Is Our Divided Government Giving the Country a False Choice in Responding to the COVID-19 Crisis?

The COVID-19 crisis is providing a clear example of one of the major problems with the rampant partisanship in our society today and the divided and dysfunctional government that is resulting from it.

In the past few weeks, we’ve seen different government and media pundits present the public with only two choices for moving forward in the era of COVID-19 virus infections.  These appear to by false choices, resulting from an overly partisan and political application of our current understanding of how to minimize the spread of the COVID-19 virus while facilitating the full reopening of the economy and society.  Specifically:

1.  We should focus on public health to minimize infection spread and deaths, and not remove the stay at home orders until the level of infections declines, and accept a prolonged negative impact on the economy; or

2.  We should move to open up businesses now with the use of personal protective equipment for employees, limiting the number of customers in the business at one time, and requiring customers to wear masks, and accept a possibly prolonged increase in the number of deaths.

As I listen to and read opinions from a variety of public health and infectious disease experts, I hear most of them advocate that we take the following actions to mitigate the spread of an infectious virus:

1.  Because an aspect of this virus is that many people can be infected and infectious to others and not be aware of it and not show any symptoms of the infection, the first action to mitigate the spread and minimize deaths was to separate everyone from everyone else.  When we can’t identify who is infected and infectious to others, the only way to protect those who aren’t infected is to isolate everyone.

2.  People who are infected and become physically ill are currently where we focus most of our testing.   That process helps confirm the cause of an observed illness, and enables us to take action to protect our health care workers and other patients, where people who are ill need to go to get care. 

3.  To open offices, restaurants, stores and importantly, schools and day care centers successfully, we don’t just need to remove the closure orders.  We also need to give employees, customers, teachers and parents confidence that they can return to offices, restaurants and stores, and send their kids to schools and day care centers without exposing themselves and/or their families to people potentially infected with COVID-19 but not showing any symptoms.  This is because studies have shown that between 1 in 4 or 5 of people showing no symptoms actually tested positive for COVID-19 infection. Until we have a vaccine, that confidence will likely require the regular testing of employees, teaches, administrators and other staff members, and students, and the requirements that customers who have not been tested should wear masks and practice social distancing.

However, the President and many governors have stated that this level of testing is not possible, and even if it was possible, it is not practical.  Thus, our leaders are saying we must accept the risks of exposing ourselves, our workforces, our teachers, and our children to people who might be infected without symptoms, so that the economy doesn’t stay depressed.  Let’s explore the problems that have been raised with possible and practical broadscale testing:

1.  Testing is not considered possible because it’s never been implemented at this level, and thus we don’t have the materials to make testing kits, nor the manufacturing capability to produce the kits in massive quantities, nor the distribution systems to conduct tests, nor the analysis capabilities to read tests. 

But we have faced and overcome those kinds of challenges many times before in our history.  If the President would mobilize the country’s public and private sectors to work together to create the sourcing, production, distribution and testing capabilities required, there is no doubt that America has the integrity and collective skills to implement the nationwide testing program described above.  The program requirements can be quantified, the details can be defined, and our country has the expertise to create the solution.  We just need the leadership to set it as our goal, and the system management expertise to implement it as quickly as possible.

2.  Testing is not considered practical because it would cost too much money to implement. There are no inexpensive options to combating the virus and the economic crisis it has spawned.  So let’s do the math.  If conducting a test at large scale might cost between $50 and $100 each, and we need to test 200 million people initially, and then repeat the tests every 2 weeks for the next 12 months, that would be 5.2 billion tests in a year.  At the maximum estimated price of $100 for each test, that is $520 billion.

How does that number compare to what we’ve spent in the CARES and PPP packages for just 8 weeks?  The best number I can find is $2.2 Trillion, plus a reported $4 Trillion in capital infusion to the banking system from the US Treasury.  And that spending did nothing to enable the economy to open and recover. 

The $520 billion spent on testing would enable businesses to open, but not just at 25% or 50% capacity, but at full capacity. Given the small profit margins in most restaurants and small businesses, it is unlikely that many such businesses could survive very long at such reduced business level.  But the only reason to open slowly is because we don’t know who is walking around infected with the virus but showing no symptoms, possibly leading to a wide spreading of the virus.  If we eliminate that unknown factor, it is quite likely that we could fully open the economy with safety for all involved.

An additional point not yet discussed publicly yet:  our leaders and many people seem quite willing to take the risks of contracting the virus themselves as businesses reopen, and quite willing to take the risks of spreading the virus to others in their communities.  But I wonder if parents will be quite so willing to risk their children contacting the virus by sending them to school without a broadscale testing program in place.  And we are just a few weeks away from the decision timing for the opening of schools in August.

