I’m confused. I thought gman was only allowed to post in one thread in this forum, and I don’t think this was the one. Did that change? Or am I mis-remembering the rules that Tom laid down?
Because I keep accidentally clicking on this thread thinking that I’ll see some new interesting posts about the political damage Facebook and social media is allowing and instead I keep seeing bullshit arguments.
I’d love for you to explain why the Volokh argument I laid out was “bullshit,” because it seems pretty persuasive and no one has been able to refute it. Or are you just here to drop more insults, and pretend that I’m barred from posting here based on your total misunderstanding of a thread from weeks ago (which also reveals your overwhelming political bias)? Too bad.
Yes, you are misremembering. No such rules were ever laid down.
Well that’s too bad. Looking back, it’s true I am not remembering the thread correctly, but too bad for the rest of us that his self imposed quarantine was so short lived.
From that other thread:
This thread wasn’t actually in this forum, and got moved in here.
That’s reasonable, but nonetheless he does not represent the consensus opinion of legal scholars. So your argument is that Trump did nothing wrong because one scholar argues that it is clearly against the law, but it shouldn’t be. That’s a weak argument even if it’s correct that it shouldn’t be illegal. Ignoring laws you don’t like is a bad idea, especially when you are doing it as part of selling out your country.
Here’s a counterpoint to Volokh, based in part on the opinion of a former FEC lawyer: Both Campaigns Sought Russian Dirt. Clinton's Way Was Legal. - Bloomberg
I find Volokh’s arguments unconvincing, because he puts a lot of emphasis on the need to protect press communications with foreign nationals, yet there are clear press carve-outs and citing freedom of the press doesn’t always produce the same result as citing freedom of speech. The press has forms of protected speech that individuals do not.
The statute exists to prevent gifts intended to influence an election - if a foreign national is giving facts about a local event to a reporter, or if a campaign purhases a foreign-made product at its market value, the former is not intended to influence the election and the latter is not a gift. I don’t see why the First Amendment requires us to protect the press from doing due diligence on the intent and potential impact of information they receive from foreign sources about political candidates.
I think his argument is that if a law can’t hold up in court, then that law can and should be ignored, and if it is ignored, there will be no repercussions.
If so, the argument is a house of cards. I think pot should be legal everywhere and that no reasonable judge will uphold any indictment. I could provide compelling arguments from learned scholars supporting this position. Thus, no worries toking up in front of the DEA office.
For the election thing, putting aside the technicalities, what is right? Is it OK to receive info from a foreign government to help your election cause? Obviously not. Is anybody here trying to argue that? Gman? If no, then what is the point of all the legalese?
Maybe I’m missing it, but where is the legal argument here? He seems to just say that Clinton avoided the issue entirely by paying an intermediary, not a foreign national. But Trump team dealt directly with the foreign national. This says nothing about what we are talking about though – whether dealing directly with the foreign national the way team Trump did is a crime.
Much depends on the specifics, as you can imagine. If it’s a state law saying that federal agents cannot enforce gun control laws in Texas, would you feel comfortable ignoring that law if you’re an FBI agent? Probably, because it wouldn’t stand up in court, even if it’s “on the books.” (Laws like that were actually passed under Obama).
It can be okay. Not all foreign powers are the same, and it depends on what’s said. For example, if Trudeau calls up Clinton’s campaign and says “Spend more time in Wisconsin, our experts say you might lose, we don’t want to lose there and have to deal with Trump!” I don’t see any grave ethics breach with that phone call. In fact, I see potentially great effects of such a call, were it made. :)
Part of it’s moving the goalposts.
“There is no collusion.” But as evidence mounts that the trump campaign did indeed work with Russian intelligence agents, or funnelled foreign contributions through the NRA, or received stolen data through computer hacking - then the conversation changes - or rather, returns to-collusion is not illegal.
Which is technically true. However, conspiracy is illegal - in this case, conspiracy to commit crimes with regards to campaign contributions and aiding and abetting computer hacking after the fact - and you are correct, it is illegal to accept money and gifts from any foreign entity.
trump’s surrogates certainly face legal jeopardy, although undoubtedly they will all receive pardons for any federal offenses. Even though that would normally be political suicide, we have seen that for the current remaining Republican voters, they do not care. trump can literally do anything he wants, and they will support him. And as long as those voters remain loyal, so to will Republicans in Congress. There is no historical parallel here (as far as I know) since it seems impossible to imagine any event breaking that hold (Nixon and McCarthy are the closest parallels I can think of, and then Republicans eventually ‘did the right thing.’ That is not going to happen this time.)
As for trump, it is DoJ policy that a sitting President cannot be indicated. It is unlikely Mueller and Rosenstein will act counter to that policy. If somehow there is an attempt to indict trump on criminal activity it is easy to imagine SCOTUS ruling in trump’s favor. We may very well end up without any legal recourse.
