201904

April 30, 2019 9:43AM

Peace, War, and Liberty: Understanding U.S. Foreign Policy

Americans have debated how to engage with the world since our nation’s founding. These discussions often went well beyond questions of war and peace, and of what was required to keep us safe and prosperous; we have also pondered what we can and should do to advance the cause of liberty globally. 

In recent years, however, more and more Americans have come to doubt our capacity for accomplishing great things, or even the wisdom of trying. The trauma of 9/11, followed by nearly two decades of inconclusive military interventions, casts a cloud over the conduct of U.S. foreign relations. The Cold War once seemed to unite Americans around a single, common purpose; today, foreign policy is subject to the same “blue team vs. red team” dynamics that cripple honest, frank discussions of domestic policy. The status quo prevails, driven mostly by inertia. 

In Peace, War, and Liberty: Understanding U.S. Foreign Policy, I try to shake up this tired consensus. I explore U.S. global engagement and reaffirm America’s unique role as an exemplar of human freedom. I hope that the book gets wide exposure. If it doesn’t, it will be entirely my fault. There are already several podcasts (including herehere, and here), to help get the word out, and a few other promotions planned, so now I’m hoping people will read it, like it, and recommend it to friends.

Some of the material may be familiar. There are shades of The Power Problem, published nearly ten years ago, plus some of the ideas explored in the edited volumes that have come out in the interim, including Terrorizing Ourselves, with Benjamin H. Friedman and Jim Harper; and Our Foreign Policy Choices, with Emma Ashford and Travis Evans.

But there is also quite a bit of original content. The book is split in two parts. The first half discusses the history of U.S. foreign policy, with a particular focus on the tension between limited, constitutional government and individual liberty, which flourishes during peacetime, and the growth of government and the erosion of liberty, which occurs mostly when the country is at war. I enjoyed the opportunity to dig more deeply into a few cases, including the debate over continental expansion in the mid-19th century, and the anti-imperialists’ apparent last gasp in the late-19th and early-20th. I relied on some favorite go-to sources, including Walter McDougall’s Promised Land, Crusader State, and Richard Immerman’s Empire for Liberty, but am also grateful for David Mayers’s Dissenting Voices in America’s Rise to Power and Stephen Kinzer’s The True Flag. I will be pleased if more people become acquainted with some classic speeches, including John Quincy Adams’s address on July 4, 1821William Graham Sumner’s “The Conquest of the United States by Spain”; and Dwight David Eisenhower’s “Chance for Peace” – which are now all posted at Libertarianism.org.  

The second half of the book focuses on contemporary U.S. foreign policy and the principles that should guide it. The United States is blessed by favorable geography and a vibrant economy. This gives us strategic depth and the luxury of choice. We are safer than we think, but too often fixated on what Ben Friedman calls the “Terrible ‘Ifs’”. Americans should beware of perilous partners and free riders, but remain committed to peaceful engagement with the rest of the world. Preserving our security should go hand-in-hand with advancing our prosperity and championing human liberty. It isn’t an either-or proposition. America once served as a beacon for others, and human freedom flourishes in many places where U.S. soldiers have never set foot. We need to become comfortable again with the many instruments of American power and influence, and retain our healthy skepticism of preventive action, which inevitably leads to unintended consequences. We also need a new appreciation for the importance of trade, which isn’t merely beneficial on economic grounds, but can also serve the cause of peace.

I’d like to thank everyone involved in the project, especially Grant Babcock, Tess Terrible, and the entire Libertarianism.org team, as well as my colleagues in Cato's Defense and Foreign Policy Studies Department, including John Glaser and Ted Galen Carpenter, who read early drafts and suggested areas to expand or cut. Eleanor O’Connor kept everything on track. Now that the book is officially out, I welcome feedback from others. It is available at Libertarianism.org, plus from all of your favorite booksellers, and in several formats, including paperbackKindle, and audiobook.

