Excerpts from recent editorials in the United States and abroad:
The Washington Post on Donald Trump and the 14th Amendment
A forthcoming law review article by two prominent conservative academics has ignited interest in Section 3 of the 14th Amendment. The section, approved just after the Civil War, declares that no one who has “engaged in insurrection or rebellion” against or “given aid or comfort to the enemies” of the United States may hold a number of high federal offices.
The scholars’ case for invoking Section 3 to keep Mr. Trump off the 2024 ballot is intriguing. But banking on an arcane paragraph to protect the country from a second Trump term would be foolish.
The first set of hurdles involve the provision’s legal intricacies. For every clause presents a question. The answers, in most instances, aren’t terribly clear. To start, what offices does the restriction apply to? There’s no explicit mention of the presidency. This question appears surmountable: It seems implausible that the most powerful position in the land would be excluded when all possible other posts to which public servants are sworn in are covered.
Similar is the question of whether Congress effectively axed Section 3 with the Amnesty Act of 1872, which removed the disqualification from most of these Confederates and their allies. The language, full of past-tense verbs and words such as “hereby,” suggests that the removal applied only retrospectively, just to the Confederates in question.
More confounding is the debate over whether, assuming Section 3 remains in effect, it applies automatically — or whether Congress must pass a law giving it life. Generally, when Congress is required to put the word of the Constitution into force, the Constitution says so. But complicating matters is an opinion by Chief Justice Salmon P. Chase, handed down the year after the 14th Amendment’s ratification, declaring that Congress must indeed give its say-so.
Meanwhile, all these quibbles seem academic compared with this issue: Is Donald Trump an insurrectionist?
Unfortunately, that’s no easy question, either. Section 3 was clearly a direct response to the crisis of the times: the Civil War and its aftermath. The aim was to stop Southern states from sending ex-Confederates to Washington to participate in the government they had attempted to overthrow.
But the drafters of the 14th Amendment chose the words “insurrection” and “rebellion” rather than referring specifically to the conflict over slavery. There’s a strong case that the events of Jan. 6, 2021, meet the definition of “insurrection.” Congress seems to have thought so, at least; when it awarded gold medals to the police officers who protected the Capitol on that day, its declaration included the term.
There’s less of a case, however, that Mr. Trump engaged in this insurrection. The various prosecutors who have indicted him so far have charged him with plenty of crimes — but not, notably, the federal crime of insurrection. As far as whether the former president nonetheless gave “aid or comfort” to “enemies of the United States” who were engaging in insurrection, it’s easy to see it both ways.
Mr. Trump provided no tangible help to the men and women who stormed the nation’s seat of government. But, as the Jan. 6 committee has carefully laid out, Mr. Trump egged on supporters at the National Mall who he knew were armed — and, later, when they were beating down the building’s doors, he neglected to call them off despite having the influence to end the violence.
Where all this leaves the courts that might eventually adjudicate this subject is unclear. Even less clear is whether, on the level of principle, preventing voters from casting ballots for a candidate of their choice has a place in a nation built on every citizen’s right to have a say.
Of course, the Constitution already restricts the people’s control over who leads them. Not everyone can be president — or senator or even representative. There are minimum age requirements, for instance, as well as the mandate that the commander in chief be a natural-born citizen.
The framers created myriad bulwarks that might appear antidemocratic but are designed to keep democracy standing. It seems consistent with their intentions that elected officials who violate their oath of office by seeking to overthrow the very government they have sworn to protect should be prohibited from taking that office again.
Yet this same argument might be employed in bad faith. Whether a candidate is under the age of 35 is objective; whether a candidate has engaged in rebellion is less so. Imagine a Republican running for a House seat attempting to knock a Democrat out of the running on the grounds that they participated in the Black Lives Matter protests in 2020 — and that these “riots” were a form of insurrection.
Now imagine that all these concerns, constitutional and philosophical, could be surmounted. The question of how the disqualification is actually supposed to happen remains.
Theoretically, state secretaries of state ought to scrub Mr. Trump’s name from the ballot. But some don’t have the power under state law without a legislative act, and others have made it clear they don’t see that as their job, regardless. Electors could refuse to lend their votes to a candidate the Constitution prohibits from winning; senators and representatives could refuse to certify the victory. But it is difficult to believe that they would.
