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When I began these posts during the first Trump administration, I had a great deal to say about the threats to national security posed by the policies, procedures and behaviors of that administration. I was naive enough to think that matters could not get worse. I am here to correct my error.

The problem of security clearances may come first. There is no doubt that the President of the United States has primary classification authority and, therefore, may decide who gets to be cleared to view classified material. We normally expect that the executive decision to grant a clearance is based upon the results of an examination of the subject’s background and behavior and that the decision will be delegated to appropriate agency heads. The published requirements are clear.

Confidential – National Agency Check, Local Agency Check, Credit Check – Good for 15 years.

Secret – Same as above – Good for 10 years.

Top Secret – Single Scope Background Investigation (formerly known as a Full Field Investigation). – Good for 5 years.

TS/Special Compartmented Intelligence – A very careful SSBI.

Special Code Name Projects – Very rare and same as TS/SCI.

A change in administrations involves investigative clearances for a large number of people. While the record checks for Confidential and Secret clearance can go quickly in this computer age, SSBIs are another matter. I am willing to guess that the investigation is either truncated or skipped altogether in granting clearances for some senior appointments. When one adds the very large number of Department of Government Efficiency jobs to the list of those needing clearances, I become suspicious. Were each of these clearances based upon an appropriate investigation?I tend to doubt it.

Clearances appear to be viewed as a sign of Presidential favor. If you are in favor, the President will grant you a clearance. If he doesn’t like you, he will take your clearance away. They are lollipops at the barber shop. I have carefully scanned the requirements for clearances, and I found no reference to liking the President among them.

We can now turn to the question of document security. Some media reports indicate that classified material previously removed from Mar-a-Lago under a court order has been returned to that estate. I have seen no notice of the construction of a Sensitive Compartmented Information Facility at Mar-a-Lago. I assume that they have been returned to their former “secure” storage spots in closets, bathrooms and ballrooms. I wonder who signed for them as the Classified Documents Custodian. The President will no doubt claim that he has the absolute authority to keep classified material anywhere he pleases and that he can always de-classify them if someone chooses to be picky. I weep!

The latest discussion of military operations on an insecure public site using instruments that were probably not secure raises concerns to the highest. The response by participants and the Presidents which claims that no classified information was discussed has shocked intelligence and military professionals . Times, targets and weapons systems to be used are essential elements of operational security. We should be particularly disturbed that two of the participants in the group chats listed their experience as Major and Lieutenant Colonel in the USANG and the USAR as qualifications for their appointment. How does one get to be a field grade officer without understanding the relationship between operational security and classification?

It is also worthy of note that the law frequently cited in such matters (18 USC 793) refers to “defense information” not specifically “classified” information. Surely, information about the existence of an attack by U.S. forces, the targets of the attack, the forces involved and times is “defense information.” True military and intelligence experts understand this, but they were not involved. Apparently, the more you know about a subject the less you should be involved in decisions. Unfortunately, the law requires proof of intent, and a plea of ignorance would undoubtedly prove to be a sufficient defense.

As an unapologetic conservative on national security matters, I find little reason for hope. Although these event meet my definition of “high crimes or misdemeanors”,that view is unlikely to prevail. The verdict of history is likely to be “but, they didn’t intend to do any thing bad.”

The tension between career government servants and elected political. leaders is not new. The problem is humorously depicted in two excellent BBC series, “Yes, Minister” and “Yes, Prime Minister.” Furthermore, U.S. presidents have complained of issuing executive orders only to find that nothing really happened. The “democratic” position is that the people control the government and that the President is the elected representative of the people, therefore, the President’s orders should compel bureaucratic action.

Most scholars would agree that the first, clear assertion of this democratic view can be found in the 1828 election of Andrew Jackson. Jacksonian democracy rebelled against government domination by elites. It introduced a system in which the elected executive was expected to staff government with those who reflected his views and the views of the people. This sounds familiar, doesn’t it?

However, as the Nineteenth Century wore on, the Executive branch became characterized by uninformed decisions and corruption. There is no evidence of a real connection between governmental action and a clearly expressed will of the people.

In 1883, following the assassination of President James Garfield by a disappointed office-seeker, the Pendleton Civil Service Reform Act was passed. Jobs covered by the Civil Service system are to be filled by candidates with demonstrated knowledge and competency related to the job and without consideration of partisan affiliation or loyalties. Competency was initially demonstrated through performance on examinations although this is no longer the case.

It seems obvious that current effort to reduce Federal government employees is accompanied by an emphasis on partisan or personal loyalty. This includes requiring applicants to reveal for whom they voted in the last presidential election. There is little reason to believe that the results will be any different in the 21st Century than they were in the 19th.

There is another reason to worry about the current effort to “clean house.” As I observed practices in the Pentagon for over fifteen years, I noted the importance of the civilian staff. Military personnel were moved in and out with frequency – usually after three years. The knowledge about policies and procedures lay with the more or less permanent civil service staff. A system that depends to a greater degree upon political appointees does have the possible advantage of expanding the possible tenure of civilian officials to eight years (two presidential terms). However, increasing the “churn” of office holders will add nothing to the honesty and efficiency of government. If “knowledge is power” as Francis Bacon claimed, ignorance is weakness.

Imagine for a moment attempting to run large business in the manner proposed. While it would appear that Elon Musk’s actions at Twitter/X had an effect, that effect appears largely to be giving him absolute control of every aspect of the organization. In most corporations, a new CEO replaces VPs and division heads as he or she deems necessary. They do not fire assembly line workers, sales staff, or accountants. Even a beginning student of management knows why. Think of a new CEO of Ford hiring their loyal gardener to design 2027 models.

Gov. Huey Long’s proclamation of “every man a king” was an effective populist slogan, but it served only to encourage corruption and mismanagement in Louisiana. It makes no sense at all to follow this path at the national level.

