In recent weeks many articles have been released on the future of US Caribbean Foreign Policy relations. Among them include insightful contributions by Sir Ronald Sanders, Ambassador Curtis Ward and Professor Percy Hintzen. Together with other knowledgeable spokespersons, there are sentiments ranging from cautious to enthusiastic optimism that the Caribbean will be on the radar of the Biden-Harris administration. It has been generally agreed that immediate policies may revolve around cooperation in rolling out a coronavirus vaccine, tackling the climate resilience, and reinstating the principles of multilateralism and diversity. But there are also possible roadblocks like China, impediments to US defense strategy, the geopolitical environment and the chaotic signals of an unprecedented transition period that could pose challenges to rational diplomacy.
The blurred Domestic and Foreign Policy Lens Optimism, therefore, must be placed in the context of a transition period in which outgoing President Trump and his allies attempt to delegitimize the Biden-Harris Government, disrupt American democratic processes and deepen partisan and racial polarization. While the decline began well before the election of Donald Trump as President in 2016, he has severely damaged the norms, and to some extent the institutions on which American democracy is rooted. Most credible sources refer to his constant effusion of lies and disinformation; his relentless assaults on the media, the courts, the career civil service, and the political opposition; his efforts to politicize and demand personal loyalty from the military, the intelligence apparatus, and federal law enforcement; his misuse of presidential power and his quest for political and financial advantage are all glaring illustrations. Many countries and regions like the Caribbean may no doubt have foreign policies cued up for recognition. But the maladies in USA domestic political arena that must engage the immediate attention of the Biden Presidency are likely to blunt the attention to all but the most important issues in the foreign policy agenda. Coronavirus: ‘American exceptionalism that Kills’ The coronavirus as a foreign policy issue will pivot on the judicious and equitable roll out of the vaccine produced by multinational enterprises and anticipated to be available by the first quarter of 2021. This situation is much different to what other incoming Presidents faced. Writing in Foreign Policy magazine (November 18, 2020), James Palmer expands on the delusion of Donald Trump that American is ‘turning the corner’ even while the US government is failing while poorer countries flatten the curve. He starkly labels this trend as “American exceptionalism kills.” It is first and foremost what has to be overcome before an economic recovery can be achieved. Most Caribbean countries, especially those tourism dependent economies, will be severely affected by the new surge of the virus in the US and elsewhere just as they enter the peak season. They will require collaboration with the US to place emphasis on stopping the spread and to introduce robust tools to closure or reopening of their economies based on scientific models, both at source and destination countries. Surviving COVID-19 and Revival of the Economy-a Global Issue Economic revival is interconnected with measures to curb the COVID-19 spread. An IDB Report – “A Pandemic Surge and Evolving Policy Responses indicates that investing in infrastructure is one of the most viable options for an economic revival. The Report advocates that fiscal space will remain an important constraint, but as economic recovery emerges, additional resources would need to be channeled into productivity-boosting infrastructure projects to further stimulate near term growth, and long-term development. This is a useful template, touted by Biden during his presidential campaign and flags an essential policy conjuncture between the Caribbean and the USA. Collective and unified approaches to advocate for debt relief , forgiveness and resilience are necessary for the Caribbean to insert its economic priorities linked to the COVID response. The Caribbean with the support of the US has the opportunity to make its case in various international theaters such as the UN and the G7, the World Bank and IMF. There are also opportunities where Caribbean countries are involved in the hierarchy of leading multilateral agencies. Guyana now holds the chair of the G77 and China while St Vincent and the Grenadines is a members of the UN Security Council. Not using these avenues to engage will be a missed opportunity. On the same page with US on Climate Resilience Climate Change linked to economic revival is seen as a basis for rekindling US global leadership. Biden’s appointment of former Secretary of State John Kerry to lead US re-entry into the Paris Agreement is a strong indication of this intention. The US-Caribbean Resilience partnership provides a practical entry point for the region with its focus on disaster management, risk reduction, disaster reliance funding. Based on its geographic location, the Caribbean may yield longer term benefits by ensuring that its region-wide management integrates energy policy, disaster management and climate change impacts.https://www.cepal.org/en/publications/45098-enhancement-resilience-disasters-and-climate-change-caribbean-through What is important is that the template tallies with a well-constructed US-Caribbean Resilience Partnership Working Group in Barbados (October 2020) to which CARICOM States are committed. https://www.state.gov/successful-u-s-caribbean-resilience-partnership-working-group-in-barbados-concludes-with-9-5-million-in-disaster-resilience-funding/. This partnership illustrates that the Caribbean does not need to reinvent the wheel but rather to chart a constructive path to ensure that its priorities are included in the global platform in the reconstruction of US’ global leadership. The China Equation: A US-Caribbean