertarian, before this April.

Only he knows his real motivations. I cannot read his mind. So I do not know whether he is a hero or a villain. But it does not matter to me. Why? Because nobody is going to vote for him in the general election, if he does in fact become the LP candidate. As our only member of Congress, now or ever, I suspect that he will win at the LP convention (if there is a convention). But it does not matter — because he will not win the White House and will hurt neither Biden nor Trump. He will exert no influence. He is a nullity.

The media have discussed whether he is a threat to Biden or a threat to Trump, as if he had to be one or the other. He is neither. Look at the last election. The Democrats made much of the fact that, if every Libertarian in Florida had voted for Hillary instead of Johnson, Trump would have lost Florida, thereby rescuing America from horror, from their point of view. One problem exists with that analysis: no Libertarian voter would ever vote for Hillary, not in a billion years. The media, and the Democrats, do not understand Libertarian voters. We are not mere moderates or independents. We are libertarians. We vote for libertarians. A similar identity trait holds for the Democrats. Liberals are Democrats. Democrats are liberals. Liberal voters will vote for Biden. Why would they vote for Amash? So Biden has nothing to fear from Amash.

Moderate and independent Republicans do not vote for candidates perceived as extremists or radicals, not even radicals for capitalism.

The same is true for Trump, except even more so, because Trump has quite a cult of personality. Biden's voters self-define as liberals. Trump's voters self-define as Donald Trump supporters. Trump's voters will never vote for Amash. So Trump has nothing to fear from him. But what if anti-Trump Republicans vote for Amash?

Conservatives support Trump, so presumably the appeal of Amash would be limited to moderate and independent Republicans. But such people pride themselves on being reasonable, so they will think about Biden and Trump, with an open mind, and choose one of them. Such people do not vote for candidates perceived as extremists or radicals, not even radicals for capitalism.

As with disloyal Republicans, so too with disloyal Democrats. All Democrats hate Donald Trump and will vote against him, which is the vote for Biden. The only anti-Biden Democrats are the Sanders socialists. They would rather die than vote Libertarian.

Amash might make a good president. He might not. But he will not get enough votes to win the White House, or to influence the 2020 election in any way.

Justin Amash is a latecomer to the Libertarian Party, and the Libertarian Party's rank and file knows it. We know that we have doubts about whether he is using us, whether he really cares deeply about our party, whether he will stay with us in 2021, especially after the Bill Weld fiasco. Many Libertarians will not vote for Amash; they will just vote for Trump, or not vote at all. We Libertarians are finicky like that.

Amash does not have the ability to become president, so I won’t speculate about whether he would make a better president than Trump or Biden. In terms of abstract policy, he might. If you view Trump as a hero, and the bane and scourge of the Left, voting for Trump is obviously better than voting for Amash.

Little is known about Justin Amash's leadership abilities. He might make a good president. He might not. But he will not get enough votes to win the White House, or to influence the 2020 election in any way.

At least for now, the Libertarian Party has something that I never thought I would live to see: a sitting Libertarian in the House of Representatives. Because the Democrats and Republicans of Michigan will both be intent upon ending Amash's hold of his congressional seat, I suggest we enjoy this while it lasts. It won't last.

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Controllers and Catastrophes


As we sequester in our homes, restricted from gathering in churches or public places, hounded by ever-changing government regulations and nosy neighbors, worried about when the supply chain will be broken and the food will run out, the miniseries Waco seems like an apt viewing choice for a Saturday afternoon. It features sheltering in place for nearly two months; overzealous government agents; nosy neighbors filing specious reports; a violation of basic constitutional rights including freedom of religion, freedom of assembly, and the right to bear arms; no opportunity for celebrating funerals or birthdays or going outside; and homeschooling to the max in a compound that included dozens of young children.

You remember the story, of course. For 51 days in 1993, ATF and FBI agents besieged a religious group called the Branch Davidians, an offshoot of the Seventh Day Adventists, who had been living on a small farm outside Waco, Texas since 1962. The Davidians were accused of stockpiling weapons, although they had permits to buy and sell at gun shows. Their leader, David Koresh, was also accused of physical and sexual child abuse, because at least two of his wives were under 18. The standoff ended in flames and the deaths of 76 men, women, and children in the religious group.