This is not really as “over-the-top” as it might seem.

National – Focus on the nation and its identity – MAGA

Socialist – Promise that government will fix all economic woes

Workers – Support of the average man against elites

Party – The group seeking control of political power

In the original – NSDAP. I left out the D for obvious reasons. If you are too young to remember, look it up.

I have finally found the software problem that has prevented me from posting for over a year. I have a few things bottled up that I have to release to my few followers before the election next week. Many of them are expansions and updates of earlier posts. Here we go.

The economy continues to feature heavily in the media and campaign rhetoric. Large numbers of people continue to believe that the U.S. economy is in terrible condition, that changing the party in control of the White House will alter that situation, and that current perceived problems are the fault of the current administration.

In an earlier post, I presented the argument that the President and the party in control of government have limited ability to influence and no ability to control economic “health” as it is usually measured. In addition, such measures as current inflation rate, employment levels, productivity, and GDP growth show the U.S. far ahead of other industrial nations. Indeed, recent inflation and price increases were never as bad as they were elsewhere.

At heart, the current criticism of economic conditions is focused on the prices of some of the current goods and services in the market. Promises to “fix” the problem must, therefore, aim at reducing or controlling those prices. This has been tried elsewhere under various forms of socialism, and it has failed. Markets have always managed to find a way to frustrate government in the long run. Governments do influence prices, but they cannot successfully maintain control over them.

One candidate for President promises to take action to prevent “price gouging.” This apparently refers to the use of high prices to maintain “unreasonably” high profits. As many have pointed out, control of prices by control of profits has at least a whiff of socialism about it. At the very least, it would be politically difficult to push through Congress and the courts.

The candidate’s other economic proposal to address high prices aims at housing. She suggests government subsidies to encourage development of additional housing at more affordable levels. This has the merits of directing attention at the market in a traditional way. That is to decrease prices by increasing supply relative to demand.

The other major candidate is content to describe the current economy as “terrible” and to agree that high prices are at the heart of the matter. Because he says that this situation was caused by the current administration, he implies that he would “fix” the problem if elected. He doesn’t say how he would do this, but, to me, the scent of socialism is even stronger. In the context of the rest of the campaign rhetoric, the primary focus would be on executive action. I will leave it to the reader to further label this.

Another persistent issue is immigration. We are told by some that the inmates of prisons and asylums are flooding across open borders to kill, loot, and take our jobs. There is absolutely no evidence to support this claim. All of the immigrant groups who came to this country included some criminals and people with mental health issues. This includes the groups which included the ancestors of current candidates for office.

A recent epsode of “Finding Your Roots” led by Dr. Henry Louis Gates dealt with the genealogy of two Irish/American celebrities. He described for them the political and social movement, the Know Nothing Party, that waged an abusive campaign against Irish immigrants. Nineteenth Century Americans were assured that the Irish were flooding across our open borders to kill, loot, and take our jobs. In fact, they came to avoid starvation in a country in which they could no longer support themselves.

If you are confused by this, take the time to find out who the people at our borders really are. Our government tries hard to screen out those who might fit the political description of them. They could do better with the resources that would have been provided by the bi-partisan legislation that should have been passed this year.

Isn’t it strange that the immigration issue is a world-wide issue? I have yet to see a thoughtful comparison. In England, France, Germany, Italy, Greece, Turkey, Denmark, and Sweden immigration has become a critical political and social issue. Nationalist parties opposed to immigration are growing in strength. Millions of people throughout the world are seeking to cross national boundaries in search of a better life. Shouldn’t prosperous developed nations be concentrating on a way to respond to the problem instead of supporting the growth of nationalist movements?

We all descend from immigrants in this country. Who got here first? I don’t really know, but it was long enough ago that it is probably not worth arguing about. Our ancestors came for a variety of reasons – economic, religious, political- just as those who currently are flocking to borders around the world. They were not, for the most part, morally inferior. They brought with them the skills and traditions that helped to make this country great. Why should keeping more such people out become a major political goal of our election? Is this the year that the Know Nothings finally win?

On August 3, 2017, I posted an essay on this site in which I was critical of former Secretary of State Hillary Clinton and President Donald Trump for their handling of classified information. Unfortunately, the current uproar over documents retained by the outgoing president raises the issue anew.

Critics of the actions of the Department of Justice in its applying for and executing a search warrant for the former president’s home at Mar-a-Lago have complained about almost every aspect of the activity. Mr. Trump and his allies have asked why DOJ didn’t just ask for the documents in question. Reports indicate that DOJ communicated at length with Mr. Trump’s attorneys about documents taken to Mar-a-Lago, and, at one point, they were assured by one attorney that no classified material remained at that site. They also issued a subpoena for the documents which they sought and did not receive them.

While the affidavit in support of the request for a search warrant remains sealed, one can offer a reasoned hypothesis in explaining such an unusual action. My hypothesis is based on the fact that highly sensitive, classified documents are controlled at the individual level. That is, each original document and all copies bear a unique identifier. A record is maintained which reflects the holder of each copy. A transmittal form accompanies each document as it moves from one holder to another. In reviewing the documents transferred to their care upon the departure of the Trump administration, the National Archives and Records Administration would have had a list of such classified documents that had been sent to the White House. They would have found it easy to determine that the documents that they received did not include one or more such sensitive documents. Such a finding would have generated a request to the Trump staff to explain the absence of these documents. If the documents still were not located, they would have reported the matter to DOJ. Is this what happened? I don’t know for sure, but I will bet that it is at least a partial explanation for the DOJ suspicions.

