The Scandal Guide

Posted: November 3, 2016 in elections, United States
Tags: , , ,

What a weird race for US President this has turned out to be. Most of us (bar some enthusiastic elites for Clinton) are looking at these two candidates and holding our noses if we have any preference. As I mentioned earlier, I am reluctantly cheering from the sidelines for Ms. Clinton, largely because Trump is an authoritarian, and I judge that a bigger danger than Clinton being an establishment candidate.

It’s hard to be enthusiastic about the US joining New Zealand in breaking the final glass ceiling when the person doing it only seems to be likely to make it because she’s running against the worst candidate ever.

For those of you who are interested but not following along, here’s a breakdown, with conclusions or rough probabilities for each front-loaded:

Trump: Not paying income Tax

Probability of being real: 90%+

Donald Trump has steadfastly refused to release his taxes during the campaign, a move that is unprecedented in recent Presidential history. He released an abridged version of his financials instead, which defeats the point of releasing taxes, which is to have a financial transperancy which can then be verified and confirmed officially.

Donald maintains this is due to an active audit of his company, however eminently qualified people have stated that an audit does not prevent him from releasing his tax returns, and when he tried to claim other business-owners would minimise tax similar to the way he is accused of, Warren Buffet, a Hillary Clinton donator, released his own taxes (showing he paid more than he had to) and confirmed he was under audit at the time, suffering no problems with the IRS, further disputing Trump’s protestations about not releasing his taxes.

Donald also claims that if he did avoid income tax, (he won’t confirm still) that it would make him smart, which not only is an argument whose logical conclusion is that the US shouldn’t have any public infrastructure at all, but it also backs up speculation that Donald views his supporters as “marks” who he doesn’t respect.

We also have a leaked tax return that shows he registered a paper loss of US$1 billion in a single year, which he could realistically have carried forward for several years. Doesn’t look like a particularly savvy business man to even be able to inflate his losses up to $1 billion.

There’s also reasonable speculation that Donald over-reports how wealthy he is and that he’s not even a billionaire any more, and that most of his wealth is from his inheritance. Given the level of narcissism he exhibits, this is actually more likely to be a reason he wouldn’t release his tax returns.

Clinton: Anthony Wiener email probe

Probability of any new emails coming out that actually impact Clinton: 5-10%

Much fanfare was given to the FBI “reopening” the case of Hillary Clinton’s emails, which is suprising given that’s actually not what’s happening.

Rather, a separate case about Anthony Wiener allegedly exchanging sexual pictures with an under-aged girl is being investigated, and there is a set of emails (and it’s a relatively large set, despite early incorrect reports that it was just 3 emails) that nobody has read yet that may or may not be relevant to that case, that happen to reside on a computer belonging to the Clinton campaign, because Anthony’s ex-wife Huma Abedin is a prominent member of Clinton’s staff.

Ironically, the real story here is that James Comey is probably breaking the law1 in making such an announcement so close to the election, especially given the confusing wording in his letter to congress that implied any of this somehow being related to Hillary Clinton or her private email server. While there are, potentially, emails that relate to Hillary Clinton or her campaign in this set, they were neither to nor from Clinton, and they may even be duplicates of emails already reviewed by the earlier probe.

Backing up the perspective that James Comey is out to make a political point, he held a press conference inappropriately to announce his conclusions to the original investigation, when his only role was to sign off a report to the DoJ recommending no prosecution, as it’s ultimately their call whether or not to go ahead, which paints a picture of a man wanting to increase his public profile.

There is no evidence that any of these emails could negatively impact Clinton, however it is an outside possibility given how many embarrassing revelations have been in the Podesta leak.

Trump: Sexual assault and rape allegations

Probability of at least one instance being real: All but confirmed.

With at least eleven women coming forward now, with them independently telling consistent stories that paint a pattern of sexual assault, it’s not only looking credible that at least one allegation is true, it’s looking very likely that all or most of the harassment happened as described. Trump is the Right’s own Cosby moment, and they’re handling it a lot less gracefully than the African-American community did.

Trump claims the women coming forward are liars who are just out for fame. There are a couple of good reasons to doubt this claim. Firstly, none of the victims came forward until after the Billy Bush tape was leaked to the public. This is consistent with their stories of feeling intimidated and dis-empowered by his sexual assaults, and is exactly what you would expect in this sort of case. Were they some sort of hatchet job from the Clintons, it might have made sense to bring them out earlier in the campaign. While one set of allegations could plausibly be politically motivated, it would be astoundingly difficult to get women from so many different backgrounds, some of them with real conservative credentials, and coach them to consistently lie with similar stories. At least some of these women are definitely telling the truth. (whether or not the allegations ever end up being tested in court)

Adding to the credibility of these allegations, there was also a prior allegation by an (alleged) victim of child rape and sex trafficking, which did not go to trial due to minor technical errors in the filing. The details in that allegation contain some incidental facts about Mr. Trump that check out, (including naming a friend of Trump’s who has already been convicted for similar behaviour as a co-offender) so Donald’s assertion that those allegations are also a lie would require it to be a very well-researched one. There’s also the fact that she had a witness willing to testify to the events, and while coaching up a witness to corroborate a single story is a more credible claim, taken together with the other 11 allegations which represent the profile of a sexual predator, and the creepy treatment of his daughter Ivanka, such a crime would not be out of character for Donald.

