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John Cochrane Loves the Rule of Law (Some Exceptions Apply)

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By William K. Black December 22, 2017     Bloomington, MN As Brad DeLong aptly puts it, John Cochrane was once an economist.  Cochrane is now a right wing ideologue surrounded by similar ideologues at Hoover.  He is pushing his new chapter in a Hoover book entitled American Exceptionalism in a New Era.  His chapter’s title is “Law and the Regulatory State.”  I will be writing several articles responding to Cochrane’s chapter, but this first piece concentrates on one key belief that Cochrane said he held that we all agree with.  My point is that Cochrane is not living up to his claimed beliefs, which he summarized in his introduction. To be a conservative—or, as in my case, an empirical, Pax-Americana, rule-of-law, constitutionalist, conservative libertarian—is pretty much by

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By William K. Black
December 22, 2017     Bloomington, MN

As Brad DeLong aptly puts it, John Cochrane was once an economist.  Cochrane is now a right wing ideologue surrounded by similar ideologues at Hoover.  He is pushing his new chapter in a Hoover book entitled American Exceptionalism in a New Era.  His chapter’s title is “Law and the Regulatory State.”  I will be writing several articles responding to Cochrane’s chapter, but this first piece concentrates on one key belief that Cochrane said he held that we all agree with.  My point is that Cochrane is not living up to his claimed beliefs, which he summarized in his introduction.

To be a conservative—or, as in my case, an empirical, Pax-Americana, rule-of-law, constitutionalist, conservative libertarian—is pretty much by definition to believe that America is “exceptional”—and that it is perpetually in danger of losing that precious characteristic. Exceptionalism is not natural or inborn but must be understood, cherished, maintained, and renewed each generation—and its garden is always perilously unattended.

This first column shows that under Cochrane’s own reasoning the “danger” to the “precious” “rule of law” has never been greater in the last 50 years.  Instead of “cherish[ing]” and “maintain[ing]” the “garden,” Cochrane has chosen to leave it “perilously unattended” because of his fanatic partisanship.  Trump is ripping up and sowing salt in Cochrane’s “precious” “garden” and Cochrane stirs himself primarily to attack Trump’s critics.  Brad’s description requires amendment.  Cochrane was once an economist and once a self-described “rule-of-law constitutionalist, conservative libertarian.”  Now, he is an unexceptionable apologist for Trump’s authoritarianism, venality, and corruption.  Whatever remains of Cochrane is what you get when you burn a substance and retain only its most noxious waste gases.

Cochrane’s summary of his claim that the United States is exceptional is unexceptional.

I locate the core source of America’s exceptional nature in our legal system—the nexus of constitutional government, artfully created with checks and balances, and of the rule of law that guides our affairs.

Whether or not you view the U.S. rule of law as “exceptional,” you are likely to agree that the rule of law, when it works, is a good thing.

Cochrane’s definition of the “rule of law” is dangerously incomplete, but that will be the subject of subsequent posts.  This column focuses on the aspect of the rule of law that Cochrane emphasizes.

And without rule of law, democracy is soon subverted. Those in government are always tempted to use the government’s power to silence opposition and cement their hold on power, and ruin the economy in the process. That’s the danger we face. If speaking out for a candidate, arguing a policy question such as climate change, or working on behalf of a losing party earns you the tender attentions of the Securities and Exchange Commission (SEC), Internal Revenue Service (IRS), Environmental Protection Agency (EPA), Consumer Financial Protection Bureau (CFPB), National Labor Relations Board (NLRB), and increasingly the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI), it does not matter who votes.

Yes, President Nixon’s “enemies list” exemplified Cochrane’s point.  Conversely, President Obama’s terms of office had no such lists.  You have to go back over a half-century to President Johnson to find a (pale) reflection of Nixon’s abuses by a president who was a Democrat.  Note that the Republicans controlled one or both houses of Congress under most of the Obama administration and made unprecedented partisan “investigations” that routinely failed to document even the supposed IRS enemies list.  The Obama administration did not use any of the other listed regulatory or law enforcement agencies politically to silence opposition.

