So apparently last week, while my attention was directed elsewhere, Donald Trump attempted to attract the support of conservatives by promising to choose all of his Supreme Court appointments from a short list of candidates who he believes conservatives will find appealing.
Regardless of what you think of those individual candidates, there is absolutely no reason this gambit should garner support from conservatives for the simple reasont that the promise is not enforceable. This would be a problem with any politician, but particularly with Trump, who has never felt any qualms (or even, as far as I can see, any embarrassment) about shifting his positions 180 degrees from one day to the next.
But there’s a way to fix that problem, and it’s available not just to Trump but to any politician with credibility issues. Let him issue a list of specific promises (such as “All of my Supreme Court appointments will come from this list”) and then put the bulk of his personal wealth in an escrow account, to be returned to him if he loses the election or if he serves and keeps his promises — and to be paid to someone else if he’s elected and breaks those promises. The named beneficiary could be, for example, the U.S. Treasury, or — if the candidate is particularly concerned about attracting the votes of traditional Republicans — the Republican National Committee.
It would take a few clever lawyers to write the accompanying legal documents, but if there’s one thing Donald Trump’s got in abundance, it’s clever lawyers. In order to be effective, the documents would, of course, have to be made available for other lawyers (and bloggers!) to scrutinize.
One could argue that even when politicians are sincere in their promise-making, it’s still good to leave them some wiggle room. The answer to that is that wiggle-room, like pretty much anything else, is good in some ways and bad in others, and while the bad sometimes outweighs the good, the good also sometimes outweighs the bad.
Currently, Mr. Trump — along with every other candidate — is maintaining wiggle-room around every single promise he’s made, in the sense that none of them consists of anything more than words. By picking a few key issues and putting his personal wealth on the line — and challenging his opponents to do the same — Mr. Trump might, not for the first time, change American politics. He might even have the novel experience of changing it for the better.
This may be a good idea for a candidate who genuinely wants to convince well-informed voters of the sincerity of an election promise.
But that does not appear to be Trump’s intent or aim for not only has he not taken steps to firm up the credibility of his commitment, he has gone out of his way to make it even less credible than a mere Trump word:
The release of the list does not even contain an unequivocal commitment to appoint from it; it is little more than Trump saying, “Hey, I think these judges are great!” And within hours of the release of the list, Trump was already backpedaling from the impression that he was committed to nominate somebody from the list to the Supreme Court saying that it was merely “likely” or perhaps he’d nominate somebody “in the general realm” of the judges on the list.
Finally, he stated that he would “of course” be adding people to the list as time went on. (“Look, my nephew Jimmy Trump is very sharp, big brain! Graduated law school and one of these days, he’ll pass the bar (hang in there, Jimmy!). Would make GREEAAAT Supreme Court Justice!”) And a commitment to choose from a list you are free to add to at any time is no commitment at all.
So our host’s idea on how politicians can bind themselves more reliably will have to await another opportunity.
PS: > if there’s one thing Donald Trump’s got in abundance, it’s clever lawyers
So you’d assume, but you would be surprised. While Trump has of late retained a respectable outside law firm, his personal lawyers are known as an infamous clown show in legal circles. And I do not mean that in the sense that their talents are deployed to deplorable ends–given that they are Trump’s lawyers, that is unavoidable–but that they seem to be lacking the basic competence on simple legal questions that one would expect from the average attorney.
The list itself is an example of the weakness of his legal advisers. No fewer than three of the eleven judges on it either (a) have publicly mocked Trump to the limits of what judicial decorum allows or (b) are intimately associated with some of the country’s leading anti-Trump conservatives. If Trump had competent legal counsel perform due diligence, he would have known not to pick these names and then go on to talk shows claiming that these are “great judges who really support me!”
Why that should be so is puzzling. Trump, while not nearly as rich as he pretends to be, can clearly afford competent counsel. That he does not avail himself of that seems to indicate that he is either unwilling to pay the going rate for such talent (plus the premium undoubtedly charged for dealing with Trump on a personal basis) or that among Trump’s criteria for retaining counsel competence does not rank very highly.
but that they seem to be lacking the basic competence on simple legal questions that one would expect from the average attorney.