Balancing Act China is an important pivot in the US- Caribbean foreign policy relations. Today, they are more inherently hostile than during Obama’s presidency. As a recent Times story puts it, China has adopted “increasingly aggressive and at times punitive policies that force countries to play by its rules.” Trump challenged China’s ambitions in ways that his predecessors did not. He treated it as America’s most serious threat since the Soviet Union during the Cold War. While Biden’s approach in principle may vary only slightly from Trump’s, it will most likely be implemented through softer diplomacy. Trump’s posture, is graphically referred by Chinese economist and London School of Economic Professor, Key Jin as ‘a strategic gift to China’. Biden will no doubt be more concerned with building alliances with Japan, other South East Asia-Pacific, African and European states, all of which are worried about China’s rise. Many of these states are locked into China’s development leadership captured during the diminished engagement by the US. In this context, a concerted Caribbean policy is more likely to yield positive results for the region by allowing maneuverability in engaging both China and the USA simultaneously. Defense Strategy, Geopolitical Environment and Diversity It is clear from the early cluster of Cabinet picks by President-elect Biden, the priority he places on forging a robust U.S. defense strategy and shaping the geopolitical environment. These have to do not only with China’s rise but with many unanswered but urgent questions: how Russia’s resurgence intersect and challenge U.S. interests? how quickly can the bridge building with NATO occur? how will Iran and North Korea disrupt and destabilize US’ regional defense strategies? How will a range of non-state actors affect the defense landscape? What surprises or havoc will Trump reek to destabilize US defense strategy? What opportunities for U.S. defense and security exist in this complex environment? Where does the Caribbean fit? The US Representative to the UN, Thomas-Greenfield penned a piece along with William J. Burns in an article "The Transformation of Diplomacy: How to Save the State Department" in the Foreign Affairs November/December 2020 issue, provides another preview of the new thrust in US’ foreign policy strategy. It advocates that "to start, the United States needs a top-to-bottom diplomatic surge. The Trump administration's unilateral diplomatic disarmament is a reminder that it is much easier to break than to build. The country doesn't have the luxury of waiting for a generational replenishment, marking time as new recruits slowly work their way up the ranks." The indications are that the Caribbean and others countries in the South may benefit from the diversification in the ranks of the Biden foreign policy team and the staff composition at the State Department. They are likely to result in greater appreciation of the needs and virtues rather than dismissive ridicule of the Trump administration. Closer to home it is unlikely that the US position on Venezuela is likely to be different except in tone. Yet it is most likely to revert to the rapprochement with Cuba which again will signal a convergence of interests between US and the Caribbean. Conclusion While not intending to intervene in the policies of a sovereign state, the close ties between US and the Caribbean make it appropriate for its states to join the ranks supporting the call for US electoral reform. After all, any disarray in United States domestic politics tends to propel ripple effects on global diplomatic waters. The US is almost alone among major democracies in taking so long to install a new head of state. The image of a divided nation has been exacerbated by the petulant travesty of Donald Trump who after three weeks has yet to concede the elections he lost. In France, the president takes office within ten days of the election. In the United Kingdom, the moving trucks arrive at 10 Downing Street the morning after the incumbent loses. So too in Caribbean nations where peaceful electoral outcomes are the hallmarks of their adherence to democratic principles. This is fully illustrated in the recent ‘COVID 19 elections in St Kitts and Nevis, Trinidad and Tobago, Jamaica, St Vincent and the Grenadines and Belize. That the United States takes two and a half months is reasonable in times of a normal transition. But the abnormality of Trump and Trumpism is likely to have lasting disruptive effects on US Democracy. This looks good only in comparison to Mexico, where the transition lasts an arduous five months and in the case in Guyana that ironically received threats of sanctions from the Trump administration. Eddie Greene
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11/20/2020 THIS WAS A JOURNEY FORETOLD. P.J. Patterson, My Political Journey: Jamaica’s Sixth Prime Minister. Kingston: University of the West Indies Press, 2018. xvi + 434 pp. Reviewed by Sir Ron SandersRead Now“ In 1962, the Lancaster House Conference in London on Jamaica’s independence had concluded and Norman Washington Manley had just taken off for Jamaica aboard what was then a BOAC flight. He remarked to colleagues: “We have just left a future prime minister on the ground.” The person to whom Norman Manley referred was P.J. Patterson, then reading for the law in London, but already an activist politician for the People’s National Party (PNP). Norman Manley’s very accurate prediction in 1962 was unlike that of Bruce Golding’s some twenty-seven years later when Manley’s forecast came through, and P.J. took up the baton of leader of the PNP and prime minister of his nation. According to Golding, then chairman of the Jamaica Labour Party (JLP), the PNP had selected “a boy to do a man’s job”. Few politicians, in their exuberance to belittle their opponents, have been proven as wrong as Golding. P.J. not only performed manfully as prime minister, he became the first person in Jamaica to lead his party