All posts by Eric Posner

The Fink doctrine

The Times reports that Larry Fink, the CEO of BlackRock, has sent a letter to the CEOs of the public corporations that BlackRock owns stakes in (which is to say, all large corporations). The letter argues that corporations must take seriously their responsibility to society:

Society is demanding that companies, both public and private, serve a social purpose. To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society. Companies must benefit all of their stakeholders, including shareholders, employees, customers, and the communities in which they operate.

Acolytes of Milton Friedman will squirm. The “Friedman doctrine” says that corporations should maximize profits, and no more. Let shareholders (who earn high returns as a result) and consumers (who pay low prices) decide how to use their savings to benefit society, directly or through government.

Friedman makes the good point that if we agree that business leaders should spend corporate funds on public benefits, then we’ll also have to accept them as agents of the public trust, yet there is no reason to believe that CEOs are capable of determining the best social uses for a corporation’s funds. Do you want the CEO of Exxon or Coca-Cola to use dollars that would otherwise go into lowering the prices of their products to fund the latest climate-denial institute or an art museum in a wealthy community? Or would you rather use those dollars for your own charitable interests?

Fink seems to be aware of these objections, and in fact toward the end of the letter, after suggesting that BlackRock’s vassals need to serve a “social purpose,” he defines that the “social purpose” for BlackRock as “investing the time and resources necessary to foster long-term value.” And this just means that BlackRock will continue, as it always has, trying to discourage corporations from maximizing short-term returns, and seems to have very little with the sort of corporate charity that Friedman attacked. Which is to say that BlackRock isn’t doing anything different except, according to the Times, adding staff to monitor the companies that BlackRock owns stakes in (something BlackRock and the other institutional investors have been doing for years, even while sometimes claiming in response to complaints about the antitrust implications of their behavior that they have no influence on corporate governance because they are “passive”).

If BlackRock wants to act in a socially responsible way, here is something it could do. It could demand that CEOs of the underlying firms be compensated based on the difference between the stock returns of their firm and the stock returns of other firms in the industry. This would give CEOs an incentive to cut costs so as to increase market share, passing on savings to consumers. The increase in competition would also reduce the aggregate returns of the firms within the industry since they typically enjoy market power, thanks to the oligopolistic structure of most industries and the firms’ common ownership by a handful of institutional investors like BlackRock itself. That means that BlackRock itself would lose money both for its shareholders and clients, including the relatively small portion of the population that has invested its savings in stocks. But the losses would be offset by gains to consumers. That would be good for society, but bad for BlackRock. Is Fink willing to put his (actually, our) money where his mouth is?

Last Resort

In this book, I examine the lawfulness of the federal government’s bailouts of major financial institutions during the crisis of 2008 and 2009.  Probably of most interest to a specialist readership but I also address the broader inescapable issues of our system of government. Does the government have too much power? Are there ways to prevent abuse? You can preorder the book here.

Radical Markets

Here’s my new book, written with Glen Weyl, to be published in the spring. Some blurbs:

“I have always been motivated to find ways to unite the power of technology and markets with the goal of creating a more egalitarian society. This book offers the most intriguing vision I have seen to date in uniting these apparently contradictory strands.”–Satya Nadella, Chief Executive Officer, Microsoft

“Perhaps the most ambitious attempt to rethink democracy and markets since Milton Friedman. Twenty years from now this just might be the book people are talking about. The writing is excellent, with great examples and historical detail. I admire the ambition and willingness to experiment, a rare thing in economics these days. It just might help launch a new branch of political economy.”–Kenneth S. Rogoff, author of The Curse of Cash

“One of the most exciting books in social sciences published in the past several years. Very original, using a consistent ideological approach, and intellectually compelling.”–Branko Milanovic, author of Global Inequality

Radical markets thinks big and builds daring proposals, all on a unified theme: the need for maintaining competition and eliciting decentralized information, whose neglect led to the demise of planned economies. Whether you are convinced by the specific proposals or not, your confidence in your worldview may well be shattered by the depth and originality of the analysis.”–Jean Tirole, Toulouse School of Economics, Nobel Laureate in Economics, and author of Economics for the Common Good

You can pre-order here.