Kitsch’s Koresh is earnest, childlike, persuasive, and even playful.

The Davidians broke away from the Adventists in 1929, established their headquarters outside of Waco in 1934, and purchased the farm in 1962. Koresh (né Vernon Howell) arrived on the scene in 1981 and proclaimed himself the Chosen One, eventually wresting leadership from George Roden. So why did the ATF suddenly decide to attack the compound in 1993? According to the series, they needed a successful story to restore the agency’s reputation after the botched attack in Ruby Ridge, Idaho, where officers who were determined to arrest mountain man Randy Weaver killed his wife and son instead. They thought their raid on the Waco compound would be textbook perfect. In the film they even hire a public relations expert, Angela Duke (Sarah Minnich), to stage the offensive, position news cameras, and handle the press. She also botches the job.

The series’ six episodes are tightly written and well-acted, especially the two key players, David Koresh (Taylor Kitsch) and crisis negotiator Gary Noesner (Michael Shannon). Kitsch’s Koresh is earnest, childlike, persuasive, and even playful. We don’t see an evil manipulator but a charismatic leader who inspires those who follow him. His Texas drawl mixed with grandiose intonations of prophecy reassure them. Even when the hour is darkest, he convinces them to stay the course and “pass the test.” And yet there is something in his stubborn certainty that reveals self-doubt and a longing to be accepted.

What he teaches theologically may not make sense to us, but there is no doubt that he believes it. And his followers believe in him, too. Even when he convinces them that God wants the men to be celibate and Koresh to “assume the burden of sex for [them] all,” though “not for my own kicks,” he asserts. Indeed, while having sex with his wife Rachel (Melissa Benoist), he chastises himself when he starts to enjoy it. Clearly, the man has some issues, perhaps beginning with the fact that his own mother had been just fourteen when he was born. But his kindness toward his family of followers and his desire to understand God seem sincere and without guile.

Koresh's wives brush off their own nagging doubts about the sexual arrangements as weaknesses in faith and a trial to be borne, not wrongs to be righted.

Michael Shannon, who makes his living playing twisted bad guys, is equally earnest and sincere as Gary Noesner. As a seasoned negotiator who had convinced Randy Weaver to surrender peacefully just a few months earlier, he knows the importance of understanding Koresh’s deepest concerns and needs in order to reason with him. He does not see Koresh as evil but as misguided. At one point he argues with Tony Prince (Glenn Fleshler), the bureaucratic FBI director of operations, “Why have the people in Waco gotten along with these people all these years? Because they talked to them. They understood them.” And later, when all hell breaks loose, he questions, “We are all of us Americans! When did we start seeing each other as the enemy?” We could very well ask that question again today.

The most troubling part of the story, and the reason we can’t truly identify Koresh as a folk hero, is the polygamy. This is not The Handmaid’s Tale by any means; the women in the story are strong, intelligent, and valued. They have self-will, and can choose to leave at any time (and some of them do). But they seem to genuinely believe in Koresh’s revelations, and they brush off their own nagging doubts about the sexual arrangements as weaknesses in faith and a trial to be borne, not wrongs to be righted. The way they live might seem kooky and appalling to most of us, but the women seem to accept it as God’s will.

The real villains in Waco are the government agents who are set on controlling the situation and restoring their reputations after the public relations disaster at Ruby Ridge — oh yes, and the unnecessary shooting deaths of a woman and her young son. “If we can come out of that compound with a bunch of innocent kids and loaded guns, it might remind Congress why they need us,” muses the ATF director Ed Wiggins (Christopher Stanley) when he’s presented with the idea of going after Koresh.

That’s a scary motivation. We are controlled by the fear of our controllers.

And it’s a power trip too. Later, when Noesner begs Mitch Decker (Shea Wigham), the hotshot FBI agent in charge of the assault, to just leave the Davidians alone, Decker tells him, “It’s 5,000 to one. Those are the odds against us. Five thousand citizens to one officer of the law. They believe we’re more powerful than we are. We project strength, and the people believe we have strength . . . By letting this drag on we look weak in front of the world.” That’s a scary motivation. We are controlled by the fear of our controllers.

