Thursday, November 21, 2024

Open letter to Senators Tuberville and Britt re Pam Bondi

Draft
Dear Senators Tuberville and Britt:

The United States is in a crisis about the rule of law and constitutional and other checks on Presidential power.

The crisis is embodied in four years of loud charges and countercharges about weaponization of the justice system. 

The 2024 election has not ended the crisis. 

The Pam Bondi nomination brings the crisis front and center for Congress and the American people.

This open letter to you lays out the crisis for your consideration.

I hope you will follow what is said in the letter.

I. Power
In a society's system of governance, selected members are invested with powers to carry out the governing of the society.

The selected members are supposed to use their governing powers to benefit the society and its members as a whole and not use their powers to benefit themselves personally. 

There is a tension between the selfish nature of human beings to seek their own benefit and the societal goal that members of the society who have the governing powers exercise the powers to benefit the society and its members as a whole.

Personal benefit may be financial benefit to the powerholder, the powerholder's family, or powerholder's friends (such personal financial benefits for self, family and/or friends will be referred to as "financial benefits"). 

Personal benefit may be psychological, non-material gratifications from having and wielding power, such as attention to one's self, adulation, domination and control over others, and sexual attractiveness (these psychological gratifications shall be referred to as "ego gratifications").

There is further a human tendency to want ever more power, and the more power one has the greater the desire for more power.

Also, in this quest for power, many persons who are similarly motivated about power as the main powerholder will join in to help the main powerholder's quest for power because that increases the gratifications from power that those persons receive. 

In the escalation of power desires, difficulties arise in gauging the extent to which powers are exercised for ego gratifications and not for the purpose of benefitting society.

Particularly bad is when a power holder wrongfully uses his powers against parties who seek to take away the power. 

The harms to society from a power holder abusing his power are highly variable. The greater the power that a power holder has, the greater th harm that may be done to society by abuse of the power. The President of the United States has uniquely great power and can do uniquely great harm by abusing his power.

Much of human history is about power, power seeking, how power is used, how society protects itself against abuse of power, and the harms to society if power is abused,

II. Society's protections against abuse of power

A. Character; respect for the law

One of society's protections against abuse of power by powerholders is to cultivate persons of character and integrity to govern the society and who of their own accord will choose to use their power to benefit the society and not to benefit themselves personally. This provides society a modest amount of protection from the abuse of power, but much more is needed given the potency of the selfish nature of human beings to seek their own benefit. 

B. Rule of law

The United States employs a rule of law to protect itself from abuse of power by those vested with governing powers.

The law in various ways specifically prohibits a power holder from using his power to benefit himself personally.

An example is making and receiving bribes of public officials unlawful.

These are buttressed by laws requiring disclosure of, or prohibiting, conflicts of interest, that create opportunities for a power holder to exercise his power to benefit himself personally. 

C. Independence of law enforcement against power holders 

For the foregoing laws to be effective, there needs to be independence of law enforcement as regards enforcing against power holders the laws that protect society against abuse of power by a power holder, and a power holder cannot be allowed to control decisions by prosecutors and others in law enforcement regarding investigation and enforcing such laws against the power holder.

D. Importance of information and transparency 

For society to protect itself against abuse of power, society needs information relative to whether a power holder is using his power to benefit himself personally.

This is hampered by power holders who are using their power to benefit themselves personally to seek to hide information about that from the public. 

This calls for great vigilance by society. Besides needing independent law enforcement for investigating whether power is being abused, society needs investigative journalists and other watchguards to keep power holders from abusing their power. 

E. Ambiguity

There can be ambiguities and uncertainty in how power is being exercised and whether it is being wrongfully used to obtain personal benefit.

Use of power to wrongfully obtain personal financial benefit is probably less susceptible of ambiguity and uncertainty. 

The exercise of power for obtaining ego gratifications or to protect the power holder's power is more susceptible of ambiguity and uncertainty.  The powerholder will work at keeping the members of the society from discerning that the powerholder is exercising and seeking power for ego gratifications or to protect his power and will endeavor to get members of the society to believe that the power holder is exercising his power to benefit them where in fact he is not. 

F. Acceptance of power holder using power for personal benefit

In some cases, members of a society may not care if a power holder is abusing his power to obtain personal benefits.

These persons may think there ais not detriment to the society if the power holder abuses his power, or that any detriment is small in comparison to the societal benefits that the power holder otherwise provides (or compared to benefits that the members are specially interested in). In this regard, the power holder will try to deceive, and use his aids to help deceive, the members of the society that the personal benefits the power holder receives are smaller than they actually are or non-existent or that the societal benefits the powerholder is providing are greater than they actually are.

III. Evaluating Trump 

A history of the United States could be written about how much power-seeking has gone on by power-seekers, how much they have benefitted themselves financially and in other ways, the harms that have come to the United States from powerholders abusing their power, and how character, laws, the Constitution and other societal controls have helped protect the United States from abuse of power.

Turning to Trump, just about everyone is agreed that there has never been anything like Trump in American history.