The motive question and obstruction of justice

A number of people have argued that President Trump could not be convicted of the crime of obstruction of justice for firing James Comey, whatever the facts ultimately show about Trump’s motive. David Rivkin and Lee Casey, in today’s Wall Street Journal, are the latest to make this argument. In their words:

Mr. Trump’s critics claim that subjecting the president’s actions to scrutiny as potential obstructions of justice is simply a matter of asking judges to do what they do every day in other contexts—determine the purpose or intent behind an action. This is also wrong. The president is not only an individual, but head of the executive branch. Separating his motives between public interests and personal ones—partisan, financial or otherwise—would require courts to delve into matters that are inherently political. Under Supreme Court precedent stretching back to Marbury v. Madison (1803), the judiciary has no power to do so. And lawmakers enjoy an analogous immunity under the Speech and Debate Clause.

Yet Rivkin and Casey contradict this claim—that judges are not permitted to inquire into the motives of the president—a few paragraphs later. There, they agree that the president can commit the crime of bribery. Like many people, they don’t think the president can be tried for bribery until after he leaves office, but that is not the issue here.

The problem for the argument is that a president can commit the crime of bribery only if he has the right motive—or what is sometimes called “corrupt intent.” Imagine, for example, that Michael Flynn had offered Donald Trump a generous campaign contribution and at the same time asked Trump to call off the FBI investigation of him, which Trump subsequently did. To determine whether Trump illegally accepted a bribe, a jury would need to be convinced that Trump called off the FBI investigation in return for the money—in other words, that Trump was motivated by the personal benefit. If Trump was not motivated by the campaign contribution, but called off the investigation for legitimate public reasons, then he cannot be convicted of bribery.

So the argument that a court cannot inquire into the president’s motivations is spurious. And, indeed, Rivkin and Casey acknowledge that bribery is just a type of obstruction of justice, which means that the president can commit the crime of obstruction of justice just as he can commit the crime of bribery.

What is true is that a bribery conviction requires evidence of an independent act—the receipt of money—while obstruction of justice does not. This seems to be the key distinction that the president’s defenders rely on. They want to say that merely firing Comey cannot be obstruction of justice but engaging in some additional act (accepting a bribe, hiding evidence, etc.) would be. But why this distinction has legal significance has not yet been explained.

The Logan Act and its limits

Daniel Hemel and I try to make sense of the Logan Act, and show how it can be (and likely would be) interpreted by courts to avoid constitutional objections, including the worry that it would criminalize normal and reasonable interactions between U.S. citizens and foreign governments.

There is a rapidly growing genre of rebuttals that, in my view, fail to keep separate different considerations.

1. The first argument in these rebuttals is that the Logan Act is a dumb law, and a dead letter because of its dumbness—and probably unconstitutional as well. Hemel and I argue that people who make this argument are interpreting the law in the broadest way possible when in fact a court would interpret it in a narrow way to avoid the dumb consequences they emphasize. Notably, we think that the narrow interpretation would still encompass Flynn, as well as Nixon and a few other historical cases, but not the endless parade of examples (from Jane Fonda to John Boehner) that have recently made the rounds.

2. Another view is that even if the statute remains valid (as it does), Mueller should not charge anyone under it. It would destroy his credibility to charge someone under a statute that has never been enforced. While I’m more sympathetic with this view, the fact is that Trump’s defenders will do everything they can to destroy Mueller’s credibility, and I’m not sure the Logan Act argument will help them at the margin. Mueller may well end up charging people for violating technical election law regulations that are also rarely enforced. It seems to me that, from a political point of view, what matters is not the source of the law but the seriousness of the underlying conduct. If Trump himself or his aides acted in a wrongful way, and in a way that will be regarded as wrongful by the public at large, then the technical details of the statutes that are invoked will matter little.

3. Finally, many of the discussions conflate possible targets of Logan Act charges. I don’t think Mueller will indict Trump himself—if he did, that really would cause a political explosion, and it wouldn’t matter what the statute is, and Mueller can hide behind Justice Department policy that says the president cannot be indicted while in office. When we consider lower-level officials, however, it’s less clear what the political consequences of indictment will be, whether under the Logan Act or any other statute. I do think that if Mueller is unable to bring charges against anyone on substantive grounds, and ends up piling up convictions for lying to the FBI and nothing else, the political consequences for him (and benefits for Trump) will also be considerable.

Trump and the Logan Act

Daniel Hemel and I argue in the New York Times that the Trump administration has more to fear from the Logan Act than most commentators seem to think. The by now standard view, repeated by journalists as well as commentators, is that no prosecutor would try to enforce the law against, say, Michael Flynn and the “very senior” member of the Trump transition team who ordered him to contact Russia, because the law is old and has been so rarely used.