Clinton has, demonstrating her feminist credentials, decided not to politicise the rape allegations without the consent of the victim, who hasn’t come forward because she is still protected by anonymity.

Clinton: Unethical use of the Clinton Foundation?

Did Clinton behave unethically? Confirmed2.

Let me state at the outset that the Clinton Foundation, unlike her opponent’s “charitable” foundation, actually did real charity work, and there is no question of funds being misappropriated.

The issue here is rather a question of corruption and the appearance of corruption, and whether it is appropriate for a candidate to “house” their staff in a charitable organisation, as Podesta wikileaks have made it quite clear that the Clinton Foundation was viewed by those running it as primarily a political vehicle, not a charitable cause.

We can tell by the behaviour of those donating to the foundation that many of its prominent donors viewed it this way too, as they did not donate to other charities dedicated to reducing global poverty, which is behaviour you would reasonably expect from wealthy heads of state and similar. Instead it seems that her donors, at least, perceived that the Clinton Foundation provided them enhanced access to Hillary Clinton, and the Podesta leaks paint of picture suggesting the same thing.

Is there concrete proof that Clinton used her influence inappropriately as a result? (ie. can we prove she engaged in “pay-to-play” politics?) No, not yet. I suspect there never will be, as that’s not how things are done in Washington and Clinton is too careful for that, and most of the Sec State’s influence is through advice to the President, which is largely verbal.

But this absolutely does meet the “appearance of corruption” test which is the standard all cabinet offices should be judged by regarding corruption. If this scandal had come out while Ms. Clinton was still Secretary of State, my opinion would have been that she should have resigned as a result. It is a definite black mark on her candidacy, and were she running against a normal Republican, you would expect something like this to lose her the race. I am continually surprised that this isn’t where the Trump campaign is hitting her, as he’s essentially conceding to Hillary that she gets to keep much of her soft support. He is spending too much time on emails and Bill Clinton’s behaviour, and not enough on Hillary’s conduct regarding the Clinton Foundation.

Then there’s also the murky ethical issue of whether it’s appropriate to provide “jobs for the boys” in your charitable foundation when you’re not yet campaigning for president. I have heard mention that campaign activities prior to a certain time period are illegal, but couldn’t find a reference for that myself, so take that with a grain of salt for now.

Trump: Colluding with Russia?

Probability of Trump actively colluding with Russia: 5-20%

Probability of Trump being unduly influenced by Russia: 90%+

Previously there was no evidence that Trump was in any way colluding with Russian interests, but a recent story came out with some interesting evidence here!

Before that story, all we could say was that Russian interests held a lot of Mr. Trump’s debts, which would have opened him to unprecedented influence by a foreign state.

While arguably a warming of relations with Russia would be a very good thing for the US, essentially being a neighbour to Russia, that shouldn’t be achieved by electing a puppet-president who might ostensibly simply do what his debtors tell him to.

Slate has an interesting article suggesting collusion with Russian interests through a dark server sending private mail to the firm Alfabank, The Intercept also has a counter-piece with some evidence that the server in question was probably just sending out low volumes of spam, so I don’t rate it very high probability at this stage that there’s any secret collusion with Russia going on.

In short, you should be concerned about Trump and Russia, but more because he’s a loser who’s in debt to Russians, and less because of media and Clinton campaign stories about cyber security to deflect from their own Wikileaks issues, but if you’re a Clinton supporter, you should probably be asking her to be a bit less aggressive towards Russia.

Clinton: Coordinating with Super PACs?

It has been confirmed, at least if you believe that Wikileaks is a reliable source2, which I do, that the Clinton Campaign is illegally co-ordinating with Super PACs. This is not only a violation of campaign finance law, it’s also a pretty worrying mistake for a candidate who thinks that the Citizens United decision (which allows Super PACs to exist) should be remedied by constitutional amendment that she can’t even abide by the current law under that decision. If she does repeal Citizens United, I’m not sure how Hillary Clinton would run a successful re-election campaign, so I’m pretty pessimistic about her likelihood of successfully doing this in the first four years.

