Core legal arguments to preserve, protect and defend the United States from the presidency of Donald J. Trump
Whatever the still-expanding bill of particulars, Donald Trump’s principles of governance remain crudely defiling in their entirety.Most worrisome, though ignored or merely under-emphasized in current oversight considerations, are prospectively existential harms. In essence, increasingly, this president could sometime wrongly propel the United States toward a catastrophic war. Whether suddenly and disjointedly, as the result of bolt-from-the-blue strategic misjudgment, or more gradually, and in harder to detect increments of provocation, Mr. Trump – by fiat – could unravel whole generations of US national security preparations. For recent examples, one need only consider: (1) belligerent North Korean nuclearization is accelerating; (2) retreating ISIS fighters in Syria are being recruited into newly-organized al Qaeda or related terror units; (3) Iran no longer feels itself bound by formal constraints that had earlier been operative as the core of a multilateral legal agreement (JCPOA); and (4) Russian President Vladimir Putin is embarked upon a major expansion of national nuclear warfare capabilities. All this is happening while the American president retreats unconcernedly to his manicured golf courses in Palm Beach and elsewhere. Even at its imaginable “best,” an ongoing Trump presidency could place a once justice-centered country on the same side as the world’s most conspicuously anti-democratic regimes. In very little time, such Trump-led United States regressions could effectively forfeit America’s most hallowed and well-reasoned legal foundations. These “peremptory” legal foundations lie embedded in Natural Law,[i] an immutable and dignifying set of rules that apply (by definition) (a) to absolutely all peoples; and (b) for absolutely all time.
When the celebrated Irish poet William Butler Yeats penned “The Second Coming,”[ii] he did not have United States Constitutional law issues in mind. Nonetheless, Yeats’ famously-crafted warnings about “passionate intensity” and “blood-dimmed tide” should now have a distinctly palpable resonance in American politics. How could they not?
To explain further, a proper inquiry must begin with US President Donald Trump and now urgently-needed remedies to his multiple and steadily-expanding derogations. Significantly, some of these prospective remedies lie latent but dormant in the American nation’s core legal principles. These principles, in turn, will need to be taken more seriously by everyone who might still value a justice-based United States.
How to proceed? There are several possible ingredients to a proper and suitably promising inquiry. Markedly less obvious than codified articles of the US Constitution, these ingredients begin with various critical concepts, including the scientific property known correctly as “synergy.”
In medicine. engineering and military planning, just to supply helpful examples, synergy denotes an outcome (whether foreseen or unforeseen) wherein the “whole” of any purposefully examined combination is measurably greater than the calculable sum of its “parts.”
Today, though generally ignored in ordinary political assessments, this term can be used to help predict and understand how certain personal traits of America’s incumbent president could combine in expressly ominous ways. Though more-or-less unexpected, such “force-multiplying” combinations could substantially degrade US foreign and national security policies, perhaps even to the point of an imminent nuclear war. Arguably, a plainly synergistic combination of presidential anti-intellectualism and historical illiteracy is already dragging the United States toward irretrievable decline.
The relevant reasons here are not indecipherable.
Unhidden, America’s current president inhabits his alleged convictions like a dizzying predator, like a bewildered worm in the fruit.
His faith, such as it is, serves only for justifications of personal and collective belligerence; that is, as a transparent pretext for ritualized Twitter convulsions.
There is more. Recall that this is an American president who “loves the poorly educated” and prefers the viscerally rhythmic chanting of “rally” crowds (the “base”) to absolutely any intellectual or scientific exertions.
In essence, Donald Trump is an American president who abjures any conceivably recognizable process of disciplined thought, and who does so with incomprehensible pride.
Always, rather than be persuaded to read or think seriously, Donald Trump prefers to erupt.
Why be surprised?
“Intellect rots the brain,” warned Third Reich Propaganda Minister Joseph Goebbels.
“I love the poorly educated,” bragged presidential candidate Donald Trump in 2016.
In principle, at least, certain plausible synergies between the personal traits of US President Donald Trump (i.e., intra-personal interactions) could produce devastating consequences. More precisely, these cumulative interactions could sometime portend an insufferable nadir of national declension, a literal or tangible point of “no return.”
How shall all this be fixed, at least those particular derelictions that have discernibly legal content? Among other things, capable legal scholarship is sorely required. But how exactly should such needed scholarship be launched most effectively? In its apparent and presumptively well-justified considerations of proper impeachment options, the US House of Representatives must first agree to rank order this country’s national security obligations where they rightfully belong.
This is a position ahead of any and all other possible authoritative considerations.
This reveals an obvious and not unreasonable citizen expectation.
No proposed hierarchy could imaginably be more important, especially when there are well-founded concerns for avoiding crises in extremis atomicum.
To proceed, the mainstream of any legitimate presidential removal preparations must focus continuously on the (1) codified and presumptively better-known “High Crimes and Misdemeanors” expectations of the US Constitution;and (2) various overlapping provisions of US statutory law. Certain other less readily recognizable legal obligations could also be needed. Once capably prepared with this strategic and jurisprudential background more clearly in mind, Members of Congress could best identify and evaluate permissible grounds for protecting an increasingly imperiled American democracy.
To preserve a nation moving ominously toward the precipice, it’s not really too much to ask.
Though lesser known, there exist several “peremptory”[i] principles of jurisprudence that could prove applicable to seriously conceived impeachment motions. These relatively esoteric but still valid principles concern the Higher Law underpinnings of the United States. Such basic expectations represent vital national security principles that together could help protect Americans from presidentially-inflicted further harms.
Again, recalling the expanding nuclear weapons context of world politics, such harms could at some point display patently existential qualities.
Here, pertinent issues are primarily legal in both nature and form. In relevant jurisprudential terms, we must begin at the beginning. Remembering the celebrated jurist A.P. d’ Entrevesclassic text on Natural Law (Oxford University Press, 1951): “The Natural Law (Higher Law) is absolutely binding, and overrules all other laws.” From the standpoint of a still-to-be considered impeachment strategy, this recollection could point the way to much more usefully broad bases for any US presidential removal.
Soon, a critical and overarching question should be brought to the floor at the US House of Representatives. How can such a peremptory or “jus cogens” declaration be effectively operationalized in any prospective presidential impeachment action? The comprehensive essay that follows represents a jurisprudentially-informed response to this most rudimentary and already indispensable query.
“In the beginning….” For the United States, the principle of a Higher Law has always been more than just “any principle.” It is unmistakably one of the most enduring and canonic principles in the country’s acknowledged legal foundation.[ii] Revealed, inter alia, in both the Declaration of Independence and in the Constitution,[iii] it rests solidly and incontrovertibly upon the willing acceptance of right and justice for their own sake.