The question to ask, however, is why has the law been so rarely used (only two people have been charged under it, and no convictions have been secured). One possible answer is that prosecutors who have considered charging people believe that it would be all but impossible to convict them—either because of the vagueness of the law or possible constitutional objections. This is probably the source of skepticism among commentators.

But another possibility, which has received little attention, is that no one has ever violated the Logan Act before in a way that could be easily prosecuted. Many of the examples that have been discussed involved members of Congress who have urged foreign governments to disregard some foreign initiative of the president, but members of Congress have an independent argument that they are acting under constitutional authority when they, in effect, warn foreign governments that whatever the president wants to do, Congress will use its constitutional authority to interfere with it.

In other cases, ordinary private individuals have tried to influence foreign governments, but it must have been obvious to prosecutors if they looked into these cases that few private individuals—except possibly CEOs of major corporations—could possibly have any influence over a foreign government. Why would a foreign government care what you or I think? No harm, no foul.

Lastly, there are cases which really seem like Logan Act violations. Most famously, then candidate-Nixon tried to undermine Lyndon Johnson’s peace initiatives with North Vietnam. In a much murkier case, some people allege that Reagan tried to interfere with Jimmy Carter’s efforts to secure the release of the hostages in Iran. These cases did not lead to criminal investigations for a very obvious reason—they were unknown to law enforcement. Can there really be any doubt that if it had come to the attention of the Justice Department that Anna Chennault, Nixon’s channel to Saigon, had persuaded Nguyen Van Thieu to torpedo the negotiations, the Department would have investigated, and ultimately prosecuted Chennault, as it would eventually prosecute the Watergate burglars?

The Flynn situation is altogether different. We now know that he tried to interfere with American foreign policy with respect to Israel and Russia, and, as the incoming National Security Advisor, he could make credible promises or statements that no ordinary American could make. How strong the case turns out to be will depend on what exactly he did, which is still unclear. While Mueller may decide not to prosecute Flynn for the Logan Act violation because Flynn is cooperating, I suspect that Mueller will pursue this line of inquiry against other officials in the Trump administration.

Are we in a constitutional crisis (yet)?

Over the last nine months I have been asked this question many times, and I always answer No. You might be unhappy with the presidency, or gridlock in Congress, or our constitutional system as a whole, but that is not the same thing as a crisis. If it were, then a constitutional crisis has always existed—it exists whenever someone we don’t like wins the presidency and since that’s always the case because people always disagree, that’s always. We might as well drop the term for something more descriptive—“constitutional unhappiness,” for example.

I was recently asked to write a chapter for a book, and was given the same question—is the United States in the midst of a constitutional crisis under the Trump administration? Again, my instinct was No. As I started a draft, I realized I would need a definition, and I tentatively began with this one:

First, there must be significant disagreement among political actors about what the constitution empowers or requires them to do. The disagreement cannot be merely theoretical (for example, over abortion rights, or the role of original meaning in constitutional interpretation); it must involve day-to-day operations. Second, this disagreement results in serious disruption in “normal” government operations or the substantial threat thereof.

The civil war was a constitutional crisis because North and South disagreed on the constitutionality of succession, and normal government operations were suspended for several years while the two sides battled it out. The contested 1800 and 1876 elections, and possibly the 2000 election, could also be considered crises, and also the Johnson and Clinton impeachments and Watergate as well, but at a much lower level. The disruptions of governance were briefer and less consequential, and the constitutional disagreements were not profound. The constitutional disagreements in Watergate and the 2000 election were resolved by the courts, and with the benefit of hindsight, we can see that both sides were willing to acquiesce in the Supreme Court’s pronouncements, suggesting that the constitutional disagreement was shallow. The impeachments may have disrupted the national government but they followed the constitutional rules.

The virtue of my definition is that it suggests that constitutional crisis is episodic rather than never-ending. But is the definition right? An alternative view is that a crisis exists just when people think it exists. And a lot of people seem to think that a constitutional crisis exists right now.

To address this alternative view, I adopted the very simple approach of counting up media articles that use the term “constitutional crisis.” The graph above provides the raw data.

Yow! If we go by the data, and we believe that a constitutional crisis exists if people think (or at least, say) it exists, the graph suggests that we are in one. The graph also gives us spikes during the Clinton impeachment and the 2000 election. But there is an obvious problem with using raw data, as suggested by the apparent flatness of the line during Watergate. It does not adjust for the increasing number of publications in the database.

The graph below shows the results after dividing the number of articles that contain “constitutional crisis” by the number of articles that contain the word “Congress” (possibly not the best denominator to use, I admit).