April 29, 2019 3:57PM

California’s High‐​Speed Train Has Done a Lot More Good for Big Consultants than for Taxpayers or Riders

The ongoing saga of California's high-speed bullet train may end up being as classic a story of Democratic politicians' hubris as the Solyndra debacle. The difference is that the bullet train is still going -- well, not the train itself, but the taxpayer spending on the planning -- despite some optimism earlier this year that Gov. Gavin Newsom was going to put the project out of its misery. A Los Angeles Times story last week by Ralph Vartabedian is a deep dive on the consulting companies that have been intimately involved in the whole process. Here's the most revealing nugget:

The rail authority’s consultants are hardly household names, but they are politically powerful and made major contributions to support the 2008 political campaign for the bullet train bond. They have staffed their ranks with former high-level bureaucrats, and their former executives have occupied key government posts....



divThe consultants, however, have played a key role in the political success of the project. Along with labor unions, consultants helped fund the campaign for the $9-billion bond that is paying everybody’s salaries, including their own.

Engineering and construction firms contributed $837,000 to the bond campaign, second only to the $1.6 million spent by various unions, according to a Times review of campaign filings. WSP put $107,000 into the campaign. There was no organized opposition to the bond measure. It passed with 52.7% support, but its popularity has dropped in public opinion polls ever since.


divThe consultants continue to provide political muscle for the project. A revolving door provides lucrative job opportunities for state and federal officials to enter higher-paying private jobs.

The firms and the unions that expected to profit from building the rail line paid for the campaign to persuade voters to approve the bond issue that would commit taxpayers to the project. And the consultants move in and out of government to make sure the project -- if not any actual train -- stays on track. Political scientists write about an "iron triangle" of government agencies that handle a particular issue or project, special interests that benefit from it, and legislative committees that oversee it. The flow of personnel -- the "revolving door" -- is part of that cozy process.

So how's all that coziness working out for California taxpayers? Here's the basic story:


When California shifted its bullet train plan into high gear in 2008, it had just 10 employees to manage and oversee design of the largest public construction project in state history.

Consultants assured the state there was little reason to hire hundreds or thousands of in-house engineers and rail experts, because the consultants could handle the heavy work themselves and save California money. It would take them only 12 years to bore under mountains, bridge rivers and build 520 miles of rail bed — all at a cost of just $33 billion....

But significant portions of this work have been flawed or mismanaged, according to records reviewed by The Times and interviews with dozens of people involved in the project. Despite repeated warnings since 2010 about weaknesses in its staffing, the rail authority believed it could reduce overall costs by relying on consultants and avoiding a large permanent workforce. But that strategy has failed to keep project costs from soaring. Ten years after voters approved it, the project is $44 billion over budget and 13 years behind schedule.

And here's a typical example of economic analyses of stadiums, convention centers, mass transit, and other megaprojects:

At one time, Cambridge Systematics, the consultant that developed ridership models, estimated that more than 90 million people would ride the trains every year, based on an overly optimistic assumption that 90% of motorists along the route would switch to trains, said David Brownstone, a UC Irvine economics professor who reviewed the work of consultants that provided ridership estimates.


div“Once we pointed out all the problems, they lowered it to 25 million and characterized it as a minor change,” he said. “Calling that a minor adjustment was a flat-out lie. The mistakes were obvious and crude.”

divIn Brownstone’s opinion, the rail authority didn’t question the calculations because high ridership estimates supported its revenue projections.

div“Some of these consultants will tell you whatever you want to hear for a fee,” Brownstone said.

This Wednesday the rail authority plans to send the legislature "a detailed plan on building a partial operating system from Bakersfield to Merced for $16 billion to $18 billion." You can drive from Bakersfield to Merced in 2.5 hours according to Google Maps. You can already take a train for $27 that covers the distance in two hours and 45 minutes, and the consultants promise that the high-speed train would cut that by 45 minutes. And all for only God-knows-how-many billions of dollars.

At only $535 million in unpaid taxpayer loans, Solyndra looks like a bargain.

April 29, 2019 3:25PM

Rep. John Garamendi’s Questionable Defense of the Jones Act

To paraphrase Ronald Reagan, the problem with Rep. John Garamendi (D-CA) isn't so much that he is uninformed, it's just that he knows so many things that aren't so. That, at least, is the impression one is left with after reading the California congressman's latest op-ed in defense of the Jones Act which is replete with errors, half-truths, and contradictions. 

Disturbingly, the Chairman of the House Armed Services Committee's Readiness Subcommittee fudges even basic facts. In the op-ed's fourth paragraph, for example, Rep. Garamendi claims there are only 81 U.S.-flag oceangoing vessels. The latest data from the U.S. Maritime Administration, however, shows 180 such ships.

