Tag: hit&run

Congress Should Not Be Satisfied With Ukraine Call Transcript, Given the Trump White House’s History of Fiddling With Records

One of the dumbest news cycles of summer 2019 is somehow actually relevant to Wednesday’s release of a transcript of a phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskiy.

More on the transcript in a moment. First, let’s recall the multi-day fiasco that was the approach of Hurricane Dorian during the final days of August. While the storm was annihilating parts of the Bahamas (there are still more than 1,000 people missing), the White House was engaged in a dayslong effort to prove that Trump’s errant tweet warning residents of Alabama about the storm—the state was not in any actual danger—was actually rooted in meteorologic reality. The farce culminated in Trump posing next to an obviously doctored weather map showing the forecasted path of the storm and with the National Oceanic and Atmospheric Administration issuing a public rebuke to its Alabama affiliate for challenging the president’s infallible understanding of tropical cyclones.

That’s not the only or even the most inexcusable example of how the current administration has warped reality in order to protect Trump’s ego or make him appear less obviously unfit for office. But it’s worth keeping in mind as the next chapters of the Ukraine saga unfold: The Trump administration lies. Members of the administration lie even when the truth is obvious and public. By now, it should have lost any benefit of the doubt from Congress, the media, and the American public.

Which brings us back to the transcript released Wednesday morning. The five-page document details a conversation between Trump and Zelenskiy that took place on July 25. In it, Trump asks the Ukrainian president to “look into” business dealings that involved former Vice President Joe Biden’s son. It is that request—a sitting president asking a foreign leader to investigate a domestic political rival in advance of an election—that sits at the center of the latest round of impeachment speculation.

The White House’s decision to release the transcript is a calculated move, one would suppose, that’s meant to benefit the president. Indeed, in the transcript, Trump raises the Biden issue only twice—not the eight times that had been reported by The Wall Street Journal, citing anonymous sources. Anyone who expected the transcript to be a smoking gun (and who expected the White House to toss the smoking gun into public view this easily) will be sorely disappointed.

But the release of the transcript should not be enough to satisfy members of Congress seeking to determine whether the president crossed the line. For one thing, the transcript appears to be only the beginning of the Trump administration’s alleged efforts to pressure Ukraine into investigating the Bidens. On the call, Trump repeatedly tells Zelenskiy that he will have his personal lawyer, Rudy Giuliani, and William Barr, the acting attorney general, follow up on the request. Records of those calls must be released too.

Beyond that, however, Congress should also demand tapes of the calls.

To be clear, there is nothing about the transcript released Wednesday that suggests it has been doctored. Hopefully, it is an honest account of the July 25 call. But the Trump White House has proven, again and again, that it cannot be trusted to accurately reflect reality when the president’s interests are at stake.

It’s not just about a doctored weather map. In July 2018, the White House published an altered transcript of a joint press conference held by Trump and Russian President Vladimir Putin. That was an event that took place in public. There were reporters and TV cameras recording every word. And yet the White House’s official documentation of the press conference left out a key exchange in which Putin admitted to meddling with the 2016 presidential election (although that meddling likely didn’t change the outcome).

The White House also altered the transcript of a press conference from October 2018 in which Trump insulted an ABC News reporter to remove the incident.

An administration that’s willing to warp reality to protect the president over small things that can be easily disproved does not deserve any benefit of the doubt when it comes to bigger things. Put another way, if the administration is going to doctor a weather map to protect the president’s ego, why would it not go to similar lengths to protect his presidency from an existential threat?

Congress should “trust, but verify” (as Republicans used to be fond of saying before they became the party of Trump).

And there’s no harm in asking for the tapes. If they match the transcript, then Congress will have done its due diligence without doing any additional harm to Trump or anyone else in his administration. If they don’t, then Congress will have the accurate account—and that’s what should matter above all else.

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Trump Calls on ‘American Patriots’ to Defend Him From Impeachment

It’s happening. House Speaker Nancy Pelosi (D–Calif.) has started impeachment proceedings against President Donald Trump. The president has promised to release an unredacted transcript of his call with the Ukrainian president that triggered this impeachment inquiry. The White House has also promised to release to Congress the whistleblower complaint that first sparked interest in that call. The former should be out today and the latter by the end of the week.