Incidentally, repealing Citizens United by constitutional amendment is basically the very least the US could do to clean up its elections. That would basically just reset the donation playing field back to the 1990s. There is still the issue of undue influence of large donors, gerrymandering of congressional districts, the unrepresentative and disproportional nature of plurality voting to determine the house, the electoral college distorting the winner for the presidency to the point that the “wrong” candidate has won in the past3, and two-party domination. Neither main-party candidate is proposing anything that will put a serious dent in this problem.

Trump: An actual authoritarian?

Yes. Political scientists have been commenting for media throughout the campaign that Trump bears many of the classic signs of being an authoritarian candidate, and that isn’t just something that happens in less-developed countries, it’s about a candidate, usually right-wing, exploiting a populist mood among an electorate.

That does not necessarily mean he’s the next Hitler, but it does mean that if elected, he will likely start doing things like discarding the idea of separation of powers, of judicial independence, of freedom of speech and association, of relatively open immigration policies, jailing his political opponents and threatening his personal enemies, using his office to enrich himself, etc…

These democratic rights are very difficult to claw back once they’ve been systematically violated or even repealed, as has been demonstrated with the US backing out of its conviction against torturing detainees and the Obama administration’s refusal to even hold non-judicial inquiries into the matter, let alone prosecutions, despite torture actually being illegal.

Clinton: Illegal private email server?

As I mentioned earlier, James Comey, a Republican, concluded that Hillary had taken no illegal action in using a private email server. It wasn’t secure practice and it certainly wasn’t entirely ethical to do so, but it’s less a scandal and more an issue of the law needing to require public officials to use public emails only for official business.

The main bulk of this is a non-issue and the kind of thing that, for anyone who wasn’t in a cabinet position, would be resolved by a simple meeting with your supervisor or maybe an official warning.

The one place where Republicans may have a point is that she was potentially not sufficiently informed to take the appropriate care regarding confidential emails, but there is no public evidence to date that suggests this caused any intelligence leaks or that any information that was classified at the time was handled through the private server. Much of the “classified material” was due to retroactive classification.

Trump: Racial profiling to deny housing to black people?

Yep, he got taken to court for it and lost, and the case was regional one in New York, not part of some national-level investigation like he claims.

Clinton: Benghazi?

No. This is categorically not a thing, and anyone talking about it is essentially just redistributing hot air. In fact, if anything, the real “scandal” here is that the policies supported by the very people who are outraged by Benghazi likely caused it, ie. the US’ entire approach to terrorism causes blow-back and exacerbates the problem. (which, ironically, is one of the few areas Trump has been correct in critiquing Hillary’s judgement. Of course his “solutions” seem to be even more of the same with a side-dish of extra war crimes, so…)

Trump: Misappropriating charity money

This is a massive yes.

While the Clinton Foundation is the one really knock-out scandal out there for Clinton, it not only pales in comparison to Trump’s other scandals, it actually also pales in comparison to Trump’s scandals regarding his own foundation, which is likely a vehicle for tax evasion, has been used to pay legal settlements owed by Mr. Trump personally, has engaged in self-dealing, and he has a poor record in donating to his own foundation to the point that he’s now actually stopped donating since about 2010, when normally a family foundation like this is funded in large part by its namesake. Oh, and it’s been ordered to stop soliciting donations. (Trump’s lack of donations to his own foundation also fuel the case made by speculation that he’s not as rich as he says he is)

Clinton: Advocating fixing foreign elections?

This one’s a little tricky. Clinton has, back in 2006, made some comments about Palestine that are relevant to free elections. However, whether she was advocating election-rigging hangs on how you determine the meaning of the word “determine” in context:

I do not think we should have pushed for an election in the Palestinian territories. I think that was a big mistake, and if we were going to push for an election, then we should have made sure that we did something to determine who was going to win.

You can either take this to mean they should have ensured that Fatah, their preferred partners, won the election, as many seem to be doing, or if you’re a bit more charitable, you can take this to mean that Clinton wanted to have information about who the likely winner was, ie. polling, before advocating for an election, and then only advocate elections if Fatah would win. (see definitions 1 & 2 of determine here)

On the balance I’m willing to give Clinton the benefit of the doubt that it’s the less objectionable option for now, (it’s still pretty objectionable anyway…) not that the US in general and people Clinton holds in esteem in particular haven’t done things just as bad as election-rigging in the past.

Now, this is definitely hypocrisy from Clinton, who supports democracy at home and derides Trump for undermining it, but it’s orthodox hypocrisy in foreign policy, where most nations believe in realpolitik4 for foreign policy, and she wouldn’t have been viewed as a contender for Sec State if she wasn’t willing to undermine democracy in developing nations. This is a legitimate criticism of US foreign policy, but it’s not on the same level in my opinion as Trump’s authoritarianism, as Clinton is essentially stopping democratic values from spreading, while Trump is effectively advocating to get rid of it at home too.

