tag:theconversation.com,2011:/fr/topics/collusion-12043/articlesCollusion – The Conversation2019-04-08T10:45:17Ztag:theconversation.com,2011:article/1144172019-04-08T10:45:17Z2019-04-08T10:45:17ZFor the ‘political-infotainment-media complex,’ the Mueller investigation was a gold mine<figure><img src="https://images.theconversation.com/files/267877/original/file-20190405-180041-3yot88.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In the first year of 'Russiagate' coverage, the combined profits from Fox News, MSNBC and CNN increased by 13 percent.</span> <span class="attribution"><span class="source">Nick Lehr/The Conversation</span></span></figcaption></figure><p>Almost 60 years ago, President Dwight Eisenhower <a href="https://www.youtube.com/watch?v=8y06NSBBRtY">warned</a> of a new force that fed off and profited from Cold War paranoia: the military-industrial complex.</p>
<p>Over the past couple of years, with Russia reappearing on the airwaves, a new corporate sector profiting from induced anxiety poses just as big a threat. </p>
<p>Let’s call it the political-infotainment-media complex. </p>
<p>On March 22, Robert Mueller <a href="https://www.nbcnews.com/politics/justice-department/mueller-report-was-just-delivered-what-happens-now-n985986">delivered his sealed report</a> on the narrowly defined charge of “collusion” to Attorney General William Barr. After 22 months of hype – a period in which it was <a href="http://tyndallreport.com/yearinreview2017/">the most covered story in America</a> – “Russiagate” seemed to end with a whimper. Neither reporters nor the public have read the Mueller report, but that hasn’t stopped <a href="https://taibbi.substack.com/p/russiagate-is-wmd-times-a-million">rampant speculation</a> over what’s in the report, who “lost” and who “won.”</p>
<p>None of this analysis, however, explores the larger structural problems in today’s media environment. Why was this story covered to the extent it was? What does it say about the incentive model in place for corporate media outlets? </p>
<p><a href="https://bellisario.psu.edu/people/individual/matthew-jordan">As a media scholar</a> trying to understand today’s rapidly changing media landscape, I view the Mueller investigation coverage as a direct symptom of a political-infotainment-media complex that has blurred the lines between tabloid soap operas and respectable journalism. </p>
<h2>Infotainment is the hook</h2>
<p>To understand what happened with coverage of the Mueller investigation – and is already happening again in its second act – it’s important to understand the incentives of media networks, old and new. </p>
<p>In his seminal work “<a href="https://books.google.com/books?id=c3pK97NgNPIC&printsec=frontcover&dq=Television:+Technology+and+Cultural+Form&hl=en&sa=X&ved=0ahUKEwi3h8jIgbfhAhWvs1kKHfI0BxQQ6AEIKjAA#v=onepage&q&f=false">Television: Technology and Cultural Form</a>,” media critic Raymond Williams explained how, in the early days of television, people would often tune in for a single program and then turn off the TV. </p>
<p>But television networks soon figured out they could maximize advertising revenue if people watched all of a network’s shows, one after the other. TV producers, using commercials and promotions for other shows as a connective glue, strove to create a “flow” from one show to the next.</p>
<p>This cultivation technique is still on full display – we see it when cable news hosts pass the baton from one show to the next. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/yJoxohZ6MFg?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Rachel Maddow will ‘hand off’ to Lawrence O'Donnell, creating a seamless transition.</span></figcaption>
</figure>
<p>But there is also something new going on. Stories like the Mueller investigation transcend individual networks and play out across all outlets, with each adapting the storyline for its particular audience. Sustaining itself beyond a particular news cycle, the investigation has played out like one epic television series – a perfect example of how the political infotainment sector profits from serial stories with long narrative arcs, cliff hangers and periodic revelations. </p>
<p>The more convoluted the story, the more audiences are drawn to preferred networks to confirm their biases. The more outlets tease the “bombshell,” the more it feeds interest. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/267654/original/file-20190404-123397-dtfguj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">There were enough ‘bombshells’ in the coverage of the Mueller investigation to wipe out a city.</span>
<span class="attribution"><a class="source" href="https://media1.s-nbcnews.com/i/MSNBC/Components/Video/201901/n_msnbc_radford_mitchell_190113_1920x1080.jpg">MSNBC</a></span>
</figcaption>
</figure>
<h2>Speculation pays off</h2>
<p>For much of the past century, journalism was grounded in <a href="http://www.nupress.northwestern.edu/content/journalism-and-realism">restrained realism</a>, with dispassionate objectivity tied to professional norms.</p>