The usual curmudgeonly crowd (for whom I have much fondness) has been pointing out that of all the potential things to launch impeachment proceedings over, this business hardly stands out. Then again, a bipartisan consensus props up most of the serious rights violations and abuses of power carried out by this president (and those that came before).

The most serious misstep Trump allegedly made this time was attempting to withhold military money for Ukraine. The Trump administration says it was simply trying to figure out if the new Ukrainian president could be trusted before forking over the funds. But Democrats say Trump deliberately timed this move to imply to Ukraine’s leaders that funding was contingent on whether they took up Trump’s demand to investigate the Bidens.

“If Trump did indeed try to use the aid funds as leverage, he not only engaged in improper self-dealing but also usurped Congress’ power of the purse. That’s an important constitutional issue that goes beyond Trump’s many personal flaws,” writes Ilya Somin at The Volokh Conspiracy (which is hosted at Reason).

But that’s still a big if. And even supposing it turns out true, an implication is mighty hard to prove. Especially when White House transparency here might not be all it’s cracked up to be…

Trump has been working to frame this whole business as a Russiagate redux, calling it “a total Witch Hunt.” Rep. Justin Amash (I–Mich.) fired back:

Meanwhile, the Trump 2020 campaign is already using this for fundraising. An email from the campaign calls on “American Patriots” to join and help fund the “Official Impeachment Defense Task Force.”

One reason Trump may seem so forthcoming about the call and transcript is that any real dirty work was carried out by Rudy Giuliani. That’s been a big point of speculation.

“Rudy—he did all of this,” one U.S. official told The Washington Post. “This s—show that we’re in—it’s him injecting himself into the process.”

“Over the course of the past year,” reports The Daily Beast, “Giuliani pressed the Ukrainian government to investigate so far unfounded allegations of corruption in the country involving” Joe Biden and his son Hunter. Giuliani insists that this has all been on the up-and-up and his overtures were part of sanctioned State Department work.

Indeed, two U.S. diplomats (Kurt Volker, special representative to Ukraine, and Gordon Sondland, ambassador to the European Union) were briefed by Giuliani on the situation. But the State Department has yet to officially confirm if and how extensively it was involved.

The existence of an official State Department inquiry into Biden/Ukraine things could be good for Trump and Giuliani, suggesting that there was nothing untoward about their own efforts. But it could also be very bad if evidence comes out that team Trump pressured State Department officials to get involved for the president’s own personal political gain.

FREE MINDS

California’s “war on freelancers.” In the name of workers’ rights, the state has made it much harder to make a living as a freelance journalist. Columbia Journalism Review explains:

California Assembly Bill 5, in its original language, seemed as though it could end freelance journalism in the state. The bill, which Gov. Gavin Newsom signed into law September 18, codifies and expands on a 2018 California Supreme Court decision that made it harder for companies to classify workers as freelancers rather than employees. As employees, workers are covered by state laws on the minimum wage, worker’s compensation coverage, workplace discrimination and other protections. As freelancers, they are not.

When that court decision was first handed down, in March, “some publishers responded…by cutting ties with freelancers based in California,” reports CJR. Under Assembly Bill 5, the state has clarified that freelance writers, editors, photographers, and editorial cartoonists can be hired for up to 35 “content submissions” per year without being labeled employees. But this is little comfort for those whose livelihood depends on high-volume freelancing for multiple outlets.

“It’s not hard to find freelancers who say they will run into that limit,” notes CJR. Steve Falk, CEO of Sonoma Media Investments, told the magazine that his publications depend on freelancers to write weekly columns on things like local restaurants and events:

They write 52 weeks a year, and that becomes a problem now. We will have to pick the 35 most important weeks for them to write. [It] just seems so arbitrary.