I won’t go into possible explanations for why President Trump and many other leaders have rejected the advice to mobilize the country to implement broadscale testing to enable opening of the economy and society to take place with a reasonable level of confidence in the public of participating safely.  My hope is that by looking at the economic numbers of the broadscale testing option, instead of just looking at the health data, our leaders might realize, finally, that testing is the critical element to a faster and more complete opening of the economy. 

The Administration seems to have recently discovered the importance of testing to prevent the spread of the virus in the West Wing offices in the White House.  Hopefully they may soon realize that the time and energy spent denying the value of testing for the rest of the country, while focused on denying the health risks of the virus and advocating for an opening to the economy over overblown health concerns, is a false choice that can only divide the country. 

Eventually, the science of the spreading of this virus without testing or social isolation will result in greater economic loss over time, as customers don’t have confidence in their safety, and have concerns about greater loss of life.  We can only hope that a practical, non partisan, non political application of the available information on how to minimize the spread of the COVID-19 process, and of appropriate confidence in American ingenuity and the ability to accomplish what seems impossible, will soon win out.

Another "None of the Above" Presidential Election?

                     

As with all posts on this blog, this post presents the concerns of an Independent citizen 
about the state of politics and policies, and the impact on the country.  Today, my concerns

are focused on the impact that either of the currently leading  candidates in the November

Presidential election might have on the country over the next 4 years.

If Democrats choose Bernie Sanders as their Presidential candidate for the November 

election, many citizens who are not loyal partisans of either party, as I am not, and who 

care primarily about the future of the overall country, more than being loyal to either 

party, may be left with another “None of the Above” choice for President in 2020, as was 

the case in 2016.

This is a very disturbing situation for me as an Independent.  Given the policies and  

actions of President Trump in the past 3 years, I’m unable to vote for his re-election in 

any circumstance.  I am concerned that his re-election in 2020 would likely, and 

frighteningly, lead to more of the negative impacts of the past 3 years.  My major 

expectations about the outcomes that would follow President Trump’s re-election are:

ØRepealing of important health care program protections, including most importantly 

      pre-existing condition protections;

Ø  Continuing high annual deficits each year and a far greater total national debt;

Ø  Higher spending required in the budget on interest payments to service the debt, 

      taking resources from actual program needs;

Ø  Major cuts in all non-defense programs, including Social Security Retirement benefits 

      that millions of Americans have paid into from their own earnings, instead of 

      increasing program income and protecting surpluses from any other use to ensure the 

      program’s financial solvency;

Ø  Continuing the stagnant or very slow growth in middle class incomes, leading to 

      greater household income gaps between the middle class and top 20% of Americans;

Ø  Worsening of the erosion in the strength of our key alliances and in our investments in 

      International Diplomacy and Development,  programs critical to our national and 

      global security;

Ø  Continued and perhaps greater levels of unethical conflicts of interest, self-

      enrichment, and corruption of the principles of our democratic republic and key   

      institutions.

If the Democrats nominate Bernie Sanders, I believe strongly that there’s a high  

probability that President Trump will win re-election.  With his national approval rating 

solidly in the range of 42%-47% consistently over the past 3 years, he is nearly 

guaranteed about 45% of the popular vote, compared to 46% won in 2016.  With that 

level of national support, he won 304 Electoral College votes and 30 states, compared 

to 227 Electoral College votes and 20 states for Hillary Clinton, despite winning 3 million 

more popular votes.

For President Trump to lose the election and be removed from office, the Democrat  

candidate must not just win more popular votes than President Trump, they must win 

more Electoral College votes from states that President Trump won in 2016.   For me, 

that means the Democrat candidate must be clearly stronger in 2 key policy areas than 

President Trump: (1) Overall Economic Growth policy, and (2) Health Care policy.

Unfortunately, the agenda Bernie Sanders is advocating would likely have disastrous            impacts on our economy if ever enacted.  It is not the overall goals of the Sanders 

agenda on changing the economic and governmental focus to serving the average 

citizens, versus the wealthy and connected segments of our country, that represents a 

problem for the country.  That focus is exactly what the country needs. 

But what Bernie Sanders has not yet addressed, and what will certainly be the focus of a      campaign against Donald Trump, is the net impact of the numerous separate spending 

and tax proposals that Bernie Sanders has advocated on the overall economy, the 

potential negative impacts on economic growth, and the potential impacts of slow or 

declining economic growth on jobs and working middle class incomes.  