Rep. Garamendi later warns about the dangers of employing foreign-flag ships to transport supplies and equipment for the U.S. military, claiming that during the 1991 Gulf War "The foreign crews on thirteen vessels mutinied, forcing those ships to abandon their military mission." But that's not true. The United States Transportation Command's official history of its performance in Operations Desert Shield and Desert Storm makes no mention of mutinies or mutineers and says that only two ships, the Trident Dusk and the Banglar Mamata, failed to deliver their cargo. Eleven other ships expressed some hesitation but did, in fact, fulfill their missions, and the Transportation Command says crews on foreign flag ships "on the whole proved dependable" and were "overall, reliable."

Furthermore, Rep. Garamendi's invocation of these foreign flag bulkers is curious, as the Jones Act is commonly presented as avoiding this very kind of foreign dependence. Plainly it is not accomplishing this goal. Indeed, another item mentioned by the Transportation Command's report is that the United States was desperately short of ships that it twice asked the Soviet Union to borrow one of theirs.

The op-ed also suffers from other curious leaps of logic and seeming contradictions. 

Rep. Garamendi, for example, hits back at criticisms the Jones Act is outdated and harmful by noting that "Ninety-one U.N. member states comprising 80 percent of the world’s coastlines have cabotage laws protecting domestic maritime trade." But this observation does nothing to refute the law's critics or prove that the Jones Act is somehow useful. Notably, countries that have moved to loosen their cabotage laws such as the Philippines and New Zealand (see page 6) have experienced positive results. 

In addition, Rep. Garamendi fails to mention that there is considerable variation in the severity of these cabotage laws. Only a handful of countries, for example, have Jones Act-style domestic-build requirements. Indeed, the Jones Act is such an extreme outlier that the World Economic Forum has deemed it the world's most restrictive example of a cabotage law. And if the commonplace nature of cabotage laws somehow validates the Jones Act, then by the same logic doesn't the unusual nature of its U.S.-build requirement suggest that this provision should be discarded?

Rep. Garamendi also claims that repealing the Jones Act would undermine U.S. economic development, but says that eliminating the law would lead to marine transportation along U.S. coastlines to be outsourced to "the cheapest foreign bidder." Well, which is it? Would the repeal of the Jones Act undermine growth or would it lead to foreign providers of shipping offering their services at cheap prices, thus saving Americans money? Unless Rep. Garamendi believes that economic prosperity is derived from higher costs and reduced purchasing power, these two statements are in direct conflict with each other. 

In his concluding paragraph, meanwhile, Rep. Garamendi calls for maintaining the Jones Act as necessary to preserve the United States' status as a "great maritime power," but this description seems in conflict with some of his other recent comments. Just last month he bemoaned the country's "dwindling merchant fleet" and in a recent letter to the Trump administration said the U.S.-flag international fleet was "in a state of precipitous decline." He has also admitted the sad state of U.S. commercial shipbuilding, stating at the Brookings Institution last month that it has been reduced to "mostly small shipyards" and a "few large ones." How do these statements comport with being a great maritime power? Or the Jones Act as a public policy success?

There is a final item that rankles. Rep. Garamendi declares the Jones Act to be the "lifeblood" of a U.S. maritime trade that "supports 650,000 jobs and almost $100 billion in annual economic impact." His figures are almost certainly based on a report from PricewaterhouseCoopers for the pro-Jones Act Transportation Institute. Notably, no copy of this report has ever been publicly released, making its findings impossible to verify or critique. That Jones Act supporters repeatedly cite a report and then refuse to release it for independent study should raise eyebrows.

The American people deserve an honest discussion about the Jones Act. Unfortunately, defenders of this law don't seem intent on giving them one.

April 29, 2019 2:20PM

In the USMCA Ratification Battle, A Big Tariff Fight Is Brewing

For those of us who support the North American Free Trade Agreement (NAFTA), the renegotiation process had us at the edge of our seats each day.  Would the three parties be able to reach agreement? If not, would the Trump administration try to withdraw from NAFTA? And if so, would Congress act to stop the withdrawal? When the newly minted U.S.-Mexico-Canada Agreement (USMCA) was signed last November, there was a brief reprieve from the stressful, high-stakes negotiations.