For the United States, considerations of right and justice have never been narrowly instrumental. On the contrary, they have always remained unwavering and meaningfully determinative.
Such foundational principles, as famed 18th century jurist William Blackstone once declared,[iv] represent nothing less than “the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover so far as they are necessary for the conduct of human actions.”[v]
Plainly, Thomas Jefferson was a learned US president, even at a time when laborious study was vastly more complicated and difficult than it is today. When Jefferson – without benefit of electric light, air conditioning, central heating, computers or even a manual typewriter – set to work on the Declaration, he drew productively upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and most prominently – John Locke (Second Treatise of Government).[vi] Asserting the right of revolution whenever government becomes destructive of “certain unalienable rights,”[vii] the Declaration of Independence posits a discernible natural order in the world, one whose irreducible laws are external to human will and remain eternally discoverable through staunchly determined applications of human reason.[viii]
Although, by the eighteenth century, God had been “withdrawn” from any immediate philosophical contact with humankind , and had been transformed into the Final Cause or Prime Mover of the universe, “nature” still remained available as a convenient and capable substitute.[ix]
There is much more. Reflecting the unique influence of Isaac Newton, whose Principia was first published in 1686, all of creation could now be taken as a recognizable expression of divine will.[x] Reciprocally, however, the only true way to ever truly “know” this original will of God was to first discover the underlying and eternal Law of Nature.
In essence, Locke and Jefferson had deified nature and “denatured” God.[xi]
But what exactly was this purported “Law of Nature,” a basic law that is accepted in the Declaration and Constitution as a continuously binding set of obligatory norms, and which could still pertain to a present-day American president? Above all, Jefferson learned from Locke, such law was a necessary source of Reason: Still more exactly, according to Locke’s Second Treatise:
The state of nature has a law to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….
In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men….
A criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed on one, declared war against all mankind.[xii]
As reason is the only sure guide to what God has given to humankind, it must inevitably become the only reliable foundation of true law. This Lockean and Jeffersonian idea of a transcendent or Higher Law is made manifest not only in the Declaration of Independence, but also in the Constitution.[xiii] Inter alia, the Ninth Amendment, in stipulating that “the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated,”[xiv] reflects codified belief in a perpetual law that is justly superior to any expressed will of human governance.
This vital conviction runs continuously from ancient times, especially traditional Jewish Law,[xv] up to the present intellectually detached “Trumpian moment.” The evident roots of such a prospectively lethal detachment lie in a broadly cast indifference to anything based upon Reason and a more person-specific indifference to history. What ought we ever really expect from a president who unambiguously prefers “attitude” to “preparation?”
There is still more. The Fragments of Heraclitus attest to the venerable antiquity of a Higher Law: “For all human laws are nourished by one, which is divine. For it governs as far as it will, and is sufficient for all, and more than enough.”[xvi] Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered easily into later Stoic philosophy and already described a universal and expectedly rational body of human law. Hard as it may be to imagine amid American politics in 2019, this intellectual corpus was familiar to many of the Founding Fathers.
Those people actually read books, serious books.
In 442 B.C.E., Sophocles clarified the idea of true law as an act of discovery, thus challenging the superiority of human rule-making in Antigone.[xvii] Already exploring the inevitable conflicts between claims of the state and those of individual conscience, this classic challenge has since been taken to represent the supremacy of a proper Higher Law overall man-made law – now an incontestable supremacy. Later, in the nineteenth century, American Transcendentalist philosopher Henry David Thoreau, noting that men live with “too passive a regard for the moral laws,”[xviii] cited directly to Antigone as a stirring example of “civil disobedience.” Still later, in these United States, the derivative legal and ethical conclusions of Antigone were learned and conceptually embraced by Martin Luther King.
The authority of Natural Law has a well-defined history in American society and politics. Ipso facto, it is not “merely” a pompous invention of certain interested philosophers and university professors. Or in more lay-person parlance, Natural Law already “has legs.”
But back to the philosophers. Building upon Plato’s theory of Ideas,[xix] which sought to elevate “nature” from the distressingly transient sphere of contingent facts to the “higher” realm of immutable archetypes or Forms,[xx] Aristotle advanced in Ethics the derivative concept of “natural justice.”[xxi] Quoting the Antigone, he argued (in a juridical posture of perpetual significance) “an unjust law is not a law.”[xxii] This irreducible position stands in markedly stark contrast to the more instrumental opinion of the Sophists – i.e., that justice is never more than an expression of supremacy, that it is only what Thrasymachus cynically calls, in Plato’s Republic, “the interest of the stronger.”[xxiii]
Were he actually made aware of such scholarly origins and underpinnings, US President Donald Trump would assuredly judge himself to be among the contemporary “Sophists.” This clarifying acknowledgment, to be sure, would be uttered openly by Mr. Trump, and even with an unmitigated pride.
Still more precisely apropos of President Donald Trump’s jurisprudentialy disjointed presidency, this perniciously crude brand of Realpolitik has become the openly acknowledged philosophic foundation of U.S. foreign policy. Left unmodified by timeless principles of a Higher Law, the deleterious consequences for America and for the wider world are not difficult to decipher.[xxiv]
Prospectively, they include very tangible US declensions into catastrophic war, potentially perhaps a nuclear war. Notable, in this regard, is the ongoing expansion of what might best be termed “Cold War II” with Russia; simultaneously, the undiminished nuclearization of North Korea and the ongoing recombination of ISIS Jihadist terrorists under the banner of al Qaeda. Significantly, along all of these cited dimensions of decline, the sitting American president is very plainly complicit.
Yet again, history can be instructive. The Stoics, whose legal philosophies arose on the threshold of the Greek and Roman worlds, regarded Nature itself as humankind’s supreme legislator.[xxv] Applying Platonic and Aristotelian thought to a then-hopefully emerging cosmopolis, they had defined this nascent order as one wherein humankind, by means of its seemingly established capacity to reason, can commune directly with the gods.[xxvi] As this definition required further expansion of Plato’s and Aristotle’s developing notions of universalism, the Stoics consciously articulated a further division between lex aeterna, ius natural and ius humanum.[xxvii]
Lex aeterna is the law of reason of the cosmos, the logos which rules the universe. As an emanation of cosmic reason, human reason, it is assumed, rules the lives of men. It follows that natural law partakes of eternal law, though it has a more limited range of application. Unlike the more elitist conception of Plato (and, to a certain extent, even Aristotle), the Stoic idea of an innate “right reason” presumed no meaningful divisions between peoples.[xxviii]
Instead, in linking all persons with the cosmic order, it established the essential foundations of an authentic and immutable universality.