Without integrating these programs in an overall economic plan involving all proposed 

spending, all proposed tax revenues, the resulting deficit forecast, and the resulting 

impact on overall economic growth, those specific “free” programs he advocates would 

be likely seen as leading to a major decline in our overall economic growth that would 

hurt the average citizen and weaken the security of our country. Voters would be faced 

with choosing the current “good” economy or the unknown risks of the multiple Sanders 

proposals in new taxes and spending, without knowing what the overall economic 

impacts would likely be.

Neither Bernie Sanders nor his supporters seem to be aware that without sustaining 

strong economic growth, the resources will not be available to fund anything like the 

ambitious programs he is advocating.  And unless he can speak convincingly to that 

point, I don’t believe the voters will be there for his election instead of President 

Trump’s.  The voter support in many of the states needed for either candidate to win the 

Presidency will come from citizens who understand and care strongly about the 

importance of at least sustaining the economic growth of the past 7 years, and the 

damage to millions of voters that a decline in economic growth would certainly cause.

I hope the Democrat candidates still in the race, including very importantly the 

candidates with solid economic experience and significant available funding – Messrs. 

Bloomberg and Steyer – will work together to develop and fund messaging about the 

kind of pro-growth economic policy that would enable any of the “moderate” Democrat 

candidates to promise the following benefits to voters:

1.  Democrats will at a minimum sustain and will work to increase the GDP economic 

     growth rate beyond the 2.0%-2.6% annual growth rates being achieved today, to 

     benefit all workers and the country.

2.  Democrats will focus on growing working middle class INCOMES (the combination 

     of wages PLUS profit sharing bonuses) as the key driver of stronger economic 

     growth, since 70% of economic GDP growth depends on increasing middle class 

     INCOME and spending, which is key to closing the income gap and enabling a higher 

     quality of life for most Americans.

3.  Democrats will establish a formal budget annually to significantly reduce existing 

     deficits, support investments in the world class educational, transportation and 

     energy infrastructure needed for greater growth and quality of life.  This will include 

     supporting the fastest possible transition from a carbon-based energy economy to a 

     carbon-less renewable energy economy based on solar, wind, battery and hydrogen 

     fuel cell industries, and the re-training of fossil fuel energy workers displaced by the 

     transition.

These goals are the key to the future economic security of the country and the reduction 

in the income gaps between the middle class and the top 10%-20% of all Americans.  

Workers overall will gain more in profit sharing than they can gain from middle class tax 

cuts or fighting for higher wages that are separated from the sustained growth of the 

business.  Unions should and would grow in importance, relevance and public support 

IF they become partners with management and owners in the actions to grow business 

profitability while sharing in a significant portion of the earned profits they help generate.

Here's the quick math on profit sharing to demonstrate the value such policy could 

provide for the country overall:

    Data on stock buy backs and the number of full time employees in the US during 2017-  
    2018 indicates that if just half the profits allocated to stock buy backs in 2017-2018 were 
    to be shared with all employed full time workers, the average worker would receive 
    $3,683 per year, or $7,367 over the two year period.  This is based on 126 Million full 
    time workers, and $4.5 Trillion in in stock buy backs over the 2 year period.

    Based on an average middle class income level of $64,000 per year, this would  
    represent a 5.8% per year annual income increase each year.  This is a far greater 
    impact on middle class income than tax credits or possible salary increases. And if                salary increases of 2%-3% were affordable, then the total increase in worker income 
    would be almost 8%-9% per year. 

    The key is, this level of middle class income growth will help close income gaps, grow 
    the economy overall, and do so without needing to cut any taxes … enabling the 
    government to afford a higher level of investment in infrastructure and education. 

Without this kind of focus on overall economic growth, and this level of innovative 

thinking on economic growth policy development, I’m afraid that the Democrats will fail 

to meet the needs of the country, will fail to win the Presidency, and will put our nation’s 

economic security will be risk.  

I hope at least one of the Democrat Presidential candidates will take the initiative to 

make overall economic growth a key part of their platform.

Is Our Republic Form of Government on Trial This Week?

I have a deep sense of foreboding about what actions we will see from our Senators during the Impeachment Trial of President Trump beginning next week.  I’m not sure that we have had a majority of Senators approach the hearings of Impeachment articles with the objectivity that we might have the right to expect from such a serious proceeding.  Each Senator has taken an Oath of Office to “Preserve, Protect and Defend” the Constitution matters to them, and a subsequent Oath as Impeachment Trial jurors to “do impartial justice according to the Constitution and laws”.  Both oaths end with the affirmation, “So help me God”.