Trump: Trump University

It’s a scam, and again, it fuels the case that he’s not as rich as he says, because genuinely successful people do not risk this kind of exposure to lawsuits.

Trump: Bad at business

This one is also true. Donald Trump’s entire image is one of being a winner who’s great at business and is with only the most attractive women. While the occasional bankruptcy isn’t proof that someone is objectively bad at business, serial bankruptcies are a different story,  and he has business failures beyond his bankruptcies. There’s also been allegations of him engaging in unreasonable management practices.

The sad thing is that there are also probably newsworthy Trump scandals I’ve missed evaluating here, because the man is just that odious. (I mean, the man just recently used a racially-charged insult and kicked out one of his African-American supporters from one of his rallies because he assumed he was a protestor) But this should cover the main ones people may have heard mentioned in election coverage and give you some idea if you’ve been cruising through this terrifying roller coaster because it’s all happening overseas.

1 To go into more detail, the Hatch Act specifies that Federal employees cannot “use their official authority or influence to interfere with an election.” There is a good case that Comey has violated this part of the law given that no letter to Congress was necessary in this case, and that his motivation here was more around pressure from his fellow Republicans who were annoyed he declared Hillary Clinton didn’t do anything actionable with her email server.

2 It’s somewhat difficult to calibrate whether leaks in general are reliable, as by their very nature they’re a source that is unlikely to get official confirmation. Some leaks published by Wikileaks have nonetheless managed to be officially confirmed, but most have no official confirmation. That said, however, most of the things Wikileaks publishes would be incredibly beneficial to discredit for the people and organisations they relate to, and seem relatively easy to produce documentary evidence countering the allegations if anything published was incorrect. That this has never happened before, for any of the leaks published by Wikileaks, shows them to be good at verifying their sources, and makes them in my opinion a reliable publisher of primary-source information. The argument that a full denial with documentary evidence should be presented if one exists is especially relevant to the Clinton campaign and the Podesta leaks, as these sorts of scandals are exactly the sort of thing that campaigns want to issue a full-throated denial of when that option is honestly available to them, so from a realpolitik standpoint we can essentially conclude that the Podesta leaks are largely true, or at worst partially true and difficult to refute where they’re inaccurate.

I realise this does require you to accept some inductive reasoning to go along with, but in my view it’s perfectly reasonable inductive reasoning backed by very real selfish motives that are highly likely to exist in the individuals concerned that makes this the exception to the general rule that absence of evidence (ie. that nobody has disproved a Wikileaks document dump in the past) is not evidence of absence.

That said, the one thing that’s likely correct about the Clinton campaign’s counter-offensive against Wikileaks is that there is some evidence suggesting the leaks may have originated from a Russian source. But that’s kinda irrelevant to whether they make a good case against Clinton.

3 Arguably the 2000 race between Bush and Gore wasn’t even a case of the electoral college appointing the wrong president according to the popular vote, (every other country directly elects a Head of State does so using some form of national popular vote) but rather an incorrect decision by the Supreme Court not to allow a recount, as unofficial recounts later showed that Gore had in fact won Florida, the state determining the election, as well as the popular vote, so basically the whole first term of George Bust (and therefore arguably the second term, too) was due to the fact that the Supreme Court leaned conservative in 2000.

This is, however, a systematic weakness in the Electoral college: it increases the likelihood of a race being close in some respect, as you effectively have 59 contests for president running simultaneously, each to determine a number of electors that the relevant party appoints, then you have the electoral college vote. (there are 9 electoral votes determined by congressional district, and DC also gets 3 electoral votes, but the rest are winner-takes all state-based contests) Running a national popular vote will increase the margin between candidates, making a recount much less likely in the first place, even though it would make a recount much less convenient if it did happen, it also minimises the likelihood of court cases determining the winner like in the 2000 election. The Electoral College is a horse-based solution to the problem of what happens if one of the candidates is no longer able to serve as President, and doesn’t really fit in a modern country, even though it was arguably a practical solution when it was implemented.

The electoral college also has many other problems, and if you live in the US, you should probably look into whether you can lobby your state officials to pass the National Popular Vote Interstate Compact, which will “hack” the electoral college to automatically vote for the popular vote winner without having to amend the constitution, (which then makes it relatively easy to solve problems like allowing US territories to vote for President) and is already past halfway to getting the electoral college votes it needs to take effect. Michigan and Pennsylvania are currently considering state laws to enter the compact. (with those two states, it would almost be 3/4s of the way there)

4 Basically, the idea that nations should act selfishly/pragmatically in determining their foreign policy, although the term can apply elsewhere too.

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