That break is now over. The U.S. International Trade Commission (USITC) released its independent assessment of the economic impact of the USMCA, a procedural step that clears the way for Congress to take up debate on ratification of the deal. That debate looks like it will be acrimonious, as leaders of both parties have been pushing the Trump administration with specific demands in exchange for supporting USMCA.

Democrats have already aired a number of concerns over the new agreement, particularly with regard to labor enforcement, but their specific demands are a bit vague, and vary a bit depending on which Democrat you talk to.

But now the Republicans are weighing in, and the biggest battle over the ratification of USMCA may come from the president’s own party. And in terms of trade liberalization, it is a particularly important one, because it involves removing tariffs (the USMCA itself does not have much impact on tariffs, as NAFTA has removed virtually all of them on trade between the three parties). Writing in the Wall Street Journal, Senator Chuck Grassley (R-IA) called on President Trump to lift the Section 232 steel and aluminum tariffs on Canada and Mexico, declaring, “If these tariffs aren’t lifted, USMCA is dead. There is no appetite in Congress to debate USMCA with these tariffs in place.” In essence, Grassley is making his support for USMCA conditional on the removal of these tariffs. Grassley’s threat should be taken seriously, not least because he serves as Chairman of the Senate Finance Committee, which gives him the power to indefinitely delay putting USMCA up for a vote in the Senate.

Beyond the politics, his proposal just makes a lot of sense. A report from the Peterson Institute describes the impact of steel tariffs in this way:

Calculations show that Trump’s tariffs raise the price of steel products by nearly 9 percent. Higher steel prices will raise the pre-tax earnings of steel firms by $2.4 billion in 2018. But they will also push up costs for steel users by $5.6 billion. Yes, these actions create 8,700 jobs in the US steel industry. Yet for each new job, steel firms will earn $270,000 of additional pre-tax profits. And steel users will pay an extra $650,000 for each job created.

Essentially, while a few steel producers have benefitted from the tariffs, the tab is being picked up by everybody else who has to buy steel. A part of that cost is ultimately paid by the consumer. As a result, the overall impact of the tariffs on the U.S. economy is negative.

Furthermore, it makes little sense that these tariffs are being maintained on our closest trading partners, especially after they negotiated in good faith to address many U.S. concerns with NAFTA. During the NAFTA negotiations, the issue of steel and aluminum tariffs lingered like a dark cloud overhead. Both the Canadian and Mexican delegations were under the impression that the 232 tariffs would be lifted once the agreement was signed. That, however, did not end up being the case. These tariffs are still in place, and as a result, Canada and Mexico have placed retaliatory tariffs on the United States. These retaliatory tariffs have resulted in a decrease in U.S. exports to Canada by 25% and to Mexico by 10% since they have been in effect. Lifting the 232 tariffs on Canada and Mexico will minimize any further harm on both sides of our borders.

One important point to keep in mind, however, is that tariffs could be replaced by quotas, as was the case for the Section 232 tariffs on South Korea and a couple of other countries. Quotas can actually be worse than tariffs in terms of their impact. Thus, Senator Grassley and his colleagues should demand that the removal of the Section 232 import restrictions be complete and total: No tariffs, no quotas, no nothin'.

The ball is now in President Trump’s court. In the past, he has called himself a “Tariff Man,” but the negative impact of the tariffs imposed so far should illuminate the benefits of open markets. By firing this shot in the USMCA ratification battle, Grassley has made the choice before Trump abundantly clear: support the passage of the deal by delivering on his promise of being a great dealmaker, or stay the Tariff Man. The path he chooses will be an important signal for ongoing and future trade negotiations the administration undertakes. Most importantly, it will provide clarity as to whether the administration simply sees tariffs as a tool to negotiate better deals, or whether tariffs are an end in themselves. We await the response.

April 29, 2019 10:02AM

The Mueller Report: FAQs

1.  Did Trump collude with Russians who tried to influence the 2016 presidential election?

            No. In Volume 1 of his report, Mueller didn’t mention “collusion,” which is not a legal term.  He did, however, find that there was no evidence of a conspiracy, and he therefore exonerated Trump on that count.  Still, Mueller concluded that the Russians did interfere, Trump was aware of the interference, he benefited from and encouraged the interference – e.g., Don, Jr. was eager to get and use information on Hillary Clinton – and he didn’t report the interference to the FBI.  So, there was no crime and maybe no impeachable offense, but Mueller’s findings will likely inform voters regarding Trump’s fitness for office.