<p>But many of today’s mainstream media outlets follow something like the profit-minded business model of the original purveyor of “fake news,” <a href="https://theconversation.com/a-century-ago-progressives-were-the-ones-shouting-fake-news-90614">William Randolph Hearst</a>. Hearst sought to “fournish” a war that he could serialize and monetize, and he famously goaded the American public into war against Spain <a href="https://medium.com/covilian-military-intelligence-group/you-furnish-the-pictures-and-ill-furnish-the-war-67de6c0e1210">with disinformation dressed up as news</a>.</p>
<p>“Don’t be afraid to make a mistake,” <a href="https://books.google.com/books?id=n4p0O97RntAC&lpg=PA165&dq=%22don't%20be%20afraid%20to%20make%20a%20mistake%2C%20your%20readers%20might%20like%20it%22&pg=PA165#v=onepage&q=%22don't%20be%20afraid%20to%20make%20a%20mistake,%20your%20readers%20might%20like%20it%22&f=false">Hearst once advised</a>. “Your readers might like it.” </p>
<p>Today’s media business model doesn’t reward patience and scrupulous fact-checking. To do so is to risk missing out on clicks, eyeballs and ad revenue. </p>
<p>Furthermore, today’s outlets can easily profit from misinformation and speculation. </p>
<p>Each mistake – say, a front-page story about <a href="https://www.washingtonpost.com/world/national-security/russian-hackers-penetrated-us-electricity-grid-through-a-utility-in-vermont/2016/12/30/8fc90cc4-ceec-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.d0f403dfba5f">how the Russians hacked America’s electrical grid</a> – might require a retraction or an apology. But during its lifespan, that same mistake can boost profits, ratings and advertising revenue.</p>
<p>Once speculating about news is no longer seen as a problem and becomes a normal part of production, a whole new line of infotainment becomes available. </p>
<p>The Mueller investigation, which featured a tight-lipped investigator, created an enormous vacuum for speculation – for hundreds of round tables and panels featuring lawyers, politicians, political consultants and intelligence officers to theorize over the next twist, the latest clues and possible outcomes. Of course, it didn’t hurt that the story involved espionage, sex, celebrity, corruption and betrayal.</p>
<h2>Trolling for dollars</h2>
<p>With every subpoena, indictment or denial related to Trump’s connection to Russia, the dollars rolled in.</p>
<p>In the first year of Russiagate, total profits from cable news’ big three – Fox News, MSNBC and CNN – <a href="https://www.journalism.org/fact-sheet/cable-news/">increased by 13 percent</a>. </p>
<p>In 2018, during peak Mueller investigation coverage, MSNBC’s <a href="https://www.adweek.com/tvnewser/2018-ratings-fox-news-is-the-most-watched-network-on-cable-for-the-third-straight-year/387943">ratings rose by 10 percent during prime-time hours</a>. “The Rachel Maddow Show” rode the serial story to <a href="https://www.forbes.com/sites/markjoyella/2019/02/26/cable-news-ratings-rachel-maddow-is-no-1-and-so-is-sean-hannity/#ce8762d77301">the top ranking among the coveted 25- to 54-year-old demographic</a>. During one six-week period in July and August 2017, Maddow covered the story <a href="http://inthesetimes.com/article/21486/Robert-Mueller-russiagate-Trump-Rachel-Maddow">more than all other news topics combined</a>. </p>
<p>For 22 months, networks like CNN and MSNBC sold hope that a white knight would save the country from a corrupt villain, and that the looming event Twitter users dubbed “#MuellerTime” would lead to catharsis and relief. Ratings soared, so the network had no incentive to change its tune. </p>
<p>Hundreds of subsidiary media outlets emerged to meet the emotional needs of like-minded consumers with new content and repurposed bites that circulated through social media. Views and clicks increased. It didn’t matter whether media producers were agreeing with or inveighing against the Mueller-will-save-us storyline. The incentives guaranteed serial repetition.</p>
<p>Meanwhile, #Resistance Twitter stars like Seth Abramson fed followers open-sourced reports and pulled together various strands <a href="https://www.thedailybeast.com/resistance-twitter-star-seth-abramson-wants-to-turn-his-threads-into-a-book">to create coherent narratives</a> that he eventually spun into gold with his best-selling book “<a href="https://twitter.com/SethAbramson?lang=en">Proof of Conspiracy</a>.” Fans waited with baited breath for Abramson’s lengthy threads and responded with popcorn-eating gifs as they ate up his analysis in real time.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1079522200657510400"}"></div></p>
<p>Across the spectacular chasm dividing American politics, Fox News has also profited from Russiagate by pushing an epic defense narrative. Beginning each day with “Fox and Friends,” which <a href="https://www.politico.com/magazine/story/2018/01/05/trump-media-feedback-loop-216248">Trump often live-tweets to his 59.5 million followers</a>, the network has stoked audience rage with disinformation about villainous “deranged” Democrats besieging their celebrity savior to try to reverse the results of the 2016 election.</p>
