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Indicting Trump: Patriotism or Treachery?

photograph of American flag hanging from tall buildings

As I write this, former President Donald J. Trump is returning to Florida after appearing at Manhattan Criminal Courthouse for his arraignment. He has been charged with 34 felony accounts of falsifying business records to conceal his alleged criminal activities. However, this is not the sole source of Trump’s legal troubles. He is also the subject of several other criminal investigations regarding storing highly classified documents at his Mar-a-Lago home, tampering in the 2020 Georgia state election, and his role in the January 6th insurrection.

Prosecuting former world leaders is nothing new. Former French presidents Jacques Chirac and Nicolas Sarkozy have each separately been found guilty of corruption. South Africa’s former president Jacob Zuma was charged with corruption in 2021. In 2013, Italy’s Silvio Berlusconi was convicted of paying an underage girl for sex (which was overturned on appeal) and, in 2014, was given community service for tax fraud. South Korea has convicted five former leaders for various crimes, including Park Geun-hye, for bribery and abuse of power in 2018, Lee Myung-bak for bribery in 2018, and Chun Doo-hwan for mutiny, treason, and corruption in 2017. However, indicting a former leader is a novelty for the United States. No other U.S. president has faced criminal charges, although Watergate brought Nixon close.

Democrats and those on the left side of American politics, like Chuck Schumer, Dick Durbin, and Jason Crow, have said that, despite its unprecedented nature, the indictment is an example of the U.S. legal system working as it should – no one, not even a former president, is above the law, and when evidence is found of wrongdoing, the consequences must be applied without fear or favor.

For Republicans and those falling to the right side of the political spectrum, including those who identify as diehard Trump supporters, the whole thing is politically motivated and, at its worst, an effort to subvert the democratic process. Trump himself has railed against both Alvin Bragg, the Manhattan District Attorney, and Juan Merchan, the judge handling the case. Marjorie Taylor Greene has said the indictment shows that the Democrats have become a party of violence and compared Trump to Jesus and Nelson Mandela. Ron DeSantis said that the charges are a weaponization of the legal system. And Kevin McCarthy said Bragg has “irreparably damaged our country in an attempt to interfere in our Presidential election.”

However, what McCarthy’s comment means is a little obscure. Why is this damaging for the U.S.? As outlined, other countries have no problem punishing their former leaders for wrongdoing. Indeed, if we take a broader view of populaces penalizing their leaders, jail is a relatively light load. For the extremes of such retributivism, we only need to look at France’s 18th-century revolution and the fates of Louis XVI, Marie Antoinette and Louis Philippe (spoiler, they were guillotined). So, what makes this historical phase in American history so seemingly damaging, at least according to McCarthy and others?

Beyond any inherent political maneuvering to gain favor and influence, I would posit that the idea underpinning this claim is one that many of us will be familiar with – American exceptionalism.

According to this idea, the U.S. is unlike other countries because it is simply better. Something about the intermeshing of political, social, religious, economic, and legal systems makes America the best country on the planet, one which other countries aspire to but always fail to match. The idea has become so ingrained in U.S. political culture that it is a necessary trait for presidents. Ronald Reagan told audiences that he had “always believed that there was some divine plan that placed this great continent between two oceans to be sought out by those who were possessed of an abiding love of freedom and a special kind of courage.” George W. Bush said that Americans “have a calling from beyond the stars to stand for freedom,” invoking some existential, even divine, purpose. And, when politicians hint that the U.S. might not be as exceptional as others indicate, they run into trouble, as Barack Obama did when, while not even refuting American exceptionalism, he said it was no different from British or Greek exceptionalism.

This is why the indictment has caused such an uproar, especially amongst Trump supporters. He built his political brand on the idea that America is the world’s best country and should put itself first. To say that a former U.S. president is fallible, even criminal, is to directly challenge that idea of America being exceptional. If the reality is that America must charge its former leaders for crimes like corruption, election interference, insurrection, or anything else, then it has to acknowledge that it is just like any other country. Not exceptional, but as imperfect as France, South Africa, South Korea, or any other. It is to accept that the U.S. isn’t God’s chosen country but simply another one among them all. If this applies to the country as a whole, it seems it also applies to those who make up the country. If America isn’t an exceptional country, then Americans aren’t exceptional people but just like everyone else, which might be a hard pill to swallow. Worst still, they elect presidents, those persons who they feel best embody what it is America is and should be, and these living symbols themselves turn out to be just as flawed as any Tom, Dick, or Harry.

