Can It Happen Here?: Authoritarianism in America

The book, edited by Cass Sunstein, is out. Buy a copy and another one for a friend.

The book exemplifies a paradox of aggregation. Individually, most authors (including me) answer “probably not.” Yet read every essay and close the book, and the impression you’re left with is more like “uh-oh.” Perhaps the reason is that the authors bring so much energy and varied perspective to describing the threats to constitutional democracy, and draw on different historical and comparative sources that reinforce each other. However, when explaining why those threats are likely to be countered, the authors converge on a series of familiar observations about the strength of our institutions and political culture. With each repetition, these observations sound more like hollow reassurances than irrefutable truths. Well, villains are always more interesting than heroes.

What would a useful Twitter look like?

When I opened an account on Twitter several years ago, I naively made the following assumptions.

1. I could follow newspapers and other publications so I would get stories I’m interested in.

2. I could follow worthy charitable institutions, cultural organizations, and entertainment venues, which would keep me up-to-date about events and projects.

3. I could follow colleagues and other academics, journalists, commentators, and experts of various sorts, who would keep me informed about developments in areas of expertise I share or wanted to learn about. Also, specialized academic journals and institutions.

In fact, nothing worked out.

1. New organizations bombarded me with the same headlines over and over. How many times do you want to read “Longtime Trump attorney says he made $130000 payment to Stormy Daniels” on your feed?

2. Worthy charitable institutions showered me with pleas for money. Cultural organizations sent redundant notices of events I did not want to attend. Restaurants I might visit twice a year sent me their menus every day.

3. Most people in category #3 did not actually alert me to developments in their area of expertise. When not ranting and raving, they sent me links to #1 and #2 along with snippets of text expressing their outrage and indignation. Meanwhile, the tweets of people who tweeted responsibly got lost in the deluge. When you think about it, if you tweet once a day, or a couple times a week, how likely is it that people who receive tens of thousands of tweets daily will see yours? They’d have to watch their feed all day long.

As the years passed, I realized I had filtered out nearly everyone and everything, whereupon I deleted my account.

So what would a useful Twitter look like?

I would like a Twitter that, like a good personal (human) assistant, sent me an email once a week with:

(a) News related to my interests that I might have overlooked. No headlines; I see those on my own.

(b) Cultural events and entertainment options I might actually want to attend. Once.

(c) The latest academic scholarship related to my interests—this is likely to be no more than 10-20 articles or books per week.

Twitter is an enormously inefficient method for accomplishing (a), (b), and (c). Currently, it’s much easier to do periodic google searches. Maybe after years more of AI development, Twitter could give me want I want. But I’m not holding my breath. Generating content that people scan once a week is no way to make money. Twitter can’t work unless it can make itself an obsession.

The worthy tweet

My friend and colleague Will Baude writes that Twitter need not be a black hole or a planetary scale hate machine. We, or at least we academics and public-policy types, can save Twitter by adopting three simple rules:

  1. Aspire to inform, not to convince.
  2. Promote the kinds of things you’d like to see more of.
  3. Don’t promote the kinds of things you’d like to see less of.

Here’s the problem with Will’s proposal: it is entirely at variance with Twitter’s goal, which is to make money by generating content that vast numbers of people will read.

Will is one of thousands of Twitter’s unpaid laborers. Because Twitter pays Will nothing, it can’t dock his wages for producing content that few people read. But Twitter can downgrade his content in favor of the things people want to see: sarcasm, derision, humor, and images and videos rather than links to academic papers on SSRN.

Twitter figured this out years ago, when it stopped displaying tweets on your feed in the order that they arrive, and started tinkering with algorithms that promote tweets that are most likely to be read, liked, and retweeted (as well as ads and paid promotions), including tweets from people who you do not even follow. Twitter’s description of the algorithm is cagey, to say the least. But we don’t need much imagination to understand what it is trying to do.

Will’s view is a bit like that of a conscientious casino operator who worries that slot machines addict people unfairly by relying too much on noise and colors. The operator turns off the sound and replaces the colorful images of fruits and dollars with a black-and-white sign that says “win” or “lose.” He should hardly be surprised if customers disappear the next day—even though the (very bad) odds remain unchanged. The whole point of the color and excitement is to lure the customers and open their wallets. The odds are beside the point.