Indeed. The fractal awfulness of the Trump Organization was amply demonstrated early on in this campaign when his chief legal counsel managed the impressive trick of insisting that marital rape is not a crime (which it has been in NY State since the mid-80s) while in the process of threatening a journalist for quoting sections of Ivanka Trump’s published autobiography in a news article.
(As a side-note: it’s worth noting that for someone of Trump’s disposition, retaining incompetent legal counsel is a feature, not a bug. If what you want from your in-house counsel is a quick “sir, yes sir”, the fact that you can then turn around and sue your flunky for legal malpractice should it turn out that the thing you were asking for was laughably illegal is simply an extra layer of firewalling between you and the justice system.)
@Doctor Memory:3
That is true. Inside counsel very often leave the pleasant task–and accompanying stigma of being negative nellies and not “team players”–of telling a business that its plans are in violation of the law to outside counsel.
Worse, all too often you have to tell a client that yes, under the best reading of the law, what they propose to do is perfectly legal, but the regulators have taken a very negative view of it. So, if the business proceeds with its lawful plan, it can expect to be sued by the regulator, have its executives dragged across the country for lengthy depositions, its documents pawed through at cost of millions, anything else they find (even if unrelated to the original charge) used to hang them, or if only embarrassing and not illegal leaked to the press which will generate years of headlines about the business being “under investigation.”
The best possible outcome is that after years and years when the case finally reaches the real courts, they will be vindicated (but not be compensated for all their expense and aggravation). Worst case is that even the courts will ultimately defer to the regulators as many judges are wont to rather than doing the work of interpreting the law independently.
Whether to proceed with a lawful and profitable plan at that point is a business judgment for the client.
One other problem with our host’s proposal:
Consider the situation after Trump has given much of his fortune to an independent entity which he does not own or control (apart from the instructions originally given to it). Now Trump is elected and Pres. Trump has an opportunity to nominate a Supreme Court Justice.
At this point, an independent entity is offering to pay the President a large amount of money in return for nominating (or not nominating) certain people, an official act. That would seem to fall squarely within the federal code’s definition of bribery.
Perhaps a clever lawyer specializing in white collar crime (which I am not) could find a way to structure this in such a manner as to avoid a bribery charge, but given the wide scope of “anything of value” given in the law of bribery, it might not be possible.
But the basic idea is good. Politicians can only be trusted after giving a valuable hostage to be executed in case of bad behavior. One way to do that which avoids the bribery problem would be for the Presidential candidate to go on a TV show and say something along these lines straight into the camera:
“Attention, opposition researchers: make and keep a recording of what I am about to say. I swear to do this if elected. If I fail to uphold this oath, I ought to have the minimum decency at least to resign. And in case I should fail to resign, the House of Representatives ought to impeach me and the Senate ought to remove me on this ground alone.”
For any politician with more of a sense of integrity, or a following less indifferent to consistency, than Trump’s, the existence of such a clip ought to be a very powerful incentive to live up to their word.
Or you could realize that in the U.S. choices come down to 2 candidates for president and if you want a conservative justice, lower capital gains, less government spending, etc. then choice is clear.
The odds of Hilary Clinton supporting the above once elected is zero.
The odds of Donald Trump supporting the above once elected is greater than zero.
Steve, you have to also consider genuine cases where the politician changes their mind though. Suppose a politician makes a promise to scrap tuition fees, but then changes his mind at a later date by realising that, in actual fact, tuition fees might not be a bad idea, and that he was wrong initially. In such a case we might actually not mind such a promise break – in fact, many of us who understand economics would be glad.
Will A: And what are the relative chances that one or the other will support freer international trade?
@Will A
You make a valid point. As a matter of policy, Hillary is committed to moving in the wrong direction on most issues; Trump, after making strong statements in most directions on most issues, is practically uncommitted and could end up doing anything. Conceivably even the right thing!
But consider this:
Pres. Hillary will face unified Republican opposition on most issues in Congress and so will be prevented from doing most of the worst she wishes to do (unless a Trump landslide defeat decimates Republicans in Congress). Conversely, Pres. Trump will face unified Democratic opposition on doing anything helpful, even should he be so inclined.
