President Trump

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The Rulers’ Law

Former FT Moscow correspondent Catherine Belton’s recent Book “Putin’s People” chronicles the rise to power of Russia’s President. It provides a fascinating insight to the form of State Capitalism put in place by Putin and his former KGB colleagues over the past 20 years.

Central to this process has been the transformation of Russia’s legal system into a pliant arm of the Kremlin. For long it had been subject to local corruption due to the very low pay of Russian judges. However, what Putin has done is incorporate the judiciary into the state, no longer providing an independent assessment of facts and guilt versus innocence but rather a step back to Soviet era “telephone law”. In practice the whole of the legal system is at the behest of the political elite and more specifically Putin.

The key shift to this was the trial of Mikhail Khordorkovsky, at one point the richest man in Russia, a beneficiary of the first moves to a market economy under Boris Yeltsin. The trial lasted 11 months and, according to Belton, “…created a precedent for the country’s judiciary to be turned into an extension of the long arm of Putin’s siloviki.”*

The three female judges were accommodated by the Kremlin in a sanatorium 50 kilometers outside of Moscow, all expenses paid, while they wrote their verdict. When one of the judges refused to go the sanatorium under police guard Vladimir Kalanda, a deputy in the presidential administration spoke to the chairwoman of the Moscow City Court to make sure her subordinate complied. The official reason for this was to ensure they would not be bribed by representative of Khordorkovsky.

Surprisingly, the judgement was almost an exact summary of the prosecution. In truth it involved the retrospective and partial implementation of laws to ensure conviction and resulted in a sentence of 10 years hard labour. An appeal was submitted and after a number of delays was heard in a single day due to concerns that the statute of limitation might apply to some of the counts against Khordorkovsky. It took the judges a matter of minutes to reject the appeal.

Oddly enough, following this Russian oligarchs were very careful to ensure they did not upset Putin and indeed when asked to jump for him only asked how high. And he did ask them to jump or rather treated their wealth as an extension of the states available for him to direct as he thought fit.

In short Putin converted a nascent independent judiciary into a shield and sword to overwhelm any opposition, appropriating assets and incarcerating oponents at his pleasure.

Of course he has a different take on the matter and argues that the courts act according to law and he cannot interfere in their independent prosecution of those he falls out with. In short, he lies.

Belton’s book provides plenty of evidence to support this degradation of the rule of law into rulers law. Whatever the limitations of the British legal system and whatever bias to wealth and power it contains, the situation is categorically different to one where the Executive becomes, rather like Humpty Dumpty, able to say the law “…means just what I chose it to mean – neither more or less.”

All this is truly frightening and undermines two foundational principles of democratic societies. First the rule of law and its application without fear or favour to all citizens equally. No one is above the law. The second principle, is the separation of powers and the independence of a professional judiciary. One which stands separate from the Executive and indeed can hold it to account if it breaks the law.

Obviously, there has not been a long tradition of any of this in Russia. Neither before the 1917 Revolution nor after in the Soviet Union. On the collapse of the latter there was a brief period when these principles seemed to be gaining ground. However, they were under challenge from the moment Putin came to power in 2000. The judiciary came under increasing pressure and after the trial of Khordorkovsky in 2005 it was really game over.

In the west of course we believe the two principles mentioned above are well and truly secured in democracies such as the United States. Or we did. From the very start of his term in office President Trump took his Twitter scythe to undermine the judiciary by attacking judges and courts for rulings he disagreed with and used his powers of appointment to attempt to take control of it from within.

His track record on Attorneys General illustrates a restless search for someone that will meet his exacting requirements. Most Presidents seem to have around three Attorneys General. FD Roosevelt managed with four in his exceptional twelve year 3 term presidency. George W Bush had the most with 3 acting and 3 full Attorneys General. That of course was in his 8 years in office.

President Trump had gone through three acting and one full Attorney General in just over two years before settling on William Barr in February 2019. His first full appointment was Jeff Sessions who made the school boy error of recusing himself from the inquiry into Russian involvement in the 2016 Presidential election campaign of Donald Trump. From that moment on he was a dead man walking, openly ridiculed and berated by the President in public.