<p>A pro-Trump audience has made Sean Hannity’s nightly show <a href="https://www.forbes.com/sites/markjoyella/2019/02/26/cable-news-ratings-rachel-maddow-is-no-1-and-so-is-sean-hannity/#ce8762d77301">number one in overall viewership</a> across cable news networks. These intensely loyal viewers managed their hopes and fears by scouring the internet to confirm Fox’s narrative, joining <a href="https://www.dailydot.com/layer8/right-wing-twitter/">like-minded media fans</a> to rage against the investigation using hashtags like <a href="https://twitter.com/hashtag/witchhunt?lang=en">#WitchHunt</a> or <a href="https://twitter.com/hashtag/RussiaHoax?src=hash&lang=en">#RussiaHoax</a>.</p>
<h2>Striking digital gold</h2>
<p>Media scholars are only beginning to come to term with <a href="https://doi.org/10.1177/1478929918807483">the significance</a> of this new mode of passionate engagement with politics through social media. </p>
<p>One thing is clear: Pro-Trump and pro-Mueller audiences have been a gold mine for social media outlets like Twitter.</p>
<p>In 2017, market analysis revealed that <a href="https://www.bloomberg.com/news/articles/2017-08-17/what-is-trump-worth-to-twitter-one-analyst-estimates-2-billion">roughly one-fifth of Twitter’s value was generated by Trump-related traffic</a>. “Russiagate” made Trump’s Twitter finger <a href="http://www.trumptwitterarchive.com/archive">particularly itchy</a> – he has tweeted the words “Witch Hunt” 185 times, “Mueller” 96 times and “collusion” 185 times. </p>
<p>The increased engagement pushed <a href="https://www.engadget.com/2018/10/25/twitter-q3-2018/">profits from its digital licensing division to $108 million</a> as the company sold data-driven predictions of users’ future behavior to would-be advertisers and political campaigns. </p>
<p>Perhaps the instant gratification and additional revenue stream of social media has pushed more traditional cable news outlets and newspapers into frothier, melodramatic territory to maximize their market potential.</p>
<p>But the political infotainment media complex doesn’t see speculation and melodrama as a journalistic problem that needs to be fixed; it’s a business model that’s becoming ingrained.</p>
<p>Until there can be a <a href="http://www.niemanlab.org/2018/12/we-will-finally-confront-systemic-market-failure/">public model for producing slower, less sensational and more careful journalism</a> – one that aims to separate truth from speculation and is inoculated from the quick lure of scooping-for-profit – Americans will be vulnerable to its unwarranted influence over political life. </p>
<p>For when the political-infotainment-media complex latches on to a serial story that feeds its profit centers, the stories that need to be covered for our democracy to properly function get left on the cutting room floor.</p>
<p>No matter what surprises or twists next season delivers, we’ll continue to miss the bigger picture.</p><img src="https://counter.theconversation.com/content/114417/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthew Jordan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For the rest of us, it’s another sign of the country’s eroding media and political landscape.Matthew Jordan, Associate Professor of Media Studies, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1142702019-03-26T22:15:43Z2019-03-26T22:15:43ZTrump and obstruction of justice: An explainer<figure><img src="https://images.theconversation.com/files/265951/original/file-20190326-36260-1906ubr.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Special counsel Robert Mueller reached no definitive conclusion about whether President Donald Trump obstructed justice in firing FBI Director James Comey or attacking his own investigation.</span> <span class="attribution"><span class="source">Reuters/Hyungwon Kang, AP Photo/Susan Walsh, Reuters/Jonathan Ernst, Twitter</span></span></figcaption></figure><p>Special counsel Robert Mueller did not find evidence that Trump or his campaign colluded with the Russian government to interfere in the 2016 U.S. presidential election. </p>
<p>But Mueller, who <a href="https://www.nytimes.com/2019/03/22/us/politics/mueller-report.html">submitted his report to the Department of Justice</a> on March 22 after nearly two years of investigation, did not determine whether the president had obstructed justice during the FBI’s investigation into his campaign. </p>
<p>“While this report does not conclude that the president committed a crime, it also does not exonerate him,” <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html#g-page-3">the special counsel stated</a>.</p>
<p><a href="https://www.nytimes.com/2019/03/24/us/politics/mueller-report-summary.html">Mueller’s report</a> has not been made public, but Attorney General William Barr does not share Mueller’s uncertainty about an obstruction charge. In a March 24 <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html?module=inline">letter to Congress summarizing Mueller’s findings</a>, Barr said he saw insufficient evidence to establish that the president had obstructed justice.</p>