The next issue deals with the conditions under which the documents received under the warrant had been stored. We have been told that the staff at Mar-a-Lago were told that the safety provided was inadequate and that the staff then added extra locks to the storage area. Since at least one of the documents has been reported as bearing a TS/SCI marking, that is entirely inadequate. Documents bearing that classification must be stored in a Sensitive Compartmented Information Facility (SCIF). Such facilities require extensive physical security measures which extend well beyond adding another lock to the door. What is more, we are reliably informed that President Trump routinely removed such documents from the secured area to the residential wing of the White House. That further underlines the suspicion that document security was not a high priority during his tenure as president and after it as well.

At one point in my life, I held the position as Classified Documents Custodian for a military organization. I considered it be a stressful assignment. Fortunately, my role did not include responsibility for a SCIF. Anyone who has a security clearance should be aware of the seriousness of document control. The possibility that documents marked TS/SCI are moving around uncontrolled and unsecured should send a chill through all of us.

During the response to the execution of the warrant, some suggested that any classified documents revealed in the inventory had been planted by the FBI. This would have required that DOJ and the original classification authority have the same casual approach to document security that the staff at Mar-a-Lago displayed. It is quite a stretch to believe that officials in DOJ could obtain a copy of a TS/SCI document and transmit it to field agents in Florida for this purpose without explaining why they needed the document. Many in this chain are unlikely to possess the requisite security clearance to handle such a document.

Another response to these revelations has been that all of the documents in question had been declassified by President Trump. The President does have ultimate classification/declassification authority in most, but not all, cases. However, the description by one of his supporters of the way in which that authority was exercised by Mr. Trump is totally outside the rules of the game. He is alleged to have declared that all classified material moved to his residential area was automatically declassified.

The usual procedure for presidential declassification insures that the originator and all holders of the subject document are aware of his decision. A notice of intent to declassify is sent to the originator. This gives that agency an opportunity to object. It also enables them to notify all holders of the document of the pending action. Once this has happened and the decision is final, the document and all copies are marked as declassified with a date and an authority. The absence of such declassification markings on the documents in question suggests that they are still classified.

The interesting approach to President Trump’s classification authority by the White House staff is illustrated by the attempt to move a transcript of a telephone call with a foreign leader into the Compartmented Intelligence category in order to better restrict its circulation. No attempt to follow classification regulations was discernible. It was just a case of, “We don’t want people to see this.”

Then we come to the “What about?” response. Essentially, this says, “I may have sinned, but these guys are greater sinners.” If one examines presidential transitions that have followed the enactment of the Presidential Records Act in 1978, it is hard to find more than one sinner. Presidents of both parties have carefully followed the provisions of the act. Everything from the White House went to NARA. NARA separated classified from unclassified material and reviewed requests for release of material to be housed in presidential libraries. President Trump did not follow this procedure.

In summary, the Department of Justice followed normal procedures. President Trump did not. It remains to be seen how responsibility for any violations of law will be determined. I can only observe that, when I possessed a security clearance and was responsible for handling classified documents, I knew that there would be consequences if I failed to perform my duties in accordance with the law.

The title of this post is a phrase that Shakespeare has Henry V utter at the Siege of Honfleur. I chose it because this is another attempt to deal with a subject I first addressed in my first posts in 2018. It also is a recognition of a battle still to be fought. I am not completely sure how “winning” is to be defined, but a significant reduction in the casualties from mass shootings would be beginning.

At the forefront of the current debate stands the Second Amendment. Many of the loudest opponents of governmental action to deal with mass shootings are Second Amendment absolutists. As I pointed out in an earlier post, one thing that Justice Scalia’s majority opinion makes clears is that regulation of firearms is permissible under the Second Amendment. [See D.C. v. Heller, 554 U.S. 570, 128 S. Ct. 2783 (2008).]. Most people know and accept that the government does not allow us to possess fully automatic weapons, anti-tank weapons, artillery, and guided missiles. (I might add that all of these should be allowed if one accepts the novel historical basis for the amendment put forth by Justice Scalia in Heller. How is one to oppose the military of a tyrant armed only with small arms?)

It is clear to most people that any attempt to deal with the mass shootings will operate only at the margins. It will focus on future behavior and future acquisition and use of firearms. While it would be ideal to reduce the number of dangerous weapons available in homes and on the streets, I remain skeptical about the success of such measures in the United States. However, buy-back efforts appear to have great success in Australia.

There is currently much discussion about appropriate government action to achieve such a reduction. Some argue that the only solution is to identify disturbed individuals in advance and to get them appropriate treatment. While it is important to encourage members of the public to be aware of potentially dangerous attitudes and behavior, translating that into effective treatment modalities is extraordinarily difficult. Furthermore, many of these same individuals oppose one hundred per cent background checks that would include gun shows and private sales.

Others choose to focus on the weapons used in mass shootings. While hand guns and traditional long guns have been involved in a few such events, the assault rifle has been the weapon of choice in the most serious. What about a ban on the purchase of such weapons as President Biden and others have suggested? Had such a ban been in effect the shooters in Buffalo and Uvalde would not have been able to purchase the weapons used. They might have obtained them elsewhere, but only with great difficulty.

We have seen arguments that suggest that it is not possible to define “assault rifle” with sufficient precision to support regulation. This is clearly not the case. When contracting for recent weapons for our military it was necessary to provide specifications for potential bidders. These specifications are performance based and independent of nomenclature and manufacturer. It makes no difference whether AR stands for Armalite or Assault Rifle. What the military was looking for an individual weapon that could project rounds toward the target at a high rate with maximum effect. These requirements affect both the weapon and the ammunition used.

Although civilian versions of assault rifles are not capable of fully automatic or even burst fire, they are capable of a rapid rate of fire. Their only limitations are the speed with which the firer pulls the trigger and the size of the magazine. Since trigger pull can, obviously, be quite rapid, magazine size is critical. Military weapons are often provided with 30-round magazines to achieve maximum effect. Even larger magazines are available for civilian versions.