Cicero, in De Republica, had defined the state as a “coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages.”[xxix] This definition shed a useful light on the problems surrounding positivist jurisprudence, a legal philosophy that values any state’s edicts as intrinsically just and therefore obligatory.[xxx] In a suitably famous passage of De Republica, one well known to Jefferson and other Founders, Cicero sets forth the still classic articulation of Natural Law:
True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions….It is a sacred obligation not to attempt to legislate in contradiction to this law; nor may it be derogated from nor abrogated. Indeed, by neither the Senate nor the people can we be released from this law; nor does it require any but oneself to be its expositor or interpreter. Nor is it one law at Rome and another at Athens; one now and another at a late time; but one eternal and unchangeable law binding all nations through all time….[xxxi]
It goes without saying that US President Donald Trump has literally no acquaintance with any such still-binding or “peremptory” ideas.
But what is to be done when positive law (which now includes US Constitutional and statutory law) is at variance with “true law”? The Romans had a remedy in all such challenging matters. They simply incorporated into their various statutes a contingency clause that man-made law could never abrogate those obligations that are inherently right or presumptively even sacred.[xxxii] On several occasions, Cicero and others actually and meaningfully invoked this clause, or jus, against one particular statute or another.[xxxiii] In this way, the written law of the moment, never more than an artifact of the extant civic community, remained correctly subject to “right reason.”
Later, St. Augustine reaffirmed that temporal law must always conform to the unchangeable eternal law,[xxxiv] which he had earlier defined as “the reason or will of God (ratio divina vel voluntas Dei).”[xxxv] Aquinas continued this tradition of denying the status of law to prescriptions that are inherently unjust (lex iniusta non est lex).[xxxvi] “Human law,” he wrote in the Summae,[xxxvii] “has the quality of law only insofar as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. Insofar as it deviates from reason it is called an unjust law, and has the quality not of law, but of violence.”[xxxviii]
The concept of a Higher Law, later to figure so importantly in the legal development of the United States of America, was widely integrated into medieval jurisprudential thought.[xxxix] In John of Salisbury’s Policraticus, “There are certain precepts of the law which have perpetual necessity, having the force of law among all nations and which absolutely cannot be broken.”[xl] Recognizing the idea that all political authority must be intrinsically limited, John noted that the prince “may not lawfully have any will of his own apart from that which the law or equity enjoins, or the calculation of the common interest requires.”[xli]
“….or the calculation of the common interest requires.” Viewed against the backdrop of the current US president – now, correctly analogous to the medieval “prince” discussed by John of Salisbury – such “perpetual law” must of necessity prohibit any presidential placement of personal interest over the discernibly “common interest” of the United States. Natural Law, inter alia, still exists to frustrate political injustice, a vital function that could soon become material to any authoritative launch of impeachment proceedings against Donald Trump.
In the seventeenth and eighteenth centuries, Natural Law doctrine was reaffirmed and secularized by Grotius,[xlii] the “father” of all modern international law. Reviving the Ciceronian idea of Natural Law and its underlying optimism about human nature, Grotius is credited with liberating this idea from any once-remaining dependence on ecclesiastical or Papal interpretation.[xliii] Building upon the prior speculations of the Dominican Francisco de Vitoria, who had proclaimed a natural community of humankind and the universal validity of human rights,[xliv] Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a brand new interstate society.[xlv]
In this connection, he strengthened the idea of a universally valid Natural Law, one transcending in obligation all human law, including the cumulative positive law of any single sovereign state.[xlvi] This is an idea, of course, that lies at the conceptual heart of US law, but it also entirely alien to the understanding or vision of current US President Trump.
Unlike Machiavelli and Hobbes,[xlvii] Grotius did not consciously reduce law to any presumed will of a prince or a separate state.[xlviii] Rather, while recognizing such will as a properly constitutive element within the much wider international legal order, he also understood that the binding quality of human edicts must always be derived from a more overriding totality of “natural” imperatives.[xlix] Accordingly, he proceeded to reject raison d’etat as a just cause for war,[l] a purposeful rejection that may sometime no longer resonate in US President Donald Trump’s personal ideas of governance.
This brings us directly to the conveyance of Natural Law ideas into American political theory, a transmittal that was preeminently the work of Locke’s Second Treatise on Civil Government (1690).[li] The specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations”[lii] flows largely from Locke’s seminal notion that civil authority can never extend beyond the securing of humankind’s natural rights.[liii] Regarding any prospective excursions into US presidential impeachment, the motto that Jefferson chose for his own seal was, “Rebellion to Tyrants Is Obedience to God.”[liv]
As for the right to pursue happiness, which Jefferson drew largely from Burlamaqui’s incorporation into natural law,[lv] it had nothing to do with today’s shallow presidential celebrations of raw commerce and exaggerated materialism. Not at all.
Nor could this right have any bearing on any soon-to-be contemplated US presidential impeachment proceedings. Though happiness was viewed by Jefferson (in plausible deference to Pufendorf and Locke) as a welcome condition to be achieved as the direct result of humankind’s overriding commitment to reason,[lvi] never specified were any corresponding or corollary presidential obligations.
Above all, the Declaration of Independence implemented a fundamental social contract that sets limits on the power of any government.[lvii] Its most central purpose, therefore, was to better articulate a set of universally valid constraints upon absolutely all secular political authority. Moreover, as justice, which is necessarily based on natural law, binds all human society, the rights described by the Declaration of Independence could never be reserved only to Americans.
Instead, by ready and verifiable deduction, they must extend to all human societies, and can never be rendered subject to abrogation by positive law. Today, this general applicability of an imperative to “do justice” is routinely ignored by an American president who is utterly disinterested in human rights, especially on those matters regarding immigration to the United States and the granting of refugee or asylum status. Notably, such matters of international law are ipso facto binding upon the United States, both by virtue of the ubiquitous and universal natural law, but also in consequence of the US Constitution (especially Art. VI, the “Supremacy Clause”) and various leading US Supreme Court decisions (especially the Pacquete Habana, 1900).
The compelling theory of a Higher Law, which should have a designated useful place in any forthcoming impeachment proceedings that would indict President Trump regarding his very evident disregard for worldwide human rights, is based on clarity, self-evidence, and coherence. Its legal validity, it follows, can never be shaken by any presumed presidential imperatives of geopolitics or “America First,.” As noted by the Swiss scholar Emmerich de Vattel in the 1758 edition of The Law of Nations (a work in which several American fathers of independence had discovered important and usable maxims of political liberty): “No agreement can bind, or even authorize, a man to violate the natural law.”[lviii]
Prudently, Vattel had cautioned that only a strict obedience to higher legal obligations can produce a virtuous and thereby safe and prosperous state: “One would have to be very ignorant of political affairs not to perceive how much more capable a virtuous Nation is of forming a happy, peaceful, flourishing and secure state, respected by its neighbors and formidable to its enemies.”[lix] Going forward with any U.S. House of Representatives impeachment proceeding, Vattel’s earlier wisdom could sometime have its proper and utilitarian place. At a minimum, it could stand as an unchallengeable corrective to the manifestly unjust imperatives of “America First.”