Twitter cannot make profits unless people use it addictively. Not only will it never create a system that a conscientious academic might design. It also cannot tolerate the content that a conscientious academic wants to produce. If you don’t believe me, look at your analytics. You can still tweet, but hardly anyone will see your tweets. What’s the point of that?

A planetary-scale hate machine

Jack Dorsey:

We’re committing Twitter to help increase the collective health, openness, and civility of public conversation, and to hold ourselves publicly accountable towards progress.

Commenter zestyping at Hacker News:

Today, Twitter is a planetary-scale hate machine. By which I don’t mean “people post hateful things on Twitter.” I mean literally generates hate, as in, put a bunch of people with diverse perspectives on Twitter and by the end of the day they hate each other more than when they started. Common ground might have existed, but they won’t find it, because Twitter, like any arms dealer, works better when they fight. It even benefits from collateral damage, when they hurt people they didn’t specifically intend to hurt.

Through its core design—short messages, retweets, engagement metrics—Twitter incapacitates the safeguards necessary for civil discussion. It eliminates context, encourages us to present each other out of context, prevents us from explaining ourselves, rewards the most incendiary messages and most impulsive reactions, drives us to take sides and build walls.

If Twitter is going to foster healthy conversation, it will have to change fundamentally. It won’t be a matter of tuning some filters and tweaking some ranking algorithms.

The best concise account of the problems with Twitter I have seen. Who are you going to believe?

Antitrust Remedies for Labor Market Power

In a new paper, written with Suresh Naidu and Glen Weyl, I explore ways that antitrust law can be used to counter labor market power. Is labor market power a serious problem? Increasingly, the answer seems to be yes. The latest research suggest residual labor market elasticities in many markets in the neighborhood of 0.5 to 3. The figure above, taken from our paper, provides a rough estimate of the cost to efficiency (DWL = deadweight loss) and workers (“labor share”).  Yes, there are assumptions galore, but you’ll need to read the paper if you want to know what they are. You can find it here.

In another (short) paper, Alan Kreuger and I argue for limits on covenants-not-to-compete and no-poaching agreements, among other things, as a way of curbing monopsony power targeted at low-income workers. Here’s the paper, and here’s an op-ed.


Twitter’s slave labor force

Imagine the editor of a respectable news website approaches you, and says he would like to hire you for a part-time job. You will surf the web in search of interesting news stories, and identify those that you think the news website should link to so as to keep its readers engaged. You might supply some accompanying text as well. You will spend 30 minutes a day, every day.

Sure, you say; you think you can fit that into your schedule. What’s the pay? The editor says: Nothing.

Nothing? Can someone really expect you to spend the equivalent of 22 eight-hour days, about a month of workdays, every year, for no compensation at all? Why yes.

Divide Twitter users into two groups. One group consists of passive consumers who use their Twitter feed as a personalized source of news and entertainment. They never tweet; they are pure customers, who (I suppose) see some advantage to this type of news aggregation. They pay by resting their eyeballs on ads and promotions, the source of Twitter’s revenues.

The other group consists of hybrid worker-consumers. Like the first group, they “consume” the Twitter feed as a source of news and entertainment. But, unlike the first group, they also labor for free, spending hours over the year dutifully tweeting and retweeting Web materials they think of general interest, along with brief snippets of text.

The first group gets something for nothing; the second group gets nothing for something. The members of the latter group are pure suckers. Twitter doesn’t compensate them with anything, not even in kind, for their labor that the first group doesn’t get for free.

How did Twitter pull off this amazing feat—of not only obtaining billions of dollars per year in free labor, but from highly intelligent and educated people—academics and journalists—who are normally hard to fool?

The answer seems to be that once Twitter was able to persuade some famous people to start using Twitter, the lure for ordinary mortals was irresistible. (This, even though the truly famous do not actually send tweets but pay their PR agents to send tweets for them, or buy up followers in the gray market.) The rest is a matter of exploiting well-known foibles of human psychology. Crystalline metrics establish a ranking system that enables you to compare yourself to your peers, lording over those beneath you while chasing after those just above you. A fairly reliable albeit radically decentralized system of obtaining followers ensures that you will progress toward an achievable goal as long as you keep sending those tweets. Positive feedback to your own tweets in the form of likes and retweets, with the occasional jackpot when your tweet goes viral, creates an irresistible variable ratio schedule of rewards that keeps you engaged. If only the work—and that’s what it is—weren’t so damn tedious!

