Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

05 January 2018

Treason, Dereliction of Duty, Common Law, and Common Sense

[For comment on Sunday’s abysmal news cycle, click here. For the most recent principal essay on Trump’s treason by action and omission, click here. For links to popular recent posts, click here.]


No, the title above is not a typo. It’s a takeoff, which will become clear soon.

Sunday’s print New York Times was horrifying. It’s lead story reported the greatest failure of U.S. intelligence sine 9/11 and, before then, since the Rosenbergs stole our atomic-trigger design and gave it to the Soviets.

This time, we overestimated by several years North Korea’s time to develop nuclear missiles that can reach our mainland cities. That means that we have months, not years, to launch a pre-emptive nuclear strike—whose consequences could destroy most of the Korean Peninsula. Or we must live with Kim Jong Un, for the foreseeable future, under Mutual Assured Destruction.

Oh, well. We lived so with the Soviets for decades. At that time, they were human history’s most battered people and so far more conservative, tractable and reasonable than Kim has ever been and ever will be.

But what the hell! Starting a nuclear war under the erratic and narcissistic rule of Donald Trump would put us right up there with the Nazis, the Turks in their genocide of Armenians, and the hutus in their Rwandan genocide. I guess we can console ourselves with the good things our spooks missed completely, too, such as the Soviet Union’s spontaneous fall and dissolution.

For whatever reason—whether the “Bomb Cyclone” on the East Coast or the time of year—the rest of Sunday’s Times was pathetic. So I went back to bed and plied my cell phone for information.

What did I find? The whole of Cyberspace—including the Washington Post, Jeff Bezos’ bold attempt to save hard-hitting journalism—was devoted to one thing only. The infosphere was alive with a series of manchild taunts among our President, Steve Bannon, Mark Miller, and various so-called “newspeople.”

Talk about infantilization! An entire news day devoted exclusively to childlike taunts better suited to a kindergarten playground than a great democracy!

From its inception, I have seen Twitter as an Instrument of the Devil. I have never used the site, never had an account, and never had the slightest interest in doing either. Now I know precisely why.

Like many professors, I spent part of my early career teaching entering students how to use our species’ greatest gift—language—to collect, compare, analyze and digest information. I taught them how to use their grapefruit-sized brains to squeeze some coherent abstract sense out of the vast streams of information in which we live. That process inevitably takes lots of time, great effort, and multiple iterations.

To encourage grown men and women to treat each quick bon mot like a child’s first turd in the toilet, rather than a diaper, contravenes everything ever taught in courses in composition, reasoning, English, journalism and law throughout human history. From Socrates and Archimedes to De Cartes, Jefferson, and Churchill, our greatest thinkers and leaders are rotating at high velocity in their graves, powered by the menace of a modern corporation all of eleven years old—about the mental age of those who use it as a crutch.

Nothing in my life’s experience of 72 two years has so corrupted our society. And nothing today is so suited to our current leader’s self-evident dementia, narcissism, and less-than-abysmal personal character.

“MAGA!” his red caps scream. “Make America Great Again.” But the best we can hope to do with this miserable child-man is to “make America adult again.”

If the initials of that motto sound like a child crying for its mother in the wilderness, the resemblance is entirely appropriate. For that will be where we will be as a nation if we allow another whole year to pass under his puerile misrule.

The current principal essay follows:

How did our Founders define Treason? Basically, they didn’t. They didn’t live in a legal environment like today’s, when we define every nuance of every offense, civil or criminal, minutely in fulsome language in a statute. That’s one reason, besides our Founders’ political brilliance, why our Constitution is so short.

They lived almost entirely under English common law. It was and is a marvelous system that relies on the wisdom of individual judges to advance the law in a way consistent with precedent, statutes, justice and common sense. Today we have largely superseded our own common law with detailed statutes, leading lawyers and judges to parse every word in depth, like priests interpreting ancient scriptures.

But treason is not like that. We have never had enough cases of treason, other than the easy ones of our own soldiers fighting for our enemies, to justify detailed federal statutes on the subject. Nor could we analyze and list, with any certainty or reliability, all the myriad ways in which treason can occur. Anyway, our Founders wouldn’t have wanted lengthy and precise language, which can be circumvented by clever defendants and misinterpreted by clever lawyers.