How should we respond, then? Should the visage of exceptionalism not be challenged? Indeed, do critics of the government do some terrible damage to the fabric of society when they highlight such painful truths?

I would say, in fact, the opposite. Letting a government, or those embodying its institutions, enact their will free of critical eyes allows such persons and systems to run rampant of the constraints it needs to be both effective and just. Power and the powerful have a tendency for self-propagation. The rich get richer, and the poor get poorer. If this trend is to be reversed, if equality and fairness are to be achieved, then the powerful can’t be left in the hopes that they will do it because, as history shows, they simply don’t.

Unflinching dedication to a country, cause, or even a former U.S. president, is not a loyalty that we should cheer but a failure to be excised. As the abolitionist Frederick Douglass wrote:

I am one of those who think the best friend of a nation is he who most faithfully rebukes her for her sins—and he her worst enemy, who, under the specious and popular garb of patriotism, seeks to excuse, palliate, and defend them.

Trump has a loyal band of devotees, both in and outside the political arena. So, I suspect these charges will do little to dampen his political ambitions or his followers’ dedication. Indeed, since news of the indictment broke, Trump’s raised over $8M. Nevertheless, blind loyalty is bad for a democracy’s health. While the motivations behind Trump’s legal issues may have a political tinge, the fact that charges have been brought against him is not a sign of America falling into oblivion. Challenging the powerful and holding the mighty to account – be they individuals, systems, or institutions – is what a healthy democracy not only does, but should, aim for.

It’s unclear if Trump will face any repercussions for his alleged wrongdoings. But what is clear is that contrary to his most ferocious supporters, challenging him isn’t treachery, it’s what is required to be the nation’s best friend.

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Medical Privacy and the Public’s Right to Know

photograph of President Trump with face mask giving thimbs up from within SUV

When I first heard that President Donald Trump tested positive for COVID, I began following the regular updates about his condition. I read through the updates from his doctor, I checked the dates on his previous COVID tests to determine when he was probably infected, I cross-referenced the results of his medical tests with what actuarial data exists for COVID cases, and I regularly checked in to see if President Trump’s condition was improving or worsening.

Or, more precisely, those were all things I wanted to do. Why didn’t I do them? Because the White House did not release detailed medical information. We got some minimal updates about the president’s conditions, but those updates were devoid of specifics and often inconsistent.  This bothered me, and I immediately added this to the tally of ways the Trump administration has been insufficiently transparent.

I was upset with the White House, I felt they were doing something wrong by not being more transparent. I felt like I had a right to know about my president’s health condition! Not only that, I felt I had a right to know about the health condition of a current presidential candidate less than a month from the election. I felt that President Trump, as both the sitting president and a presidential candidate, did something wrong by not releasing details of his condition to the public.

But is my feeling that the president had such an obligation of transparency correct? There is an extensive academic discussion of this very question. To what extent do candidates retain rights to medical privacy, and to what extent does the public gain a sort of moral right to medical transparency? That is the question I want to consider here.

Normally people do not have an obligation to disclose private medical information. That is true even if that information is materially significant to others. Certain illnesses could perhaps compromise my ability to teach at FSU — FSU thus has a real interest in knowing the results of my medical tests. That does not mean I have an obligation to send FSU that information. If I decide I can no longer do my job, then I should let FSU know and possibly I should resign. But if I think I can continue my work, FSU does not have some right to the same medical information so that they can make their own determination. My interest in medical privacy supersedes their interest in my medical history. FSU can fire me if the quality of my work suffers. But they don’t have a right to my medical information so that they can preemptively decide if they think my work will suffer.

Now, there are limits to our medical privacy. If diagnosed with HIV, one ought to disclose that diagnosis to prior sexual partners. Similarly, in cases of medical emergency, the state might need to violate medical privacy to prevent the spread of a highly infectious disease. Even in those cases, however, it is still reasonable to maintain as much privacy as possible. Following a COVID diagnosis, you might be justified in telling people I’ve been around that they may have been exposed to COVID-19. But that would not justify you telling others whether or not I was given supplemental oxygen.