It’s a con, but an impressive con, the sort Tom Sawyer would appreciate.

Are Russian trolls protected by the First Amendment?

Not exactly, but the First Amendment might make life difficult for government officials who want to block, deter, or at least diminish Russian propaganda during the 2018 election. In his prosecutions of Russian agents, Robert Mueller apparently will rely on statutes that prohibit foreigners from meddling with American elections. But the First Amendment protects speech, and while it doesn’t protect fraud (the focus of the indictment), the core activities of the trolls—the use of social media to propagate support for Donald Trump and opposition to Hillary Clinton—fall firmly under the First Amendment umbrella.

This may not save the Russian agents. In addition to engaging in some clearly fraudulent behavior, as non-citizens located outside the United States, they probably cannot claim First Amendment protection. But they can’t be sent to jail in any event because they lie outside the reach of American power. Russians in the United States, and Trump supporters who don’t mind spreading Russian propaganda, are protected by the First Amendment. In sum, the First Amendment protects propagandists whom U.S. authorities could reach, and national borders protect propagandists whom the First Amendment does not protect. The U.S. government is helpless.

There is another twist. Supreme Court doctrine recognizes that the First Amendment protects one’s right as an “addressee” to receive mail and other communications free of government interference. This means any law that sought to blunt the force of Russian propaganda by controlling its distribution by internet companies is unconstitutional. In the wake of the 2016 election, the idea that an unfettered “marketplace of ideas” is always good for the public lies in ruins. If the now twin danger of Russian and terrorist propaganda over social media is at least recognized, it will take a long time to overcome the constitutional legacy.

Should Facebook users organize a “union”?

Imagine that Facebook users were able to contract with an organization that placed itself between Facebook and the users (or a subset of them). When the users post cat videos on their Facebook page, the data are routed through the “union,” which sends them on to Facebook in normal times. But the union could cut off the data flow, or some portion of it, if Facebook refused to offer fair monetary compensation for the data—simultaneously a strike and boycott by the worker/consumers who use Facebook, causing double injury since Facebook’s advertisers would pay less and Facebook itself would have less access to monetizable data to use for machine learning. Is this a new dawn or dystopia? Is it technologically feasible? How might it work in legal terms? An enterprising labor law professor might want to think about this.

Glen Weyl and I discuss this issue in our book Radical Markets. It has filtered out into the general world, with the Financial Times calling our argument “a savage critique of ‘techno-feudalism’ and an idealistic appeal to share the fruits of our collective intelligence more fairly.”

On a completely different topic, some thoughts about how Congress might block Trump from firing Robert Mueller, here.

On cultural monopsonies and data-as-labor

Imagine that a group of amateur softball players start a game in a public park. An audience distributes itself on picnic blankets and enjoys the game. Question: should the audience pay the baseball players?

The answer, as a matter of culture, is no. And the audience certainly has no legal obligation to pay. We might say that the rule is: “if you play a game in the park, you cannot demand payment.” But is that a good rule?

Suppose the rule were: “if you play a game in the park, you may charge anyone who watches the dollar equivalent of the marginal product of your contribution.” This rule is, of course, impractical; but if it weren’t, it should produce social gains. Better players would migrate to the park, and consumers (that is what they are) would get a better product. A point I want to make is that the reason we have the inefficient rule is not just practicalities (of determining marginal products, regulating park usage, and all the rest). We also have a cultural norm that would frown on any player who tried to charge people who watched him play, with a partial exception for buskers, who (culturally speaking) are understood to be more in the business of entertaining, but still are not entitled to demand payment. The player, by contrast, is just having a good time. But isn’t he also “working”? A professional baseball player “works” when he engages in exactly the same activity. We don’t we say that the professional baseball player shouldn’t be paid because he’s just “playing.” What exactly is the difference between the amateur’s “work” (which we call “play”) and the professional’s “work”?

Now consider another setting: the family. Under the traditional conception of the family in our culture, the woman did not “work” in the sense that the man did. Of course, we have no trouble seeing housecleaning, dinner-making, and child-rearing as work, and even in the old days, people would sometimes resolve the cognitive dissonance by calling the work “women’s work,” thus devaluing it but not denying that it is work at all. You can even find judicial opinions where the work supplied by women in a household setting is treated as “gratuitous.” But the idea that women should not be paid for their work was entrenched. Married men, like the hypothetical baseball audience, enjoyed the benefits of a cultural monopsony.