But if Pres. Trump chooses to follow up some of his more destructive instincts (e.g., protectionism) not only will he have the support of most Democrats, but will carry a substantial number of Republicans on the basis of the (R) behind his name. On that basis, Pres. Trump seems the greater risk of moving policy far in the wrong direction.
Of course, all of the above is irrelevant in deciding whom to vote for because your vote is irrelevant to the election outcome. However, your vote may be highly relevant to how you come to feel about your own integrity. On that basis alone, not voting Trump is a no-brainer.
For what it’s worth, Sub Specie Æternitatis offers an account of a completely unreliable politician and the promises he failed to keep.
@ Professor Landsburg and to a certain extent @ Sub Specie Æternitatis
I don’t think I mentioned free trade in my list of items that would have a person favoring Trump.
In this election cycle (like most) if you are looking for freer trade, then you are probably out of luck.
Clinton was for the TPP and then against it. Trump wants to severely limit who can enter the country and redo our trade agreements, but he won’t say what that means.
So it is probably impossible to make an informed decision related to trade in which case you could flip a coin or vote based on another issue you care about where there seems to be a better chance of difference between the candidates.
In general, if you are looking for the U.S. to enter into a real free movement of services (i.e. workers) agreement, then you will probably be waiting for a long time.
Of course I’m not sure what freer trade means. Obama has been working on the TPP and Romney talked about starting a trade war with China.
Who in 2012 was the freer international trade choice in your opinions?
Interestingly enough, if you are a Keynesian, Trump might not be a bad choice.
Clinton would face a Republican opposition to any spending she proposed.
However, one can easily see in a world where Trump is elected president that anything Trump and Democrats agreed to would become law. I.e. congressional Republicans would fold.
The Democrats would go along with a compromise to build a huge border wall as long as the work was done with union workers (a strong Democratic and Trump base).
The Democrats would probably also agree to a compromise where the Democrats get increased infrastructure spending and Trump gets his name displayed prominently on every repaired bridge, school, etc. in the U.S.
Lol (you probably don’t get that term much on this blog). So I take back what I said on:
“if you want a conservative justice, lower capital gains, less government spending, etc.”
You can strike government spending as a difference between Trump and Clinton. A good argument could be made that a President Clinton with a Republican House is the combination that creates the lowest possible government spending.
I’ll try not to take up more space on this blog. As always though Prof. Landsburg, thanks for the thought provocation.
I feel like I am going to spend this election preaching the virtues of divided government.
This is a novel idea. For a politician like Bill Clinton, when he first ran, his greatest asset was future speaking fees in payment for influence if elected. How do you escrow that?
It actually was a blue moon this month. And right on cue, I agree with Will A!
“You can strike government spending as a difference between Trump and Clinton. A good argument could be made that a President Clinton with a Republican House is the combination that creates the lowest possible government spending.”
On a related note, I always thought that if I happened to attend a public Q&A in the early stages of Trump’s campaign, and got lucky enough to get to the mic and ask a question, I’d just say, “I’ll bet you $25,000 right now that you will drop out of the race.” I had assumed that if he took the bet, I’d have an easy $25,000 coming, since he had run several times before and always dropped out; whereas if he didn’t take the bet, it would prove to everyone that he shouldn’t be taken seriously.
Of course, since he went through with it this time, I should probably be grateful I never got to ask that question…
@ Ken B
Just curious Ken B what you think of the narrative of on the one hand rhetoric of, “Do we really want Donald Trump to have the nuclear codes”. And on the other hand, “Do we really want a president who is friends with Putin and has complimented Chinese and North Korea?”
It seems like a person who hasn’t expressed animosity toward the biggest nuclear threats is probably someone who wouldn’t be much of a risk of starting a nuclear war.
@Will A
What worries me most about Trump is actually that I have no clear sense of where he stands on such issues. A Romanian friend asked me if the Trump would defend his country against Russia. I think if the Russians did it in a way that cost the US or Trump to lose face he would. But I can also see him negotiating the country away to Putin in return for something elsewhere. Not reassuring!
I am, I imagine, in the minority here in thinking that Pax Americana is important. Trump sounds too “America first” for me to feel comfortable with him. (I am not endorsing Hillary! She has big problems too.)
“And what are the relative chances that one or the other will support freer international trade?”
Steve, you know better than to divide by zero.
And what worries me are all the topics where I DO have a clear sense.