Our Founders wanted our Constitution to state an obvious, common-sense principle: that any official of our government, whether elected or appointed, can be impeached for “Treason, Bribery or other high Crimes and Misdemeanors.” (U.S. Constitution Article 2, Section 4.). They used four terms—a rarity in our Constitution—because they didn’t want to be tied down in advance. They wanted to cover the waterfront: at least dereliction of duty, betrayal, corruption and abuse of power.

The Congress that drove Richard Nixon to resign understood this point but took the easy way out. It had many articles of impeachment, but it focused on obstruction of justice, which Nixon had committed by his so-called “Saturday Night Massacre," firing universally respected Special Prosecutor Archibald Cox and causing two of his respected underlings to resign. That’s why President Trump and his team are doing everything they can to discredit current FBI head Robert Mueller and his investigation: they want to make an obstruction-of-justice charge politically unpalatable.

But they are missing the point. Lawyers may like obstruction charges because they are so lawyerly and so familiar to prosecutors and defense attorneys. Yet the facts of Trump’s egregious misrule justify much more serious charges: treason and dereliction of duty. To this extent, Steve Bannon’s recent charge was right on the money.

The relevant facts are simple and clear. A foreign ruler, Vladimir Putin of Russia, tried to influence our last presidential election in two ways. First, he hacked and disclosed secret e-mails and other documents of the Democratic National Committee and the Clinton Campaign and made them available for use by the Trump Campaign. Second, he commissioned a massive disinformation campaign to propagandize the American public, employing many “trolls” and “bots” for the purpose.

Whether Putin did these things personally or through intermediaries and underlings is immaterial to the charge of treason or dereliction against Trump, although it may be relevant to obstruction of justice. It’s also immaterial whether Trump got the information directly from Putin and his minions or indirectly from the public disclosure of the hacked material on the Internet that Putin apparently commanded or permitted.

The disinformation attack was effective and secret. So secret was it that the corporations whose platforms Putin exploited—including Facebook, Google and Twitter—had no idea what was going on until they investigated after receiving subpoenas to testify before our Senate. Yet when their lawyers testified, they confessed to all of the following:
126 million Facebook users having been exposed to Russian disinformation, 2,752 Twitter accounts having been controlled by Russians, 1.4 million Tweets having come from more than 36,000 Russian bots, and “1,108 videos with 43 hours of content related to the Russian effort [posted] on YouTube.”
Whether Putin’s disinformation campaign actually swayed the election we may never know. Yet that, too, is immaterial to a charge of treason or dereliction of duty. Trump has been president for over a year. Yet in all that time we have stood collectively like deer caught in the headlights, doing nothing about the attack for lack of executive interest or leadership.

The nation that invented digital computers, personal computers and the Internet has stood by idly after a cyber disinformation attack that used to be an act of war, perpetrated by military intelligence, seldom in peacetime. In all that time, Trump has refused to investigate or consider it, despite pressure by our seventeen intelligence agencies. In fact, his little temper tantrums have gone so far as to cause his direct intelligence reports to mention the attack only in written materials, which he seldom reads.

Can you imagine how the nation would have received FDR waiting a year, doing nothing but denying the fact or the significance of the Japanese sneak attack at Pearl Harbor? How about Dubya waiting a year denying the fact or the significance of 9/11?

Yet the Russian sneak attack in disinformation is probably the greater long-term threat because it’s secret and subtle, and therefore easy for dull pols to dismiss. It’s also likely to continue indefinitely and increase, both because it cost the Russians peanuts and because Putin reportedly believes that it’s the most spectacularly and immediately successful disinformation attack his spooks have ever made. When your enemy thinks he’s won a major battle against you, belittling it is nothing less than arrogance and overconfidence—two of Trump’s many salient character flaws that make him unfit to be president.

Trump denies the cyber-sneakattack’s very existence, let alone its significance, relying on Putin’s own denial. But our own seventeen intelligence agencies accept it, unanimously and with high confidence. In light of Trump’s well-established carelessness with facts—including his predecessor’s citizenship, the size of his inaugural crowd, and his allegation of three million fraudulent votes for Hillary (for which there is no evidence after considerable journalistic inquiry)—we can safely trust our own intelligence agencies. In fact, we have no alternative but putting loyalty to a fragile narcissist above patriotism, the law and common sense.