<p>Democrats want to make their own determination about the evidence. They are now <a href="https://www.nbcnews.com/politics/congress/democratic-chairmen-call-barr-submit-mueller-report-congress-april-2-n987241">demanding</a> that Barr’s office release Mueller’s report by April 2.</p>
<p>Truthfully, obstruction of justice is a complicated matter. As a <a href="https://scholar.google.com/citations?user=UN4KCIEAAAAJ&hl=en&oi=ao">law professor and one-time elected official</a>, here’s my explanation of the crime – and its possible application to the president.</p>
<h2>What is obstruction of justice?</h2>
<p>According to <a href="https://www.law.cornell.edu/uscode/text/18/1505">federal law</a>, obstruction occurs when a person tries to impede or influence a trial, investigation or other official proceeding with threats or corrupt intent. </p>
<p>Bribing a judge and destroying evidence are classic examples of this crime. </p>
<p>Other actions may constitute obstruction, too, depending on the context. And some actions that look like obstruction of justice may not be, because the law requires an intention to obstruct as well. </p>
<p>President Trump did many things to influence investigations into him and his aides – but did he do so with “corrupt” intent?</p>
<p>After the FBI’s investigation of Russian election interference revealed that national security adviser Michael Flynn had lied, for example, Trump <a href="https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html">allegedly told FBI director James Comey</a>, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” </p>
<p>Flynn ultimately <a href="https://www.cnn.com/2017/12/01/politics/michael-flynn-charged/index.html">pleaded guilty</a> of lying to the FBI about his conversation with Russia’s ambassador – an obstruction of justice crime – and is <a href="https://www.nytimes.com/2018/12/18/us/politics/michael-flynn-sentencing.html">awaiting sentencing</a>.</p>
<p>Soon after, Trump <a href="https://www.cnn.com/specials/politics/james-comey-firing">fired Comey</a>, who was overseeing the FBI’s Russia probe.</p>
<h2>How to determine criminal intent</h2>
<p>That behavior may <a href="https://www.politico.com/magazine/story/2018/01/26/mueller-trump-obstruction-of-justice-russia-216532">constitute obstruction of justice</a>, but only if Trump pressured and later fired Comey for “<a href="https://www.lawfareblog.com/was-firing-james-comey-obstruction-justice">corrupt</a>” – meaning willfully improper – reasons. </p>
<p>Determining intent in an obstruction of justice case is often quite challenging for prosecutors, and it requires subjective judgment.</p>
<p>If Trump fired Comey in an effort to prevent the FBI from discovering incriminating information about him or his campaign, that would be “corrupt.”</p>
<p>Alternatively, Trump may have <a href="https://twitter.com/realDonaldTrump/status/985504808646971392">distrusted</a> Comey because he thought he handled the FBI’s investigation of Hillary Clinton poorly, and consequently fired him. That would be his right as head of the executive branch of government.</p>
<p>The president has offered <a href="https://www.latimes.com/politics/washington/la-na-essential-washington-updates-trump-s-statements-linking-russia-1494682462-htmlstory.html">both explanations</a> for <a href="https://www.theatlantic.com/politics/archive/2019/02/andrew-mccabe-fbi-book-excerpt-the-threat/582748/">dismissing Comey</a>. </p>
<p>In a May 2017 interview with NBC News, the president <a href="https://www.reuters.com/article/us-usa-trump-russia/trump-seeks-to-backtrack-on-2017-comments-on-comey-firing-idUSKCN1LF19Q">said</a>, “Regardless of recommendation, I was going to fire Comey” because of “this Russia thing.” </p>
<p>A few minutes later he <a href="https://www.apnews.com/db90fe2d11b0499b87cc0e5c22e52251">said</a> he fired Comey because “he’s the wrong man for that position.”</p>
<p>The objective of Trump’s statement to Comey about “letting Flynn go” is similarly ambiguous. </p>
<p>If the president was merely stating his hope that Flynn would escape the investigation unscathed, it would not constitute obstruction. But if this was Trump’s way of ordering Comey to clear Flynn, it would.</p>
<h2>Other evidence of obstruction</h2>
<p>Sometimes a single action or statement, standing alone, does not constitute obstruction of justice. But, when taken together with other actions, it creates a pattern of behavior that demonstrates corrupt intent.</p>
<p>For example, Trump <a href="https://www.nytimes.com/interactive/2019/02/19/us/politics/trump-attacks-obstruction-investigation.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer">publicly attacked</a> Mueller, his investigation and other federal investigations into his campaign more than 1,100 times between March 2018 and Feb. 14, 2019, according to The New York Times. </p>