to three consecutive election victories and to set a record for serving as its leader for fourteen years. No one else, in the past, had won such confidence by the Jamaican people, and it is doubtful that any one will in the future. Norman Manley knew what he was talking about. Of course, P.J.’s political journey, lucidly and entertainingly recounted in his book, did not begin in March 1989, when the mantle of prime minister was placed upon his shoulders. It is difficult to think of any political leader anywhere in the entire world who had been better prepared for the qualities, comprehension and disposition to be a leader at the apex of a nation’s affairs. He had served as minister of industry, trade and tourism; deputy prime minister and minister of foreign affairs and foreign trade; deputy prime minister and minister of development, planning and production; and deputy prime minister and minister of finance and planning. And, in between, he served in Opposition – in the senate and outside of the legislature; and in the councils of the people’s parliament conducted in villages across Jamaica. That impressive list of ministerial portfolios tells a bare-bones story of political progress. Remarkable though it is, the list does not convey the human tale: the beginnings in a rural village; the thirst for education; winning scholarships that made such education possible; the natural intellectual attributes that marked him for a bright future; the openness of his personality; the deep commitment to the improvement of the lives of his people; his unconditional love of his native land; and his devotion to the idea of a diverse but single Caribbean society. It is to his contributions to the wider Caribbean that I now turn. For, it is those contributions that inspired a generation of West Indians like me who were privileged for over four decades to marvel at his genius, to learn from his bargaining skills and, more than anything else, to believe decisively and resolutely in the worthiness of the Caribbean people to command respect in the world. In this regard, P.J. was in the company of a group of his compatriots that everyone knew to be West Indian but few could recall the exact country of their birth – such was the depth and quality of their service to the region and their unwavering belief in the strength that unity brings. Among those persons are Sir Shridath Ramphal, Sir Alister McIntyre, William Demas – all labourers in the vineyard of the Caribbean’s development. In 2006, P.J. received the accolade of the Chancellor’s medal from the hands of the then chancellor of the University of the West Indies, Sir George Alleyne – another outstanding and distinguished Caribbean son. In accepting the medal, P.J. delivered a message to the entire Caribbean. He said: “We cannot allow ourselves to be swept away by the tide of a passive acceptance of globalisation or ignore the real opportunities to tell our Caribbean story and assert our rights in various international organisations to which we belong.” Those words resound with a compelling freshness and significance today as the Caribbean is beset by forces that seek to marginalise our region, to deprive us of a voice in global affairs that materially affect us, and to treat our small, individual territories as annoying complications. In his book, P.J. summons us all, time and again, to resist such relegation and to adhere to the value of joint and collective action by Caribbean nations. He says, for instance: “The assertion of our united voice as sovereign nations singing from the same hymn sheet is the only way for us to be heard in the global din” (31). And, he knows with authenticity, born of lived experience, of the truth of which he speaks. P.J. was an integral participant in the most significant demonstration of unity by developing states at a significant crossroads of their fortunes. Ironically, given today’s Brexit where the UK is seeking to break away from the other twenty-seven nations of European Union with no clear roadmap for its future, it was the UK’s decision to join the European Union in 1973 that occasioned the unification of African, Caribbean and Pacific (ACP) countries to negotiate a trade and development agreement with the European Economic Community (EEC). The arrangement involved three regions, but one voice on each aspect of the negotiating pillars. The Caribbean’s main spokespersons on behalf of the ACP group were Ramphal and Patterson. Many lessons arose for the Caribbean from those negotiations, not least that the unity of developing countries is a formidable force in bargaining with other countries and regions, much bigger and powerful than themselves. It is no exaggeration to say that the Lomé Convention that emerged from those ACP-EEC negotiations continues to stand today as the most beneficial trade and development document ever signed by developing states. Another lesson is that, in international bargaining, it is sometimes necessary to stand up vigorously for Caribbean rights: to let slip the agreeable countenance of diplomacy in the face of downright bullying and show our mettle. P.J. tells the story, for instance, that in the closing days of the ACP- EEC negotiations over sugar, the divide was wide and the tensions high. “So much so”, he says, that he and his counterpart, the EEC commissioner for agriculture, “almost came to blows” (77). But this virulent standing up for Caribbean rights became a matter of deep respect by the EEC. Today, there is in the headquarters of the European Union (EU) in Brussels, a Patterson-Ramphal room so named by the Europeans themselves in honour of these two outstanding West Indian champions with whom they had to contend. P.J. Patterson is a lawyer and a good one. His political life adhered to two fundamental principles both at home in Jamaica and on the wider global stage on which he acted in Jamaica’s and the Caribbean’s interests. Those principles are respect for democracy and upholding the rule of law. He maintained