A few things stand out. Now we get the expected spike for Watergate, as well as smaller spikes for the Clinton impeachment and the 2000 election, and possibly for Iran-Contra scandal in 1987. Our current situation seems much less crisis-like but not exactly normal times either. This seems to me about right.

I think the problem with my narrow definition is that a crisis is in part a psychological phenomenon. A constitutional crisis could exist even if the government continues to function because people believe that at any moment it will stop functioning, or are willing to take action to stop it from functioning in order to vindicate their constitutional views—and that belief or motivation could itself precipitate the breakdown in the constitutional order. Have we reached that stage? Hard to say, but the data, for what it is worth, suggests not yet.

Trump & Nixon

Bret Stephens:

But Trump’s move toward the Democrats on DACA — just as his earlier move toward them on the debt ceiling — isn’t about pragmatism. It’s not even about the plasticity of his convictions. It’s about his addiction to betrayal, his contempt for those who bend their knee to him, his disdain for “losers” (especially when they’re on his side) and his desperate need to be admired by those who despise him most simply because they have the wit to see through him. This is a presidency whose defining feature isn’t ideology, much less policy. It’s neurosis.

This is almost exactly the sort of thing that people said about Nixon. Nixon, like Trump, loathed the establishment, while also longing for its approval. Like Trump, he both attacked establishment figures and fawned over them, publicly humiliated them and hired them as aides. Nixon, like Trump, seemed to be a peculiar victim of the Hegelian dialectic: he felt contempt for his followers while seeking to surpass the people he perceived as equals or superiors. And Nixon implemented or proposed countless liberal policies that outraged his supporters—not just EPA and OSHA, but wage-and-price controls, a generous welfare measure, and, for that matter, détente with the Soviets and the opening with China, which were anathema to the right at the time. Like Trump, Nixon loved to defy prediction, and this often meant acting contrary to his perceived ideological proclivities.

And yet Nixon really was a conservative, and he really did seek to advance a conservative agenda—and would have been more successful had it not been for Watergate. He advanced liberal policies in order to divide and confuse his enemies, and to shore up public support where the public really wanted them. He was playing the long game: trying to establish an ideologically conservative majority consisting of white southerners, northern workers, business, and religious people (a coalition later perfected by Reagan). Thus, he appointed conservative supreme court justices, attacked the counterculture, opposed busing, bashed the press (through his surrogate, vice president Spiro Agnew), and harped again and again on the liberal eastern establishment, hoping to destroy its cultural and political influence by representing it as elitist and contemptuous of the values and interests of the common person.

Trump lacks Nixon’s sophistication. But it would be a mistake to think that the deals he has made with the Democratic leadership (if that’s what they are) show either that he is merely working out his neuroses in public or that he lacks an ideological agenda. We’ve been through this before.

The Trump Oversight Committee

Is there any way to remove Trump short of impeachment, which seems a long way away, for numerous political, legal, and practical reasons? A popular view among his many opponents is that he could be declared mentally incompetent under the 25th Amendment. But that approach seems even more far-fetched than impeachment. Trump is irascible and impulsive, but he is not mentally disabled, and there is no use pretending that he is. Some Democrats in Congress have proposed a bill that would create an oversight council consisting mostly of physicians and mental health experts, who would be given the power to examine Trump and declare him mentally disabled. But if they were to do so, they would surely be accused of politicizing psychology. Psychology is a terribly weak field, with a long history of being abused for political reasons. While there is a real danger that Trump, like any other elderly person, might develop dementia, I suspect that an oversight council staffed by responsible physicians would refuse to make such a finding until it was already obvious to the world.

In trying to find another path, I argue here that the vague authorities in the 25th Amendment could be used to jury-rig an oversight council that evaluates that president’s political competence rather than his mental competence. A mentally competent president may still be a terrible president, and if he loses the confidence of both parties, an argument can be made that he should be removed from office. This is admittedly a device for giving our presidential system some of the characteristics of the much-envied parliamentary form that prevails in countries like the United Kingdom.

Should the courts be less deferential to a lousy president than to a competent president?

Yes, say Sanford Levinson and Mark Graber. (But because they are professors, they say “anti-Publian” rather than “lousy”). They counter the view, which they think is conventional (is it?), that the court should enforce the same rules against all presidents. I think the conventional view is really that courts should enforce the same rules against all presidents regardless of their ideological views or party affiliation, not regardless of competence. No one has really thought about the question of presidential competence before, at least outside the narrow context of the 25th amendment. But that said, okay. The idea here is that the courts should not use constitutional doctrine to overrule an election (by ruling against the president on the margin in controversies involving the powers of his office) unless the electorate elects someone who is (or becomes) incompetent.