<p>Trump has the constitutional right to mount a “<a href="https://blogs.wsj.com/law/2006/11/10/why-do-defendants-always-mount-a-vigorous-defense/">vigorous defense</a>” to potential criminal charges and, under the <a href="https://www.law.cornell.edu/constitution/first_amendment">First Amendment</a>, to voice his opinions.</p>
<p>But the president’s behavior toward Comey looks more damning when viewed alongside his efforts to discredit the special counsel’s work. </p>
<h2>Obstruction can occur even without collusion</h2>
<p>Because it can be so difficult to discern a person’s intent, prosecutors often charge obstruction combined with other related charges. </p>
<p>In 1974, when the House of Representatives filed charges against <a href="http://watergate.info/impeachment/articles-of-impeachment">President Richard Nixon</a> as part of the impeachment process, it accused him of obstructive conduct that also violated other laws, including his authorizing <a href="https://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/050174-2.htm">payments to buy the silence of potential witnesses</a> – bribery.</p>
<p>Nixon resigned and was given a <a href="https://www.vox.com/2014/8/7/5970967/what-was-watergate-scandal-nixon">presidential pardon for these crimes</a>.</p>
<p>Similarly, in 1998, when the House of Representatives impeached <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/articles122098.htm?noredirect=on">President Bill Clinton</a> on obstruction charges, it also charged him with perjury. He was acquitted on both counts.</p>
<p>While other charges are common in obstruction cases, they are not required. A person can be guilty of obstruction even when they are not trying to cover up their other misconduct.</p>
<p>This is important in Trump’s case because, in Barr’s view, if the president did not collude with Russia – as Mueller concluded – then there was nothing to obstruct.</p>
<p>“The evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” Barr <a href="https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html">wrote</a> to Congress, “and … the absence of such evidence bears upon the President’s intent with respect to obstruction.”</p>
<p>Legally, however, obstruction can still occur even in the absence of an underlying crime. President Trump might have interfered in the FBI and special counsel investigations not to protect himself from collusion charges but to protect members of his family or inner circle. </p>
<p>Ultimately, seven Trump operatives were <a href="https://abcnews.go.com/Politics/breakdown-indictments-cases-muellers-probe/story?id=61219489">indicted during Mueller’s investigation</a>. </p>
<h2>What happens next?</h2>
<p>If Congress receives the full Mueller report, lawmakers will assess all evidence gathered during the 22-month special counsel investigation and together with their own investigation, make a determination about whether Trump obstructed justice.</p>
<p>They may agree with Barr that Trump did not intend to obstruct justice. But if there is a strong case that he committed that crime, Trump likely won’t face charges while in office because Department of Justice <a href="https://www.justice.gov/file/19351/download">guidelines</a> state that sitting presidents should not be prosecuted. </p>
<p>If obstruction charges are merited, therefore, Congress would have to raise them during an impeachment proceeding – a process House Speaker Nancy Pelosi so far <a href="https://www.washingtonpost.com/news/magazine/wp/2019/03/11/feature/nancy-pelosi-on-impeaching-president-trump-hes-just-not-worth-it/">opposes</a>.</p>
<p>Alternatively, Trump could be charged with obstruction after he leaves office.</p><img src="https://counter.theconversation.com/content/114270/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Between 2002 and 2008, David Orentlicher served in the Indiana House of Representatives. He ran for Congress in 2015 as a Democrat.</span></em></p>Legally, a person can obstruct justice even if he committed no other crime – though it is harder to prove. It all depends on the intent behind pressuring investigators, say, or firing an FBI director.David Orentlicher, Professor of Law and Co-Director, Health Law Program, University of Nevada, Las VegasLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1121792019-02-25T12:28:20Z2019-02-25T12:28:20ZAlgorithms are maximising profits for online retailers by colluding to keep prices high<figure><img src="https://images.theconversation.com/files/260416/original/file-20190222-195876-1054uxt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/portrait-angry-beautiful-young-woman-wearing-1279989073?src=L5O2zW8U5jBNTZG1MHcCcQ-1-27">Dean Drobot/Shutterstock</a></span></figcaption></figure><p>Have you ever searched for a product online in the morning and gone back to look at it again in the evening only to find the price has changed? In which case you may have been subject to the retailer’s pricing algorithm.</p>