these values in his political life in Jamaica and he championed them in every international forum on which he appeared. In his own words: While small and [powerless] states do not in fact receive equal treatment in the application of international law, we in the Caribbean who lack military power are nevertheless compelled to continue the search for that ideal in which the international system will uphold right over might and law over force. That is wisdom from an authentic voice speaking from Caribbean trenches in international battlegrounds that have not diminished; they have simply appeared in other forms: (a) in the EU blacklisting Caribbean countries in language that pretends cooperation but actions that manifest coercion; (b) in the World Trade Organization where big countries deny justice to small ones; (c) in the Organization of American States where, after more than fifty years of membership, our development aspirations still play second fiddle to the political ambitions of others; and (d) in the lip service paid to the adverse effects of climate change that point like a dagger at the heart of our existence. In all of this, as P.J. has long and often advocated: “There is an urgent need to create a cohesive and effective strategic alliance among small developing economies” (339). And such an alliance must be cemented first among the countries of the Caribbean. P.J. says this of himself: “Pride and loyalty to the land of my birth have never deterred me from becoming and remaining an unrepentant regionalist” (31). Persons, like me, have been eyewitnesses to both those fervent commitments. P.J. played decisive roles in deepening Caribbean integration and, importantly, in maintaining it. He did so in many remarkable ways. And I will relate one story, not included in the book, that illustrates the unique role he played. At a certain CARICOM Heads of Government Conference, angry disagreement between two prime ministers became so intense that the possibility of fisticuffs loomed large. P.J., with the authority only he could exercise, lodged himself between the two men shouting and gesticulating at each other, and in his persuasive but powerful style, calmed the tempers and cooled the temperature. Just to be sure that peace would continue to prevail, P.J. spent most of the conference, not at his seat before the Jamaica flag, but in a chair between the two prime ministers, engaging them in friendly banter and discussion that focused their attention on the real issues at hand. In this and many other unique ways, P.J. Patterson helped to hold our region together, concentrating not on transient differences that could divide us, but on the greater unity that can strengthen us. There is much more that could be said of P.J.: the role he played in the Commonwealth and in the fight against apartheid in South Africa; his stand on principle with Cuba; his resistance to pressure over Haiti and the devious removal of Jean-Bertrand Aristide in service to external agendas – for he played a part in all that – and more. For a generation of persons who dedicate their lives to public service, we are privileged to have witnessed P.J. Patterson in action and to be inspired by the high quality of his leadership. He makes us all proud to be West Indian and inspires us to summon the best of ourselves in service to our region. His book is compulsory reading for all who aspire to leadership and even those entrusted with leadership today. This is an edited version of the address delivered at the book launch held at the OAS Headquarters, Washington, DC, on 13 March 2019. it is, the list does not convey the human tale: the beginnings in a rural village; the thirst for education; winning scholarships that made such education possible; the natural intellectual attributes that marked him for a bright future; the openness of his personality; the deep commitment to the improvement of the lives of his people; his unconditional love of his native land; and his devotion to the idea of a diverse but single Caribbean society. It is to his contributions to the wider Caribbean that I now turn. For, it is those contributions that inspired a generation of West Indians like me who were privileged for over four decades to marvel at his genius, to learn from his bargaining skills and, more than anything else, to believe decisively and resolutely in the worthiness of the Caribbean people to command respect in the world. In this regard, P.J. was in the company of a group of his compatriots that everyone knew to be West Indian but few could recall the exact country of their birth – such was the depth and quality of their service to the region and their unwavering belief in the strength that unity brings. Among those persons are Sir Shridath Ramphal, Sir Alister McIntyre, William Demas – all labourers in the vineyard of the Caribbean’s development. In 2006, P.J. received the accolade of the Chancellor’s medal from the hands of the then chancellor of the University of the West Indies, Sir George Alleyne – another outstanding and distinguished Caribbean son. In accepting the medal, P.J. delivered a message to the entire Caribbean. He said: “We cannot allow ourselves to be swept away by the tide of a passive acceptance of globalisation or ignore the real opportunities to tell our Caribbean story and assert our rights in various international organisations to which we belong.” Those words resound with a compelling freshness and significance today as the Caribbean is beset by forces that seek to marginalise our region, to deprive us of a voice in global affairs that materially affect us, and to treat our small, individual territories as annoying complications. In his book, P.J. summons us all, time and again, to resist such relegation and to adhere to the value of joint and collective action by Caribbean nations. He says, for instance: “The assertion of our united voice as sovereign nations singing from the same hymn sheet is the only way for us to be heard in the