After he had left office the President made clear what he saw as his shortcomings. In essence these were his failure to Protect Trump by closing down the Mueller Inquiry or the “Russia Witch Hunt” as he called it.

With William Barr he seems to have discovered an Attorney General that does understand the legal immunity which attaches to the office of President. Mr Barr has assiduously attempted to ensure the President is protected from the distracting attentions of Federal Prosecutors.

As soon as he took office Mr Barr inserted himself into the Stormy Daniels investigation of campaign fund violations. Ms Daniels was paid $130k for her silence about an alledged affair with candidate Trump in the run up to the 2016 election. His personal lawyer Michael Cohen was jailed for 3 years for making the payment on behalf of “Individual One”, President Trump.

Following Mr Barrs review of matters the Federal case investigating the liability of “Individual One” drifted for months and then was wound up with Federal Prosecutors confirming no further action on this matter would be taken against any other individuals.

Mr Barr also insisted that any other cases in any Federal Prosecutors Office relating to the President needed to be reviewed by a hand picked team in his office.

When the Mueller Inquiry finally reported to Mr Barr he initially tried to prevent its release to the public providing a letter to Congress with his own rather contentious summary of what he believed it concluded. It attempted to set the tone about exonerating the campaign and the President.

Mr Barr holds the radical view that whilst in office not only can the President not be charged with any breaches of the law but that neither does he have to respond to investigations into such breaches. According to him the President does not have to provide congress with documents even if they are supported by a subpoena.

Not only has Mr Barr used the law to shield his boss but he has also used it as a sword, setting up criminal inquiries into the actions of law offices in relation to the establishment of the investigation into Russian attempts to support Trump in the 2016 election.

His latest moves have been to replace the US Attorneys in Washington DC and both the Southern and Eastern Districts of New York. What all these Districts have in common are ongoing investigations into President Trump and the Trump organisation. Geoffrey Berman, Attorney for the Southern District, denied he had resigned when Mr Barr announced this one Friday evening. This forced Mr Barr get the President to remove Mr Berman.

No doubt the estimable Ms Kayleigh McEnany, the Presidents indefatigable press Secretary, can confirm that all this is perfectly normal and there is nothing to see here. But there is. Incredibly what we see is a process undermining the independence of the judiciary with frightening parallels with what has happened in Russia.

Fortunately there are signs of push back. Last week the President lost two cases in the Supreme Court which struck down definitively and in terms the notion that the President is above the law.

In the Southern District of New York the State prosecutors office have picked up the case dropped by the Federal Prosecutors office into the Stormy Daniels hush payments which they believe breach a range of State campaign finance laws. The State Prosecutors do not answer to Mr Barr and importantly State laws are not subject to Presidential pardon.

There is hope the attack on the rule of law in the States will be overcome. However no one should underestimate the strength of that attack or the risks it creates if even partially successful. By far the most effective way to defeat this is by the US public rejecting candidate Trump at the polls in November. Experience to date, however, indicates President Trump will do all he can to transform The Rule of Law into The Rulers’ Law to secure victory. The 2020 US election is not for the Presidency, it is for democracy.

*Siloviki = Putin’s inner circle of ex KGB colleagues.

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Black Lives Matter

With the death of George Floyd “Black Lives Matter” became a global rallying cry for all those against racism. It was a simple statement encapsulating opposition to racism’s historical roots and its contemporary practice both individual and institutional.

Inevitably it would not be long before an attack on its credentials was forthcoming. Leading the charge, just as inevitably, was President Trump who in a tweet denigrating the painting of the logo on 5th Avenue which he claimed would “further antagonise New Yorks Finest” called Black Lives Matter a “symbol of hate”.

Kayleight McEnany, the Presidents Press Secretary, attempted to redefine the racist attack against a phrase with overwhelming national and international support by suggesting the President had “only” meant to refer to the “Greater New York BLM” whose president Kayleigh claimed had said “if this country does not give us what we want that we will burn down the system”, Her response “I call that a pretty hateful statement”.