Assault weapons largely use 5.56 NATO or .223 cal. ammunition. The slight difference between the two is not germane to the argument here. The critical consideration is the effect on the target when hit. Let us not be deceived. The target in question for an assault weapon is a human being. The designers did not create them for big game hunting or target shooting. There is little question about the effect of these rounds on a human target. I pointed out in an earlier post that testimony from trauma surgeons who have experienced the results first hand is compelling. While a 30 cal., 45 cal., or 9 mm round will follow a relatively straight path through a human target, the .223 will tumble, thereby doing maximum damage to organs and tissue. You may recall recent testimony in which the spokesperson held up a pair of green sneakers and said that they were the way in which the identity of the child victim could be determined because the child had been struck by multiple .223 rounds.

What is the role of the assault rifle in the civilian world? Obviously, they may be purchased for their original purpose – killing or seriously wounding human beings. Advocates stress that such activity is in self-defense. This type of weapon is not ideal for such purposes. It is extraordinarily difficult to keep one at hand to use when threatened. Even if they are kept at home to defend ones “castle,” prudent individuals keep them locked up to keep children and angry spouses from accidentally grabbing them. Is the invader going to ring the doorbell first in order to give you time to get to your gun safe, or is the gun owner to throw caution to the winds and keep it “locked and loaded” under their bed?

One defender of civilian ownership of these weapons pronounced them to be ideal for shooting “varmints.” Weapons that use .223 or similar ammunition for shooting small “pests” have been widely available for years. Most of them follow a standard bolt-action, pump, or lever-action design with relatively small magazines. There is no doubt that an AR-15 could be used for such a purpose, but it is not even close to being the best choice of experts.

If the government does not ban assault weapons for civilian use, they should at least place a limit on the size of magazines used. This would have the virtue of extending safeguards to hand guns as well as long guns. I once asked a friend who owns a Glock 15 why he needed the large magazine. Surely, he was a better shot than that. His reply was that it enabled him to shoot fifteen “bad guys.” I suppose that there are circumstances under which that response would make sense, but I am having trouble visualizing them.

Those who would preserve the availability of assault weapons and large magazines, often argue that the best deterrent of mass shooting would be to increase the presence of armed defenders. This “solution” seems to be the modern version of the old west shoot-out in which the law officer engages the outlaw in the middle of the street. This can turn out badly. In Buffalo, an armed, trained guard engaged the assailant and was killed. The assailant had an AR-15 and body armor. The guard had a handgun. Even if the guard had been wearing body armor, he would have been out-gunned.

There are those who are sure that the best response is a variant of the above in which teachers are issued weapons with which to defend their classrooms. It is hard to see how such a response would have results that differ from those of Buffalo and Uvalde. An unarmored teacher with a hand gun would not last but a few seconds against an armored assailant with an assault rifle even if they were able to bring their weapon to bear in an instant. To even the contest, every teacher would have to wear body armor and carry their assault rifle at all times.

By now, it should be obvious that I am arguing for decisive measures in accordance with the reasonable regulation of gun ownership accepted by the majority of the Supreme Court in Heller. Universal background checks, raising the age to buy an assault weapon, and universal “red flag” laws will help, but their effect may not be noticeable. While a ban on assault weapons and large magazines isnot a perfect solution given number of such weapons currently in private hands, such action would clearly have prevented Buffalo, Uvalde, and Tulsa at the time and in the manner in which they occurred. Unfortunately, this view is unlikely to prevail in Congress.

The practice of exaggerating Presidential power continues with every media statement particularly those reporting the results of the latest public opinion poll. While one can find learned statements emphasizing the limits on this power, they are buried in opinion columns that are not widely read by the American public. Recent developments with respect to the economy and the Russian invasion of Ukraine have provided fertilizer for the crop that is already overgrown.

President’s have traditionally campaigned on platforms promising increasing job opportunities and continuing economic growth. Voters and the media take these promises seriously, and they are used as criteria upon which the President may be judged. Immediately economic indicators are claimed to represent the (pick your President) economy. In turn, they become the focus for succeeding campaigns. You may remember that James Carville , when asked what a campaign should focus upon, replied, in part, “The economy, stupid.”

This sets Presidents up to either fail or take credit for success that they only partly deserve. The national government can influence, but not control, the national economy through monetary and fiscal policy. Monetary policy is primarily implemented by The Federal Reserve Board. To be sure, the members of this body are appointed by the President with the advice and consent of the Senate, but direct control by the executive branch is really limited. Many Presidents have discovered this to their sorrow. The only way to affect monetary police set by the Federal Reserve is remove members, and that is not easy. The Fed attempts to influence the economy by expanding or contracting the supply of money by raising or lowering interest rates paid by banks and/or buying or selling bank securities.

Fiscal policy also involves raising the supply of money. In this case governments appropriate and spend money raised through taxes and borrowing. In the case of the national government, the President’s role is to propose such spending programs to Congress, to sign his approval if they are passed, and to administer the expenditure of the funds.

The goals of both types of policy are the same. Each attempts to affect the supply of money in order to stimulate or dampen demand. We are all told (I believe correctly) that demand, when related to supply, determines price. It is one thing to affect the supply of money, but it is the market (producers and consumers) that contributes mightily to the end result. We have, after all, a market economy. Attempts in other countries to give the power to control the market to a governmental official have been largely unsuccessful. Even the Chinese have been forced to recognize the effect of markets upon their economy.

The state of the American economy is determined by the behavior of millions of actors. The President is only one actor. He may influence at the margins, but he does not manage or control.

The current war in Ukraine is other case of media/pollster overstatement. In addition to asking how well the President is “managing” the economy, they want people to tell them how well he is “managing” the war in Ukraine. The answer is simple. He isn’t, and he can’t. Why would we think that a third party is able to control the behavior of combatants located thousands of miles away? The best he can do is attempt to influence that behavior through lawful executive action and to seek input from Congress through legislation. Even if the President and Congress were to decide to provide U.S. troops to assist Ukraine, they would be influencing, not managing. In my view, wars are waged and never managed. Any leader that tells you that he or she is successfully managing a war, probably doesn’t know what is going on on the battlefield.