global din” (31). And, he knows with authenticity, born of lived experience, of the truth of which he speaks. P.J. was an integral participant in the most significant demonstration of unity by developing states at a significant crossroads of their fortunes. Ironically, given today’s Brexit where the UK is seeking to break away from the other twenty-seven nations of European Union with no clear roadmap for its future, it was the UK’s decision to join the European Union in 1973 that occasioned the unification of African, Caribbean and Pacific (ACP) countries to negotiate a trade and development agreement with the European Economic Community (EEC). The arrangement involved three regions, but one voice on each aspect of the negotiating pillars. The Caribbean’s main spokespersons on behalf of the ACP group were Ramphal and Patterson. Many lessons arose for the Caribbean from those negotiations, not least that the unity of developing countries is a formidable force in bargaining with other countries and regions, much bigger and powerful than themselves. It is no exaggeration to say that the Lomé Convention that emerged from those ACP-EEC negotiations continues to stand today as the most beneficial trade and development document ever signed by developing states. Another lesson is that, in international bargaining, it is sometimes necessary to stand up vigorously for Caribbean rights: to let slip the agreeable countenance of diplomacy in the face of downright bullying and show our mettle. P.J. tells the story, for instance, that in the closing days of the ACP- EEC negotiations over sugar, the divide was wide and the tensions high. “So much so”, he says, that he and his counterpart, the EEC commissioner for agriculture, “almost came to blows” (77). But this virulent standing up for Caribbean rights became a matter of deep respect by the EEC. Today, there is in the headquarters of the European Union (EU) in Brussels, a Patterson-Ramphal room so named by the Europeans themselves in honour of these two outstanding West Indian champions with whom they had to contend. P.J. Patterson is a lawyer and a good one. His political life adhered to two fundamental principles both at home in Jamaica and on the wider global stage on which he acted in Jamaica’s and the Caribbean’s interests. Those principles are respect for democracy and upholding the rule of law. He maintained these values in his political life in Jamaica and he championed them in every international forum on which he appeared. In his own words: 59 While small and [powerless] states do not in fact receive equal treatment in the application of international law, we in the Caribbean who lack military power are nevertheless compelled to continue the search for that ideal in which the international system will uphold right over might and law over force. That is wisdom from an authentic voice speaking from Caribbean trenches in international battlegrounds that have not diminished; they have simply appeared in other forms: (a) in the EU blacklisting Caribbean countries in language that pretends cooperation but actions that manifest coercion; (b) in the World Trade Organization where big countries deny justice to small ones; (c) in the Organization of American States where, after more than fifty years of membership, our development aspirations still play second fiddle to the political ambitions of others; and (d) in the lip service paid to the adverse effects of climate change that point like a dagger at the heart of our existence. In all of this, as P.J. has long and often advocated: “There is an urgent need to create a cohesive and effective strategic alliance among small developing economies” (339). And such an alliance must be cemented first among the countries of the Caribbean. P.J. says this of himself: “Pride and loyalty to the land of my birth have never deterred me from becoming and remaining an unrepentant regionalist” (31). Persons, like me, have been eyewitnesses to both those fervent commitments. P.J. played decisive roles in deepening Caribbean integration and, importantly, in maintaining it. He did so in many remarkable ways. And I will relate one story, not included in the book, that illustrates the unique role he played. At a certain CARICOM Heads of Government Conference, angry disagreement between two prime ministers became so intense that the possibility of fisticuffs loomed large. P.J., with the authority only he could exercise, lodged himself between the two men shouting and gesticulating at each other, and in his persuasive but powerful style, calmed the tempers and cooled the temperature. Just to be sure that peace would continue to prevail, P.J. spent most of the conference, not at his seat before the Jamaica flag, but in a chair between the two prime ministers, engaging them in friendly banter and discussion that focused their attention on the real issues at hand. In this and many other unique ways, P.J. Patterson helped to hold our region together, concentrating not on transient differences that could divide us, but on the greater unity that can strengthen us. There is much more that could be said of P.J.: the role he played in the Commonwealth and in the fight against apartheid in South Africa; his stand on principle with Cuba; his resistance to pressure over Haiti and the devious removal of Jean-Bertrand Aristide in service to external agendas – for he played a part in all that – and more. For a generation of persons who dedicate their lives to public service, we are privileged to have witnessed P.J. Patterson in action and to be inspired by the high quality of his leadership. He makes us all proud to be West Indian and inspires us to summon the best of ourselves in service to our region. His book is compulsory reading for all who aspire to leadership and even those entrusted with leadership today. This is an edited version of the address delivered at the book launch held at the OAS Headquarters, Washington, DC, on 13 March 2019. Can Trump Be Prosecuted?