2.  Did Trump obstruct justice by impeding either Comey’s or Mueller’s investigations?

            Maybe.  In Volume 2, Mueller cited numerous acts that could have frustrated both investigations. Trump fired Comey, tried to fire Mueller – but didn’t succeed because White House counsel Don McGahn refused to follow instructions – discouraged testimony, encouraged lying, and dangled (but didn’t actually offer) pardons.  Given the evidence, Mueller concluded that he could not exonerate Trump from an obstruction charge.  Nonetheless, Mueller would not say whether there was an indictable crime because of a written Justice Department policy that a sitting president cannot be indicted.  It would be unfair to charge the president without affording him an opportunity to defend himself at trial.  In other words, there may or may not have been sufficient evidence of a crime or impeachable offense; but there was clearly too much evidence to exonerate.  Mueller left the criminal charge up to Attorney General Barr; and he left impeachment up to Congress.

3.  Since the FBI director serves at the pleasure of the president, could Trump fire Comey at will?

            Yes.  There are no statutory conditions on the president’s authority to remove the FBI director.  He or she serves at the will of the president.  But if the president acts with “corrupt intent” – e.g., to impede an investigation into his own conduct – then he can be charged with obstruction of justice. In this instance, by Trump’s own words, hefired Comey because of “this Russian thing.”  

4.  But can there be corrupt intent if “this Russian thing” was not a crime?

            Yes. It’s not necessary to prove an underlying crime in order to charge someone with obstructing justice. Admittedly, however, it’s more difficult to show corrupt intent if there’s no underlying crime.  After all, how could Trump have obstructed justice related to the conspiracy investigation if there was no conspiracy?  The short answer is that Trump’s motive might have been corrupt even if unrelated to proving his innocence.  For example, he may have wanted to protect personal (e.g., family) interests, or business interests, or his political standing with voters.  Or he may have wanted to frustrate an investigation into someone else’s crime; or to avoid exposure to a gray area of the law, or to non-criminal impeachment.

5.  Trump cooperated with the investigation.  How then could he have obstructed justice?

            On one hand, Trump provided roughly one million documents; he did not invoke executive privilege; and he allowed White House counsel Don McGahn to testify. But, on the other hand, he refused to testify in person, and he provided inadequate answers to Mueller’s written questions.  If time were not of the essence, Mueller would likely have used his subpoena power. Limited cooperation isn’t sufficient to preclude an obstruction charge.  

6.  Mueller’s report, as released, was redacted by Attorney General Barr.  Were the redactions proper?

            Yes. Barr followed the law, which requires that he redact grand jury testimony, classified material, items related to ongoing investigations, and details that could compromise the privacy of innocent persons.  Barr committed to as much transparency as lawful, and it appears that he honored that commitment. Only a few of the redactions were grand jury related; most of the redactions involved ongoing investigations.

7.  Barr, in his summary of Mueller’s report, concluded that the evidence didn’t support a charge of obstruction.  Did Barr overreach?

            Maybe.  The Mueller report presented substantial evidence that might have led to an obstruction charge.  Indeed, Mueller concluded that the scope and nature of the evidence foreclosed exonerating the president.  Yet Mueller declined to charge Trump with obstruction – not for lack of evidence, but because Justice Department policy barred indictment of a sitting president. That left the matter in the hands of Mueller’s boss – initially Acting Attorney General Rosenstein (who first appointed Mueller as special counsel), then Attorney General Barr.  It was Barr’s prerogative either to charge Trump, exonerate him, or say nothing further.  With Rosenstein’s backing, Barr concluded that the evidence was insufficient to charge Trump with obstruction.  Some observers disagreed – probably including Mueller himself, although we don’t know for sure.  Other observers thought the decision was reached in haste.  But it’s clear that the decision was Barr’s to render.

8.  Should the House of Representatives undertake further investigation of Trump’s conduct?

            Yes. As noted, Mueller proffered significant evidence of obstruction by Trump.  It was Barr, but not Mueller, who decided that the evidence was insufficient to charge Trump.  Congress may believe that Barr’s decision was wrong or premature.  But even if Congress were to agree with Barr, the job of the House is not to charge the president with a crime, but to determine if impeachment is warranted.  Impeachment does not require a prosecutable crime. The standard is treason, bribery, or other high crimes and misdemeanors.  The House is empowered to conduct further investigations to determine if that standard has been met.  Given the evidence compiled by Mueller, my sense is that further investigation is justified.