The next question is whether Trump qualifies as lousy. Levinson and Graber says yes, quoting a bunch of liberal journalists, politicians, and academics, but also a handful of respectable Republicans and conservatives (whose views are nonetheless more measured, and could probably be applied to more than one president). I’m on board, assuming we use a proper definition of lousiness, and if we can prevent our political views from affecting (too much) how we evaluate a president (and not sure we can). It’s too easy to say that the guy we disagree with is dumb, or possibly crazy. You can see Levinson/Graber as extending the 25th amendment deep into the crevices of constitutional doctrine, implicitly arguing that incompetence is a sliding scale, and if the 25th amendment mechanism doesn’t lurch into action, judges can vindicate the underlying idea by ruling against semi- or fully incompetent presidents when they do semi- or fully crazy things.

But it raises questions, maybe more so for the legalist than for the realist, but here they go:

— Should judges “formally” declare the president incompetent (or “anti-Publian,” or “lousy”; choose your adjective)? You can imagine the Supreme Court making such a finding so as to instruct lower courts. But it is hard to imagine, to say the least. If not, then the courts are on their own, and the law is unstated. Perhaps it will be clear enough in Trump’s case that future courts should not follow precedents that narrow the powers of judicially determined incompetent presidents, but what will happen in future when courts disagree about whether a specific president is lousy or not? If courts can’t publicly declare that they ruled against the president because they don’t trust their judgment, and so do so covertly, do we need to worry about confusion and inconsistency, or are these all second order harms when the fate of the Republic is at stake?

— Should judges worry about the inevitable backlash? Trump remains the most powerful man in America, and judges who openly defy him invite retaliation. The reputation of the judiciary has been on the decline for some time; will open rebellion hasten the decline or (as I’m sure Levinson & Graber imagine) reverse it?

— Has the judiciary already declared Trump unfit, implicitly at least, by finding animus in the motivation of the travel ban? The logic of the decisions so far suggest a far-reaching inquiry every time the president engages in any action. Lawyers have already argued that the DACA withdrawal has been tainted by Trump’s anti-Mexican animus. Is the animus inquiry just a doctrinally convenient manner of implementing the Levinson/Graber project without admitting it?

— And, finally, Graber & Levinson claim a “broken constitutional order,” implying the need for radical rethinking of the Constitution, which Levinson has urged for many years. But aren’t they really proposing a narrow doctrinal tweak, in the style of the conventional law professor who seeks from the judiciary doctrinal solutions to all our political problems, and one that will preserve our order, broken or not, through the Trump years rather than motivate needed constitutional reform? Indeed, they argue provocatively but also conventionally that courts should refuse to recognize delegated power to the president unless Congress says explicitly, an argument that, if taken literally, would play havoc with the entire bureaucracy. But can we really trust Congress to step in, as needed? Or is it from a collective standpoint as dysfunctional as Trump is personally?

Introducing the Bilateral Labor Agreements Dataset

Written with Adam Chilton and Bartek Woda

The above figure shows the number of Bilateral Labor Agreements (BLAs) that countries signed between 1945 to 2015. Although hundreds of BLAs have been signed, these agreements have received little attention from academics. This is likely in part because BLAs often are not recorded in major treaty databases or widely reported on. The result is that data on BLAs has not been publicly available.

Over the last two years, we’ve been collecting data to try and change that. We’ve compiled data on 582 BLAs, and we are making it available in two datasets that are ready for use by researchers. If you’re interested in using the data, you can learn more and find the link to download it here. If you’d like to know more about why countries sign BLAs, you can read Adam and Eric’s paper on the topic that’s now forthcoming in the Journal of Legal Studies. And if you know about BLAs that should be added to the dataset, or taken out, please let us know.

Is Trump normalizing?

Seems like it. Since Charlottesville (almost a month!) or maybe the Phoenix rally (two weeks!), Trump has not made any big blunders. No super-embarrassing leaks. No obvious efforts to obstruct justice. Trump’s lawyer, Ty Cobb, says all the right things (well, almost), giving a strong impression that the administration has taken a cooperative attitude toward Mueller’s investigation. The DACA revocation seems to have been rolled out in a professional way, in contrast to the travel ban blunder at the start of the term. Am I wrong to think that Trump’s tweets have mellowed. Fewer personal attacks? Threats against judges? Attacks on the press? Or is it that since Trump has followed through on none of this threats, his words no longer seem ominous, but just background noise? Can only a law professor appreciate the irony that the Trump administration believes, or at least says it believes, that President Obama lacked the power to issue DACA. Is Trump, the supposed dictator, actually trying to weaken the presidency?