Freelance writer and editor Zac Estrada, who is based in Los Angeles, told CJR that in his experience, “it’s been really easy to go over 35 bylines in less than a month.” Already, one site he edited content for has stopped providing him with work. Estrada said:

I’m glad the state of California is looking out for workplace issues and benefit, but I don’t see a way this bill helps me. A lot of people I know love freelancing and wouldn’t take a full-time job even if it offered them more money.

Now, thanks to anti-gig economy crusaders, Californians can no longer make that choice for themselves.

FREE MARKETS

More vaping panic, this time in Massachusetts:

See also the latest from Reason‘s Jacob Sullum: “Why Is the CDC Still Fostering Potentially Deadly Confusion About Vaping and Lung Disease?“

ELECTION 2020

Tulsi Gabbard (D–Hawaii) has qualified to participate in the next Democratic presidential debate:

Gabbard yesterday expressed concern about Trump impeachment proceedings.

QUICK HITS

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U.K. Trial Court: Lying About Vasectomy Negates Consent to Sex

Jason Lawrance is many online dating users’ worst nightmare. The British father-of-three met a number of women on Match.com that he went on to sexually attack, for which he received a life sentence in 2016 (which actually means he will spend at least 12.5 years in prison). In addition to being punished for his violent crimes, the serial sexual predator also got convicted for a more unique reason: he lied to a woman about having had a vasectomy before having sex with her, which resulted in her becoming pregnant and having an abortion. According to the BBC,

Lawrance and the woman were texting each other before they met and he told her he had undergone “the snip” in a discussion about contraception.

The woman checked with him in person when they met up for sex, and Lawrance again said he had undergone a vasectomy.

They had sex twice and Lawrance left in the middle of the night.

He later texted her saying: “I have a confession. I’m still fertile. Sorry. xxx”

Lawrance’s text messages were used as evidence he had deceived the woman, and that he knew the woman would not have consented to sex without contraception.

He was charged with two counts of rape because he had sex with the woman twice.

The prosecutor convinced the jury that consent obtained through deception is not true consent, in what is believed to be a legal first in the United Kingdom. While Lawrance has appealed this part of his conviction (as opposed to the ones about the physical sexual attacks), the decision strikes me as sensible. Sexual fraud is a serious societal problem that has become even more prevalent in the online dating era, and I have proposed a tort-type–as opposed to criminal–legal remedy to address the issue (the WaPo op-ed version of my argument can be found here).

The United States has been quite reluctant to respond to sexual fraud in modern history even in the tort setting. The 1990 New Jersey case of C.A.M. v. R.A.W. dealt with a vasectomy-related lie that resulted in the birth of a child. Essentially questioning the existence of an actionable form of harm, the majority decision of the Superior Court, Appellate Division, stated:

At the time plaintiff first became aware she was pregnant, she had the legal right to safely abort the fetus. Thus a claim might be made that plaintiff should have mitigated her damages. We recognize there are a variety of reasons why a woman may decide not to undergo an abortion. However, we question whether a plaintiff in a tort action for the wrongful birth of a normal, healthy child may decide to have the child and then look to defendant for damages of the type sought by plaintiff in this case.

The dissent criticized the majority for using privacy as a shield from liability, and for bringing up mitigation when that issue had not been “raised, briefed, or argued.” Lawsuits against women who lied about their use of birth control and became pregnant against men’s desires have fared no better.

There have been occasional exceptions to courts’ general unwillingness to intervene in this area, such as in the 1983 California case of Barbara A. v. John G., where the defendant lied when he said he didn’t want to use a condom because “[he] can’t possibly get anyone pregnant”, which he knew to be a lie. The plaintiff believed that the defendant was sterile as the result of a vasectomy or for some other reason, had unprotected sex with him, and suffered an ectopic pregnancy. She had to have a Fallopian tube removed in life-saving surgery and became sterile as a result.

The Court of Appeal reversed the trial court’s judgment on the pleadings that had dismissed the plaintiff’s claims of battery and deceit. The Court of Appeal distinguished the case from ones involving “wrongful birth”, stating that the public policy reasons against those cases did not exist here; instead, the court found stronger analogies in cases that allowed actions against defendants who concealed their STD status. The court specified that “the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party”, which is language on which the C.A.M. v. R.A.W. case discussed above later relied.