It would be really useful if the public were fully informed about the complexity of the process of governing and the limitations placed on executive power in a democratic system. Wouldn’t it be wonderful if candidates for the highest office in the land would simply identify the policies they intended to address and the nature of the action that they would take, if elected. Do not promise success. Congress, the Supreme Court, other world actors all will undoubtedly muddy the waters.

It would also be helpful if those seeking to measure public opinion would frame their questions in the real world. Are presidential requests of the Federal Reserve appropriate? Is the legislation he or she proposed appropriate? Is he or she administering the laws passed by Congress faithfully? Are executive actions within the powers granted by the Constitution and Congress? Misleading the public services no purpose in a democracy, but informing the public is critical. But, you say, “people are not ready to respond to a government filled with complexity.” Whose fault is that?

Like many other people, I have been reading poll results and media evaluations of the first year of Joe Biden’s presidency. I suspect that many others who spent decades teaching American Government, as I did, are moved to tears. How is it that so many people do not understand our governmental system and how it came to be that way? I will suggest some possible answers to that question and, later, attempt an accurate description of the system and the process by which it was created.

Two forms of hyperbole contribute to this misunderstanding. The first is the tendency of candidates for office to overpromise. “If elected, I will…” Or if they are running for reelection, “I passed” a particular program or benefit. In no case are such claims accurate in our system of government. The voting public and media “experts” appear to believe that they are accurate and are anxious to hold officials to account for failing to keep their promises.

In covering the President and other elected officials, print and broadcast media add their own hyperbolic spin to the process. Gratuitous adjectives and adverbs make stories more exciting and thus attract more readers, listeners, and viewers. Coverage must delivered with a tone of barely concealed excitement in order to hold our attention. Finally, the political process is most easily present as a zero-sum game in which there must be winners and losers.

This hyperbole inevitably results an exaggerated view of presidential power. This exaggeration is amply illustrated when a candidate announces that, “Only I can save America”, and large numbers of voters believe him. This is a view of the presidency described by Professor Brendan Nyhan as “The Green Lantern Theory.” [https://www.wnycstudios.org/podcasts/otm/segments/joe-biden-and-green-lantern-theory-presidency-on-the-media]. In other words, the President as super-hero. For those of you who are older and not DC Comics fans, think “Mighty Mouse will save the day.”

In order to understand why these views are inaccurate, it only necessary to read the U.S. Constitution and to understand why it was written as it was. The Federalist Papers and a look at the political history of the late 18th Century in the U.S. will help a great deal. It was clear to the framers, given their experience with the Articles of Confederation, that a significant executive power was necessary to make government work. However, the phrase “executive power” raised specters of kings and emperors and such executives were to be avoided at all costs. The result, as most people remember from their school days was the separation of powers into three branches, each to provide a check on the other two.

A quick glance at the political dialogue of the 1790s reveals that this nervousness about executive power continued as the Constitution was implemented. Federalists such as Washington, Adams, and Hamilton were determined to have a real, significant executive branch. Antifederalists like Jefferson and Madison accused Washington of wanting to be a king. The debate continues to this day.

The important thing to recognize is that the Constitution works as intended. The President can do only those things that are permitted by the Constitution and/or authorized by legislation passed by Congress. The courts review both the laws and executive actions to determine their constitutionality. The President can cause legislation to be introduced to achieve a campaign “promise.” Congress may not approve the proposed legislation. Expecting the President to overcome congressional opposition through “leadership” and the use of his/her “bully pulpit” is one manifestation of the Green Lantern theory.

The courts have been willing to restrain the executive as well. For example, applicants for asylum are still forced to wait in Mexico because the Supreme Court stopped the executive branch from changing the policy without appropriate consultation with the states of Texas and Missouri which had challenged administrative action. The Court also invalidated the EPA vaccine mandate for large employers. While some members of the current Supreme Court have indicated support for expanded executive powers in the past, changes in party that controls the White House render the continuation of that support improbable.

How, then, do we evaluate the President? Did we agree with his or her stated goals in the first place? If not, then any failure to achieve those goals is a success. However, if we support those goals, we must ask a series of questions. Did the President even attempt to achieve a goal? Were there any positive achievements short of full success. What were the barriers that prevented full or partial success? Were those barriers systemic or could the President have overcome them?

There is more to the evaluation process, but that will be the subject of another post.

Every day brings us more news of protests over vaccine and mask requirements. A significant number of people (not just Americans) see even the suggestion of such requirements as an erosion of democratic freedom and evidence of movement toward a totalitarian state. Many others have published careful arguments justifying such requirements. This is but a modest effort to add to those arguments.

Michael Gerson (Washington Post, 7/28/2021) and Solomon D. Stevens (St. Louis Post Dispatch, 8/5/2021) each take their reader back to the political philosophers who informed our founding fathers on the principles of democratic government, including John Locke, Thomas Hobbes, and John Stuart Mill. They emphasize that we have government because social interaction requires it for survival. Government limits individual behavior so that we can live together safely. As James Madison pointed out in Federalist 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

We elect officers to constitute our government, but we also must determine the purposes for which they are authorized to restrict out freedoms. The Founders provided us with such a statement of purpose in the Preamble to the United States Constitution. “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Our states have long been recognized as drawing their governing purpose from the “police power.” That is the power to protect the public health, welfare , and safety.

As many others have pointed out, vaccine requirements are not new. Requirements for smallpox and MMR vaccines are almost universal for attendance at public schools. Those of us who have experienced military service know about required vaccinations. (I do not recall anyone asking for my views on the matter at the time.) What is new is the politicization of the virus in question.