So what explains my intuition that the president should release the details of his medical tests and treatment? It is something about the difference between me and the president. The first difference that comes to mind is how much more important the president’s work is. President Trump’s decisions are more influential. As such, perhaps there is a large enough public interest to override claims to privacy.

That explanation does not quite capture my moral intuitions though. I don’t just intuit that President Trump has an obligation of transparency, I also intuit that the President of Malta has an obligation of transparency to the people of Malta. I don’t, however, intuit that Jeff Bezos has an obligation of transparency, even though Jeff Bezos almost certainly has far more power and influence than the President of Malta.

So if President Trump has a special obligation of medical transparency, that must be because of his governmental role. It is not that President Trump is more powerful than I am, but that President Trump can act with the coercive force of law. Put another way, President Trump is actually two persons. He is the private person of Donald Trump and also the public person of the President of the United States. President Trump can act as a private person, such as when he gives his children Christmas presents or writes personal letters to friends. President Trump can also act as a public person, such as when he signs laws or writes letters to foreign dignitaries on behalf of the United States. Indeed, it is precisely my distinguishing these two persons that we can make sense of concepts like political corruption. An act is corrupt when a politician uses their public function for a private purpose.

And indeed, we do think that President Trump retains privacy interests over his personal letters in a way he does not over letters he writes as the head of state. So, perhaps in the private person of Donald Trump deciding to run for the President of the United States, he forfeits certain privacy interests due to the demands of public transparency that a democratic electorate have over the head of the executive. Perhaps because the government acts with the consent of the governed, informed consent implies the public has special rights to know.

This seems like the strongest case for why President Trump, unlike myself, might have special obligations of medical transparency. There is, however, a powerful argument against norms of medical transparency. One of the interests we have in medical confidentiality is that it encourages people to seek out healthcare. If I know my doctor will keep a, potentially damaging, diagnosis secret, then I am more likely to go to the doctor. Presidents are political creatures; they need to factor in public reactions to what they do. Thus, a politically savvy politician might well be unwilling to undergo certain medical tests if they know there is a norm of disclosure. And this might be especially concerning for someone in a position as important as the President of the United States. The medical ethicist George Annas has argued that in general “we should encourage our leaders to seek such help whenever they feel they need it, both for their own sakes and for ours, and protecting their medical privacy is essential if this is to happen.” If presidents were morally required to disclose consultations with a psychiatrist, then presidents will be much less likely to consult them. Having the ‘leader of the free world’ unwilling to consult with medical professionals, however, is a scary place to be. We don’t want a president refusing needed supplemental oxygen just because they fear the consequent political blowback. The best way we know to prevent that, however, is maintain strong norms of medical privacy.

It seems reasonable to think that one might forfeit a deontological right to medical privacy by running for president. But it also seems reasonable to think that there are independent reasons to maintain norms of medical privacy that go beyond merely personal rights.

 

Oh, and a quick postscript for those readers who have never watched The West Wing. It is a great show, and the third season largely deals with questions of medical privacy and the public’s right to know.

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Ongoing American Exceptionalism: To Infinity and Beyond

photograph of American flag planted on Moon with Astronaut staring off into space

On April 7th, the Trump administration released an executive order declaring that the USA doesn’t understand space or the moon to be under international jurisdiction, but rather a domain for particular countries to pursue their own interests. The order states, “Americans should have the right to engage in commercial exploration, recovery, and use of resources in outer space.”

There are 108 signatories for the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” the main document outlining law in space. This document is now a precedent for treating space continuously with international law: no particular government has authority unless there is a particular interaction with data transmission between citizens, for example, that clearly falls under the jurisdiction of a particular nation. For instance, in 2019, Anne McClain, a US astronaut allegedly signed into Former Air Force intelligence officer Summer Worden’s bank account without Worden’s permission. Worden filed an identity theft charge against McClain. Because the data connection, bank, and citizens were all under the purview of the US, it was determined to fall under U.S. law.

Unless circumstances as particular as these arise, however, corporations, states, and entities in space are meant to operate under a set of regulations that broadly set out international regulations. This is for practical reasons as much as anything else:

“When there’s a hurricane, earthquake or other disaster, Harrington said that multiple countries with remote-sensing satellites — including the U.S., Japan, South Africa, Russia and the European Union — are part of a disaster charter. Whomever had a satellite passing over the disaster-ridden region before, after and during the event has agreed to share data to mitigate damage, saving lives and property.”