It would be interesting to know how U.S. courts today would handle a case where a plaintiff has an abortion (so no “wrongful birth” is present, and “mitigation” can be said to have occurred) and there is no element of other physical harm present such as with an ectopic pregnancy. In other words, would courts be willing to recognize pregnancy itself (and/or any physical or emotional suffering resulting from an abortion) as a harm sufficient for a tort case to proceed? In my view–even if one buys into the questionable “wrongful birth” rationale in situations of completed pregnancies–they should. Canadian courts seem to agree with me on that particular point, though they continue to have their own struggles with the concept of sexual fraud; this includes the (in my eyes, problematic) failure to recognize the emotional, dignitary, and financial harms to men who became fathers after women lied about being on birth control.

Along related lines, Alexandra Brodsky deplored in a fairly recent piece the lack of remedies in U.S. law for nonconsensual condom removal, a practice also known as “stealthing”. This is another area where European jurisdictions are starting to become more willing to intervene. In 2017, a Swiss court handed down a 12-month (suspended) sentence for “defilement from rape” caused by stealthing in a case involving a Tinder date. Last year, a German court found a police officer guilty of sexual assault after he engaged in stealthing. Meanwhile, outside of Europe, an Australian court is set to decide a stealthing case that had a male victim. And Canadian courts have intervened against poking holes in condoms before sex, declaring such acts sexual assault. Let’s hope that American courts catch up on the front of sexual fraud sooner rather than later and begin to protect victims better than so far.

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Three Cases Everyone Should Know from the Stone and Vinson Courts

Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. This post will focus on cases from the Stone and Vinson Courts.

Wickard v. Filburn (1942)

Korematsu v. U.S. (1944)

Youngstown Sheet & Tube Co. v. Sawyer (1952)

You can also download the E-Book or stream the videos.

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Grandmother’s Tirade to 13-Year-Old Granddaughter, Blaming Her for Being Raped, Leads to Tort Liability

From Crouch v. Trinity Christian Center (Cal. Ct. App. Sept. 12):

Carra Crouch, at age 13, was drugged and raped by a 30-year-old employee of Trinity Christian Center of Santa Ana, Inc. (TCC) while she was in Atlanta, Georgia to participate in a TCC-sponsored telethon. When Carra returned to California, she and her mother, Tawny Crouch, went to see Carra’s grandmother, Jan Crouch, who was a TCC officer and director and was responsible for overseeing the telethon. When Tawny explained to Jan Crouch what had happened to Carra in Atlanta, Jan Crouch flew into a tirade and yelled at Carra that she was stupid, it was really her fault, and she was the one who allowed it to happen. Carra was devastated.

Based on Jan Crouch’s conduct, the jury awarded Carra $2 million in damages (later remitted to $900,000) against TCC on her cause of action for intentional infliction of emotional distress (IIED). The jury found that Jan Crouch was acting within her authority as an officer or director of TCC when she yelled at Carra. TCC appealed….

At each stage of the trial court proceedings, and again on appeal, TCC has argued that Jan Crouch’s conduct was not extreme or outrageous but was just a grandmotherly scolding or irascible behavior. According to TCC, Carra endured nothing more than insults, petty indignities, and annoyances.

We conclude that Jan Crouch’s behavior toward Carra was sufficiently extreme and outrageous to impose liability for IIED. Yelling at 13-year-old girl who had been drugged and raped that she was stupid and she was at fault exceeds all possible bounds of decency. By telling Carra she was at fault, Jan Crouch displayed a reckless disregard for the almost certain emotional distress Carra would, and did, suffer….

The grandmother’s behavior described in the opinion indeed seems outrageous to me; but I remain quite skeptical about the intentional-infliction-of-emotional-distress tort, in part because I think the terms “outrageous” and “exceeds all possible bounds of decency” is too vague for the law, even when it comes to civil liability and not just criminal punishment. It will be interesting to see what future cases there will be in this genre, based on family behavior that is less extreme but that some judge or jury might still find highly offensive.