One cannot envy the job of defending the indefensible. However, the steely Ms McEnany whose resting state is passive aggressive, with emphasis on the aggressive, does it without blinking. I have no idea whether she believes what she says but you have to admire her ability to project absolute certainty and confidence defending the incoherent ramblings of a rather dim man loaded with every prejudicial “ism” one can think of.

However, whatever her personal views, her attempt to paint the BLM movement as a hate filled threat to democracy, and that therefore the BLM moto should be rejected is in effect an attempt to undermine a powerful symbol of anti-racism. It should be rejected out of hand. The phrase has a palpable strength which comes from its simplicity, directness and moral truth. A truth which has been brutally suppressed for more than 400 years.

It is difficult to get one’s head inside the moral universe that existed when slavery was a major component of the the growing world economy in the 17th, 18th and 19th Centuries. As long as I can remember it has appeared self evident to me that slavery was, and is, an abhorrent practice. The dreadful treatment and brutalisation of fellow human beings seemed beyond understanding. The International Museum of Slavery in Liverpool charts the unspeakable trade and I thought I had a clear understanding of the whole awfulness of the business

However its still came as a shock to me when I read in Thomas Picketty’s excellent book “Capital and Ideology” that on the abolition of slavery it was the owners and not the slaves who were compensated. Even in a world where racism is still a major problem it is difficult to believe this was thought to be a morally reasonable solution.

Picketty provides an informative summary of the African slave industry, how it was “abolished” and compensated, and the the nature of the debates at the time in Britain, France and the US. Those debates were structured, according to Picketty, by the proprietarian view of the word which came to dominate over this period. In this view property rights were fundamental, tantamount to sacred and could not be challenged even if the property in question was another human being.

Ironically the power of this world view can probably be seen more starkly in the arguments of the abolitionists than the defenders of slavery. In France a dedicated abolitionist, Alexander Moreau de Jonnes saw it as axiomatic that the, “…masters of slaves must be compensated by an indemnity…” and that it was also obvious, “…the slaves, who will derive immense benefit from it, should naturally and necessarily…” fund the indemnity, ie. compensation.

Alexis De Tocqueville (the same) came up with what he saw as a sensible compromise whereby the government would pay half the cost of the indemnity whilst the slaves would pay the other half.

In the event the compensation was paid by the French state as was the case in Great Britain. The compensation provided to the 4,000 UK slave owners at the time was £20m, or 5% of UK’s national income at the time. If the compensation was converted into 5% of the national income of 2018 it would amount to €20bn, or €30m per slaveowner.

This enormous payment by the state meant an increase in the public debt which was funded by families on modest or average incomes in a highly regressive tax environment where most taxes were on consumption and trade. Crudely the poor in Britain compensated the rich in Britain for their slaves.

Talking of public debt it is worth considering the case of Saint-Domingue, now Haiti. This island had a population of which 90% were slaves. That demographic probably accounts for the fact that abolition there was the result of a slaves revolt. However, whilst they might be able to overwhelm their local oppressors they had to succumb to the demands of a French state for compensation of their former owners under threat of invasion.

In 1925 France recognised the independent Haiti following a promise by its government to pay 150 million gold francs (roughly €40bn in todays money) compensation to slave owners. This amounted to 300% of national income. The entire amount had to be paid within five years, so Haiti was required to borrow the money from French banks at about 5% pa and repay it over time. A very long time.

From 1849 to 1915 the French creditors managed to extract 5% per annum of the whole of Haiti’s national income. From 1915 to 1934 America occupied Haiti to restore law and order during which the French banks ceded the rest of their loans to the US. The 1825 debt was not finally wiped from the loan books until the early 1950’s. So the slaves of Haiti spent a century and a quarter paying compensation to their owners. Now that is what I would call “pretty hateful”.