President Bush (the second) did politicize the Department of Justice in a real scandal, but President Obama ended those abuses.  In particular, Bush’s appointees politicized the Civil Rights Division – resulting in the disenfranchisement of black voters, a practice that should appall Cochrane but which he ignores.  Still, while Cochrane is dishonest in applying his point, he is correct that it is obscene to use the government to attack political opponents for political reasons.

While ignoring the real campaign of the Bush administration to politicize the Department of Justice, and the disgraceful abuse of the congressional investigative process by Republicans to attack their political opponents under President Obama.  Cochrane’s risible effort at proving his claim that the Obama administration used the law to harm its political enemies consists of this passage.

Recall Lois Lerner of the IRS and her treatment of conservative groups. Recall Governor Scott Walker’s persecution by Wisconsin’s attorney general using vague campaign finance laws.

Yes, I do “recall Lois Lerner.”  I particularly recall the consistent statements of highly conservative IRS employees that they had no basis for believing she discriminated against conservative groups.  After repeated investigations, the Department of Justice repeatedly found that there was no evidence supporting any prosecution of her.

Cochrane is delusional about President Obama.  Cochrane claimed (without any citation or supporting explanation) that President Obama’s administration represents “8 years and more of egregiously politicized legal administration and regulation….”  The only example Cochrane can summon, however, of this depraved eight years is the repeatedly falsified claim that Lois Lerner targeted right-wing non-profits because of her animus against conservatives.

I recall Scott Walker, particularly his use of state power to attack his political opponents, particularly unions.  I recall him saying that he was prepared to deal with terrorism because of his experience in crushing unions.  I recall him threatening to call up the National Guard if public workers staged a strike.  I recall him trying to remove tenure from professors so that he could fire them for their political views.

I recall the scandalous abuse of state power by Governor Jeb Bush of Florida against Terri Schiavo’s husband who dared to honor her wishes not to be left in a vegetative state.  Governor Bush, with the aid of his brother President Bush, used unconstitutional individualized state and federal legislation to suborn the rule of law.  Governor Bush repeatedly sought to investigate and prosecute Mr. Schiavo and to seize custody of Terri Schiavo.  Even after Terri Schiavo died and an autopsy confirmed that her husband’s statements about her irreversible condition were correct, Governor Bush appointed another investigator to conduct a new investigation of Mr. Schiavo’s statements over the last 15 years.  Cochrane is right to worry about these governmental abuses, but he is such an ideological rightist that he is incapable of honesty as to the fact that it is his political party that has overwhelmingly been the source of these abuses for over 50 years.

I recall Governor Christie’s top officials deciding to create a massive traffic jam for days – that threatened the lives of anyone needing emergency services.  They did so for one reason – to punish a political critic and deter other who might dare to criticize the Governor.

Judge Roy Moore repeatedly used his power over the Alabama Supreme Court to violate the constitution.  The second time he did so was for the express purpose of preventing those citizens he hated (gays and lesbians) from securing their constitutional right to marry.  Another Republican hero, Kim Clark, a county clerk in Kentucky, used her office to deny marriage licenses to same sex couples.

Most of all I recall President Donald Trump.  I will not document each of the dozens of ways he has threatened or actually used the government to harm his political foes, including employees at the federal regulatory and law enforcement agencies Cochrane so loves to hate.  Who was it as a candidate that made infamous the chant “lock her up” and who – contrary to every rule of law tradition of the United States – told the Department of Justice they should be investigating Hillary Clinton?  Which administration’s EPA hired an ultra-right wing media group that made its top priority trying to locate EPA employees critical of Trump?  The Trump administration has already gone so far as to deny an undocumented minor who was pregnant due to rape her right to an abortion because the program official personally opposes abortion even in cases of rape and incest.  (Fortunately, the ACLU prevailed in the case, but not before a terrible delay.)

Which president’s Department of Justice brought a baseless prosecution (after a baseless arrest) of a woman on the basis that she committed a crime during the confirmation hearing for Attorney General Sessions when she laughed in response to Alabama Sen. Richard Shelby hilarious lie that Sessions’ record of “treating all Americans equally under the law is clear and well-documented.”?