It is important to recognize why governments propose and enforce such requirements. As I indicated above, they are charged with promoting the general welfare protecting the public health and welfare. Note that these are collective purposes that justify infringing upon individual rights. Under our laws, I have never had the right to endanger your health through action or inaction. Americans have understood this for years.

Let us look at another example. Suppose that I like driving an automobile at high speeds. I choose to manifest this preference by driving past your house at 100 mph. Should the government stop me? Of course they should. The speed limit is there to protect you, your family, and your friends. The entire traffic codes of our states are based upon the principle of protecting the many from the dangers presented by the few. There are areas in which legitimate arguments to the contrary might be offered such as motorcycle helmets and seat belts, since those are individual protections and not collective ones.

The science supporting Covid public health requirements is fluid. Experts continue to find out new things about the virus and its changing forms, about vaccines and other preventive measure, and about treatments. That governments have chosen to change recommendations and requirements in response to new understanding has been treated by many as a weakness at best and a demonstration of authoritarian tendencies at worst. It may more accurately be seen as indication of a sensitivity to the need to limit restrictions on the behavior of individuals. The view toward the vulnerability of children is changing. More children are experiencing infection, and some infections are serious. Should vaccination policy and mask requirements not change as well? Does my freedom to avoid a mask have greater importance than the lives of school children? (Although vaccinated, I may still transmit the virus.)

Much of this controversy appears to stem from a more general anti-government attitude in this country. Some are against government in general. Others are anti-police. Still others target the IRS or CDC. There are even a few like the poet William Ernest Henley who insist that “I am the master of my fate, I am the captain of my soul.” These few appear to long for a state of nature in which the individual has absolute freedom. To them Thomas Hobbes’ warning is appropriate. Life in the state of nature is “solitary, poor, nasty, brutish, and short”. I hope that most of us would prefer a life in which concern for the welfare of others does not take a back seat.

An earlier post suggested that an appropriate goal for our political leaders would be a basic agreement on the rules of the game. Each day the news underscores the inability of our decision makers, particularly in Washington, to reach such a fundamental agreement. What are, or should be, the rules? An overly simple outline follows.

There are two basic paths by which a law is created. The first begins in the Executive branch. After consultation with his Cabinet and staff, the Executive proposes a policy which is then transmitted to the Legislature. Under ideal circumstances, each house of the Legislature then prepares its response to that proposal. Those responses almost always differ from the original proposal from the Executive and from one another. The legislative responses are transmitted to a conference committee that, through negotiation and compromise, works out a version which is returned to both houses for final approval. The bill is then returned to the Executive who may either sign it or, if the changes are too great, veto it. That veto is then subject to an override by the Legislature.

The second path begins in the Legislature. A member or members may introduce legislation on their own. If the leadership deems it worthy, that proposal goes through the same committee review as an executive proposals. Those that received approval go to the full house for vote and are then referred to the other house for their reaction. If the other house passes a version of the bill that differs from the original, the conference committee is convened, and differences are ironed out. The final bill is sent to the Executive for signature or veto.

This all is Civics 101. The problem lies in how the participants and the media really see the process through the filter of partisanship or bipartisanship. There appears to be an assumption that bipartisanship means that the Executive should consult with the opposition party and negotiate support for a policy on which both parties can agree. When executive proposals appear to be drafted solely from the prospective of one party, the opposition responds in outrage, and the media pundits bemoan the fate of bipartisanship.

When candidates run for executive offices they have a platform or a series of “promises” that they offer to voters. “If elected, I will…” Of course, they won’t. While some actions may be taken by Executive Order, major policy changes and expenditures will involve legislative action, and, in a few cases, judicial review. What they really mean is “I will try to…” It is unrealistic and inappropriate for us to expect the Executive to negotiate compromises with the opposition ahead of time. His/her attentive supporters expect at least an attempt to keep “promises” in something resembling their original form.

It is in the legislative process that compromises are supposed to take place. It is here that the opposition may have its day. If they agree that some action is necessary, then they may propose alternative language. Appropriations always involve such give and take. Even the majority party rarely agrees fully with the Executive Budget. If the opposition thinks that no alternative language is appropriate, they simply vote, “No.” Bipartisanship can be said to have been achieved when more than a few members of the opposition party vote in favor of the proposed legislation. The use of the filibuster in the U.S. Senate obviously makes bipartisanship more difficult. “A few” immediately translates into “enough to equal sixty total Senators.”

What do the “rules” suggest for an Executive who follows the first path. Original proposals should follow platforms and campaign “promises.” The Executive and their staff immediately begin identifying key legislators to determine potential support for the proposals. Do they favor any action at all? If they do, in what respects would they wish to change the proposal? Once the Executive has demonstrated a willingness to listen, further negotiations need to take place among legislative leadership in an effort to arrive at language supported by a “bipartisan” majority.

For legislation that follows the second path, the burden falls initially on the leadership in the two houses. Each party leader must determine whether the proposal is one that they wish to consider and, if so, in what form. This is particularly true when the legislative control is split between the parties (or effectively so).

In recent years, leaders in Congress have demonstrated little interest in bipartisanship. The recent passage of the Defense Authorization bill and the subsequent override of a Presidential veto is a notable exception. In many instances, legislation that passed the House was simply never considered in the Senate. There was no effort to construct a bipartisan majority. There was no effort even to vote, “No.”

While following the “rules of the game” might result in useful bipartisan public policy, it is routinely trumped by consideration of electoral politics. It is not honest to promote “party first” behavior while loudly proclaiming a devotion to bipartisanship. But why inject honesty into the discussion?

Last week PBS featured a program which discussed the nature of America and Americans in the wake of the assault on the Capitol on January 6th. A series of panelists attempted to define the character of the American people. There seemed to be a consensus that, as a people, we are not as virtuous as we would have others believe. This was in stark contrast to those who, in response to the violence, contended, “This is not who we are.”