In the end, as duly informed Trump impeachment advocates will need to understand, Higher Law expectations of the American political tradition can never be self-enforcing. Instead, defied again and again by transient political elites, they can only be sustained where individual citizens first prepare to act (as does Antigone before Creon[lx] ) according to conscience. “Why has every man a conscience,”[lxi] asks Thoreau in his foundational American essay on Civil Disobedience.
I think that we should be men first,
and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.[lxii]
Where are such “conscientious men” (and of course women) to be found? Certainly not, says Thoreau insightfully, among the “commonly esteemed good citizens.”[lxiii] These mass men and women serve the state “not as men mainly, but as machines, with their bodies.”[lxiv]
Placing themselves “on a level with wood and earth and stones,”[lxv] these creations of the “mass” (the Danish philosopher Soren Kierkegaard would prefer the term “crowd”) are incapable of making any essential moral or legal distinctions. This incapacity is easily enough recognized today, where so many of our fellow citizens remain unwilling to acknowledge the brutally stark differences between prima facie presidential wrongdoing and legally correct presidential behavior.
Could the United States still create the conditions for a conscientious “corporation” though the enhanced education of an informed citizenry? From Rousseau to the present, this has been the preferred path of virtually all democratic theory. Rousseau believed that law and liberty could best exist in a city-state of properly educated voters like Geneva:
He stipulates in Book III of the Social Contract:
First, a very small state where the people can be readily got together and where each citizen can with ease know all the rest; secondly, great simplicity of manners, to prevent business from multiplying and raising thorny problems; next, a large measure of equality in rank and fortune, without which equality of rights and authority cannot long subsist; lastly, little or no luxury – for luxury either comes of riches or makes them necessary.
But the contemporary United States is not at all like Geneva, and Rousseau’s idea that (even under very specified conditions) a majority can be trusted with what is really best for “The People” is too-often mistaken. Now, the dangers of the “general will” have been made manifest not only in the exploits of Robespierre and Napoleon, but also in the stunningly inauspicious selection of US President Donald Trump and his generally anti-historical/anti-intellectual followers.
Whether this selection shall lead to proper and pragmatic efforts at presidential removal is still unclear.
There is more. Rousseau’s deification of The People actually points toward the very opposite of our own Higher Law tradition. The Genevan made “The People” sovereign; for us, ultimately, sovereignty must somehow come to reside in The Citizen. Earlier, as Thoreau had understood, apathy, complacency, passivity and moral cowardice are the inevitable qualities found in the “mass” of men and women. True hope, therefore, can lie only in those residually still-thoughtful individuals whose primary allegiance is directed toward properly overriding and universal laws; that is, not in the presumptive “good citizen,” but rather in the indispensable “wise minority.”
It is time to finally inquire: What is the real task of this body of enlightened persons, one which could in fact represent a true and distinct majority in formation? Thoreau speaks truthfully of civil disobedience, one still possible act of “counter-friction.” Now, confronted with an American president who could bring unparalleled harms to the United States, suddenly or in unanticipated increments – as we have seen, such harms could soon include even the onset of a catastrophic nuclear war[lxvi] – Thoreau would urge, as he once did about still-earlier policy deformations (see Civil Disobedience),: “Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
To this point, most visibly at partisan political levels, Thoreau’s earlier wisdom has fallen on variously deaf Congressional ears.
This essay has been exploring certain jurisprudential remedies to the grievously injurious Trump Presidency, most obviously “ordinary” impeachment proceedings rooted in the US Constitution. Should this particular remedy be selected (structurally, there could likely be no other proper legal remedies, as the Supreme Court has already clarified that presidential impeachment is necessarily a non-justiciable matter[lxvii]), those Members of Congress directly involved with drafting and refining the Articles of Impeachment should also avail themselves of related Higher Law arguments. This augmented path is suggested because: (1) the Constitution of the United States is indisputably and perpetually constructed upon core principles of Natural Law; and (2) these antecedent and overriding legal principles are ultimately binding upon absolutely all citizens and all government officials.
Earlier, on March 19, 2018, Watergate figure John Dean said to Anderson Cooper on CNN: “Trump is Nixon on steroids and stilts.” While merely the subjective opinion of one person, this was a revealing metaphor. Unambiguously, US President Donald Trump represents a uniquely serious threat to US. national security.[lxviii] Although, for some Americans, any such allegation could seem logically or institutionally implausible – after all, a US president is presumptively always preserving, protecting and defending our national security – the urgently plain facts concerning major Trump transgressions are both manifest and compelling.
As long as “We the People” remain willing to take the US Constitution seriously – and not just as a musty old document to be invoked for adornment, ceremony and ostentation, or as selective justification for unregulated gun ownership – there can be no legitimate legal reasons for the US House of Representatives to resist Articles of Impeachment.
To fashion such prospectively important Articles, careful attention ought to be paid not only to applicable statutory and Constitutional expectations, but also to the everlasting Higher Law traditions of the United States. While less explicit and thereby much harder to identify an operationalize, these core traditions and pertinent legal norms are in no way inferior to what had previously been codified. Accordingly, they should never be minimized or intentionally disregarded.
Basic and immutable elements of the Western Higher Law tradition should figure importantly in any still-upcoming effort to protect the United States from a catastrophic American presidency. Such jurisprudence-based efforts at protection are not only justifiable, but indispensable. As Roman statesman Cicero had already understood more than 2000 years ago, “The safety of the people shall be the highest law.”
In the current United States, the “safety of the people” can no longer automatically be trusted to the president. As corollary, the “enemy of the people” here is not a free press, but rather an aberrant government that would openly side with the enemies of democracy. This authentic “enemy of the people” is now an aspiring demagogue who cheers historical illiteracy and popular deception, a president who freely offers: “I love the poorly educated.”
The significant hazards we now face as a nation ought never to be viewed singly, in contrived isolation, one from the other. It is only in their cumulative impact that we can ever accurately foresee the most ominous harms. It is, moreover, in various plausible synergies that these unique hazards could sometime become unendurable to the American nation.
It follows from all this that the Natural Law background of the American Constitution could figure importantly in rescuing the United States from an expansively law-violating American president.
Significantly, the Constitution does
not precisely spell-out the content of any such crimes, and it is entirely
reasonable to maintain that certain US presidential violations of Natural Law could be just as representative
of “High Crimes and Misdemeanors” as anything discoverable in
[i] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).