Suppose I am right (and I don’t know that I am)—what could explain this turn of events? The answer seems obvious. Trump has experienced the most spectacularly unsuccessful start of a presidency since I don’t know when. He has managed to provoke nearly everyone who might help him or at least not stand in his way—Republican senators, his cabinet officials, the intelligence community, the FBI, the press, the courts—and unsurprisingly has accomplished almost nothing. It seems possible that he has learned something, and that the staff changes in the White House reflect what he has learned. It is predictable that as the amateurs in the White House give way to experienced professionals, the administration will begin to resemble something like a professional organization. Trump has acquiesced in all this; does he deserve credit for doing so?

A parable for Google

There was once a village nestled in a small valley where the people lived long and prosperous lives. The local deity, unlike so many of the other gods in that land, smiled on the people and demanded only that they remember him in their prayers. But then one day a change came about. The people were hit by wars, plagues, and famines that nearly destroyed the community. At long last, the village, sensing it had displeased its god, sent its leading citizen up the mountain to seek enlightenment from the god and a path forward.

When he returned, he told the assembled elders that the god appeared to him in a fevered vision and explained that he was angered because the people had started using the god’s name in vain. This came as news; no one knew the god had a name. But it turned out that the god did, and that some subtle change in the evolution of the language had introduced the god’s name into everyday communication without anyone realizing it. And he forbade the people to use it.

“Well, what is his name?”, the people asked. And the man who returned from the mountain smiled sorrowfully and said, “I cannot say it lest I anger him.” But through gestures and circumlocutions, the man made the people understand that the god’s name coincided with the word for a farming implement, or newly imported type of jewelry, or some such thing—the identity of the actual item, and the word itself, is lost to time. The people duly avoided uttering the sacred word upon pain of execution.

Prosperity returned, and continued for generations. But with the passage of time, disagreement arose as to which item it was that corresponded to the god’s name. Yet the memory of the travails that beset the community remained powerful, and the fear that someone would inadvertently (or perhaps mischievously) break the taboo remained ever present. The elders consulted the sacred texts, and various theories arose as to the identity of the forbidden word. The very oldest villager recalled that the word began with an “a” or possibly an “s,” and so it was decreed that no words beginning with those letters may ever be uttered. A prominent theologian insisted that the word must have had three syllables, and so three-syllable words were struck as well. As theories multiplied, the governing council, out of prudence more than conviction, struck more and more words from the language. But because of the difficulty of eliminating words without mentioning them, the villagers were often confused, and as a result tried to use as limited a vocabulary as possible, so greatly did they fear the god’s wrath.

The people of the village seem to have satisfied their god, as they remain healthy and even prosperous. By disgorging the forbidden fruit, they obtained readmission to the Garden of Eden. But they also live in fear of causing offense to the god, and so watch carefully the few words that remain to them. Under the pall of the proscription, many treasured community activities stopped long ago. To tell the truth, a group of people more prosperous and stunted is hard to imagine.

Probability that Trump will be impeached next year

1. Adverse public opinion

2. Bad economy

3. Hostile media

4. “Incontrovertible evidence” of illegal activity

In his book about the Clinton impeachment, Bob Woodward quotes Senator Fred Thompson, a Republican who voted against removal, who cited the four factors above as necessary, and possibly sufficient, for impeachment and removal of a president. Thompson was generalizing from one (Nixon) or possibly two (Nixon and Johnson) data points, but his theory turned out to hold for Clinton as well.

The relationship between these factors is complicated; they are surely not independent of each other. Nixon enjoyed extremely high standing in the public (>60%) coming off his reelection, bolstered by significant foreign policy accomplishments. It was the gradual disclosure of increasingly incontrovertible evidence of illegal activity that destroyed his standing among the public. The bad economy and hostile media surely did not help. And while the media had always been hostile to Nixon, as it has been with Trump, the disclosure of evidence made it more hostile—as stalwart Republican papers like the Chicago Tribune eventually turned against him as a result of the disclosures.

Clinton, by contrast, remained popular throughout the revelations that led to his impeachment, and throughout the impeachment proceedings as well (#1). The economy was strong (#2). And while there was incontrovertible evidence of perjury and obstruction of justice (#4), the underlying behavior—adultery—was not considered very serious by the public. People disapproved of Clinton’s behavior but did not think a president should be impeached over it. We should amend #4 to state “illegal activity beyond the cover-up itself”—burglary, espionage, violation of people’s rights, rather than adultery. Clinton also faced a hostile media, though maybe not as hostile as the media faced by Nixon and Trump.