I’m reminded of Mark Twain’s remark: “Most people are bothered by those passages of Scripture they do not understand — but the passages that bother me are those I do understand.”
@nobody.really Thanks for the call-out to my dormant blog above!
But on what topics do you have a clear sense of which policy Trump would choose?
For an ordinary politician, citing their public pronunciations might be a sufficient guide, but Trump has taken nearly every positions on nearly every subject, so merely quoting him saying that he will do X is not much probative evidence that he will or will not do X. (In other words, I’d hold all Trump testimony as inadmissible under Rule 401 as per se irrelevant).
@ Prof. Landburg
In thinking about “And what are the relative chances that one or the other will support freer international trade?”
It is pretty clear (to me at least) that the candidate who would do the most to propagate poverty for those living in the worlds poorest countries is Bernie Sanders.
Sanders’s position of only wanting to do trade with countries whose wages are on par with the U.S. would be devastating to the truly poor in the world.
Ha – fair enough. Now I’m reminded of another post on your blog, citing Macaulay’s review of “Southey’s Colloquies on Society”:
“We have, for some time past, observed with great regret the strange infatuation which leads [Southey] to abandon those departments … in which he might excel, and to lecture the public on sciences which he has still the very alphabet to learn. He has now, we think, done his worst. The subject which he has at last undertaken to treat is one which demands all the highest intellectual and moral qualities of a philosophical statesman, an understanding at once comprehensive and acute, a heart at once upright and charitable. Mr. Southey brings to the task two faculties which were never, we believe, vouchsafed in measure so copious to any human being – the faculty of believing without a reason, and the faculty of hating without a provocation.
* * *
Government is to Mr. Southey one of the fine arts. He judges of a theory, of a public measure, of a religious or a political party, of a peace or a war, as men judge of a picture or a statue, by the effect produced on his imagination. A chain of associations is to him what a chain of reasoning is to other men; and what he calls his opinions are in fact merely his tastes.
* * *
Now in the mind of Mr. Southey reason has no place at all, as either leader or follower, as either sovereign or slave. He does not seem to know what an argument is. He never uses arguments himself. He never troubles himself to answer the arguments of his opponents. It has never occurred to him, that a man ought to be able to give some better account of the way in which he has arrived at his opinions than merely that it is his will and pleasure to hold them. It has never occurred to him that there is a difference between assertion and demonstration, that a rumour does not always prove a fact, that a single fact, when proved, is hardly foundation enough for a theory, that two contradictory propositions cannot be undeniable truths, that to beg the question is not the way to settle it, or that when an objection is raised, it ought to be met with something more convincing than ‘scoundrel’ and ‘blockhead.’
It would be absurd to read the works of such a writer for political instruction.
* * *
We do not, however, believe that Mr. Southey would recommend such a course, though his language would, according to all the rules of logic, justify us in supposing this to be his meaning. His opinions form no system at all. He never sees, at one glance, more of a question than will furnish matter for one flowing and well turned sentence; so that it would be the height of unfairness to charge him personally with holding a doctrine, merely because that doctrine is deducible … from the premises which he has laid down. We are, therefore, left completely in the dark as to Mr. Southey’s opinions….”
@nobody.really:24
Perfect! I had thought to use these lines about Southey on Trump, but only re-reading them in your post did I realize how excellent the fit is.
Two distinctions I will draw between Southey and Trump though: (1) Southey was by all accounts in person a polite gentleman, a term rarely applied to Trump; and (2) Southey–for all his lack of rational thought–was a fine wordsmith while Trump’s public orations resemble nothing so much as an incoherent stream of consciousness.
Look at your choices. Trump has been much more consistent than Hillary Clinton, who has reversed herself on many issues. She has not said who she might appoint. Trump has gone farther than any other presidential candidate.
Interesting idea. How would one judge what constitutes breaking or keeping a promise? Would you believe a politician who stands to lose $1 million if he breaks a promise versus one who might lose, say, $10 billion? The earnings potential of those elected to high office is significantly greater than $1 million (Hillary Clinton has made about $23 million giving “speeches” over the past three years) but far less than $1 billion: who would one create a fair playing field?
“any politician with credibility issues”
That reads to me like “any politician with two or fewer legs.”