The more you study black history the more shocked you are. Furthermore, abolition was little more than a step forward, a shift from de jure oppression to de facto oppression. In France, the UK and most egregiously in the US abolition was accompanied by new laws which ensured the exploitation and degradation of back lives could continue unabated.

In relation to black lives there is no neutral. There are no subtle distinctions to be made around Black Lives Matter. It is a motto for a race. A race which has experienced oppression in ways it is almost certain no one in a white skin can even imagine, particularly those from states with a colonial heritage. Oppression which appears to be part of the very fabric of reality. So ubiquitous as to be almost invisible to those not subject to it except for the most egregious examples of physical abuse.

There is only one legitimate response to the motto Black Lives Matter. Unequivocal agreement and support. No ifs, no buts, no clever distinctions.

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The distance between the Prime Minister and the President

So the PM, the Health Secretary and the Chief Medical officer are confined to quarters. We do not know whether they practiced what they preached when off-screen, however,  what this does demonstrate is that if you continue working the chance of avoiding infection is low. The multiple infections are perhaps not surprising amongst a group of people who have had to work intensively and closely together for some time however it is unfortunate in terms of the governments messaging.

To date I think I would give the Prime Minister 7 out of 10 for his handling of the Covid-19 crisis. Due account has to be given to the sheer scale and multi-dimensional nature of the problem and the speed at which it has evolved. It is one thing to hear descriptions of the spread and see graphs it is another to live it. On the positive side, he has taken the issue seriously and, has deferred to the science or at the very least taken serious account of it. He has “pivoted” when necessary, albeit a touch abruptly.

Overall I think, from the distance of the North, he has done as good or bad a job as many of the other West European leaders have. The leaders of countries in the East, like South Korea and Japan have had much more recent experience of what a national epidemic can do and might have been expected to be better prepared both logistically and mentally to respond with more appropriate alacrity and concern.

There are of course questions to be asked. The timing of lockdown looked more a like a response to mounting political and external scientific pressure than the next step in a carefully crafted, strategic timeline. It would be interesting to see what mortality rates were attached to the herd immunity strategy which was disavowed as soon as the Imperial College Report was in the public domain.

Communication has been and continues to be a problem. The daily press briefing, meant to reassure the public by demonstrating a transparent approach to keeping the nation informed, was a good idea. Its very existence communicated a sense of urgency. The professional and business like way they were conducted and the presence of subject experts transmitted seriousness but also reassuring competence. Unfortunately the message was not clear enough.

This may have been that the strategy was evolving from mitigation to suppression however the social distancing message was just not strong enough. Details about what it involved keeping 2 meters apart, staying at home etc. was undermined by a failure to communicate the need for rigid adherence. The Prime Minister talking about continuing to shake hands and hoping to visit his mother on mothers day weakening and confusing the message.

As the potentially catastrophic consequences of the disease began to sink in, driven it would seem by the Imperial College Report the Prime Minister stiill appeared to be struggling with either his libertarian instincts, his concern for the economic consequences or fear that stricter controls would be ignored. He started out by “asking”,  then moved to “telling”, but then in very short order he moved to  “instructing” as emergency legislation was put in place. It may be argued that the language followed the legislation or that it was part of a strategy to take the population on a journey, however, a pandemic is not a time to be “nudging” people. It is a time for decisiveness and clear, consistent, simple messages. Days mattered.

Unfortunately as time has gone by the communication strategy has become more problematic. If you start out claiming you want to be transparent and that you are following the science you set yourself up to fail if you start to obfuscate. As the media have asked increasingly specific questions about, how many ITU bed spaces are available – now, how many ventilators the NHS have – now, and where the PEP is – now, the vagueness of the answers has become a source of concern and, for front line staff, anger.

Nadhim Zahawi, Minister for Business and Industry, was writhing like a fish on a line when being pushed to provide detailed figures on this and dates when more of all of these items would be available. It looked as if at one point he would crack and shout out, “You can’t handle the truth.” He would have been wrong. People prefer truth, however unpalatable, to obviously untrue platitudes about “ramping up”.