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Start Your Own Country!

When political arguments aren’t getting you anywhere, what can you do?

Start your own country!

Unfortunately, most of the world’s land is controlled by rapacious governments unwilling to let others experiment.

But fortunately, that still leaves oceans.

If people move 12 miles offshore (or 24 miles in the case of the U.S.), they can, in theory, live free from existing governments’ suffocating rules. People then could try new things—find better forms of government.

The idea is called seasteading. My latest video shows what offshore countries might look like.

The idea already makes some governments nervous.

This year, Chad Elwartowski and Nadia Summergirl set up a small seastead 13 miles off the coast of Thailand.

“We’re looking forward to freedom-loving people to come join us out in the open ocean,” says Chad.

Unfortunately, the Thai government wasn’t happy about it. More on what happened to Chad and Nadia’s seastead, below.

“We need a new place to experiment with new rules appropriate for modern technologies,” says Joe Quirk, who runs the Seasteading Institute. “As long as people create seasteads voluntarily and people can quit them voluntarily, you’ll have a market of competing governance providers.”

The seasteading approach avoids people trying to agree on a single set of laws.

“Seasteaders don’t have a problem with regulations per se,” says Quirk. “Humans need rules to interact. We have a problem with the monopoly over the provision and enforcement of regulations. We don’t need politicians. They’re not smart enough to make decisions for us.”

I pushed back when I interviewed him, saying some people might use lawless seasteads to do things like abuse heroin—or kids.

“We have that in our country right now,” said Quirk. “But if I move 12 miles offshore, I’m going to be so incentivized to set a better example because the world’s eyes are on me. I’ve got to convince investors to invest…convince people to move there…. (I)n such an environment, it’s going to be much more difficult to create evil islands of heroin-shooting than to create positive innovations that improve people’s lives.”

Quirk argues that the world already likes a form of seastead: cruise ships.

“Most cruise ships fly the flag of, say, Panama or Liberia, and they’re de facto self-governing. Liberia has no capacity to enforce rules on the 3,000 ships that fly its flag. So a captain is a de facto dictator. Why doesn’t he become a tyrant? Because people can choose another cruise line.”

The Seasteading Institute tries to create competing governance experiments by approaching politicians from land-based governments.

Quirk tells them: “We’ll bring our own land; we’ll float just offshore. If it succeeds, we share the prosperity. If it fails, we absorb the cost.”

There are historical parallels. Minds were opened in mainland China when the tiny island of Hong Kong showed that having fewer regulations could bring prosperity.

“China very rapidly, because of the example set by Hong Kong, started creating these special economic zones,” says Quirk.

Special economic zones are similar to seasteads because they have fewer rules.

“At least a half-billion Chinese people have exited extreme poverty by moving to these new jurisdictions,” recounts Quirk.

Unfortunately, the Chinese government did not expand such experiments to the whole country. People in power rarely want to give it up.

Seasteads could give the world experimental evidence that can’t easily be censored by land-based politicians. Chad and Nadia hoped their seastead would be the first of many.

“They thought nobody would care,” says Quirk.

They were wrong. Although they were more than 12 miles off the coast, Thailand’s politicians sent their navy to tow away the couple’s small floating island. Chad and Nadia got nervous when they saw a reconnaissance plane overhead and left their seastead just before the navy raided it. Now they are in hiding. If caught and tried in Thailand, they were told they might face the death penalty for violating Thai sovereignty.

But good for Chad and Nadia for trying.

“It’s irresponsible not to improve society by setting better examples,” says Quirk. “People with the best ideas should be given an opportunity to do that voluntarily and pay the consequences of their failures…and get the profits if they succeed.”

COPYRIGHT 2019 BY JFS PRODUCTIONS INC.
DISTRIBUTED BY CREATORS.COM

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Brickbat: The Cover-Up Is Worse Than the Crime

Granville County, North Carolina, Sheriff Brindell Wilkins has been indicted on two counts of felony obstruction of justice. Prosecutors say Wilkins discussed with another person killing a former deputy who had an audio recording of Wilkins using “racially insensitive language” that Wilkins feared he might release. The indictment says Wilkins and the other person discussed the time and location where the killing could take place.