Whether Trump committed treason by using information illegally hacked by a foreign enemy and made available to his campaign (directly or by public disclosure) is a tougher question. But can the refusal to face this unique threat to our nation for over a year be anything other than treason or gross dereliction? Is Trump’s apparent reason for failing to act—the inability of his childish narcissism to accept any taint on his electoral victory—any legal, moral, political or practical excuse?

Anyway, the election is over and Trump has been president for nearly a year. It’s long past time for him to play the role of protector of our nation and our democracy. Isn’t that any president’s most basic and important function? His failure to perform it for so long, apparently for reasons of narcissism alone, makes a conclusion of treason or dereliction compelling.

Whether Trump was paid for his treason or dereliction we still don’t know. There remains the question of his tax returns, which he refuses to disclose. Why?

I can think of only three logical reasons for him refusing to do what Nixon and every president since—eight in all—have voluntarily done to earn the public’s trust. First, his returns might disclose such massive use of tax-avoidance schemes and lawsuits against him as to have thrown in doubt the entire enterprise of his tax scam just passed. Second, the returns might show that Trump is not nearly as rich as he says he is, thus raising the possibility that he might have had to seek external support for his primary campaign against the entire Republican establishment. Third, details in the tax returns might point to possible laundered money from Russia, raising the specter of direct monetary grants.

With the advent of cryptocurrencies like Bitcoin, the possibility of untraceable monetary transfers has become a probability. Indeed, the recent spike in Bitcoin’s value might be due to news or rumors that people as powerful as the presidents of the United States and of Russia have used it.

Is there hard evidence of this? Not that I know. But there’s no evidence against it, either. And the longer Trump keeps his returns from public disclosure, the less probable the first reason becomes, and the more probable the last two. Sometimes circumstantial evidence of action and motive are sufficient to convict.

As for the Russian disinformation campaign, it’s entirely possible that Trump knew nothing about it during his primary and most of his general campaign. But the Obama team informed him of it during the transition. And our intelligence services, now his own, continued to do so during his presidency, until his little temper tantrums began. In refusing to consider the evidence, let alone act on it, Trump is committing continuing acts of treason and dereliction every day.

As I have written previously, there is nothing wrong with Vladimir Putin writing an op-ed piece for the New York Times, or with the Times publishing it. Open and direct attempts of leaders to influence rival nations’ people are to be encouraged and commended. They are infinitely preferable to war.

But the Putin op-ed was signed and acknowledged. There is plenty wrong with Putin (or anyone else) using trolls and intermediaries secretly and anonymously to plant ideas in American media and make them seem as if they came from real Americans. That’s deceit and disinformation. The wrong only grows more rotten when the disinformation is designed, as it apparently has been, to incite hatred and division among us.

At the moment, Congress is still in partisan Republican hands. So none of this makes much difference. Our legislature is in thrall to rich donors and their totally selfish and short-sighted goals. The current majority party is utterly oblivious to the foreign threat to our democracy and our way of life, which allowed Putin to influence our electoral process for peanuts.

What’s worse, nearly all the “good” or “moderate” Republican members of Congress are retiring, leaving the venal, the ill-informed and the oblivious ideologues not just in charge of the party, but in complete control. This is the very first step (of three) in slip-sliding toward empire, as I have described in an earlier piece: the bad driving out the good. Putin no doubt hopes we will complete that slide to empire, with a self-obsessed emperor like Trump with whom Putin can “reason” and whom Putin can beat at any test of intelligence without breaking into a sweat.

The only hope on the horizon is we, the people. We have a chance, next November, to give the representatives who value loyalty to Trump and ideology above all else the old heave-ho. If we do not, the slide to a strange form of corporate empire will continue, and our democracy, already sliding into oligarchy, will begin to disappear. Putin’s information warfare, which is virtually certain to continue without effective response, will only hasten the process already well under way.

If this scenario and its consequences—including Trump’s failure to take the Russian sneak attack seriously even a year after taking office—do not constitute treason or dereliction of duty, I don’t know what does. Neither offense can be defined by all the nuances of our modern federal statues, which our Founders who used the term never had before them. Each has to be defined by common sense and common law, including those of the day.

By either of those measures, Trump is a traitor and derelict already. His offenses are growing in scope and consequence every single day he remains in office without an effective response to Russia’s secret disinformation attack.

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