[ii] See Edward S. Corwin, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955); Alexander P. D’Entreves, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (1951).
[iii] See: U.S. Constitution, Art. IX. According to Clinton Rossiter, there exists a “deep-seated conviction” among Americans “that the Constitution is an expression of the Higher Law, that it is, in fact, imperfect man’s most perfect rendering” of eternal law. See Rossiter, preface to Corwin, supra, at vi.
[iv] Blackstone’s Commentaries, of course, provided the core foundations for America’s current legal system. It is unlikely, of course, that even a tiny handful of US representatives or senators are remotely aware of this juridical primacy.
[v] Blackstone’s COMMENTARIES expressly recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….” See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V., “Of Offenses Against the Law of Nations.”)
[vi] See John Locke, TWO TREATISES OF GOVERNMENT 123 (T.I. Cook, ed., 1947).
[vii] See THE DECLARATION OF INDEPENDENCE
[viii] See Julius Stone, THE PROVINCE AND FUNCTION OF LAW (Cambridge MA: Harvard University Press, 1950), Chapter VIII, “Natural Law.”
[ix] Here, in the Deist view, Nature had “replaced” God as the source for lawful behavior.
[x] Newton says famously in his Principia: “This most beautiful system of the sun, planets, and comets could only proceed from the counsel and dominion of an intelligent and powerful Being.” Cited by Abraham Kaplan, IN PURSUIT OF WISDOM: THE SCOPE OF PHILOSOPHY (Beverly Hills CA: Glencoe Press, 1977), p. 550.
[xi] See Stone, supra, Ch. VIII.
[xii] See Locke, supra, 123.
[xiii] See The Bill of Rights, as detailed in the following discussion.
[xiv] See U.S. Constitution, Ninth Amendment.
[xv] The most fundamental principle of ancient Hebrew law, of course, is that the revealed will of God is the only proper source of Jewish justice. In the Talmudic position, “Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai.” (See Jerusalem Megillah IV, 74d.)
[xvi] See Sec. 81, Fragment No. DK 22B114 of THE PRESOCRATICS 75 (Philip Wheelwright ed., Bobbs-Merrill 1960). The authoritative text for the fragments of Heraclitus is Hermann Diels & Walther Kranz, DIE FRAGMENTE DER VORSOKRATIKER (6th ed., Weidmann 1966).
[xvii] A century before Demosthenes, Antigone’s appeal against Creon’s order to the “unwritten and steadfast customs of the Gods” had evidenced the inferiority of human rule-making to a Higher Law. Here, in the drama by Sophocles, Creon represents the Greek tyrant who disturbs the ancient harmony of the city state. Aristotle, in his RHETORIC, quotes from Sophocles’ ANTIGONE when he argues that “an unjust law is not a law.” See RHETORIC 1, 15, 1375, a 27 et seq.
[xviii] See Henry David Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE, in WALDEN, OR LIFE IN THE WOODS AND ON THE DUTY OF CIVIL DISOBEDIENCE (Signet 1960).
[xix] Plato’s theory, offered in the fourth century B.C.E, seeks to explain politics as an unstable realm of sense and matter, an arena formed and sustained by half-truths and distorted perceptions. In contrast to the stable realm of immaterial Forms, from which all genuine knowledge must be derived, the political realm is dominated by the uncertainties of the sensible world. At the basis of this political theory is a physical-mental analogy that establishes a correlation between the head, the heart and the abdomen, and the virtues of intelligence, courage and moderation.
[xxi] See Corwin, supra, at 7.
[xxiii] “Right is the interest of the stronger,” says Thrasymachus in Bk. I, Sec. 338 of Plato, THE REPUBLIC (B. Jowett tr., 1875). “Justice is a contract neither to do nor to suffer wrong,” says Glaucon, id., Bk. II, Sec. 359. See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[xxiv] In this connection, however, noted Sigmund Freud: “Wars will only be prevented with certainty if mankind unites in setting up a central authority to which the right of giving judgment upon all shall be handed over. There are clearly two separate requirements involved in this: the creation of a supreme agency and its endowment with the necessary power. One without the other would be useless.” (See: Sigmund Freud, Collected Papers, cited in Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10 (1973-73), p, 27.)
[xxv] See Corwin, supra, at 9: “The Stoics…thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind.” Salmond, JURISPRUDENCE 27 (7th ed., 1924), cited in Corwin, supra, at 9.
[xxvii] These terms are defined and discussed below.
[xxviii] See Corwin, supra, at 9.
[xxix] Spoken by Scipio in Bk. I of DE REPUBLICA; cited in Alexander P. D’Entreves, THE NOTION OF THE STATE 24 (1967).
[xxx] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, 224-230. Stone calls positive law “…the law actually enforced by organized society in a particular place at a particular time.” (p. 225) Understood in terms of natural law, positive law is merely a necessary evil, tolerable and valid only to the extent that it coincides with natural law. In this theory, says Julius Stone, “Not only does natural law provide the criterion for judgment whether positive law is just. It goes further and provides the criterion for deciding whether positive law is valid law at all.” (Id., at 226)
[xxxi] See Cicero, I DE LEGIBUS, cited in Corwin, supra, at 10; D’Entreves, supra., at 20 – 21. Similarly, in his DE OFFICIIS, Cicero wrote: “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal….It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.” (cited by Stone, supra, at 216.) See also DE LEGIBUS, Bk. i, c, vii; cited by Stone, supra, at 216.
[xxxii] See Corwin, supra, at 12.
[xxxiii] Id, at 13.
[xxxiv] See D’Entreves, supra, 36 – 37. In early Christendom, Augustine offered a system of thought that identified the locus of all global problems in the human potentiality for evil. Combining a philosophy of Neo-Platonism with a view of the universe as a struggle between good and evil, he attributed the trials of humankind to the taint of original sin. This view, transformed into a secular political philosophy, is now reflected by exponents of the school of realism or realpolitik. Augustine, writing at the beginning of the fifth century C.E., sets out, in the CITY OF GOD, to describe human history as a contest of two societies, the intrinsically debased City of Man and the eternally peaceful City of God. In this contest, the state, the product of humankind’s most base tendencies, is devoid of justice and destructive of salvation. A mirror image of human wickedness, the state is little more than a “large gang of robbers.” In an oft-quoted passage, Augustine recalls the answer offered by a pirate who had been captured by Alexander the Great. When asked by Alexander what right he had to infest the seas, the pirate replied: “The same right that you have to infest the world. But because I do it in a small boat I am called a robber, while because you do it with a large fleet you are called an emperor.”
[xxxv] See Julius Stone, HUMAN LAW AND HUMAN JUSTICE (Stanford CA: Stanford University Press, 1965), p. 44. For Augustine, this reason or will of God “commands us to preserve the natural order and prohibits us to disturb it.” (See Contra Faustum, XXII, 27; cited by Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 44.