Trump’s executive order breaks with the international push for cooperation and neutrality in pursuing space exploration. The Center for Strategic and International Studies, as well as NASA, have repeatedly emphasized that international cooperation is crucial for pursuing space exploration.

Trump has been enthusiastic about expanding American power into space, as his ambition for developing a Space Force has shown in the past year. His enthusiasm for expanding mining rights and removing mining regulation on Earth make this also a natural expansion of his previous zeal. However, similar to his propagation of the Space Force, it remains unclear what, if any, interest or action will follow from this declaration of Trumpian interest.

Having a leader that is out of touch with the reasoning behind the policies is dangerous and can have lasting impact on not only our nation’s progress but the necessary cooperative efforts of the international community. When one powerful nation withdraws efforts, the rest of a coalition suffers. This is one way to harm a community—not by sanctioning, attacking, or aiming malice directly towards other nations or actors, but by neglecting to take their interests into considerations in one’s own pursuits. Neglect in such circumstances is a form of disrespect. It also is not in the USA’s best interests, for, as experts agree, the successful pursuit of progress in space will necessarily be a joint effort, relying on the very nations Trump continues to ignore in the here and now.

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The Trump/Zelensky Exchange: The “Though” Makes It Quid Pro Quo

photograph of Trump and Zelensky posing for cameras, seated and shaking hands

The Trump administration released a “transcript” of the recent phone call between Ukraine’s President Volodymyr Zelensky and Trump. The administration seems to think that the document proves there was no quid pro quo arrangement suggested by the president. They claim that defense funding was never made conditional on Ukraine investigating Joe Biden or his son. Supporters of the president have dismissed the uproar as motivated by partisan politics, and regard any suggestion that the memo might represent an impeachable offence “a huge overreach” by Democrats.

But the accusation of a quid pro quo arrangement between a sitting president and a foreign government is a big deal. Asking the Ukrainian president to investigate a political rival by itself is sketchy. But to dangle defense funding in front of Ukraine and suggest that Ukraine won’t get it unless they come through is clearly an abuse of power. These types of political dealings were precisely the kind the founding fathers thought essential to keep out of our democracy. To use the power of the presidency for personal gain or to undermine a political rival is precisely the kind of power the founding fathers meant to curb with the constraints they placed on the executive branch. As Zack Beauchamp of Vox has argued,

The president is trying to get a foreign power to open an investigation into the highest-polling Democratic candidate, perhaps Trump’s likeliest opponent for reelection in 2020, on an extremely flimsy pretext — to turn Biden’s fake Ukraine scandal into “her emails” 2.0. He is actively working to weaponize the presidency to boost his political fortunes.

Not only would this constitute election interference, it further threatens to give a foreign power leverage over another nation’s commander-in-chief.

The administration has been adamant that no such deal was officially presented. In Trump’s own words he said, “I didn’t do it. There was no quid pro quo.” Many news outlets have tended to confirm this account; without anything more explicit it’s hard to say definitively whether an offer was intended or whether it was interpreted as such. This ambiguity has led the Justice Department to conclude that prosecutors “did not and could not make out a criminal campaign finance violation.” Without a clearer picture of the actual goods on offer and any clear-cut proposal, the DOJ found it difficult to hold the president accountable for soliciting foreign support in his upcoming presidential campaign.

But there is one word in the transcript of the phone call between Donald Trump and Zelensky that makes it pretty clear that Donald Trump threatened to withhold defense funding from Ukraine if Ukraine did not investigate Joe Biden and his son. It’s the word “though”.

Here is the excerpt that matters:

President Zelenskyy

I would also like to thank you for your great support in the area of defense. We are ready to continue to cooperate for the next steps. Specifically we are almost ready to buy more Javelins from the United States for defense purposes.

The President

I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike… I guess you have one of your wealthy people… The server, they say Ukraine has it. There are a lot of things that went on, the whole situation. I think you’re surrounding yourself with some of the same people..