It is useful to be able to generalize in a world filled with complex people and events. Were we to treat every event and person as unique, as fitting as that might be, we might well be overcome with the multiple stimuli and rendered incapable of action. We have to be able to do some sorting. In politics, we attempt to sort by party label and/or by perceived position on an ideological spectrum. The results are fully satisfying only to the uncritical or members of the media with time deadlines and space limitations.

James Madison recognized the problem in Federalist 10 where he discussed the influence of faction and its relation to the proposed Constitution. He pointed out that to eliminate faction it would be necessary to eliminate freedom. He hoped that the framework provided by the Constitution would permit us to manage the problems resulting from factions. Thus, when we seek to “unify our divided nation,” Madison would have us agree on the rules of the game in resolving policy conflict and selecting political leaders. Those rules are based upon the Constitution as expanded by Federal and State laws. That is the best we can expect in a free and democratic society.

But wait! Some have claimed that the rules are being violated. Elections are being stolen. The Madisonian response is to follow the Constitutional procedures designed to deal with such controversy. Carefully examine the facts, and, when appropriate submit those facts to courts for adjudication. At the end of the game the “losing team” complained that the “winners” had violated the rules. The umpires/referees disagreed. “Upon further review the ruling on the field is confirmed.” To deny the fairness of such a process is to grant to one faction (or its leader) the ability to decide what the rules are and when they have been followed. This is not democracy.

Another area in which the tendency to over-generalize plagues us is the area of civil disobedience. Protests are too often characterized as whole “movements” without recognizing real differences between those on the ground. Black Lives Matter protesters largely followed the basic rules for protected protest under the First Amendment. Yes, there were many cases of “failure to disperse,” but that is the nature of protest. However, some took advantage of the protest to participate in property damage, arson, and looting which are not protected activities. These people should be identified, arrested, and prosecuted, but do not characterize the Black Lives Matter movement.

The same may be said of the demonstrations on January 6th. Urged on by the President, a large number of people gathered before the Capitol to protest what they considered to be certification of an illegal election. So far, that activity falls under the protection of the First Amendment just as that of the Black Lives Matter group. Again, there is a “however.” Some within the crowd were domestic terrorists, neo-Nazis, white supremacists, and anarchists. This group stormed the Capitol. They should be identified, arrested, and prosecuted along with those law breakers listed above.

We still may make judgements based upon our knowledge of the facts. The events protested by Black Lives Matter happened. Those protested by Stop the Steal did not. Both protests are and should be protected. They are but the result of our inevitable factions. Some factions may be judged “good” by some and “bad” by others, but as long as they follow fundamental rules of law, they are equal.

The title to this post comes from a comment made to a group of tourists by a Russian guide several years ago. We were in the Peter and Paul Cathedral in Saint Petersburg and standing before the tombs of Catherine the Great and Peter the Great. The guide offered her opinion that there would another tomb for Vladimir the Great. It seemed to us to be skating a thin edge between humor and political commentary. Perhaps we were wrong.

Following the 2016 election, President Donald Trump suggested that his opponent, Hilary Clinton only received more votes than he did because of voter fraud. This theme continued throughout his term of office. As it became probable that he would lose in his bid for reelection, the President and his supporters increased the extent and the volume of their claims that the upcoming election would be “rigged” and filled with voter fraud. These claims increased even more after the election. Today a large minority of Americans and a majority of Republicans accept these claims and appear to believe that President Trump won reelection in 2020. The fact that the Department of Justice and the election security monitors of the Department of Homeland Security found no evidence of widespread voting irregularities has had no effect on these beliefs.

What has this to do with Vladimir Putin and Russia. It represents the achievement of some of the major goals of Russian activity directed toward the United States. These goals have been recognized within our intelligence community and publicly reported for some time. An illuminating report from the Director of National Intelligence in 2017 provides insight on the subject. (Assessing Russian Activities and Intentions in Recent U.S. Elections, Intelligence Community Assessment 2027-01D, 6 January 2017). An extensive quotation from that document is appropriate.

“Russian efforts to influence the 2016 US presidential election represent the most recent expression of Moscow’s longstanding desire to undermine the US-led liberal democratic order, but these activities demonstrated a significant escalation in directness, level of activity, and scope of effort compared to previous operations.

We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump. We have high confidence in these judgments.” (p. ii)

The purpose of producing this judgement here is not to rehash the 2016 election. It is to point to the degree to which President Putin and his colleagues have been successful in realizing their goals. For those of us who value traditional democratic processes, this is a cause for weeping. It undermines those processes at home and seriously diminishes the standing of the United States abroad.

Of course, at the time of its issue, there were those who derided the assessment as yet another product of a “deep state” conspiracy against the forces of truth and virtue. Even those of us who were at the remote fringe of the U.S. intelligence community have enough knowledge and experience to dismiss such claims. Our intelligence services are staffed with dedicated professionals. They sometimes make mistakes, but all mortals do. That is one of the reasons that assessments represent the product of many separate elements within the community. Individual members of the community have political points of view. Some are liberal. Some are conservative. The people who provided the data and analysis underlying this assessment were not political appointees. They were public servants trying to warn us of a danger to our political system. They were, apparently, not sufficiently successful.

Perhaps his supporters will cite this as a major achievement when they seek to prepare a place in Peter and Paul Cathedral for Vladimir the Great.

Just before the Republican National Convention last night, Donald Trump, Jr. posted a photo in a jacket which seemed to be designed to demonstrate American patriotism. One-half of the jacket was a blue field with large, white stars. The other half was a series of broad, alternating red and white stripes. Apparel of this type is not unusual. It is intended as a patriotic statement. It also seems illegal.