Given these oaths, might we expect the Senators of both parties to approach the impeachment trial process looking for facts and truth about the charges being considered about the President’s behavior? Or will we sadly witness a majority of Senators putting loyalty to their party’s interests and the interests of the current President above loyalty to their multiple oaths?

This leads to a very important question that will emerge from these proceedings: “If our leaders no longer value their oaths, do we still  have a Republic?”

Let’s simply look at the language of the Constitution regarding the Impeachment process:

Article 1, Section 2

The House of Representatives shall chuse (choose) their Speaker and other Officers; and shall have the sole Power of Impeachment.

There is no further definition or discussion of how to exercise the power of impeachment.  As this process leads to a “trial”, it has traditionally meant that impeachment is considered as an “indictment”.  Importantly, this is not trail with due process. It thus mirrors the traditional steps leading to an indictment:  the indication that an offense might have happened; the investigation to develop the evidence about the alleged offense and the President’s role via the usual way evidence before a trial is gathered:  collecting documents and other relevant physical evidence, conducting interviews of relevant witnesses and reviewing the relevant elements of the law.

In this process, there is no requirement to interview the alleged perpetrator; every person under investigation for any illegal action has the Constitutional right to “remain silent”, and not to make any statements to authorities. They have the right to have an attorney present in all meetings and discussions they have with authorities.  But their attorney is not present in the actions taken by the investigative authorities to gather documents or to interview relevant witnesses. The evidence gathered is then presented either to a Grand Jury to determine if a formal indictment, leading to a trail is appropriate or not.  Or, the evidence is presented to the Prosecutor’s office to determine if they agree the basis for an indictment exists.

It should be noted that the standard used to move from investigation to indictment is not guilty or innocent beyond a reasonable doubt.  That is the standard of a trial.  The standard to move from investigation to trial is that either a Grand Jury or the Prosecutor conclude that there is reasonable evidence to suggest that (a) the illegal action as charged has been committed, and (b) the person charged has likely committed the action. This is  exactly what is fair “due process” in our current system of justice.

In the House’s conduct of an Impeachment process, either a special prosecutor or a House subcommittee will usually conduct the investigation process. These investigatory steps are often conducted in public, where the issue of national security confidentiality of the content is not otherwise a consideration.  As noted above, these steps involve gathering relevant physical evidence and conducting interviews with potentially relevant witnesses. In the House, these interviews involve equal time for members of each party to question witnesses and review physical evidence, whether conducted in public or in private.  But neither the President or their attorney have the right under due process to be present and participate in this step, as the process is not a trial to determine guilt or innocence.  These steps simply conclude with a determination of whether a majority of the full House members believe the evidence gathered indicate that (a) an action rising to the level of an impeachable offence as defined by the Constitution has been committed, and (b) the President has likely committed the action. 

If a majority of the House members so vote, then the Constitution in the section below defines the action by the Senate to determine if a majority agree that these charges have or do not have merit as impeachable offenses, that the President did or did not commit them, and that the President should or should not be removed from office.

Article 1, Section 3

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Note that the language in this area of the Constitution clearly and unambiguously requires a trial: “The Senate shall have the sole Power to try all impeachments”, and “When the President of the United States is tried, …”.  The Constitution does not define what is meant by a “trial”.  While the Constitution in Article 1, Section 5 provides that “Each House may determine the Rules of its Proceedings …”, is it logical to presume that this section should permit the Senate to make Rules for an Impeachment Proceeding that does not include the basic elements of a trial?  Doesn’t this require a biased interpretation of the Constitution’s language?  Doesn’t an unbiased reading of the Constitution’s language require that the Senate’s Rules for an Impeachment Proceeding must include the basic elements of a trial, and must not eliminate any of the basic elements of a trial, or it is not a trial, as required by precedent and by the laws and rules of the Justice Department.  It is not reasonable to expect or argue that the Constitution would have to have defined the specific elements of evidence and witnesses in an Impeachment trial for them to be required in the Senate rules.

In addition, note the language specifying that “When the President of the United States is tried, the Chief Justice shall preside;”.  Again, the Constitution does not define what is meant by “preside”. However, there is a common definition in the laws and rules of the Justice Department for what roles relate to the “presiding judge” in a trial.  These include, but are not limited to, determining which evidence, witness or testimony is allowed under the rule of relevance; making judgements on the application of laws and trial proceeding rules in resolving objections raised by counsel; and in providing instructions on the Constitution and the law to the Senators at appropriate points in the trial and after closing arguments before the Senators vote for guilt or innocence of the charges.

This section of the Constitution concludes with a discussion of the outcome of the judgment in Impeachment cases:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This portion of the Constitution simply indicates that any official removed from office by Impeachment in a Senate trial, is not excused from accountability in a future legal proceeding if their actions violated any civil or criminal laws.