President Zelinskyy thanked President Trump for defense support and mentioned that he would like to continue this cooperation. The first sentence out of Trump’s mouth is “I would like you to do us a favor though.” He goes on to ask for an investigation of Biden as part of this favor. In this context, “though” would literally be defined as “placing a restriction or condition on what was previously said.”

Had Trump left that word out, this still looks pretty close to quid pro quo, but there is still the possibility of inferring some weaker claim. On the other hand, one might infer that though he didn’t explicitly threaten to withhold funding unless an investigation happened, it’s implied by asking for the favor. The “though” is what actually makes this an explicit threat; it’s what removes this ambiguity.

It’s up to Congress and the American People to decide what should be done next. As a matter of political expediency, we can argue about whether impeachment is a good idea or not. But whatever is decided, let’s not pretend that this phone call was anything other than an explicit threat by a sitting US President to stop cooperating with Ukraine on their military defense unless they investigated his political rival. The “though” makes this clearly a quid pro quo exchange.

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What’s the Story with Fake News?

Photograph of Donald Trump speaking into a microphone

Every day U.S. President Donald Trump calls “fake news” on particular stories or whole sections of the media that he doesn’t like. At the same time there has been a growing understanding, inside and outside the U.S., that “fake news”, that is to say fabricated news, has in recent years had an effect on democratic processes. There is of course a clear difference between these two uses of the term, but they come together in signifying a worrying development in the relations of public discourse to verifiable truth.

Taking the fabricated stories first – what might be called “real fake news” as opposed to Trump’s “fake fake news” (to which we shall return) – an inquiry concluded by the UK parliament in recent weeks that sheds further light on the connections between lies and disinformation, social media, and hindrance of transparent democratic processes makes sobering reading.

On July 24 the British House of Commons Digital, Culture, Media and Sport (DCMS) Committee released its report on ‘disinformation and fake news’. What began as a modest inquiry into recent developments and trends in digital media “delved increasingly into the political use of social media” and grew in scope to become the most detailed look yet to be published by a government body at the use of disinformation and fake news.

The report states that

“…without the knowledge of most politicians and election regulators across the world, not to mention the wider public, a small group of individuals and businesses had been influencing elections across different jurisdictions in recent years.”

Big Technology companies, especially social media companies like Facebook, gather information on users to create psychographic profiles which can be passed on (sold) to third parties and used to target advertising or fabricated news stories tailored to appeal to that individual’s beliefs, ideologies and prejudices in order to influence their behavior. This is a form of psychological manipulation in which “fake news” has been used with the aim of swaying election results. Indeed, the DCMS committee thinks it has helped sway the Brexit vote. Other research suggests it helped to elect Donald Trump in the 2016 U.S. presidential Election.

The report finds that

“…urgent action needs to be taken by the Government and other regulatory agencies to build resilience against misinformation and disinformation into our democratic system. Our democracy is at risk, and now is the time to act, to protect our shared values and the integrity of our democratic institutions.”

It’s not easy to define what “fake news” is. The term is broad enough to include lies, misinformation, conspiracy theories, satire, rumour or stories that are simply wrong. All these categories of falsehood have been around a long time and may not necessarily be malicious. The epistemic assumption that the problem with fake or misleading news is that it is untrue is not always warranted.

Given that information can be mistaken yet believed and shared in good faith, an evaluation of the epistemic failings of false information should perhaps be judged on criteria that include the function or intention of the falsehood and also what is at stake for the intended recipient as well as the purveyor of misinformation. In other words, the definition of fake news should include an understanding of its being maliciously produced with the intention to mislead people for a particular end. That is substantively different from dissenting opinions or information that is wrong, if disseminated or published in good faith.

The DCMS report recommended dropping the term “fake news” altogether and adopting the terms ‘misinformation’ and/or ‘disinformation’. A reason for this recommendation is that “the term has taken on a variety of meanings, including a description of any statement that is not liked or agreed with by the reader.”

The ethical dimensions of fake news seem relatively uncomplicated. Though it is sometimes possible to make a moral case for lying – perhaps to protect someone from harm, for fake news there is no such case to be made, and there is little doubt that its propagators have no such reasoning in mind. We don’t in general want to be lied to because we value truth as a good in itself; we generally feel it is better for us to know the truth, even if it is painful, than not to know it.