The disputes that invoking Section 3 of the 14th Amendment would elicit would almost certainly make their way to the Supreme Court — where the chances of Mr. Trump’s disqualification being affirmed seem low. The public would be better off pursuing a more straightforward route to keeping the former president out of the Oval Office: voting.
The Wall Street Journal on tax fraud at the IRS
The Internal Revenue Service makes clear that taxpayers who willfully conceal or alter tax documents risk severe penalties. But what happens when government auditors are caught manipulating documents and hiding those actions in court?
The IRS this month agreed to settle and drop a penalty in Lakepoint Land II LLC v. Commissioner. A judge in U.S. Tax Court had sanctioned the IRS in the case, ripping the agency’s counsel for acting in “bad faith” and having “multiplied the proceedings in this case unreasonably and vexatiously” by failing to tell the court that documents it used to assess a penalty had been backdated.
Several other Tax Court cases suggest wider IRS document fiddling as the agency has gone after “syndicated conservation easements.” Congress created conservation easements in the 1980s, letting land owners donate the development rights for acreage to a qualified charity in return for a tax deduction.
Those easements have become big business, as legal tax loopholes often do. Companies buy up land, have it appraised for its foregone developmental value, then sell stakes to investors who receive the tax benefit. This entirely legal commerce is disliked by the green lobby and some lawmakers.
The IRS began its crackdown in 2016, and by 2020 former Commissioner Charles Rettig had declared it a “top priority” to “actively identify, audit and litigate” these transactions that “defraud the government of revenue.” The IRS zeroed in on what it claimed were inflated land appraisals, denying deductions and slapping firms with hefty penalties.
One legal rub: The federal tax code requires an IRS supervisor to approve in writing the initial determination of a penalty. That didn’t happen in Lakepoint. The company presented emails to Judge Christian Weiler showing that the IRS agent on the case failed to get her supervisor’s written approval in 2016 for a proposed $15 million penalty.
When the agent realized this—in February, 2017—her supervisor acknowledged in an email that this was a “HUGE oversight” and backdated her signature to seven months earlier. IRS attorneys nonetheless swore to the accuracy of this date, and they continued to mislead the court for months even after the falsification was discovered. Judge Weiler ordered the IRS to pay Lakepoint’s fees and expenses.
Three more partnerships—Arden Row Assets, Basswood Aggregates, and Delwood Resources—have presented evidence of similar backdating by a different IRS agent and manager. That agent in a March 2022 email tells the manager that “the date you use to sign should either be the date you ‘approved’ penalties against the taxpayer (7/14/21) . . . or a little thereafter?” The manager a few days later responded: “All 3 are signed with date of July 14, 2021.” Note the wink-nod “approved.”
The cases suggest a culture of disregard for tax laws that the IRS requires taxpayers to follow to the tee. Imagine the fines or prison sentences awaiting average Joes who backdate tax documents and lie about it.
IRS abuse is all the more outrageous because the partnerships had the legal right to engage in easements at the time. Congress has since tightened the rules, and perhaps it should eliminate the loophole. But as long as they are legal, the job of the IRS isn’t to change the law through enforcement. According to a recent analysis in the publication Tax Notes, of the cases in which the Tax Court has ruled on valuations, judges have upheld some 81% of reported deductions.
In addition to settling with Lakepoint, the IRS says it has “undertaken an ongoing review of syndicated conservation easement cases to ensure that the evidentiary record about supervisory approval is properly presented and that the agency pursues or continues to pursue penalties only where appropriate.”
Glad to hear it, but it’s a disgrace that the IRS had to be found out in court before it stopped its abuses. This is one of many reasons the recent $80 billion budget increase for the IRS should be eliminated.
The Los Angeles Times on cash bail
The judge presiding over the ongoing lawsuit to end the use of bail schedules in Los Angeles County considered studies and testimony from experts in academiawho have examined the effect of money bail requirements and programs that reduced or eliminated them.
There were two principal questions: Were suspects released without bail less likely to show up in court for mandatory hearings? And were they more likely to be arrested for new crimes?
The evidence pushed in a single direction: Eliminating money bail did not increase either failures to appear or rearrests. In fact, it showed that both court appearances and public safety improved.