How accurate is the series? No one really knows; even today, after the trials and the appeals have ended, it is still disputed who shot first and how the fires started. The series is based on memoirs written by two participants on opposite sides of the fight, Waco: A Survivor’s Story, written by former Branch member David Thibodeau (Rory Culkin), and Stalling for Time: My Life as an FBI Hostage Negotiator, by Gary Noesner. Thibodeau had met Koresh at a music event in LA and had been at the compound for only a year when the trouble broke out. In that sense both men were somewhat outside observers and might have been more objective in their writing than someone who had been a longtime member. Thibodeau’s sweet and chaste relationship with Michelle Jones (Julia Garner), who had lived at the compound her whole life, is one of the highlights of the series.

Waco may or may not be completely factually accurate in its portrayal of Koresh and the sequence of events during the assaults, but it is thematically correct. It contains important truths about the right to assemble, the right to defend oneself, the right to believe, and the right to be left alone. It also introduces tough questions about the right to raise one’s children when one’s beliefs may lead to harm. It doesn’t whitewash the issue of polygamy, especially Koresh’s weird “king of the pride” version of it, but it acknowledges that adults should have the right to choose what a marriage will look like. Most of all, it exposes a justice department whose mission is no longer “to protect and serve” but “to control and contain.”

Editor's Note: Review of "Waco," directed by John Erick Dowdle and Dennie Gordon. Paramount Network, 2018, 292 minutes (6 episodes). Available on Netflix.

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What’s the Big Idea?


A young friend of mine, a scientist, tells me that he predicts a stern “accounting” when the corona affair is over. He means an accounting for the horrible damage that governments’ philanthropic response has done to the nation, a damage much worse than any disease could have done, and particularly this disease.

He was thinking of the economic damage and, I believe, of the intellectual damage involved in pretending that experts can justifiably tell 300 million people that it is vitally incumbent upon them to abandon their jobs, their property, their friends, and all their normal pursuits because of a disease that targets a small proportion of the population — the very old and very sick.

What troubles me, even more than the economic and intellectual damage, is the damage to individual liberty.

Me? I’m doubtful that this accounting will come. I know too many people — all of them, by the way, living on money that does not come from threatened businesses — who have never given the matter the least critical thought. I don’t think they ever will. When the virus goes away, they will attribute its exit to wise government policy.

But what troubles me, even more than the economic and intellectual damage, is the damage to individual liberty.

The substance of American civil liberties can be measured by the threats they have survived. They have survived — perilously survived, and after immense and wholly unwarranted suffering — these things, and more:

  • Laws forbidding African Americans from using the same restrooms or occupying the same seats in public transportation as other Americans.
  • Laws forbidding Chinese Americans from marrying Caucasian Americans.
  • Edicts shipping Japanese Americans to concentration camps.
  • Laws forbidding the teaching of German in the schools.
  • Laws compelling school children to salute the flag.
  • Laws forbidding “insults” to public officials, or to the uniform of the United States army.
  • Laws forbidding “sodomy,” meaning homosexuality.

Terrible? Yes. Absurd? Yes. Invasions of individual rights are ordinarily absurd, on the face of them. Never, though, have the rights of the majority of Americans been so fervently attacked by arbitrary impositions of administrative power as they are today.

Rights are rights. Rights are not a balancing act. That’s the significance of the word “rights.”

Today, every public official from the president to a city manager has assumed the power to order people to do or not to do anything that he decides they should or should not do, often annexing threats of fines or imprisonment for those foolish enough to resist. The populace has been forbidden to visit friends or relatives, to attend any kind of religious service, to go anywhere without a mask, to walk on the beach, to visit property other than their primary residence , to use golf carts or power lawnmowers, to play baseball, to go to a movie, to sit in a restaurant, indoors or outdoors, to use a motorboat, to sit in a bank lobby, to walk in a park, to use anything but a one-way aisle in a supermarket, to engage in any “nonessential” business, to allow children to play outside, under penalty of being added to a list of “uncooperative” persons, to make hotel reservations for the future, to sell or buy seeds, to skateboard — to do virtually everything they normally do.