4 U.S. Code, Section 8 states, in part, “The flag should never be used as wearing apparel…” It also states that, “No part of the flag should. ever be used as a costume…” I am sure that many will contend that Mr. Trump is wearing only a sport coat, not a real flag. However, the design is intended to say, “American flag,” and its wearer is to appear wrapped in it.

Whether the coat falls under the second prohibition depends upon one’s definition of “costume.” Under the most general definition in Merriam Webster a costume is “a person’s ensemble of outer garments.” The U.S. Code provides no definition of the term, but it seems reasonable to conclude that the coat falls within the general definition. It is also important to note that the statute refers to “no part of the flag.” Clearly, a field a blue with white stars is part of our flag as is a series of alternating red and white stripes. Were one to be provided only with those two characteristics as a description and asked to identify the object, most Americans would say, “the American flag.”

While there is an enforcement mechanism for this part of the Code, it has not been used. More’s the shame. Much is made of respect for the flag for which “Americans have fought and died.” It is beyond ironic that the provisions of Section 8, 4 U.S. are frequently violated by those who are critical of others who “take a knee” during the National Anthem. The provisions cited here are only two of many that are violated. To make matters worse, observe the conduct during the National Anthem. 36 U.S. Code, Section 301 says that “persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart” during the anthem. Members of the military and veterans render a hand salute. Do people really do this consistently? Have you seen public officials chatting during the anthem?

Respect for the flag and the National Anthem are good things. They are symbols which might serve to unify the nation. Obviously, there are those who feel that the “Republic for which it stands” has not lived up to its ideals, and who wish to protest. Are the other examples of statutory disrespect protests as well? What are those who wear the flag or parts thereof as items of clothing protesting? If they are only attempting to say, “I am patriotic,” there are many more effective ways to do so.

In fact, they may be little more than “sunshine patriots.” The words of Thomas Paine in “The American Crisis” on December 19, 1776 seem apt. “These are the times that try men’s souls; the summer soldier and the sunshine patriot will, in this crisis, shrink from the service of his country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.”

As is so often the case in our polarized nation, current demonstrations and the law enforcement response to them have created a sharp debate. The issues are over-simplified so that the “good guys” and the “bad guys” can be identified without resorting to the color of their hats. Conservative columnist Jonah Goldberg probably is a bit unkind when, in a recent column, he proclaimed, “There’s idiocy on all sides in ‘law and order’ road show.” He is right in thinking that neither side in the debate is free from error.

We can start with the demonstrations and demonstrators, since without them there would be no debate. While the First Amendment to the U.S. Constitution guarantees the right to free speech and to petition in redress of grievances, it has long been recognized that these freedoms are not absolute. However, the general rule today is that speech can be limited only if is likely to incite “imminent lawless action.” [Brandenburg v. Ohio 395 U.S. 444 (1969)] Obviously, such a standard is still open to a wide variety of interpretations, but any challenge to the words spoken by those demonstrating in demand for criminal justice reform would have to stand the test. So far, that has not appeared to be a central issue.

The matter becomes more complicated when the demonstrations involve non-verbal actions. In general, non-verbal actions that are “peaceful” in that they do not harm persons or property should be, and often are, considered to be protected. When they are not peaceful, they should not be protected.

This is a big part of the demonstrators problem. As Attorney General Barr has pointed out, there is some evidence that non-peaceful elements have “high-jacked” some demonstrations. Throwing objects and fireworks at officers and setting fires cannot be considered peaceful acts. I suspect that most of those demonstrating would agree with that assessment. It probably correct to state that violent protesters are using peaceful protesters as “cover.” It is hard to demand that the peaceful protestors should abandon the field in the face of this problem.

Another difficulty with the demonstrations are the targets that they have chose in many circumstances. Federal court houses are poor targets. They obviously provide an excuse for a stronger governmental response to the demonstration itself. They are also symbols of the government least likely to provide effective reform of the sort sought by the protesters. Federal reform legislation will be dependent upon less than fully direct means of enforcement. State governments have immediate direct control over law enforcement behavior of their officers. Demonstrations should focus on those state and local officials most likely to provide meaningful relief. This is one of those awkward areas of our federal system of government. The most effective and quickest responses are likely to occur at the local level when community leaders meet with government officials and law enforcement leaders to seek solutions. Barriers to progress may be easier to define and reduced or eliminated.

Law enforcement has its share of problems as well. Yes, protecting Federal property is a legitimate role for Federal officers. Other activity is more problematic. Federal officials appear to be suggesting that a general elimination of violence in the streets falls within their purview. It does not. Unless there is a clearly identified Federal legal act involved, there is no role for Federal officers. In areas in which State and Federal jurisdictions overlap, cooperative activity on terms agree upon by both sides is usually the practice. Activities of the FBI, the DEA, and the ATF are cases in point. Unless state and local officials have requested assistance and agree to its terms, Federal involvement in local law enforcement would appear to be in violation of the Tenth Amendment to the U.S. Constitution.

A more intractable problem is the law enforcement response to large demonstrations. Even though the individuals engaged in lawless behavior may be few in number, the response is usually general. Peaceful protestors are prohibited from behaving lawfully, while acts of violence generally go unpunished. An arrest for “failure to disperse” is a poor substitute for an arrest for arson or assault. No peaceful protesters should be subject to chemical or other “non-lethal” control measures. The lawbreakers should be identified, fixed in place, and arrested.

Finally, to return to the demonstrators. They must help to purge their ranks of those whose behavior damages their cause. Help the police to identify the violent. Most importantly, they need to seek leaders in the mold of Gandhi, Nelson Mandela, Martin Luther King, and John Lewis. These were leaders who were determined, persistent, but peaceful. Without them little progress would have been made in the search for justice. Apparently, a clear majority of the people of this nation support criminal justice reform. The role of the peaceful demonstrator is to keep the issue alive and to encourage further support.