[xxxvi] Thomas Aquinas recalls Augustine as follows: “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law. And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’Entreves, supra, pp. 42 – 43.
[xxxvii] See D’Entreves, supra, at 42 – 43.
[xxxviii] The importance of reason to legal judgment was prefigured in ancient Israel, which accommodated reason within its system of revealed law. Jewish theory of law, insofar as it displays the marks of natural law, offers a transcending order revealed by the divine word as interpreted by human reason. In the striking words of Ecclesiasticus 32.23, 37.16, 13-14: “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in an high tower….”
[xxxix] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, Chapter VIII.
[xl] See Corwin, supra, at 17 – 18.
[xli] Id., at 19.
[xlii] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 64 – 68.
[xliv] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.
[xlv] Id, pp. 65 – 68.
[xlvii] The sixteenth-century Florentine philosopher, Niccolo Machiavelli, joined Aristotle’s foundations for a scientific study of politics with assumptions of realpolitik to reach certain conclusions about politics. His most important conclusion underscores the dilemma of practicing goodness in an essentially evil world: “A man who wishes to make a profession of goodness in everything must necessarily come to grief among so many who are not good.” (See THE PRINCE, Chapter XV). Recognizing this tragic state of affairs, Machiavelli proceeds to advance the arguments for expediency that have become synonymous with his name. With the placing of the idea of force at the center of his political theory, the author of THE PRINCE stands in sharp contrast to the Platonic and early Christian concepts of the “good.” Rejecting both Plato’s argument that there is a knowable objective “good” that leads to virtue, and Augustine’s otherworldly idea of absolute goodness, Machiavelli constructs his political theory on the assumption that “all men are potential criminals, and always ready to realize their evil intentions whenever they are free to do so.” In his instructions to the statesman on how to rule in a world dominated by force, he advises “to learn how not to be good.” The seventeenth-century materialist and social philosopher, Thomas Hobbes, elaborated a complex system of thought in which man was reduced to a state of nature and then reconstructed. Seeking a science of human nature that would have the rigor of physics, Hobbes looked to introspection as the source of genuine understanding: “Whosoever looketh into himself and considereth what he doth when he does think, opine, reason, hope, fear, etc., and upon what grounds, he shall thereby read and know, what are the thoughts and passions of all other men, upon the like occasions.” (See Introduction to LEVIATHAN). The results of such an analysis of one’s own thought processes led Hobbes to his celebrated theory of the social contract: the natural egoism of man produces a “war of all against all” in the absence of civil government and must be tempered by absolute monarchy. Moreover, the condition of nature, which is also called a condition of war marked by “continual fear, and danger of violent death,” has always been the characteristic condition of international relations and international law: “But though there had never been any time, wherein particular men were in a condition of war one against another; yet, in all times, kings, and persons of sovereign-authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbors, which is a posture of war.” (See LEVIATHAN, Chapter XIII).
[xlviii] This is because the principal Grotian effort was to “translate” natural law from pure philosophical speculation into a pragmatic legal ordering. See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 65.
[l] The Swiss scholar, Emmerich de Vattel, notes – in his 1758 classic THE LAW OF NATIONS: “No agreement can bind, or even authorize a man to violate the natural law.” See Albert de LaPradelle, Introduction to Emmerich de Vattel, LE DROIT DES GENS (THE LAW OF NATIONS)(Charles G. Fenwick, tr., 1916).
[li] See Corwin, supra, at 61.
[liv] See Thomas Jefferson, IV WORKS 362 (New York, P.L. Ford, ed., 1892-99).
[lv] J.J. Burlamaqui, author of PRINCIPES DU DROIT DE LA NATURE ET DES GENS (1774) was a Swiss scholar who held a Chair at the University of Geneva. His work has been described by J. Stone and others as “rational utilitarianism.” See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 71.
[lvi] See Corwin, supra, p. 81.
[lviii] See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.
[lx] See Sophocles, ANTIGONE, supra.
[lxi] See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).
[lxvi] “The obligation of subjects to the sovereign,” says Thomas Hobbes in Chapter XXI of LEVIATHAN, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.”
[lxvii] See Nixon v. United States, 506 U.S. 224 (1993).
[lxviii] Warned John Brennan, former Director of Central Intelligence: “When the full extent of your venality, moral turpitude, and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history. You may scapegoat Andy McCabe, but you will not destroy America…America will triumph over you.” (Tweet, March 17, 2018).
[i] Under international law, the idea of a Higher Law – drawn originally from the ancient Greeks and ancient Hebrews – is contained inter alia within the principle of jus cogens or “peremptory” norms.
[ii] Turning and turning in the widening gyre;
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world.
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
Indictment of Trump associate threatens UAE lobbying success
This month’s indictment of a billionaire, one-time advisor and close associate of former US President Donald J. Trump, on charges of operating as an unregistered foreign agent in the United States for the United Arab Emirates highlights the successes and pitfalls of a high-stakes Emirati effort to influence US policy.
The indictment of businessman Thomas J. Barrack, who maintained close ties to UAE Crown Prince Mohammed bin Zayed while serving as an influential advisor in 2016 to then-presidential candidate Trump and chair of Mr. Trump’s inauguration committee once he won the 2016 election, puts at risk the UAE’s relationship with the Biden administration.
It also threatens to reduce the UAE’s return on a massive investment in lobbying and public relations that made it a darling in Washington during the last four years.
A 2019 study concluded that Emirati clients hired 20 US lobbying firms to do their bidding at a cost of US$20 million, including US$600,000 in election campaign contributions — one of the largest, if not the largest expenditure by a single state on Washington lobbying and influence peddling.
The indictment further raises the question of why the Biden administration was willing to allow legal proceedings to put at risk its relationship with one of America’s closest allies in the Middle East, one that last year opened the door to recognition of Israel by Arab and Muslim-majority states.
The UAE lobbying effort sought to position the Emirates, and at its behest, Saudi Arabia under the leadership of Crown Prince Mohammed’s counterpart, Mohammed bin Salman, at the heart of US policy, ensure that Emirati and Saudi interests were protected, and shield the two autocrats from criticism of various of their policies and abuse of human rights.
Interestingly, UAE lobbying in the United States, in contrast to France and Austria, failed to persuade the Trump administration to embrace one of the Emirates’ core policy objectives: a US crackdown on political Islam with a focus on the Muslim Brotherhood. UAE Crown Prince Mohammed views political Islam and the Brotherhood that embraces the principle of elections as an existential threat to the survival of his regime.