We see this phenomenon in other settings. As Kim Krawiec points out in an ingenious article, the same cultural logic has been applied to the “gamete market”: women are expected to “donate” eggs for free, with compensation to cover only medical bills, rather than demand a fair payment. (Men, as sperm donors, are not.) We see something similar in the kidney market (for both sexes). The beneficiaries of the monopsony are not the ultimate consumer but intermediary companies, who are, by the way, (in the case of the egg market) being sued for price fixing. But there are countless examples. Sports—my original example, where the difference between “work” and “play” is so obscure—provide a long history of monopsony, mostly wiped out for now, except that universities operating through the NCAA continue to underpay “student” athletes who are essentially workers who are given room and board and a nominal education in return for extraordinary levels of labor. I suspect similar stories can be told in the area of the arts, ideas, and politics, where there have often been traditions of holding that workers should not be paid or should be underpaid. The common theme seems to be that firms have taken advantage of historical traditions and understandings that dissuade people from demanding full pay.

The latest and most interesting manifestation is the market for data labor. Starting with Jaron Lanier, commentators have pointed out that Facebook, Google, and other big tech companies have exploited a cultural understanding that when one uses internet services as a consumer one doesn’t “work” by supplying data despite the great value of the data for the internet companies, which use it to improve their AI services. This is not very different from my other examples, especially the women’s work example—since women were, in a rough sense, paid in kind for their work though not give their marginal product as they would in a market. The big tech companies would get better data if they paid people with money for their specific contributions rather than in kind through the general service provision (and, in fact, sometimes they do, but in a way largely hidden from the public, as when they hire people (as “workers”) to label photos), but very likely do not do so because they do not want to disturb the cultural monopsony from which they benefit. The result is that a huge number of people who make significant contributions to the development of AI and other services are unpaid, except roughly in kind, which not only retards the growth of technology services, but results in a massive transfer of wealth from ordinary people to the tech titans.

Glen Weyl and I explore these ideas in one of the chapters of our new book, Radical Markets, and argue that a free market in data labor would both advance technological progress and redistribute wealth to ordinary people. You can also read a discussion of the idea in The Economist.

What does the decline of democracy mean for human rights law?

By now it is unmistakable that democracy is in retreat around the world, including in the United States. Freedom House has announced that political and civil liberties have declined for 12 years in a row. While Freedom House is often criticized for its motivations and the accuracy of its ratings, these particular results seem robust, and are consistent with other measures as well as with anecdotal evidence.

The decline began in 2006, according to Freedom House, which was just about when human rights scholars began putting together studies that showed that human rights treaties have improved outcomes for countries. Interestingly, an initial set of studies in the 1990s and early 2000s had suggested that human rights treaties did not improve outcomes; the later work was more sophisticated, but in the end it was an exercise in finding correlation and calling it causation. If you extend the scope of analysis to respect for “social and economic” rights (defined usually, if not really accurately, as literacy rates, mortality, education, equal pay for women, etc.), you do seem improvement in most countries, and since nearly all countries ratified human rights treaties a few decades earlier, you have your correlation. One could also, by tinkering with the definitions of political and civil rights, find some improvement as well (though some things, like torture, seemed stubbornly resistant to statistical manipulation).

Then why didn’t human rights treaties stop the slide toward repression, in countries as diverse as Russia, Turkey, the Philippines, Hungary, Poland, Venezuela, Mexico, Honduras, and Rwanda? And we who live in the United States and Europe know things are not well even if democracy remains robust for the time being. The simple answer—which would be platitude if it were not rejected by the human rights community and legions of scholars—is that the treaties were always poorly designed, and not strong enough or taken seriously enough to make much of a difference in how governments treat the public.

The original idea of the treaties was that they would ban the very worst type of behavior exemplified by the Nazis, but as a result of mission creep, today they all but require all countries to be Denmark or Sweden. Yet at the same time, the rights they create are so vague and so riddled with exceptions, while at the same time so frequently in conflict with each other, that nearly any type of government policy could be rationalized. The United States and a few European countries took them a bit more seriously than most, but mainly to use as a cudgel against their enemies or rivals, in the most selective manner possible.

You would think that it would be a good time for scholars and those in the human rights community, government officials and NGOs, to embark on a reassessment. I don’t see one coming. There is a large industry that depends on the illusions that these treaties create; it would gain nothing by exposing them.

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.

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School