The thorny ethical problems arise around the question of what, if anything, fake news has to do with freedom of speech and freedom of press when calls for regulation are on the table. One of the greatest justifications for free speech was put forward by the liberal philosopher John Stuart Mill. Mill thought that suppression of error (by a government) could never rule out accidental (or even deliberate) suppression of truth because we are not epistemically infallible. The history of knowledge is, after all, a history of having very often to correct grave and, sometimes, ludicrous error. Mill convincingly argued that unrestricted discussion allowed truth to flourish. He thought that a “clearer perception and livelier impression of truth [is] produced by its collision with error.”

However, on closer consideration, free speech may not really be what is at stake. Mill’s defense of free press (free opinion) ends where ‘in good faith’ ends, and fake news, as wielded by partisan groups on platforms like Facebook, is certainly not in good faith. Mill’s defense of free and open discussion does not include fake news and deliberate disinformation, which is detrimental to the kind of open discussion Mill had in mind, because rather than promote constructive conversation it is designed to shut conversation down.

Freedoms are always mitigated by harms: my freedom to swing my fist around ends where your nose begins. And the DCMS report is one of numerous recent findings that show the harms of fake news. Even if we grant that free speech doesn’t quite mean freedom to lie through one’s teeth (and press / media doesn’t quite mean Facebook) it still is not easy to come up with a regulatory solution. For one thing, regulations can themselves be open to abuse by governments – which is precisely the kind of thing Mill was at pains to prevent. The term “fake news” has already become a tool for political oppression in Egypt where “spreading false news” has been criminalized in a law under which dissidents and critics of the regime can be, and have already been, prosecuted.

Also, as we grapple with the harms caused by deliberate, targeted misinformation, the freedom of expression question dogs the discussion because social media is, by design, not a tightly controlled conversational space. It can be one of the internet’s great benefits that it has a higher degree of freedom than traditional media — even if that means a higher degree of error. Yet it is clear from the DCMS report that social media “platforms” such as Facebook are culpable, if not legally (since Facebook is at present responsible for the moderation of its own content), then ethically. The company failed to prevent use of its platform for targeted and malicious campaigns of misinformation, and failed to act once it was exposed.

Damian Collins, the Conservative MP for Folkestone and chair of the DCMS committee, spoke of “Facebook’s complete lack of moral responsibility”; the “disingenuous” responses from its executives, and its determination to “time and again… avoid answering… questions to the point of obfuscation”. Given that attention-extraction companies like Facebook are resistant to change because it is against their business model, democratic governments and regulators will have to consider what measures can be taken to mitigate the threats posed by social media in its role in targeted dissemination of misinformation and fake news.

At stake in the problem of fake news is the kind of conversational space necessary for a healthy functioning society. Yet the ‘”fake fake news” of President Donald Trump is arguably more insidious, and perhaps even harder to inoculate against. In what can only be described as an Orwellian twist in the story of fake news, Donald Trump throws the term at the mainstream media even as they report something much more answerable to epistemic standards of truth and fact than the fabricated stories propagated through social media or the transparent lies Trump himself so effortlessly dispenses.

Politicians have long had a reputation for demagoguery and spin, but Trump’s capacity to lie in the face of manifest reality (inauguration crowd size just for one obvious example) and to somehow ‘get away with it’ (at least to his supporters) is extraordinary, and signals a deep fissure in the relation between truth, trust, and civic discourse.

To paraphrase Australian philosopher Raimond Gaita: to deride the serious press as peddling fake news, to deride expertise that proves what justifiably can count as knowledge, is to undermine the conceptual and epistemic space that makes conversations between citizens possible.

J. S. Mill’s vision for a society in which, despite and sometimes through error, truth can be discovered, and where it has an epistemic priority in establishing trust as a foundation for a liberal, democratic life is lost in the contempt for knowledge and truth that is captured in the idiom of this “post-truth” era.

Both senses in which “fake news” is now pervading our civic conversational space threaten public discourse by endangering the very possibility of truth and fact being able to guide, ground and check public discourse. Big Technology and social media have no small part to play in these ills.

An epistemic erosion is underway in public discourse which undermines the conversational space – that space that Mill thought was so important for the functioning of a free society – which allows citizens to grapple with self-understanding and to progress towards more just and better forms of civic life.