9.  Should Congress be able to subpoena the un-redacted Mueller report?

            Perhaps not the full report, but a less redacted version.  Congress’s and the public’s need to know must be balanced against privacy and secrecy requirements as well as separation-of-powers concerns.  Barr’s redactions were less than anticipated, and mostly related to ongoing investigations.  But some redacted grand jury testimony might yet be unveiled.  One exception to grand jury secrecy is disclosure “preliminary to or in connection with a judicial proceeding.”  If the House opens a preliminary investigation into impeachment, that investigation would likely qualify as a judicial proceeding.  It might also be desirable for a federal judge to review redacted material in private to determine if further disclosures are permissible.

10.  Will Trump be impeached?

            Probably not.  Despite Barr’s denial, Trump may have obstructed justice.  Even if not, he may have committed “high crimes and misdemeanors” that are impeachable offenses.  At the time of the Framing, “misdemeanors” meant misdeeds, not petty crimes as the term is now understood.  Accordingly, a president can probably be impeached for non-criminal behavior that amounts to serious dereliction of duty, abuse of power, or other conduct that demonstrates his unfitness to serve.  That said, impeachment is more of a political process than a legal process.  There are no well-established rules of procedure, rules of evidence, or due process safeguards.  Moreover, the public seems disinclined to impeach President Trump – especially with a Republican-controlled senate and little chance that a conviction, requiring a 2/3 vote, could be secured.  House Democrats may therefore prefer that voters make the final decision regarding the president’s asserted misbehavior.  In other words, let the 2020 ballot box dictate the outcome – unless, of course, further House investigation uncovers additional evidence that is sufficiently compelling to persuade 20 of 53 Republicans to join 45 Democrats and 2 Independents in removing President Trump.

11.  Was the cost of the investigation justified?

            I have no basis on which to determine whether the investigation was efficiently conducted, or whether the special counsel might have fulfilled his mission at lower cost.  Weighed against the cost – now estimated at $30 million – are the direct and indirect results of the investigation.  Dozens of people and three companies were charged, with guilty pleas by five persons.  Indictments were filed against former campaign manager Paul Manafort, deputy campaign chair Rick Gates, foreign policy advisor George Papadopoulos, national security advisor Michael Flynn, advisor Roger Stone, personal attorney Michael Cohen, and others.  Perhaps more important, Mueller documented the depth and breadth of Russian interference in the 2016 election, even as he exculpated President Trump of conspiracy charges.  And Mueller’s report has provided Congress and the American public with extensive evidence related to Trump’s possible obstruction of justice. 

12.  The Mueller investigation was fueled, in part, by the so-called Steele dossier.  Should Mueller have investigated its provenance? Should Congress do so?

            Yes and yes.  The dossier was compiled by former British spy Christopher Steele on behalf of Fusion GPS, an opposition-research firm working for the Hillary Clinton campaign and the Democratic National Committee.  The media obtained the dossier, which relied in significant part on Russian sources, and used it to feed the now-disproved “collusion” narrative that was the primary focus of the Mueller investigation.  The FBI used the dossier to support its application to the Foreign Intelligence Surveillance Court for a secret warrant on one of Trump’s foreign policy advisors, Carter Page. Mueller barely mentioned the dossier in his report, but he refuted and rejected its claims.  Trump supporters may legitimately question whether a special counsel should have been authorized to conduct an extensive and extended probe based on fabricated intelligence that was funded for political motives by the opposition party.  Even if the Mueller report has produced useful information, an inquiry into its origin and rationale seems warranted.

April 29, 2019 9:28AM

What Happens When the Government Goes Too Far Investigating Child Abuse?

N.B.: This post contains descriptions of medical examinations stemming from allegations of sexual abuse of a small child.

Over at Reason, Robby Soave reports a horrifying story out of Albuquerque. A kindergarten teacher alleged one of her students—pseudonymously “Becca,” age 4— had been sexually abused by both her father, Adam Lowther, and her seven-year-old brother, “Charlie.” With the aid of the police, the New Mexico Children, Youth, and Families Department (CYFD) removed the children from their parents and set off a course of events that traumatized the Lowther family and Becca in particular.