In one instance cited in the indictment, Mr. Barrack’s two co-defendants, a UAE national resident in the United States, Rashid Al-Malik, and Matthew Grimes, a Barrack employee, discussed days after Mr. Trump’s inauguration the possibility of persuading the new administration to designate the Muslim Brotherhood as a designated foreign terrorist organization. “This will be a huge win. If we can list them. And they deserved to be,” Mr. Al-Malik texted Mr. Grimes on 23 January 2017.
The unsuccessful push for designating the Brotherhood came three months after Mr. Barrack identified the two Prince Mohammeds in an op-ed in Fortune magazine as members of a new generation of “brilliant young leaders.” The billionaire argued that “American foreign policy must persuade these bold visionaries to lean West rather than East… By supporting their anti-terrorism platforms abroad, America enhances its anti-terrorism policies at home.”
Mr. Barrack further sought to persuade America’s new policymakers, in line with Emirati thinking, that the threat posed by political Islam emanated not only from Iran’s clerical regime and its asymmetric defence and security policies but also from the Brotherhood and Tukey’s Islamist government. He echoed Emirati promotion of Saudi Arabia after the rise of Mohammed bin Salman as the most effective bulwark against political Islam.
“It is impossible for the US to move against any hostile Islamic group anywhere in the world without Saudi support…. The confused notion that Saudi Arabia is synonymous with radical Islam is falsely based on the Western notion that ‘one size fits all,’ Mr. Barrack asserted.
The Trump administration’s refusal to exempt the Brotherhood from its embrace of Emirati policy was the likely result of differences within both the US government and the Muslim world. Analysts suggest that some in the administration feared that designating the Brotherhood would empower the more rabidly Islamophobic elements in Mr. Trump’s support base.
Administration officials also recognized that the UAE, Saudi Arabia, and Egypt constituted a minority, albeit a powerful minority, in the Muslim world that was on the warpath against the Brotherhood.
Elsewhere, Brotherhood affiliates were part of the political structure by either participating in government or constituting part of the legal opposition in countries like Kuwait, Iraq, Yemen, Bahrain, Morocco, Jordan, and Indonesia.
The affiliates have at times supported US policies or worked closely with US allies like in the case of Yemen’s Al Islah that is aligned with Saudi-backed forces.
In contrast to UAE efforts to ensure that the Brotherhood is crushed at the risk of fueling Islamophobia, Nahdlatul Ulama, one of, if not the world’s largest Muslim organization which shares the Emirates’ rejection of political Islam and the Brotherhood, has opted to fight the Brotherhood’s local Indonesian affiliate politically within a democratic framework rather than by resorting to coercive tactics.
Nahdlatul Ulama prides itself on having significantly diminished the prospects of Indonesia’s Brotherhood affiliate, the Prosperous Justice Party (PKS), since the 2009 presidential election. The group at the time successfully drove a wedge between then-President Susilo Yudhoyono, and the PKS, his coalition partner since the 2004 election that brought him to power. In doing so, it persuaded Mr. Yudhoyono to reject a PKS candidate as vice president in the second term of his presidency.
Nahdlatul Ulama’s manoeuvring included the publication of a book asserting that the PKS had not shed its links to militancy. The party has since failed to win even half of its peak 38 seats in parliament garnered in the 2004 election.
“Publication of ‘The Illusion of an Islamic State: The Expansion of Transnational Islamist Movements to Indonesia’ had a considerable impact on domestic policy. It primarily contributed to neutralizing one candidate’s bid for vice president in the 2009 national election campaign, who had ties to the Muslim Brotherhood,” said militancy expert Magnus Ranstorp.
Biden Revises US Sanctions Policy
In the United States, a revision of the sanctions policy is in full swing. Joe Biden’s administration strives to make sanctions instruments more effective in achieving his political goals and, at the same time, reducing political and economic costs. The coordination of restrictive measures with allies is also seen as an important task. Biden is cautiously but consistently abandoning the sanctions paradigm that emerged during Donald Trump’s presidency.
The US sanctions policy under Trump was characterised by several elements. First, Washington applied them quite harshly. In all key areas (China, Iran, Russia, Venezuela, etc.), the United States used economic and financial restrictions without hesitation, and sometimes in unprecedented volumes. Of course, the Trump administration acted rationally and rigidity was not an end in itself. In a number of episodes, the American authorities acted prudently (for example, regarding sanctions on Russian sovereign debt in 2019). The Trump-led executives stifled excess Congressional enthusiasm for “draconian sanctions” against Russia and even some initiatives against China. However, the harshness of other measures sometimes shocked allies and opponents alike. These include the 6 April 2014 sanctions against a group of Russian businessmen and their assets, or bans on some Chinese telecommunications services in the United States, or sanctions blocking the International Criminal Court.
Second, Trump clearly ignored the views of US allies. The unilateral withdrawal from the nuclear deal with Iran in 2018 forced European businesses to leave Iran, resulting in losses. Even some of the nation’s closest allies were annoyed. Another irritant was the tenacity with which Trump (with Congressional backing) threw a wrench in the wheels of the Nord Stream 2 pipeline project. Despite the complicated relations between Moscow and the European Union, the latter defended the right to independently determine what was in its interests and what was not.
Third, concerns about sanctions have emerged among American business as well. Fears have grown in financial circles that the excessive use of sanctions will provoke the unnecessary politicisation of the global financial system. In the short term, a radical decline in the global role of the dollar is hardly possible. But political risks are forcing many governments to seriously consider it. Both rivals (Moscow and Beijing) and allies (Brussels) have begun to implement corresponding plans. Trade sanctions against China have affected a number of US companies in the telecommunications and high-tech sectors.
Finally, on some issues, the Trump administration has been inconsistent or simply made mistakes. For example, Trump enthusiastically criticised China for human rights violations, supporting relevant legislative initiatives. But at the same time, it almost closed its eyes to the events in Belarus in 2020. Congress was also extremely unhappy with the delay in the reaction on the “Navalny case” in Russia. As for mistakes, the past administration missed the moment for humanitarian exemptions for sanctions regimes in connection with the COVID-19 epidemic. Even cosmetic indulgences could have won points for US “soft power”. Instead, the US Treasury has published a list of pre-existing exceptions.
The preconditions for a revision of the sanctions policy arose even before Joe Biden came to power. First of all, a lot of analytical work was done by American think tanks—nongovernmental research centers. They provided a completely sober and unbiased analysis of bothха! achievements and mistakes. In addition, the US Government Accountability Office has done serious work; in 2019 it prepared two reports for Congress on the institutions of the American sanctions policy. However, Joe Biden’s victory in the presidential election significantly accelerated the revision of the sanctions instruments. Both the ideological preferences of the Democrats (for example, the emphasis on human rights) and the political experience of Biden himself played a role.