Trump is the least popular president of the modern era. While other presidents have done worse in the polls from time to time, no president has done so badly in the honeymoon period at the start of the presidency and during a period of economic prosperity and international peace. Trump’s approval rating is worse than Nixon’s even after the Senate Watergate hearings began in May 1973. At that time, less than 20% of Americans supported impeachment of Nixon. That number would not rise above 40% until almost a year later, after the Saturday Night Massacre and additional revelations. More than 40% of the public already wants Trump to be impeached.

So much for #1. We can also pass over #3. If Thompson is right, the only question is if (and when) the economy tanks, and if (and when) the “incontrovertible evidence of illegal activity” emerges. Economists estimate a 10-20% probability of a recession in 2018. If you think that the probability of incontrovertible evidence coming to light is 100%, then we can understand why prediction markets suggest a 20% probability of impeachment in 2018. The probability of impeachment is just the probability of recession (to a first approximation).

But that leaves the question of #4. At what point is evidence “incontrovertible” (and does it really need to be?), and how serious does the illegal activity need to be (and does it even need to be illegal?)? For both Nixon and Clinton, the evidence really was incontrovertible. Will we ever reach that stage for Trump? If Trump or top aides actually colluded with the Russians, and aides testify under oath, will that be enough? Do we need a memo? Audio? Video? What if Trump merely engaged in shady financial transactions with Russians long before he ran for election? Hard to say.

One thing that places Trump in a category different from Nixon and Clinton is that no one thought Nixon or Clinton was incompetent. Amoral, yes; impulsive, in Clinton’s case; but not incompetent. This is an additional factor to take into account, one that did not even occur to Thompson. If Trump convinces us all that he welcomes the prospect of a nuclear war with North Korea, then one way or another he’s going to get pushed out.

A better way to protect Robert Mueller

Daniel Hemel and I discuss the Tillis-Coons and the Graham-Booker bills, which seek to protect Mueller from being fired. We argue that the bills need to be strengthened. Trump can harass Mueller in many ways short of firing him (or getting him fired).

It might seem that things have calmed down since Kelly was put into place, and maybe we no longer need to worry about Mueller. But in fact we’re in the eye of the storm. When Mueller digs into Trump’s alleged financial relationships with Russian criminals, Trump may well risk the political blowback to stop Mueller in his tracks.

Time to talk about impeachment?

Until now, impeachment was off the table for three reasons. First, Republicans control the House and Senate and as long as they could put up with Trump, they would never start impeachment proceedings let alone convict. Second, in the immediate aftermath of the election, impeachment would have been seen as a repudiation of democracy, and hence as a kind of coup, even if the formalities of the procedure had been complied with. Third, there were no “crimes or misdemeanors” that could be pinned on Trump, at least none that were sufficiently clear to warrant the disruption of impeachment.

All this is changing before our eyes. Republicans in Congress are gradually distancing themselves from Trump. As long as he can’t deliver political victories like health care reform, they gain nothing from keeping him in office. And as Trump continually proves himself erratic, untrustworthy, and incompetent, the prospect of a long string of political defeats is becoming inescapable. We are a long way from this point of time (perhaps Kelly will delay it for a few days), but an inflexion point has been reached.

Moreover, as the election recedes farther into the past, impeachment can be based on Trump’s post-election failures rather than on disagreement with the people who voted for him. While the voters may have acquiesced in Trump’s conflicts of interest and lack of experience, the election cannot absolve him of his post-election conduct, including the continuing pattern of obstruction of justice, the chaotic administration of the White House, and the weird and possibly criminal involvement with Russia. If an economic downturn occurs or a crisis is mishandled, then the impeachment drumbeat will begin.

And finally, obstruction of justice provides the “crime or misdemeanor,” sanctified by the Nixon and Clinton precedents. The pattern of obstruction is by now so overwhelming that it can hardly be denied. That said, the House and Senate will need to decide whether obstruction alone warrants impeachment and removal, or some additional crime is necessary. The Clinton impeachment failed, in part, I think, because the cover-up was the only crime; the underlying behavior was never found to be illegal. Unless evidence of Russia collusion or other illegal or deeply immoral behavior is found and proven in a public way, I suspect that impeachment will not take place, even if Democrats obtain a majority in the House in 2018.