After the better part of a year, the prosecutor declined to prosecute Adam and he was reunited with his children—but after his career was derailed and his reputation in tatters after being accused of one of the most detestable crimes against his own child. Becca had been subjected to examinations and photographs of her genitals and anus without her parents present, and her family reports that she is now terrified of doctors. The Lowthers are suing all the individuals and organizations involved in the separation and investigation.

Certainly, government agencies have the responsibility to investigate claims of sexual and other abuse of children. But such investigations must be handled with the utmost care and prudence lest the investigation itself traumatize (or re-traumatize) the children involved.

According to the Reason report and the lawsuit, the authorities in Albuquerque acted in haste, with zeal, and disregard for the welfare of the Lowther children:

"The forensic interviews and physical examinations were conducted without a warrant or court oversight. CYFD, who was the guardian of the children, acted with indifference to the trauma caused by the forensic interviews and examinations. Indeed, the removal decision was made in furtherance of the criminal investigation—not to keep the children safe from harm. This itself was contrary to the children's interests and violative of their constitutional rights."

In a perverse and bitter irony, careless and overzealous government actors can inflict the sexual trauma they are charged with preventing.

While the Lowther case is particularly jarring, there is reason to suspect that law enforcement and other government officials are inflicting similar harms to children and their families across the country. Just last week, Cato filed an amicus brief asking for the U.S. Supreme Court (SCOTUS) to take a case that involved the warrantless strip search and photographing of a child at preschool.

The brief, and two other briefs we helped coordinate in the case I.B. v. Woodard, are part of the latest effort in our ongoing campaign to get SCOTUS to revisit the doctrine of qualified immunity. Under federal civil rights law, government actors “shall be held liable” for violating individuals’ constitutional rights in performance their duties. In plain English, individuals can be sued for civil damages to be paid to the victims they wronged. Qualified immunity is a court-made exception to that law, and effectively cuts off the only means of accountability for government agents who violate constitutional rights.

Administrative procedures—suspension, termination, and other discipline—are unreliable, at best, and are often shielded from public view by laws protecting government personnel records. Criminal charges are rarely applied to actions while a government official is on duty and, even when they are, convictions for even egregious offenses are very difficult to obtain. Thus, civil liability—which is explicitly provided for in American civil rights law and dates back to the English common law tradition—is supposed to be the primary method to hold government agents accountable.

As a result of the qualified immunity doctrine, government actors have little institutional incentive to respect the rights of individuals with whom they come into contact in performance of their duties. This is not to say that government actors are acting in bad faith. But in the Lowther and Woodard cases, one can assume the best intentions of everyone involved and recognize the zealous pursuit of evidence of abuse caused its own damage. An institution and its agents that are sensitive to the liabilities of their actions will likely have better safeguards and practices for collecting the evidence in such sensitive situations.  

Cato’s campaign against qualified immunity is not only about getting money to individuals whom the government has wronged. The campaign seeks to restore the best mechanism for government accountability that American civil rights law intended. What happened to the children and families in these cases should not happen again, and the courts should hold the government accountable to better ensure these abuses are not repeated.

April 26, 2019 1:46PM

Criminal Obstruction vs. Impeachable Obstruction

Earlier this month, the effort to impeach President Trump looked like a #Resistance fantasy. The release of the Mueller Report seems to have shifted the debate dramatically. This week, Democratic presidential contenders Sen. Kamala Harris and Sen. Elizabeth Warren called on the House to impeach Trump for obstruction of justice.  

Media Name: mueller_report.jpg

Is obstruction of justice an impeachable offense? Yes. It’s one of the few offenses where we have presidential precedent. Obstruction charges played a central role in two of the three serious presidential impeachment cases in American history, forming the basis for Article I of the charges against Richard Nixon, and Article II  against Bill Clinton. 

Should President Trump be impeached for obstruction of justice? I’m not going to answer that question here; like the cagey Mayor Pete, I’m “going to leave it to the House and Senate to figure that out.” Instead, I want to stress something that should be obvious, but tends to get lost amid the statutory exegesis in Mueller Vol. II: whether the president is guilty of criminal obstruction and whether he’s guilty of impeachable obstruction are different questions. 