Posted on November 11, 2020 by Richard Messick President Trump and diehard supporters continue to maintain on Twitter, in interviews, and at press conferences that tens of thousands of votes at the November 3rd election were fraudulently cast and that once these ballots are excluded, he will be declared the winner. But under American law only a judge can invalidate a vote, and unlike Trump sympathizers, judges demand clear and convincing evidence of voter fraud — something Trump has yet to produce and is quite unlikely to be able to. So Joe Biden will indeed take office January 20. While President Trump’s term in office ends at noon that day, his legal problems will not. Indeed, they are likely to accelerate. For whatever immunity he enjoyed from prosecution as a sitting president ends too. By far the greatest threat Trump faces are the investigations led by Manhattan District Attorney Cyrus Vance, Jr. and Letitia James, New York’s attorney general. Both are independently investigating criminal charges related to Trump’s dealings while a New York businessman. James may also be continuing her investigation of abuses involving Trump’s now defunct New York charity. The charges both are pursuing involve violations of New York state law, meaning a presidential pardon would do him no good. It excuses only violations of federal law. In her November 1 story on Trump’s criminal exposure, New Yorker writer Jane Mayer writes that the Vance investigation appears “to be particularly strong.” He is reportedly looking into possible violations of state tax and insurance laws and bank fraud. One charge seems almost irrefutable. New York law makes it a crime to falsify business records, and the evidence presented in the criminal case against former Trump lawyer Michael Cohen shows the $130,000 hush money Trump allegedly paid a porn star was recorded as a business expense. On the other hand, New York prosecutors face two obstacles to bringing charges against Trump. There is first the statute of limitations. The possible offenses all appear to pre-date Trump’s four years as president, and in New York felonies must be prosecuted within five years of their commission and misdemeanors, like falsifying business records, two (here). Exceptions apply, however, if prosecutors can show Trump took steps to hide his wrongdoing or the offense can be cast as one involving a continuing course of conduct . Moreover, the New York legislature is considering a bill that would toll (stop the running) of any applicable state statute of limitations while the defendant was serving as president of the United States. Even if statute of limitations problems can be overcome, the challenge of proving beyond a reasonable doubt that Trump himself actively engaged in fraud remains. Ex-Trump lawyer Cohen told Mayer that Trump writes down little, does not send e-mails or texts, and often speaks indirectly. Argument is heard to this day whether Henry II was complicit in the murder of Thomas Becket for asking: “Will no one rid me of this turbulent priest?” Was that a wish or a disguised order? Think how much harder it would be for New York prosecutors to make a case on the basis of a vague Trump comment like “do what needs to be done”? Especially if the jury were to contain even a single Trump supporter. Federal charges are possible too. While conflict of interest laws do not apply to presidents, and hence Trump’s many schemes to monetize his presidency, tracked on this blog, are legal if unseemly, his conduct in office is subject to federal criminal law. Even if one accepts the view presidents cannot be charged with a federal crime while in offense. Lawfare’s Quinta Jurecic’s analysis of the Mueller report on the Russia investigation finds one federal law Trump has repeatedly broken: the obstruction of justice statute. Tax fraud is another a possibility. As Trump has admitted on numerous occasions, his federal tax returns are being audited. If the evidence were to show he took deductions for which he knew there was no legal basis, he would be guilty of criminal tax fraud. Hanging over any possible federal investigation is the pardon power, and President Gerald Ford’s exercise of it to pardon Richard Nixon for Watergate-related crimes. Ford granted Nixon “a full, free, and absolute pardon” for any crime Nixon “committed or may have committed or taken part in” while president. Although Ford’s pardon did not reach offenses Nixon might have committed before he became president, there is no reason why a Trump pardon could not. It could excuse him not only for tax fraud but for any other federal crime he may have committed or taken part in no matter when. Scholars agree a president’s power to issue pardons for federal offenses reaches broadly. Where they disagree is whether a sitting president can pardon himself. Mayer cites a Justice Department memo issued when Nixon was said to be considering pardoning himself. It concluded that, “under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.” Nixon did not pardon himself. According to Mayer, it was because he believed he would disgrace himself if he did. Trump thinks he can pardon himself; whether Nixon-like qualms would stay his hand remains to be seen. If he did, it would be up to a Biden Administration to challenge it and the Supreme Court to decide the validity of a self-pardon (here). How it would rule is another unknown. Jack Goldsmith, a former assistant attorney general and now Matthew’s Harvard Law School colleague, told Mayer “scholars are all over the map” on whether a self-pardon is valid. (Were the court to hear the case, justices committed to textualism would likely have to exercise judgment in ruling on the pardon’s validity, rather than, as they often claim, simply mechanically applying rules of statutory construction.) Although the author of the Justice Department memo opined that a self-pardon was likely invalid, she offered Nixon a way around the prohibition. He could declare he was unable to perform his presidential duties of the office, have the vice-president take over and as acting president issue a pardon. Nixon’s vice-president was Gerald Ford, a strait-laced Midwesterner with an unvarnished reputation for probity. Nixon almost certainly never approached