The probability of impeachment remains low, but not as low as it used to be.

The obstruction of justice statute as a check on presidential power

Almost without anyone noticing, a group of obscure statutes, mostly from the nineteenth century, have become, in the hands of the FBI and Justice Department, a significant check on presidential power. Don’t believe me? Consider our last nine presidents.

1. Nixon. Resigned after articles of impeachment drafted by House Judiciary Committee allege obstruction of justice.

2. Ford. Pure as the driven snow.

3. Carter. As innocent as the morning dew.

4. Reagan. Allegations (never proven but investigated) that he engaged in obstruction of justice in connection with the Iran-Contra scandal. Aides investigated, charged, and (in a few cases) found guilty (though rescued in various ways).

5. H.W. Bush. No investigation; but a plausible claim has been made that by pardoning Iran-Contra defendants, Bush blocked the investigation into his own role.

6. Clinton. Impeached for obstruction of justice; later sanctioned for contempt of court, based on what was effectively obstruction of justice.

7. W. Bush. FBI investigated Bush administration’s firing of U.S. attorney in New Mexico, based on obstruction-of-justice argument that it retaliated against him for failing to indict a Democratic state elected official before an election.

8. Obama. Clean as a whistle. (Or was he? Did he obstruct justice by publicly declaring that Hillary Clinton’s use of private email servers did not endanger national security. You be the judge. But my criterion is whether there was an official investigation.)

9. Trump. I would crash my server if I tried to describe all of his actions that would qualify as obstruction of justice based on these precedents. But it is worth mentioning that the public humiliation of Sessions counts as obstruction of justice, to the extent they are intended to spur him to get rid of or constrain Mueller, and also leaks, reported just today, suggesting that the president plans to fire Sessions. Also, if Trump pushes the Justice Department to investigate Comey and Clinton, yes, that too, to the extent that Trump hopes to block investigations into his Russia ties, or to retaliate against political opponents, as Daniel Hemel and I argue in Slate.

That’s 5 to 7 of 9 presidents (or their aides) embroiled in an obstruction of justice scandal, depending on how you define “scandal” (I’m inclined to include H.W. Bush and exclude Obama, but won’t insist on this.)

And also see our latest paper, which goes into more detail.

Is there a coming constitutional crisis?, #2

In my previous post, I suggested there isn’t, but maybe I wasn’t being sufficiently imaginative. It is possible that a constitutional crisis would erupt if Trump fires Sessions, or forces Sessions to resign (p=0.9). But how, exactly? A political crisis, yes. Many die-hard Trump supporters appear to be die-harder Sessions supporters. Trump’s already low popularity could plunge, putting his agenda into even greater peril than it is already in. But nothing stops Trump from appointing a new attorney general, and then tweeting and playing golf until 2021.

I want to maintain the notion that a constitutional crisis takes place when the government can no longer operate or faces significant disruptions because of disagreements among key public officials about what the constitution requires; broader definitions just seem to be gestures at drama. What does seem possible is that the firing of Sessions would create a breach between Trump and Republican Senators, many of whom are strong Sessions supporters. They could retaliate by refusing to confirm a new attorney general, or other nominees, for good, or (more likely) unless Trump appoints to the position someone who has a reputation for independence. This would mean that the standoff between Trump and the Justice Department would continue for the foreseeable future.

The underlying constitutional norm at stake is the independence of the Justice Department. This might seem like an odd claim: isn’t the Justice Department in the executive branch, which the president heads? But it seems increasingly clear that a new constitutional norm has arisen, possibly traceable to Watergate, according to which the Justice Department is semi- or maybe completely autonomous, much like the judiciary. You might think of Trump as a kind of unlikely James I to Sessions’ even unlikelier Lord Coke, who resisted the king’s efforts to subordinate the judiciary to the executive, and helped establish the principle of judicial independence. But for Trump, the relevant norm is not judicial independence but prosecutorial independence. Trump is trying to reverse the norm, but it has many defenders in both parties.

There is logic to all this. The principle of judicial independence is entrenched; not even Trump can touch it. But our system has maneuvered around this principle by granting increasing power to prosecutors, which they can use to harass people with investigations and selective prosecutions based on general laws that are otherwise not enforced. This power has grown to such an extent that it can easily be abused by a powerful president if he were really to exercise control over prosecutors, as the traditional legal sources maintain he has. The norm of prosecutorial independence, if one can call it that, has evolved over the last forty years to cabin the president’s discretion and prevent this kind of abuse. Trump is the first president to challenge it.