Virtually all of this has been done without any shadow of legal, much less of constitutional, authority.

Look it in the face. Don’t say, as some do, that “we must balance the demands of safety against considerations of individual rights.”

No. Never. Rights are rights. Rights are not a balancing act. That’s the significance of the word “rights.” A right is a guarantee that you will be left alone. If you don’t want to have a maskless barber cut your hair, don’t go to his shop. But don’t force him to wear a mask or, as has happened all across the country, grab his business license and close him down. He has a right to his business.

Public officials cannot simply make up laws and punishments. That is the antithesis of the American system

Again, tell me: what is the legal or constitutional basis of any of this? Huh? Eh? What is it? What do people even bother to say that it is?

They don’t bother to say.

Is it true that the federal constitution and state constitutions mean what they say only in the absence of “a public health threat,” and mean nothing after that? The answer, of course, is No. Public officials cannot simply make up laws and punishments. That is the antithesis of the American system, and of any system that has the least respect for individual liberties, or for logic and evidence, for that matter.

But go back to the start: tell me, what is the legal basis for these acts of power?

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“Green” Energy?


Michael Moore has been the darling of progressive activists for three decades. But when he had the audacity to executive produce Jeff Gibbs’ Planet of the Humans, a documentary exposing the corruption, deception, and failure of the green energy movement, he was summarily dismissed from their circle. The film has been called “dangerous,” “absurd,” and “shockingly misleading.” Trotsky himself didn’t experience a more decisive fall from grace.

Undaunted, Moore released the film publicly on YouTube on April 21, to coincide with the 50th anniversary of Earth Day, and it has already been viewed 4 million times. It will be available at no cost for 30 days. You can watch it here: https://youtu.be/Zk11vI-7czE . You’ll need this link, because if you search for it in the normal way, by googling “YouTube Planet of the Humans,” you’ll likely end up watching a World Science Festival documentary instead. That’s what will appear at the top of your search. These crafty internet capitalists have so much control over what we see!

The film begins, “Have you ever wondered what would happen if a single species took over an entire planet? . . . How would they know when it is their time to go?” His conclusion is that “less is more. Carbon dioxide isn’t destroying the planet; it is us.”

The film has been called “dangerous,” “absurd,” and “shockingly misleading.” Trotsky himself didn’t experience a more decisive fall from grace.

I don’t agree with director Jeff Gibbs’ conclusions; I don’t think capitalism is to blame, though crony capitalism certainly is, and I don’t buy the old Malthusian overpopulation argument that was repackaged in the 1960s by Paul and Anne Ehrlich’s The Population Bomb and reappears here as sort of a self-evident given that Gibbs doesn’t question. But more about that later. First, the good stuff.

Jeff Gibbs sees himself as a legitimate environmentalist. He lives in a cabin he built himself, and it’s powered by solar energy and wood fire. He lives simply and tries not to pollute. We could argue about what would happen to the environment if we all cut down dozens of trees to make logs for a cabin, and continued cutting down trees to heat our homes, with smoke pouring out of each chimney. But that’s not the point here — there’s a bigger story afoot.

Let’s start with electric cars. They’re quiet, they produce no exhaust, and you can plug them in anywhere you go — or so the advertising would have you believe. Elon Musk arranged with the government to provide subsidies to buyers of his electric cars, and to provide electricity in parking lots along major thoroughfares. Because drivers of electric cars are so virtuous, they get to park right next to the handicapped spots and plug into outlets powered by the local municipality. Free fuel!

We could argue about what would happen to the environment if we all cut down dozens of trees to make logs for a cabin. But that's not the point.

At a car show in Lansing spotlighting the then-new Chevy Volt, Gibbs asks where the power comes from. “The plug,” responds the Chevy rep. When pressed, she acknowledges that the power comes from the Lansing power grid, whose electricity comes from — you guessed it — coal. Or at least it did. When “coal free” became the battle cry, many municipalities quietly turned to natural gas. The point is, you can put the gas into your car, or you can put it into the electricity grid, and then into your car. One way or another, fossil fuels are getting you to the office.