Ford with such a proposal. Vice-President Pence is cut from the same mold as Ford, making it equally unlikely he would go along with the work-around. In pardoning Nixon, Ford hoped to end the discord and recriminations the Watergate scandal had churned up. A trial of Nixon’s Watergate crimes would take a year or more to prepare he explained. “In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.” Ford did not demand Nixon admit wrongdoing in return for the pardon. That, Mayer writes, allowed Nixon in his later years to create a counter-history of Watergate, to say he had done nothing others had not, that he was a “victim, hounded by the liberal media.” Ford did not believe that, and he must have regretted that his unconditioned pardon gave Nixon an opening to claim victimization for he began carrying a card with the Supreme Court’s statement that a pardon “carries an imputation of guilt; acceptance a confession of it.” At some point Biden will have to decide how to address the allegations swirling around Trump. Trump may even force the issue by pardoning himself on his way out of office. That would put an immediate end to the current audit of Trump’s federal tax returns. Would the incoming Biden Administration accept the validity of the self-pardon by not reviving the audit? Even if Trump does not attempt self-exoneration, the pardon question will dog the Biden presidency. Demands Trump be held accountable will not fade, and already some argue accountability should include criminal prosecution (here). Others suggest that Biden can duck the issue by pointing to the New York investigations. But will those incensed by Trump policies and Trump’s apparent wrongdoing be content to wait on the outcome of uncertain state law investigations? How long? What if statute of limitations issues or problems of proof foreclose state prosecution? The best solution seems to be the one suggested by the experience with the Nixon pardon. Biden pardons Trump in return for Trump admitting wrongdoing. The obstacles to such a resolution, however, are many. They start with the fact that nothing about Trump suggests he has it in him to admit he made a mistake, let alone that he committed a crime. They continue with how to handle the state cases. Would Vance and James agree to drop their investigations if Trump admitted wrongdoing? Would they insist he admit to violations of state law as the price? What about the civil penalties Trump would face if he is found to have underpaid his federal taxes? President-elect Biden has rightly made bringing Americans together his highest priority. His greatest challenge will be whether he can lead the nation into a reckoning with the Trump years without further inflaming passions. Richard E. Messick consults for international organizations, development agencies, and non-governmental organizations on legal development and anticorruption issues. As an attorney in the United States he advised political parties, office holders, corporations, and political committees on campaign finance and ethics issues and represented individuals and corporations in state and federal matters involving fraud and corruption. After serving as Chief Counsel of the Senate Committee on Foreign Relations, he joined the World Bank where he worked until his retirement on legal and judicial reform and anticorruption projects. His writings have appeared in scholarly and popular publications including the American Political Science Review, the World Bank Research Observer, the Wall Street Journal, and the Washington Post Even though I delayed writing this blog in the hope for a relatively clear official indication of who will be the next President of the USA, the results remain in limbo. The outcome hinges on the results from Pennsylvania and Georgia where President Donald Trump's holds an unsteady lead and in Nevada and Arizona that are trending toward former Vice President, Joe Biden. With counting of votes in a shifting race, the verdict in all cases, is “too close to call”. With 270 being the required number of Electoral College votes for victory, the projected scenarios include a probable win for Biden, a possible though narrow path for Trump and the prospect of a 269-269 tie, leading to a constitutional decision. My call is for a Biden win.
But here is the deal (as Joe Biden is used to say). Indications are that Donald Trump will refuse to concede defeat and with his Republican associates, engage in a series of disputes requiring settlements in the Courts. Both instances may result in delays which could drag on inordinately. Despite evidence to the contrary, the President is defiant in his claims of electoral fraud associated with mail in votes, which has been predominantly in favour of his Democratic rival. This is not only consistent with President Trump's penchant for undermining the integrity of the American electoral system, but it is not an augury for a peaceful transfer of power. How such a close election? What has caused the whittling away of the landslide predicted for Biden by the polls will have to be analyzed very carefully as political scientist and party strategists seek to explain voting patterns across the electoral domains of so-called Blue (democratic) Red (republic) and Purple (marginal) states. At first glance — looking at the granular results from districts within states — neither candidate has made appreciable inroads in the distribution of votes by the respective states in the 2016 elections when Donald Trump defeated Hilary Clinton. The major factor has been the projected high level turnout of the electorate, estimated at 66.3% surpassing the previous highest, 65% in 1908 and compared with 60.1% in 2016 and 61.6% in 2008. Already both Biden with popular votes higher than any Presidential candidate in the history of US elections and Trump with a similar acclaim among Republican candidates, have contributed to this record. In fact, the data show that Donald Trump is the most effective Republican electoral candidate since Ronald Regan especially with his high level of support in rural areas. A compounding factor is that Democrats have retained control of Congress and Republicans, the Senate, with little, if any change in the composition of the both Houses. Did Issues