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A License for Outrageous Police Conduct

When a police officer illegally arrests a photographer for taking pictures, can she be sued for violating the Fourth Amendment’s ban on “unreasonable searches and seizures”? Yes, a federal appeals court ruled last week.

When police officers steal cash and property worth more than $225,000 while executing a search warrant, can they be sued for violating the owners’ Fourth Amendment rights? No, a different federal appeals court ruled earlier this month.

Welcome to the weird world of qualified immunity, which protects government officials from liability for outrageous conduct if a court determines that the rights they allegedly violated were not “clearly established” at the time. Exactly what that means is fuzzy, but it’s undeniable that qualified immunity lets cops off the hook for actions that would land ordinary people in jail.

In the false arrest case, Stephanie Branch, a police officer who works for Dallas Area Rapid Transit (DART), charged freelance photographer Avi Adelman with trespassing at a train station, even though DART policy allowed him to take pictures there. The U.S. Court of Appeals for the 5th Circuit ruled that “no reasonable officer under these circumstances would conclude that she had authority to eject a person complying with DART policies from public property—and then arrest that person for criminal trespass when he failed to depart.”

In the case of the purloined property, suspects in an illegal gambling investigation alleged that Fresno, California, police officers seized $151,380 in cash and $125,000 in rare coins but reported only $50,000 of it, pocketing the rest. “Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins was morally wrong,” the U.S. Court of Appeals for the 9th Circuit ruled, “they did not have clear notice that it violated the Fourth Amendment.”

Courts in other cases have approved qualified immunity for cops who allegedly shot people without cause, sicced a dog on a man who was surrendering, tased a driver who was stopped for failing to buckle his seat belt, and ordered a 17-year-old boy to disrobe and masturbate so they could take pictures of his erect penis. Fifth Circuit Judge Don Willett, who was part of the panel that ruled against Officer Branch, observes that “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

Worse, Willett noted in a 2018 case, courts often rule that a right allegedly violated by police was not “clearly established” without deciding whether their actions were unconstitutional. That approach creates a “Catch-22,” he said, because “plaintiffs must produce precedent even as fewer courts are producing precedent,” and “important constitutional questions go unanswered precisely because those questions are yet unanswered.”

University of Chicago law professor William Baude argues that qualified immunity, which the Supreme Court invented in 1982, is “unlawful,” with “shoddy foundations” in common law. Baude notes that the Court seems keen to accept cases involving qualified immunity and almost always rules in favor of police officers, encouraging lower courts to shield cops from liability under a federal law that allows people to sue them for constitutional violations.

The Court’s application of qualified immunity, Justice Sonia Sotomayor observed in a 2018 dissent joined by Justice Ruth Bader Ginsburg, “tells officers that they can shoot first and think later.” Justice Clarence Thomas, who does not agree with Sotomayor and Ginsburg about much else, also has urged his colleagues to reconsider the Court’s approach to qualified immunity.

Based on an analysis of nearly 1,200 federal civil rights cases and a survey of about 100 lawyers practicing in this area, UCLA law professor Joanna Schwartz concludes that abolishing qualified immunity would make litigation less costly, complicated, and time-consuming for both sides. Most important, she says, it would stop courts from sending “the troubling message to government officials that they can violate the law with impunity.”

© Copyright 2019 by Creators Syndicate Inc.

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Trump, Ukraine, and Congress’s Power of the Purse

President Donald Trump.

Many are advocating impeachment in response to President Donald Trump’s apparent attempt to use withholding of $400 million in aid funds as leverage to pressure Ukraine into investigating possible malfeasance by Joe Biden and his son Hunter Biden. Meanwhile, critics fear that investigation and impeachment could unduly undermine confidentiality of the president’s conversations with foreign leaders and his control over foreign policy more generally. Largely overlooked in the debate so far is the fact that, if Trump did indeed try to use the aid funds as leverage, he not only engaged in improper self-dealing but also usurped Congress’ power of the purse. That’s an important constitutional issue that goes beyond Trump’s many personal flaws.