Trump supporters believe that utter destruction of the United States was happening under the Democrats, Trump is the savior of the country, and Trump will fix all that ails the country very quickly. Never in American history has there been a Presidential candidate who has made such outlandish promises to voters, and tens of millions of his supporters believe his promises, or they know how outlandish the promises are and cannot be fulfilled but they don't care and being emotionally carried away by Trump is what matters to them.

For those against Trump, Trump is unprecedented in American history at the Presidential level as regards how blatantly transactional Trump has been in using his governing power to benefit himself, his family and friends financially. how unashamedly he pursues ego gratifications from his power, how successful he has been in getting tens of millions of Americans to be believe he cares about them and is not doing things for ego gratifications, how much Trump has unshackled himself from Constitutional, legal and institutional checks on his power seeking to for his personal financial benefit and ego gratifications,

These wildly conflicting views about Trump mean a crisis about the rule of law and weaponization of the justice system has not ended with the 2024 election.

The crisis calls for Congress and the American people to continue to address the extent to which Trump wants power to benefit himself personally, whether in the form of financial benefits or ego gratifications, and has abused his power and will continue to abuse his power in his second term.

Particular account needs to be taken of the harms Trump can do if he abuses his powers in his second term.

A. Protections against Trump abusing his power

1. Trump's character and motivations 

How Trump lived his life before 2016, his over the top narcissism in striving for as much attention as he could get for himself, his business practices of not paying contractors, and his business ethics such as revealed by the fraudulent Trump University, are evidence of self-serving motivations. 

There is the question of why Trump ran for President in 2016. Many think Trump did not believe he had a chance to win the Presidency, but that running would be a great way to advertise and promote his business including his goal of building a hotel in Moscow. Also, running for President itself would provide enormous ego gratifications for Trump, and, if Trump won the Presidency, being President could provide the ultimate in ego gratifications. Also Trump may have had plans to use the Presidency to benefit himself and his family financially. 

On the opposite side, Trump supporters don't give any thought to any of the above and simply believe Trump, in 2016, decided to make a great personal sacrifice for the laudable motivation of simply wanting to make the United States better for Americans.

As President, Trump unashamedly used his Presidential position to benefit himself and his family and evidenced no recognition of conflicts of interest that the law seeks to prevent because they compromise the fiduciary obligation of the  office holder to exercise his powers to benefit the society as a whole and not to benefit himself personally.

As President, Trump saw no problem with his "perfect" phone conversation with Zelensky and his "perfect" phone call to the Georgia Secretary of State. As President, Trump relished watching the January 6th rioting for two hours before he could be persuaded to call on the rioters to stop their rioting.

2. Rule of law constraining Trump or not

The four leading matters of the Mueller investigation, the first impeachment, January 6th, and the classified documents case are at the heart of whether Trump wrongfully abused his powers and committed crimes as President for which he needs to be held accountable under the rule of law, or whether there has been wrongful weaponization of the justice system against Trump.

The raging charges and countercharges about this during the past four years (or eight years depending on how you count) do not go away because Trump won the 2024 election, and this needs to be confronted by the Senate in considering the Pam Bondi nomination, to wit, did Trump commit crimes and abuse his power in connection with his first term, what are the risks of Trump doing the same during his second term, what is the role of an independent Department of Justice to protect against that going forward, and will Pam Bondi be independent in holding Trump accountable during his second term.

3. Risks and harms of Trump abusing his powers during second term

This starts with the harm Trump can do if, for personal reasons, he destroys the independence of the Department of Justice and its investigatory arm, the FBI. Given Trump's character and motivations, he could well decide which corruption cases against Federal and state officials shall be brought and which shall not brought, depending on how punishing or not punishing particular office holders can be exploited to benefit Trump. 

The same can be said about FBI investigations and, if Trump's new FBI director will do Trump's bidding what investigations Trump will allow or not allow to go forward.

Trump is expected to shut down the criminal cases against him.

Trump has evidenced that he believes he can use the pardon power however he wants and can use the pardon power in a transactional way to extract benefits for himself from how he uses the pardon power.

The first impeachment demonstrates that Trump believes he can use his powers over national security and the national security apparatus in order to benefit himself, and Trump evidences no recognition of the wrongfulness of that.

4. Presidential immunity

Special mention needs to be made of how the Supreme Court has ruled in favor of certain Presidential immunity, and that ruling reduces the protection that the criminal law gives to protect the United States against Presidential immunity.

With the reduced protection afforded by the criminal law, that means more reliance needs to be placed on Congress to prevent abuse of power by the President of the United States.

IV Conclusion

First, it is submitted that you should decide whether you think Trump abused his Presidential powers in his first term and what you think about the risk that Trump will abuse his Presidential power in his second term, the harms that may caused the United States if he abuses his Presidential power in his second term.

Second, Pam Bondi should be asked the same questions of whether she thinks Trump abused his Presidential powers in his first term and what she think sabout the risk that Trump will abuse his Presidential power in his second term and the harms that may caused the United States if he abuses his Presidential power in his second term. 

Third, the Senate should debate whether Trump abused his Presidential powers in his first term and what the risk is that Trump will abuse his Presidential power in his second term and the harms that may caused the United States if he abuses his Presidential power in his second term. 


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