Article 2, Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Finally, the Constitution addresses the nature of which actions by the President represent the basis for conviction of an Impeachable offence and resulting removal of a duly elected President from office.   The issue of what actions constitute “other high Crimes and Misdemeanors” is one that is not otherwise more clearly defined in the Constitution.  But in the Federalist Papers, where the Founders recorded their beliefs and discussions about the choices they made in writing the Constitution, the phrase of “other high Crimes and Misdemeanors” is explained to be actions that are uniquely political in nature, that arise from the unique political powers and position of persons holding “high” public office.

Alexander Hamilton wrote in Federalist #65 about the nature of “impeachable” offenses as follows:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself …

This is where the concept of “Abuse of Power” and Position comes from.  Elected officials, especially the President, are given “high powers” by the public with the trust that these powers would be used solely for the benefit of the nation and it’s citizens, not for the benefit, current or future, of the person holding the position.   That is the very nature of corruption, violation of public trust and abuse of power and position of the high office of the President.

It has also been mentioned by some Constitutional academicians that the charge of Abuse of Power is too vague to have been chosen by the Founders to be included in the Constitution.  However, the writings above indicate that the abuse or violation of public trust is precisely what the Founders intended in choosing the language of “high crimes and misdemeanors”.  But any charge of the commission of a “high crime or misdemeanor” must include the specific action or behavior that is the abuse of power or violation of the public trust inherent in his office. 

In the current Impeachment charges and trial of President Trump, the definitions in the Constitution of a “high crime” such as abuse of power and violation of public trust are based on the following specific actions:

(a) the violation of several laws such as the withholding of appropriated funds by Congress, for a reason not authorized by law;

(b) the soliciting of “something of value” from a foreign source in an upcoming election; and

(c) the total obstruction of the Congressional role of oversight, without expressly citing specific documents requested by Congress and elements of testimony from requested witnesses as being subject to Executive Privilege.

The action described in (a) above was clearly indicated as a violation of law by a recent report from the non-partisan Government Accounting Office (GAO). 

The action described in (b) above was clearly indicated as a violation of Federal Law in a separate letter released by Chair Ellen Weintraub which confirmed that the law specifically prohibits “soliciting, accepting, or receiving anything of value from a foreign national in connection with a US election.” 

The law further states that “investigations or political dirt that benefit a particular campaign” counts as “things of value” under these prohibited actions.

The action described in (c) above was clearly determined to be an unlawful assertion of Executive Privilege by a unanimous decision of the Supreme Court in the decision regarding President Nixon’s attempt to withhold releasing the tapes of his discussions with advisors in the Oval Office during the Watergate investigation.  The basis cited by the Supreme Court in that decision was that Executive Privilege cannot be used to hide potentially illegal action by the Executive that it is the Congressional duty to investigate.

Taken together, these actions would seem to represent an adequate level of evidence to support the charge of an impeachable offense.  It is not a determination of the guilt or innocence of the President, which is the role of a trial in the Senate.  However, it is merely the basis for a referral to the Senate for a trial to determine the guilt or innocence of the President of those charges, under the “impartial justice” oath the Senate has taken.

But Alexander Hamilton also foresaw that an Impeachment of a sitting President would be perhaps the greatest challenge to the non-partisan execution of their Oaths of Office by members of Congress. He foresaw that the challenge would be to act without partisan bias in the evaluation and judgment of a political action, as he wrote the following:

… and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

In justifying the nature of the Impeachment and Trial process included in the Constitution, Hamilton justifies placing the responsibility for judging the innocence or guilt of a President charged with an Impeachable act with the Senate, as opposed to the Justices of the Supreme Court.  He wrote the following:

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

In the discharge of this awesome responsibility to “do impartial justice according to the Constitution and laws” as required in their Oaths that the Senators take, Americans will learn whether in our current highly partisan political environment, we have Senators who can put their Oaths to the Constitution and to their roles in the Impeachment Trial above partisan loyalties and personal interests, or not.  If they fail to do “impartial justice” according to the requirements of the Constitution for a trial and the laws of the United States, which the President’s Oath requires him/her to faithfully execute, by refusing to admit relevant evidence, and if admitted, ignoring the impact of the evidence, then we may learn that in today’s environment, Americans cannot count on the confidence of Alexander Hamilton in the “dignity and independence of the Senate”  in this important role in our Republic.

In that outcome, Americans may be left to justly wonder if the strength of our Republic, which depends on the power of our Constitution to determine the actions of our elected or appointed officials in all branches of government, is almost certainly in dire jeopardy.