Studies of jurisdictions around the country, including New Jersey; Harris County, Texas; Kentucky; Miami-Dade County, Fla.; California’s Orange County; and counties in Colorado, Washington state and North Carolina, all show similar results, and some show that money bail and pretrial detention are correlated with significant harms for the defendants — while also making them more likely to be charged with new crimes.
Together, the studies create a body of evidence, widely accepted among social scientists and criminologists, that shows money bail does none of the good things that its proponents claim it does. Eliminating it causes none of the disasters they warn about.
Yet these studies and their remarkable conclusions — and obvious policy implications — never seem to make the evening news or the daily headlines. That leaves the public with a dangerously skewed view of the truth.
Instead, news reports, police and politicians routinely cite a survey from Yolo County, west of Sacramento, purporting to show increases in crime caused by the release of suspects under emergency zero-dollar bail requirements that were ordered to reduce the jail population to help halt the spread of COVID-19 in those facilities.
Yolo County Dist. Atty. Jeff Reisig said his figures show conclusively that zero-dollar bail leads to more crime.
But his survey was only a tabulation of numbers that didn’t compare similarly situated groups under circumstances that control for variables, like health and social conditions during and after the worst of the pandemic, or whether enforcement was increased during the period reviewed. The academics who study the effect of criminal justice policies widely criticize the Yolo report.
Los Angeles County Sheriff Robert Luna, testifying in Urquidi vs. Los Angeles, the case challenging pre-arraignment bail, said his department likewise found high numbers of rearrests among defendants who were released on zero-dollar bail. But on cross-examination he acknowledged that the numbers were not part of any empirical study that compared the people released with and without money bail and controlled for variables. His department was “just counting.”
L.A. County participated in a pilot project that eliminated money bail and pretrial incarceration for cohorts of criminal defendants beginning in 2020, and reported positive results: fewer failures to appear, fewer rearrests. That report falls short of the academic rigor of many of the other studies, but it’s important to note that the results were nevertheless far different from those reported in Yolo.
Like the academic studies, the L.A. County report didn’t make any headlines. News that tends to confirm our worst fears or deepest suspicions is widely repeated, especially by those with a stake in the outcomes, like the bail bond industry. Peer-reviewed academic studies, by contrast, go generally unseen by the public.
Even the persuasive expert testimony in the Urquidi case, upon which Judge Lawrence Riff partly relied in issuing a preliminary injunction against reliance on money bail schedules to determine who may or may not go free between arrest and arraignment, has garnered little public notice. There is little public appetite for academic studies, but a seemingly insatiable hunger for news about crime.
When science is not understood, we end up believing in fairy tales.
The story that money bail increases public safety is one such fairy tale. It is as insupportable as the notion that Earth is flat, vaccines are a plot to control our minds, and the 2020 election was stolen from Donald Trump. Some of these myths are serious threats to liberty and democracy. Preserving those gifts requires Americans to do a little homework, read past the headlines and study the conclusions of experts, or at least of the judges who have considered their evidence.
The Guardian on ethnic Armenian refugees
The self-declared republic of Nagorno-Karabakh will cease to exist on New Year’s Day 2024, its ethnic Armenian officials announced on Thursday. The former autonomous region broke away from Azerbaijan after the collapse of the Soviet Union, but was not recognised even by Armenia, which backed it. All its institutions will now be dissolved.
The truth is that it is already vanishing. A place is its people, and more than half the population of the enclave has fled to Armenia since last week’s 24-hour offensive by Azerbaijan to reclaim full control. As of Thursday morning, 68,000 of the 120,000 ethnic Armenians living there had left. Many more will follow. Armenia, a country of only 3 million, must be supported to integrate this number of refugees.
While Baku insists that ethnic Armenians are choosing to leave, and that they have nothing to fear, Thomas de Waal, an expert on the Caucasus at the Carnegie Endowment for International Peace, observed: “That is not how bitterly contested ethnic conflicts are fought, when armed groups are sent into civilian areas.” Armenia’s prime minister, Nikol Pashinyan, has called it “a direct act of ethnic cleansing”.