If there is one thing that constitutional law scholars agree on, it is that the spending power is supposed to be controlled by Congress, not the president. Even most of those who otherwise favor very broad presidential power concur. For example, few if any experts have a broader conception of presidential power over foreign affairs than John Yoo, who has argued—among other things—that the president can go so far as to start wars without congressional authorization. But Yoo nonetheless recognizes that Congress has the power to control spending on foreign and defense policy. He even contends (wrongly, in my view) that this power is enough to prevent presidential abuses of the extremely broad war powers he believes the executive is entitled to.

If Trump tried to use aid money allocated by Congress to pressure the Ukrainian government into investigating one of his major political rivals, that would be a blatant effort to use federal funds for purposes that were never authorized by Congress. The legislative branch does often give the executive the power to withhold foreign aid money until various conditions are met—such as assisting US foreign policy goals, combating corruption, or promoting development. There is a longstanding debate over how much discretion the Constitution allows Congress to delegate to the president on such matters. But, in this case, Congress never even came close to authorizing the president to use the aid money as leverage to force a foreign government to try to dig up dirt on the president’s own political opponents and their family members.

Even if you believe there is good reason to investigate Joe Biden and his son’s dealings in Ukraine (which is not clear), the proper way to do so is to use law enforcement funds properly allocated for such purposes, not use foreign aid money as leverage to get a foreign government to do it for you. You cannot investigate the possible corruption of others by engaging in corrupt self-dealing yourself.

In a recent New York Times op ed criticizing calls for impeachment over the Ukraine issue, John Yoo argues that it would undermine presidential control over foreign policy, and also reassures us  with the suggestoin that Congress could eventually get at the truth by using its spending power to  cut “intelligence, military and diplomatic funding” if the administration refuses to disclose relevant evidence.

This overlooks the fact that a potential usurpation of Congress’ spending power is precisely the point at issue. As Yoo recognizes in other contexts, Congress is entitled to control over the power of the purse, even when it comes to spending on foreign policy. And the threat to use spending cuts to incentivize  executive cooperation is only likely to be credible if the president knows that efforts to divert federal funds away from their authorized purposes will be properly investigated and punished. Otherwise, he can circumvent future spending cuts he opposes by reallocating funds Congress intended to be used for other purposes.

Given the importance of the power of the purse, Congress has every reason to review what happened here. That includes both considering the transcript of Trump’s call with Ukrainian president Volodymyr Zelensky (which Trump says he will release tomorrow), and the internal whistleblower report that first attracted public attention to this issue. In a rare show of bipartisan agreement, the Senate has unanimously demanded the report’s release; Trump should comply. If there is anything that Congress has the power to investigate, it is whether the funds it allocates are actually being spent for their authorized purposes.

And if it turns out that Trump did indeed try to use these funds as leverage to dig up dirt against a political opponent, that sort of unconstitutional diversion of federal funds for personal gain is exactly the kind of abuse of power that the Founders believed impeachment should be used to curb. It is not merely a form of personal corruption, but a dangerous undermining of the constitutional separation of powers. There is obvious reason to avoid giving any one man or woman the power to use the federal treasury as a piggy bank for their own personal agendas.

It is also worth recalling the Trump administration has an extensive prior history of attempting to usurp Congress’ powers over spending. That is evident in the many cases in which both Republican and Democratic-appointed judges have struck down the president’s attempts to impose conditions on federal grants to states and localities, that were never authorized by Congress—all for the purpose of coercing them into helping enforce the administration’s immigration policies. The same pattern recurs in the litigation over Trump’s attempts to divert funds to build his border wall, despite Congress’ repeated refusal to allocate funding for that purpose. And there are plenty more examples of Trump playing fast and loose with the spending power.

Trump is not the first president to try to undermine Congress’ control over spending. Barack Obama, for example, illegally diverted funds to pay for Obamacare subsidies that were not authorized by Congress. But Trump is unusual for doing it so brazenly and so often. If he manages to get away with it, we will have created a dangerous precedent. Republicans who may support him now are unlikely to be happy when future Democratic presidents use similar tactics.