It is obvious to all that the requirement for rigid social distancing is absolutely critical and that anything less will mean the NHS is overwhelmed. It does not have the equipment or staff it would need to address anything other than a limited spread of the virus. False reassurance will come back to bite when reality tragically contradicts it as the infection rate accelerates and peaks.

Having said all this, I still hold to my 7 out of 10 for the Prime Minister. He may not have acted as decisively and early as he should  to implement rigid social distancing and he may not have been clear enough in the initial messaging, however, he appears to be someone doing the best he can in a fast moving crisis. He remains courteous to the media, even in the face of difficult questioning, he respects the views of the scientific advisors and at least seems to understand what it is, and he is trying to communicate that medical advice to the public.

By comparison,… a picture is worth a thousand words, and here are two.

However effectively implemented by the PM and his team there is a real attempt to communicate the social distancing message.

If you watch the two briefings the contrast could not be greater. In the US version, depicted here, three advisors stood like lemons on the stage of the press briefing  room waiting for the President. There was an awkward, nay embarrassing silence. Eventually, presumably when the time had built up enough tension for a grand entrance, the President appeared.

There was then a rambling, incoherent presentation by the President, talking mainly about what a terrific job his administration and he personally was doing. His one strength is consistency, whenever he speaks he is saying something which is either a lie or stupid or both. Firing on all four cylinders he managed the double on most of what he had to say.

His overriding concern to ensure re-election tempered his concerns for the thousands who may die from this virus. His view is that we must ensure the “cure is not worse than the disease”. He talked about the 50k people who die each year from flu and those involved in road traffic accidents to reassure the American people he had their welfare at heart.

He probably struggles with numbers (other than $ bills) but if the US do not get a grip on Covid-19 the fatalities could be in the hundreds of thousands not, the clearly more acceptable to the President, tens of thousands. From the start the President has treated Covid-19 as an annoying distraction from the main business of getting reelected for another four years of self aggrandisement and national corruption. Variously he has referred to Covid-19 as a “hoax”, the “Chinese virus”, only affecting 15 Americans, something where the “cure cannot be worse than the virus”, and which is likely to be pretty much over “by Easter”.

I had been thinking a suitable sobriquet for President Trump might be, “The President that Broke America.” Sadly, if the individual States don’t save him and their citizens I think a more appropriate one may be, “The President that Killed America.” At least the distance between him and the Prime Minister is reassuringly large.

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A Frightening Disease

This is not about Covid-19, although it is related. It is about Richard Burr Republican Senator from North Carolina and Kelly Loeffler Republican Senator from Georgia. Both were given a private Senate briefing on the seriousness of the coronavirus by the US government’s top scientific advisors. 

This happened on the same day as President Trump tweeted some inane comments including “It will all work out well.” Did these two Republicans contradict their President or even attempt to shade his comments with some serious concern about the possible consequences of the disease they had just been briefed on. No. Not a word.

Was this because they thought the scientific advisors were part of the deep state attempting to undermine their President. Did they think the advice was exaggerated or unduly pessimistic. Did they think it was plain wrong. No.

They thought it was almost certainly very accurate. How do we know this? Because they went out of the meeting and sold large portions of their shareholdings before the market collapsed when the likely economic impact of the virus became public. Senator Loeffler sold a minimum of $1.2m of shares and bought shares in Citrix, a provider of teleworking software. Senator Burr sold a minimum of $600k in hotel shares which have subsequently dived.

Hard times bring out the best and the worst in people.

Some work long hours without the right level of PPE in hospitals trying to save those with Covid-19. Some expose themselves to the disease as they sit on the tills in supermarkets serving hundreds of customers to ensure the food supply.

And some use inside information to protect their wealth and increase it. You would like to hope they feel ashamed but the worst thing is they probably do not. I hope their constituents hold them to account as they should.

Covid-19 is a frightening disease but so is greed. We urgently need a vaccine for Covid-19, but just as importantly we need a vaccine for greed, and my preference is the latter should be in the form of a suppository.