Which president’s Department of Justice brought a baseless prosecution (after roughly 200 baseless arrests) of protestors at President Trump’s inaugural in Washington, D.C.?  A jury just acquitted the first six defendants of all charges – with the prosecution admitting there was no evidence that they had engaged in any act of violence or incited anyone to engage in violence.  The prosecution theory was that anyone who marched peacefully in a protest in a general area in which there was some violence was engaged in a “riot” and was “inciting a riot” (a felony with a maximum sentence of ten years).  That doctrine should have driven Cochrane apoplectic.  Maybe it did and that is why we do hear no protest from him.

Given the fact that Cochrane has been flacking his chapter on the Rule of Law on his blog as recently as December 14, 2017, we know that this passage from his chapter must be burnt into his consciousness.

Our public life depends on voluntary cooperation. Administrations follow the law, even when they don’t really have to. They defer to court and Supreme Court decisions that they could ignore. The president does have a pen and a phone—and the number at DOJ and FBI and IRS. The rule of law depends on him not using it.

President Trump, of course, does not need “a pen and a phone” – he has twitter.  He uses it constantly to disparage the courts, individual judges based on their ethnicity (something that Cochrane specifically condemns in his chapter), Muslims and Latinos in general, and anyone who is a critic.  He suggests that the federal government revoke the licenses from media who criticize him.  Here is my question.  Where are you Cochrane?  You should be screaming from the rafters about Trump’s firing of FBI Director Comey and Trump’s constant abuses of Robert Mueller (and Attorney General Sessions for that matter).  You should have led the attack on “lock her up.”

Oh, and Cochrane’s chapter decries “Russian expansion” and says that the U.S. must check it.  Trump is such an apologist for Putin that he is an international embarrassment.  Why isn’t Cochrane demanding that Trump take seriously and respond seriously to Putin’s assault on “American exceptionalism” through his attack on our elections?  The silence from Hooverites like Cochrane about Trump is deafening, and revealing of his true preferences.

If Cochrane wants Democratic Party scandals involving the misuse of government power to harm critics he needs to go way back for the really good stuff.  LBJ offers some good examples, but Robert Caro’s exhaustive and often slashing, critical studies of LBJ will leave you with a nuanced understanding that largely contradicts Cochrane’s fears.  The whole HUAC period in which Republicans tried to destroy the careers of academics and artists of the left needs to be ignored.

The really good stuff is 60-150 years ago when Democrats were governors throughout the “solid South.”  Even after the formal end of slavery, those Democratic governors used state power to murder and harm economically blacks with impunity through state-supported groups such as the White Citizens’ Councils, to protect lynching, and to try to destroy the NAACP.  Similarly, the KKK, particularly in its second incarnation, had many Democratic Party leaders who sought to misuse state power to harm blacks, Jews, Catholics, and immigrants.  Of course, the problem with both of these examples is that these Democratic leaders overwhelmingly either died or changed to become Republicans in response to the Republican Party’s “Southern strategy.”

That leaves the despicable “internment” of Americans of Japanese descent as the best example in “modern” times (75 years ago) for Cochrane of Democratic Party leaders using government power against (falsely perceived) ‘opponents.’  Of course, this policy was bipartisan, but Cochrane can avoid mentioning that fact.

In his chapter, Cochrane rightly decries “authoritarianism” and U.S. support for it.  One of Trump’s most odious characteristics is that his closest ties are to authoritarian leaders who brag about destroying the rule of law to destroy their opponents.  Trump cheers their authoritarian attitudes and practices.  Cochrane wrote that he was motivated to write his chapter because the rule of law is both paramount in importance and under such great threat.  He asserted without any basis that the threat came overwhelmingly from Democrats.

Why is Cochrane so silent when Trump epitomizes everything Cochrane claims to detest and fear?  Why has Cochrane, who wrote his chapter to convince every American that we must “cherish” and act vigorously to protect the fragile and “precious” “garden” of liberty from authoritarians turned his back while Trump gleefully seeks to destroy the garden?  Edmund Burke did not actually say that all that is necessary to the triumph of evil is that good men should do nothing, but we know the truth of the

William Black
William Kurt Black (born September 6, 1951) is an American lawyer, academic, author, and a former bank regulator. Black's expertise is in white-collar crime, public finance, regulation, and other topics in law and economics. He developed the concept of "control fraud", in which a business or national executive uses the entity he or she controls as a "weapon" to commit fraud.

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