 

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Bernie Sanders Thinks Every Billionaire Is a Policy Failure

On Tuesday, Sen. Bernie Sanders (I–Vt.) rolled out his plan for a wealth tax on families whose net worth exceeds $32 million. The purpose of the tax is two-fold: raise revenue for the senator’s high-spending domestic agenda, and eliminate supposedly unjust concentrations of private wealth.

That would include anyone worth more than $1 billion, according to Sanders, who tweeted out The New York Times coverage of his proposal with the caption “billionaires should not exist.”

Sanders’ wealth tax ranges from a 1 percent yearly tax on net wealth above $32 million held by a married couple ($16 million for a single person) to an 8 percent tax on a married couple’s wealth that exceeds $10 billion ($5 billion for a single person).

This would supposedly raise $4.5 trillion over 10 years, which would then be spent on Sanders’ $2.5 trillion housing proposal, universal childcare, and a portion of his $32 trillion Medicare For All plan.

His plan is similar to a wealth tax proposed by Sen. Elizabeth Warren (D–Mass.) earlier this year, which would tax fortunes that exceed $50 million.

Despite the ambitious aims of Sanders’ wealth tax proposal, there are good reasons to doubt that it will bring in nearly as much revenue as he is projecting, let alone that it will abolish billionaires.

For starters, the difficulty in valuing the wealth held by the rich on a year-to-year basis would make a wealth tax hard and expensive to administer compared to other forms of taxation.

“The uber wealthy tend to have very hard-to-value assets. They own more than publicly-traded stock, such as real estate holdings, trusts, and business ownership interests,” wrote Nicole Kaeding and Kyle Pomerleau for the Tax Foundation in January, when evaluating Warren’s wealth tax proposal. “It is difficult to value these assets on an ongoing basis. Imagine a large privately-held company—its value could change almost daily. How would the tax handle these fluctuations?”

The current estate tax, a one-time wealth tax on inheritance, is already a headache for the Internal Revenue Service to administer, Kaeding and Pomerleau point out. The administration of a yearly wealth tax would be even more difficult.

Politically expedient or economically necessary carve-outs and loopholes will also reduce the revenue one can expect a wealth tax to generate, says Chris Edwards, a tax policy scholar with the Cato Institute.

“If they were passed into law there would be all kinds of exemptions and exceptions like farmland. Rich people would move their wealth to those exempted areas and the government wouldn’t raise that much money,” he says.

This, adds Edwards, is exactly what happened in the 12 European countries that adopted wealth taxes. Revenue was disappointing, raking in on average about .2 percent of GDP. In the U.S. context that would work out to be a little under $40 billion a year, or about 10 percent of what Sanders is claiming his wealth tax will generate.

All but three of the European countries that adopted a wealth tax have since repealed it, citing low revenues, high administration costs, burdensome effects on entrepreneurship, and capital flight.

Sanders has a few ideas on how to make administration easier and prevent the rich from evading his wealth tax, including a “national wealth registry,” a 100 percent audit rate for billionaires, and a 40-60 percent tax on wealthy emigrants.

Fewer exemptions, however, means a wealth tax will have harsher economic effects, says Edwards.

“The left-wingers have this idea that most wealth is gold bars underneath the mattresses of rich people,” Edwards observes. “Most wealth is actually active business assets. It’s the value of the assets that are actively producing and employing people in production.”

Taxing these business assets would, in turn, mean less capital investment, argues Edwards, and therefore fewer jobs or lower wages for the workers who would have otherwise been made more productive by that capital investment.

The innumerate problems with a wealth tax, coupled with the fact that much easier means exist for the government to shake down the wealthy, suggests that Sanders’ proposal is less about policy and more about signaling.

That is something Reason‘s Peter Suderman argued in a recent video, observing that “the wealth tax is best understood, not as a revenue raiser, but as a symbolic declaration of opposition to the existence of outsized wealth, regardless of how it was obtained.”

 

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