What is clear is that few are willing to take the risk of staying. The context is a months-long blockade, which left residents without food or medicines; the warnings from Ilham Aliyev, the autocratic president of Azerbaijan, to “bend your necks”; last week’s military offensive, during which civilians, including children, were killed; and claims of abuses by Azerbaijan’s troops. Further back lies the shadow of the Armenian genocide of 1915, and more recently a history of ethnic cleansing on both sides in the 1990s conflict, in which Azerbaijanis suffered especially heavily. In the brief but vicious 2020 war, Azerbaijan reclaimed large swathes of territory, allowing Azerbaijanis who had left to return home. It also led to crimes including the decapitation of Armenian civilians.
Azerbaijan’s words also carry little weight right now. It launched its operation despite assuring foreign governments that it would refrain from force and in the face of clear warnings from the US and others that they would not countenance ethnic cleansing or other atrocities against the Armenian population of Nagorno-Karabakh. Russia, Armenia’s treaty ally, brokered the previous ceasefire in 2020 and sent in a peacekeeping force, but is preoccupied with its invasion of Ukraine and is displeased with Armenia’s overtures to the west, including a recent joint military drill with the US. It has also been improving its ties to Azerbaijan. Turkey’s increasingly open support also emboldened Baku.
The US and others are rightly pressing for access for a UN monitoring mission. If Baku is doing nothing wrong, it should have nothing to hide. But given the speed of events, Washington, the EU and European governments must also insist that there will be accountability for what is now happening, including via the European court of human rights. European leaders appear genuinely shocked at the actions of Azerbaijan, with whom they had enjoyed warming relations. They should act accordingly.
This is not just about addressing the current crisis, but staving off future violence. There is concern about Azerbaijan’s desire to establish a corridor to Nakhchivan, which is territorially separated from the rest of the country, and President Aliyev’s recent talk of “western Azerbaijan”, in reference to Armenian territory. What happens now is essential not only for the ethnic Armenians who remain in Nagorno-Karabakh, but for others in the region.
China Daily on the U.S. and China resuming military-to-military communication
The United States Space Force is exploring in internal discussions the possibility of creating a hotline with the Chinese military to avoid crises in space.
“What we have talked about, on the US side at least, is opening up a line of communication to make sure that if there is a crisis, we know who we can contact,” Chief of Space Operations General Chance Saltzman told Reuters on Monday in Japan. But he also acknowledged it is not in the works yet.
It remains to be seen if the White House or US State Department will bring the matter up in talks with the Chinese side, and whether the latter will embrace such an idea.
Asked about the matter at the Chinese Foreign Ministry’s regular briefing on Tuesday, spokesman Wang Wenbin diverted the question to “competent authorities”, saying at present contact between the two militaries has been suspended because of “reasons the US side is well aware of”, not least, the US sanctions on the Chinese defense minister.
Beijing rejected a call from the US Defense Department in February after the latter shot down what at the time it hyped up as a “spy balloon”, saying the US side had “not created the proper atmosphere” for dialogue and exchanges. It later refused to arrange a face-to-face discussion between the two countries’ defense chiefs on the sidelines of the Shangri-La Forum in Singapore using the same excuse.
Beijing has repeatedly argued Washington should show “sincerity” with “practical moves” in exchange for the kind of communication the US side has demanded. After all, Washington is apparently bent on an all-out offensive to suppress the Chinese military’s modernization. Its global initiative to throttle the Chinese semiconductor industry, for instance, is explicitly aimed at slowing down the Chinese military’s capabilities. In such a sense, the “proper atmosphere” that Beijing wanted remains absent.
Creating a dedicated hotline between the two countries’ space forces may or may not be absolutely necessary for smooth communication in case of emergencies. But the conspicuous lack of communication channels between the two militaries is a worrying fact that must be properly addressed. The more the two militaries distrust each other, the more they need proper communication channels to avoid unintended crises.
It’s becoming obvious that the two countries’ overall relations are increasingly being taken hostage by a sense of geopolitical confrontation, and tensions keep escalating between the two militaries in the sea and air, across the Taiwan Strait and in the East China Sea and South China Sea. Given this, there is a need for active military-to-military communication channels to make sure they don’t come to blows because of a misjudgment or misunderstanding of each other’s intentions.
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