really matter? The prominent issues to emerge were COVID-19 and the Economy. They did not seem to make a difference in partisan support at the polls. The glaringly devastating rate of the coronavirus pandemic afflicting over the past eight months and the established mismanagement of the Trump administration that led to a record average of 102,000 cases per day coinciding with Election Day were estimated to give the Biden campaign an overwhelming advantage. At the same time with Trump’s higher rating on the economy was estimated to be accompanied by the highest unemployment, and even downturn on the stock market.Yet partisan electoral cleavages for the most part remained steadfast. It is ironic that during the last two weeks of the campaign, Donald Trump mounted mass rallies across many states with many supporters without masks, wearing 'Make America Great Again' red caps and jerseys demonstrating vibrancy of the Trump “tribe”. This no doubt has had a psychological impact that spilled over to votes beyond his “loyal base”. The optics of these events conveyed the image of a President caring more about the adulation of supporters and winning votes and much less that many of them may contract the coronavirus and even die. Among the other issues that featured on platforms during the campaign were institutionalized racism highlighted by the Black Lives Matter movement, law and order, health care and climate change. They resonated differently with various constituents but seemed to have had less impact on changing voter behavior. They also consolidated already formed attitudes and preferences, shifting the pendulum of support imperceptibly from one party to another one. How else to explain the extraordinary electoral vote of 48% received by President Trump? Trumpism Overpowering the conservative traditions The 2016 Elections set US on course toward isolationism and tribalism. At his inauguration Trump announced his policy of 'America First' Trump's apparent endorsement of white nationalism which according to an insightful study, Caste:The Origins of our Discontent by Isabel Wilkerson highlights its close association with institutional racism and the persistence of a caste system in the USA that preceded Donald Trump but which he fueled. Caste (Oprah's Book Club): The Origins of Our Discontents ...www.amazon.com › Caste-Origins-Discontents-Isabel. Accordingly 2017 was deadliest time for mass shootings in modern American history that magnified racial hatred. They occurred in parking lots, public schools, city streets superstores. Las Vegas accounted for the largest massacre. A white supremacist drove into a crowd in Virginia killing a young white women leading to President Trumps famous statement "they are good and bad guys on both sides". In 2018, eleven worshippers were slain in the worse anti-Semitic attack on a Jewish synagogue in Pittsburg. Nowhere was tribalism more visible than in 2019 when President was impeached by the House and acquited by the loyalist in the Senate, and subsequently in the vitriol accompanying the hearings leading to the appointments of Supreme Court Judges, Brett Kavanaugh (2018) and Amy Coney Barrett (2020). The major propensity of President Trump for blatant falsehoods seemed not to have phased his electoral base and was overlooked by the high numbers who voted for him. If this scars the moral fabric of our accepted norms of leadership, The New York Times Fact Tracker revealed the stark reality of Donald Trump's character. According to its data, between his inauguration January 20, 2017 and September 30, 2020, Donald Trump told of an average of 15 lies per day. Readers may be interested in the book by the Washington Post Fact Checker staff Donald Trump and His Assault on Truth: The President’s Falsehoods, Misleading Claims and Flat-Out Lies. They drew on the database to compile a guide to Trump’s most frequently used misstatements, biggest whoppers and most dangerous deceptions. They detail how Trump misleads about himself and his foes, the economy, immigration, the Ukraine controversy, foreign policy, the coronavirus crisis and many other issues. The reality is that the roots of Trumpism did not begin nor will it end with Trump. They are connected to pervasive economic and political currents affecting much of the world Conclusion Who will reach the 270 Electoral College votes to claim the Presidency?. We await the results of the votes from 5 battleground states -- Arizona, Georgia, Nevada, North Carolina and Pennsylvania-- all still too close to call. The delay is mainly due to the magnitude of the mail-in ballots propelled by the safety requirements imposed by COVID-19. Since the close of the polls on evening of November 3, 2020, the President has railed against the extended vote count, tweeted conspiracy theories and vowed to appeal to the Courts. His ugly rhetoric is a direct attack on American democracy. It could leave a poisonous legacy of bitterness among his supporters and erode the legitimacy of the U.S. political system. While Biden is expected to emerge victorious, the Republican party appears to have retained control of the U.S. Senate, added seats in the House and gained ground in a number of state legislatures. Two weeks ago, we reflected on the implications of the 2020 elections for a Post American World. We were concerned about the diminished global presence and stature of America with another four years of Donald Trump. The casting of gloom by this prospect could mean erosion of America's democratic governance structure and even its civilization. So what's the deal? The first hand in the ultimate deal is whether Republican leaders will dissociate from the President and even speak out against vile maneuvers to reverse legitimate election results. The second, is immediately restoring the balance between health and economics in the height of a flaming coronavirus pandemic. The third is the need to focus on the healing of the nation. And the fourth, revolves around repurposing US foreign policy to rescue the nation from the brink of a Post American World. Eddie Greene |
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AuthorEdward and Auriol Greene Directors, GOFAD. Archives
April 2022
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