Summing up Article I of the case against Nixon, the 1974 House Judiciary Committee report explained that

President Nixon’s actions…. were contrary to his trust as President and unmindful of the solemn duties of his high office. It was this serious violation of Richard M. Nixon’s constitutional obligations as president, and not the fact that violations of Federal criminal statutes occurred, that lies at the heart of Article I [emphasis added].

The Judiciary Committee report on the Clinton impeachment echoed that analysis a quarter-century later: “the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment.” 

The standards are different because impeachment and the criminal law serve distinct ends and have very different consequences. “The purpose of impeachment is not personal punishment,” the Judiciary Committee emphasized in its 1974 staff report on “Constitutional Grounds for Presidential Impeachment”; instead, impeachment’s function “is primarily to maintain constitutional government.” And where the criminal law deprives the convicted party of liberty, a successful impeachment mainly puts him out of a job

I've complained before about "the overcriminalization of impeachment," the widespread tendency to confuse impeachment with a criminal process. Congress has contributed to that confusion by offloading much of its responsibility for policing executive misconduct to special prosecutors. Mueller wasn't tasked with looking into “high Crimes and Misdemeanors"; his brief was to probe “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation." Naturally, then, the report speaks in the language of the criminal law.

But impeachment aims at fundamental breaches of the public trust, and therefore, as Alexander Hamilton put it, “can never be tied down by such strict rules” as operate in the criminal law. In an impeachment proceeding, the key question isn’t whether the president technically violated one or more of the federal obstruction statutes. It’s whether his transgressions are serious enough to justify removal from office. 

That sort of inquiry is, in many ways, less forgiving than the criminal law approach. Though the Constitution nowhere specifies a particular burden of proof for impeachment, “criminal prosecutions require that the government prove guilt beyond a reasonable doubt in a proceeding in which the defendant enjoys many significant procedural protections.” As Michael Rappaport has observed, “a criminal prosecution model underenforces against executive misconduct, because it ignores noncriminal misconduct that may justify dismissing an executive official,” such as "‘high Crimes and Misdemeanors,’ which need not constitute violations of criminal or civil law.”

A prosecutor needs to prove every element of a statutory offense: a generalized showing of contempt for the rule of law won't suffice. It’s fair game in impeachment, however. “Unlike a criminal case,” the Nixon Inquiry Report explains, “the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.”  

In other important respects, however, an impeachment inquiry can be more lenient toward the accused. “Not all presidential misconduct is sufficient to constitute grounds for impeachment,” the Nixon Inquiry Report emphasizes: “There is a further requirement—substantiality.” Impeachment should “be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.” Even provable, criminal obstruction will not meet the standard of “high Crimes and Misdemeanors” in every case.

For instance, when viewed through the lens of the criminal law, the case against Bill Clinton was quite strong. Here’s Judge Richard Posner’s assessment, from his 1999 book on the Clinton impeachment, An Affair of State:

To summarize, it is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of federal criminal law, by (1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to the questions put to him by the House Judiciary Committee; (2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed, … and (3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason that she had been transferred from the White House to the Pentagon.

After the Senate trial, however, multiple senators explained their votes to acquit in terms of substantiality: that although obstruction could, under certain circumstances, merit removal, the offense in this case wasn’t grave enough to justify that penalty. There’s no “it was about sex” defense to a charge of criminal obstruction, but in an impeachment trial, what—if anything—the president was trying to cover up matters.

In Trump’s case, the Mueller Report outlines a (lackluster and inept) cover-up without an underlying crime. As the Report reminds us, “proof of such a crime is not an element of an obstruction offense”—for the purposes of a criminal conviction, it doesn’t matter whether there’s an underlying crime. But for the purposes of an impeachment, arguably, it should. 

On the other hand, what’s in the Mueller Report is only part of the picture. As a group of prominent conservative attorneys and academics put it in a public statement released Tuesday: 

The report’s details add to an existing body of information already in the public domain documenting the President’s violations of his oath, including but not limited to his denigration of the free press, verbal attacks on members of the judiciary, encouragement of law enforcement officers to violate the law, and incessant lying to the American people.  We believe the framers of the Constitution would have viewed the totality of this conduct as evidence of high crimes and misdemeanors. 

 An inquest based on the president’s “entire course of conduct in office” could be a lot less forgiving.