The new guidelines for the US sanctions policy can be summarised as follows. First, the development of targeted sanctions and a more serious analysis of their economic costs for American business, as well as business from allied and partner countries. Second, closer coordination with allies. Here, Biden has already sent a number of encouraging signals by introducing temporary sanctions exemptions on Nord Stream 2. Although a number of Russian organisations and ships were included in the US sanctions lists, Nord Stream 2 itself and its leadership were not affected. Third, we are talking about closer attention to the subject of human rights. Biden has already reacted with sanctions both to the “Navalny case” and to the situation in Belarus. Human rights will be an irritant in relations with China. Fourth, the administration is working towards overturning Trump’s most controversial decisions. The 2020 decrees on Chinese telecoms were cancelled, the decree on sanctions against the International Criminal Court was cancelled, the decree on Chinese military-industrial companies was modified; negotiations are also underway with Iran.
The US Treasury, one of the key US sanctions agencies, will also undergo personnel updates. Elisabeth Rosenberg, a prominent sanctions expert who previously worked at the Center for a New American Security, may take the post of Assistant Treasury Secretary. She will oversee the subject of sanctions. Thus, the principle of “revolving doors”, which is familiar to Americans, is being implemented, when the civil service is replenished with personnel from the expert community and business, and then “returns” them back.
At the same time, the revision of the sanctions policy by the new administration cannot be called a revolution. The institutional arrangement will remain unchanged. It is a combination of the functions of various departments—the Treasury, the Department of Trade, the Department of Justice, the State Department, etc. The experience of their interagency coordination has accumulated over the years. The system worked flawlessly both under Trump and under his predecessors. Rather, it will be about changing the political directives.
For Russia, the revision is unlikely to bring radical changes. A withdrawal from the carpet bombing of Russian business, such as the incident on 6 April 2018 hint that good news can be considered a possibility. However, the legal mechanisms of sanctions against Russia will continue to operate. The emphasis on human rights will lead to an increase in sanctions against government structures. Against this background, regular political crises are possible in relations between the two countries.
From our partner RIAC
Sea Breeze 2021: U.S. is worryingly heading closer to conflict with Russia in the Black Sea
On July 10th, the 2021 iteration of the joint military exercise, Sea Breeze, concluded in the Black Sea. This exercise, which began on June 28th was co-hosted by the Ukrainian Navy and the United States Navy’s Sixth Fleet. According to the U.S. Navy, the annual Exercise Sea Breeze consists of joint naval, land, and air trainings and operations centered around building increased shared capabilities in the Black Sea.
This year’s Sea Breeze included participation from 32 countries, including NATO members and other countries that border the Black Sea, making it the largest Sea Breeze exercise since its inception in 1997. All other countries bordering the Black Sea were included in participating in the joint drills, except Russia.
Russia’s exclusion from these exercises is not unsurprising, due to its current tensions with Ukraine and its historical relationship with NATO. However, it signals to Moscow and the rest of the world that the NATO views Russia as an opponent in a future conflict. At the opening ceremony of Sea Breeze 2021 in Odessa, it was made clear that the intention of the exercise was to prepare for future conflict in the region when the Defense Minister of Ukraine, reported that the drills “contain a powerful message – support of stability and peace in our region.”
These exercises and provocations do anything but bring peace and stability to the region. In fact, they draw the United States and NATO dangerously close to the brink of conflict with Russia.
Even though Sea Breeze 2021 has only recently concluded, it has already had a marked impact on tensions between NATO countries and Moscow. U.S. Navy Commander Daniel Marzluff recently explained that the Sea Breeze drills in the Black Sea are essential deterrents to Russian assertions in region. However, these drills have consisted of increasingly provocative maneuvers that ultimately provoke conflict in the region.
These drills have done anything but act as a deterrent for conflict in the Black Sea. In response to the Sea Breeze drills, Russia conducted its own drills in the Black Sea, including the simulation of firing advanced missile systems against enemy aircraft. As the Black Sea is of utmost importance to Russia’s trade and military stature, it follows that Russia would signal its displacement if it perceives its claims are being threatened.
Sea Breeze followed another rise in tensions in the Black Sea, when just a week prior to the beginning of the exercise, a clash occurred between Russia and Britain. In response to the British destroyer ship, the HMS Defender, patrolling inside Crimean territorial waters, Russia claimed it fired warning shots and ordered two bombers to drop bombs in the path of the ship. When asked about the HMS Defender, Russian President Vladimir Putin described the ship’s actions as a “provocation” that was a “blatant violation” of the 1982 UN Convention on the Law of the Sea. Putin also went on to claim that Moscow believes U.S. reconnaissance aircraft were a part of the operation as well. Despite this, British Prime Minister Boris Johnson responded with a denial of any wrongdoing.
Russia’s actions to provocations by the United States-led Sea Breeze and interaction with the HMS Defender in the Black Sea signal its resolve to retaliate if it feels as its sovereignty and its territorial claim on Crimea is being impeded on. Despite Russia signaling its commitment to defending its territorial claims in the Black Sea, the United States still willingly took actions during Sea Breeze that would bring the United States closer to a clash with Russia.
Provoking conflict in the Black Sea does not align with the national security interests of the United States. In fact, it only puts the United States in the position to be involved in a costly clash that only would harm its diplomatic relationships.
As Russia has signaled its commitment to its resolve and scope of its military response in a possible conflict, any potential conflict in the Black Sea would be costly for the United States. Over the past few years, Russia has increased the size and capabilities of its fleet in the Black Sea. Two of these improvements would especially pose a challenging threat to the U.S. and NATO – Russia’s drastically improved anti-access/area-denial capabilities and its new Tsirkon hypersonic cruise missile. This would mean any conflict in the Black Sea would not be a quick and decisive victory for U.S. and NATO forces, and would instead likely become costly and extensive.
A conflict with Russia in the Black Sea would not only be costly for the U.S. and its allies in the region, but could irreparably damage its fragile, but strategically valuable relationship with Russia. If the United States continues to escalate tensions in the Black Sea, it risks closing the limited window for bilateral cooperation with Russia that was opened through increased willingness to collaborate on areas of common interests, as evidenced by the recent summit that took place in Geneva. After a period of the highest levels of tension between the U.S. and Russia since the Cold War, this progress made towards improving bilateral relations must not be taken for granted. Even if the U.S. and NATO’s maneuvers in the Black Sea do not ultimately materialize into a full-scale conflict with Russia, they will most likely damage not just recent diplomatic momentum, but future opportunities for a relationship between the two powers.
In such a critical time for the relationship between the United States and Russia, it is counterproductive for the United States to take actions that it can predict will drive Russia even further away. Entering into a conflict with Russia in the Black Sea would not only engage the U.S. in a costly conflict but would damage its security and diplomatic interests.
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