In the documentary, Gibbs attends an Earth Day celebration where Earth Day founder Denis Hayes announces proudly that the event is “powered 100% by solar energy.” Gibbs takes his camera to the back of the venue and has a little talk with the engineers. Pointing to the array of solar panels, the engineer scoffs, “That could maybe power a toaster.” Another backstage installer admits that the concert is being run on a diesel generator.

In the long run, that’s probably a good thing. As Gibbs discovers, solar power is one of the blackest forms of energy. According to Ozzie Zehner, those solar panels are made not from beach sand but from quartz mined in mountains. The quartz is heated by coal to 1,800 degrees and combined with more coal to produce silicon metal — and carbon dioxide. Moreover, those solar panels only last ten to twenty years, and when they break down, the toxic metals produce even more pollution. And they aren’t even efficient. How many solar panels would be required to provide electricity for a small town? A field approximately 15 square miles, according to one engineer in the film.

What about wind power? Vast expanses of Joshua trees have been uprooted to make room in the desert for these wind farms, and mountain tops in the eastern states have been flattened and denuded. Like the solar panels, these gigantic, sprawling monstrosities break down after a couple of decades, and also contain toxic materials. Where do you dispose of a wind turbine that weighs more than 100,000 pounds? You just leave it there, I guess.

How many solar panels would be required to provide electricity for a small town? A field approximately 15 square miles

And then there is the “intermittency” problem. Both solar and wind power have the disadvantage of not working when it is either dark or calm, requiring buildings to be connected to fossil fuel grids as a backup. Sure, some excess energy from these so-called renewable sources can be stored in batteries, but those batteries also break down after just a couple of years and the materials inside them are pollutants. Neither of these highly touted energy sources is truly “green.”

And what about biomass? Recently, in order to say that we’re “coal free,” coal burning plants have been converted to wood burning plants, and we’re right back to where we started in the pre-industrial age, burning trees (euphemistically called “wood chips”) and trash for fuel. But it’s renewable, right? Trees grow back. No more fossil fuels for Americans! According to the film, American plants bring wood from as far away as Indonesia, just to burn it up for fuel. And how much fossil fuel is used to transport those “wood chips” from Indonesia? One scene shows Richard Branson boasting of a new jet powered entirely by coconut oil. “There’s no downside!” he exclaims. Gibbs cuts to a coconut forest being bulldozed into the earth — by diesel-guzzling Caterpillars, of course.

As one person says, “You would be better off just using fossil fuels.”

Gibbs follows the money to demonstrate that these are not errors of judgment or ignorance but carefully calculated compliance to take advantage of government subsidies. Billionaires, bankers, corporations, nonprofit organizations, and politicians have all profited from the green revolution — a revolution that, as Gibbs reveals, is anything but green. Even the Sierra Club was in on the take — or at least on the investments that produced good profits.

These gigantic, sprawling monstrosities break down after a couple of decades, and also contain toxic materials.

Is there a solution to maintaining a cleaner environment without creating greater pollution down the road? Absolutely. Private entrepreneurs, innovators, and businesses are busily discovering solutions right now. In the western world, the air is much cleaner now than it was 50 years ago, and studies of currents have shown that most of the ocean’s pollution originates in the eastern hemisphere, not the western. While 16-year-old Greta Thunberg was scolding grownups for messing up the planet, 16-year-old Fionn Ferreira was designing a machine that can clean plastic from the ocean — even those tiny little pellets. At the Anthem Libertarian Film Festival in Las Vegas this year we will be highlighting the documentary They Say It Can’t Be Done, which showcases several great new innovations in medicine and environmentalism, including a machine that can absorb CO2 from the air and inject it into the earth, where it belongs, without creating vast ugly windmill farms.

Planet of the Humans is a provocative film that exposes the corruption and deception of the green movement by a voice from the green movement. It might not get everything right, but it gets enough right to start changing minds and thus changing the entire conversation about climate change, energy sources, and how to move forward successfully. Watch it while it’s still on YouTube.

Editor's Note: Review of "Planet of the Humans," directed by Jeff Gibbs, executive produced by Michael Moore. Huron Mountain Films, 100 minutes, 2019.

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