Which leaves impeachment and conviction, but even should Dem’s win the House the Senate won’t convict him. It all boils down to the voters - we are the only ones with the power to put a brake on this corrupt regime and eventually stop this, first in 2018 and then in 2020. However not only do we face all the inherent advantages Republicans have (in the EC, and the Senate) and the ones they have created to maintain power (voter suppression, gerrymandering), a complicit media whose reflex is to normalize trump - now we also have to contend with Russian interference - interference the Republican party and their voters welcome.
(For some balanced reading on this, these two New Yorker pieces are pretty good. They’re both a little dated at this point but worth reading.)
It explicitly says that the laws against receiving contributions apply to opposition research and that dealing directly with foreign nationals would be a crime (it hedges on whether the allegations are true or not).
That’s generally a bad idea. I’m not dissing Volokh, but citing him without understanding him and without understanding the actual law isn’t just an appeal to authority, it’s an ignorant appeal to authority.
Volokh argues, basically, that the law would prevent a foreign national from contributing a story (a ‘thing of value’) to the media, that such a ban would run foul of the first amendment, thus (at best) ‘thing of value’ can’t mean oppo research, and at worse the whole law is unconstitutional.
Let us assume for a moment that Volokh is right. There are a range of possible consequences short of striking down the entire law or changing the meaning of ‘thing of value’. Judges are meant to defer to the legislature to the greatest extent possible, to read the law if possible in the best light. A Judge could simply decide that the law didn’t apply to the distribution of information to the media. If you think a Judge can’t do that, simply consider what Roberts did to the ACA when he decided that the individual mandate was actually a tax rather than, well, an individual mandate.
Fortunately, though, we don’t have to rely on the kindness of Judges. Volokh’s argument is simply wrong. How is it wrong? It’s wrong because he didn’t spend enough time reading the definitions section the legislators wrote as part of the law. In particular, he missed this definition:
“(B) The term ‘‘expenditure’’ does not include— (i) any news story, commentary, or editorial distributed through the facilities of any broad- casting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party,
political committee, or candidate;”
I’m happy to. The law explicitly permits foreign nationals to provide news stories to the media. Volokh’s entire argument is based on him not having read the law. Your appreciation of his argument is based on your not having read the law.
Can I suggest that if you want to argue about this, you actually read the law? Or at least read the sections your arguments depend on?
I’ll save this one for the next time I need an example of ‘premature ejaculation’. 😉
I’ve been checking my mailbox everyday and still no gman prize. Game on!
We don’t have to tell anyone else about this do we?
Not in my administration. That’s the root of it as far as I’m concerned. As soon as you place a value judgement on what is positive or negative foreign interaction regarding specifically effecting the election, and establish rules based on that, then slippery squirrels get away with treasonous acts.
As I said, safer to nuke from orbit. Nobody is studying the aliens for the “good” of anything. I’ve enjoyed reading your debate Gman, because as I said, that level doesn’t come from Trump himself, but if your base is “sometimes it’s OK” then the rest is tainted. For me.
Indeed, Volokh’s arguments are unconvincing because he missed the simple fact that the law explicitly allows foreign nationals to give stories to the press. The entire argument is based on his not having read the very next paragraph in the definition of ‘expenditure’ he cited.
This is the bit he read:
(9)(A) The term ‘‘expenditure’’ includes—
(i) any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal
office; and
(ii) a written contract, promise, or agree-
ment to make an expenditure.
…and this is the very next bit:
(B) The term ‘‘expenditure’’ does not include— (i) any news story, commentary, or editorial distributed through the facilities of any broad- casting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party,
political committee, or candidate;
I mean, that’s bad.
It can be our secret.
Maybe this was posted earlier but I’m just catching up on reading the actual thread instead of making silly comments.
In the article gman linked:
There was an update where Volokh added a link (and rebuttal) to this article:
So a first amendment expert v. an election law and campaign finance expert I guess? Fight!
I found this bit in the Slate article interesting.
A three-judge district court, in an opinion by conservative D.C. Circuit Judge Brett Kavanaugh, roundly rejected the argument and affirmed the broad scope of the foreign contribution ban in Bluman v. FEC:
Not even that. Volokh’s claim that the law prohibits a foreign person from giving information to the press is simply wrong. The law explicitly permits that.
He does address the passage you are referring to. I think his reading of it is a stretch, but it’s not like he ignored it completely:
There is a media exception to the ban on expenditures; that provision defines “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication” as being not an “expenditure” (even though money is spent to publish such material). But, as I read it, that frees media outlets (even foreign-owned ones) to spend their money in speaking about candidates and frees domestic corporate-owned media outlets to speak to candidates about coverage (which might otherwise be an illegal corporate-coordinated expenditure). The media exception doesn’t let media outlets solicit “expenditures” by third parties.
His reading makes no sense, because he seems to think that providing information to a newspaper constitutes an illegal expenditure, but expenditures are only illegal if they are made for an electioneering communication, and a news story doesn’t count as an electioneering communication. I mean, it’s true that media outlets can’t solicit expenditures for electioneering communications by foreign nationals, but that only applies to newspaper ads or other non-news items.