<p>Traditionally when deciding the price of a product, marketers consider its value to the buyer and how much similar products cost, and establish if potential buyers are sensitive to changes in price. But in today’s technologically driven marketplace, things have changed. Pricing algorithms are most often conducting these activities and setting the price of products within the digital environment. What’s more, these algorithms may effectively be colluding in a way that’s bad for consumers.</p>
<p>Originally, online shopping was hailed as a benefit to consumers because it allowed them to easily compare prices. The increase in competition this would cause (along with the growing number of retailers) would also force prices down. But what are known as <a href="https://www.researchgate.net/publication/318596610_Pricing_and_Revenue_Management">revenue management pricing systems</a> have allowed online retailers to use market data to predict demand and set prices accordingly to maximise profit. </p>
<p>These systems have been exceptionally popular within the hospitality and tourism industry, particularly because hotels have fixed costs, perishable inventory (food that needs to be eaten before it goes off) and fluctuating levels of demand. In most cases, revenue management systems allow hotels to quickly and accurately calculate ideal room rates using sophisticated algorithms, past performance data and current market data. Room rates can then be easily adjusted everywhere <a href="https://www.revfine.com/important-online-distribution-channels-hotels/">they’re advertised</a>.</p>
<p>These revenue management systems have led to the term “<a href="https://link.springer.com/article/10.1057/s41272-018-0147-z">dynamic pricing</a>”. This refers to online providers ability to instantly alter the price of goods or services in response to the slightest shifts in supply and demand, whether it’s an unpopular product in a full warehouse or an Uber ride during a late-night surge. Accordingly, today’s consumers are becoming more comfortable with the idea that prices online can and do fluctuate, not just at sale time, but several times over the course of a single day.</p>
<p>However, new <a href="https://mislove.org/publications/Amazon-WWW.pdf">algorithmic pricing programmes</a> are becoming far more sophisticated than the original revenue management systems because of developments in artificial intelligence. Humans still played an important role in revenue management systems by analysing the collected data and making the final decision about prices. But algorithmic pricing systems largely work by themselves.</p>
<p>In the same way that in-home voice assistants like Amazon Echo <a href="https://www.sas.com/en_gb/insights/analytics/machine-learning.html">learn about their users</a> over time and change the way they operate accordingly, algorithmic pricing programmes learn through experience of the marketplace.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/260418/original/file-20190222-195879-1fgxine.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/260418/original/file-20190222-195879-1fgxine.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=431&fit=crop&dpr=1 600w, https://images.theconversation.com/files/260418/original/file-20190222-195879-1fgxine.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=431&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/260418/original/file-20190222-195879-1fgxine.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=431&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/260418/original/file-20190222-195879-1fgxine.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=541&fit=crop&dpr=1 754w, https://images.theconversation.com/files/260418/original/file-20190222-195879-1fgxine.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=541&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/260418/original/file-20190222-195879-1fgxine.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=541&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Pricing algorithms constantly watch other online shops.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/woman-shopping-clothes-online-731340991?src=R8prMHWFwoVBkoL_WEzAJw-1-19">Kaspar Grinvalds/Shutterstock</a></span>
</figcaption>
</figure>
<p>The algorithms study the activity of online shops to learn the economic dynamics of the marketplace (how products are priced, normal consumption patterns, levels of supply and demand). But they can also unintentionally “talk” to other pricing programmes by constantly watching the price points of other sellers in order to learn what works in the <a href="https://cepr.org/active/publications/discussion_papers/dp.php?dpno=13405">marketplace</a> </p>
<p>These algorithms are not necessarily programmed to monitor other algorithms in this way. But they learn that it’s the best thing to do to reach their goal of maximising profit. This results in an <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2591874.36">unintended collusion</a> of pricing, where prices are set within a very close boundary of each other. If one firm raises prices, competitor systems will immediately respond by raising theirs, creating a colluded non-competitive market. </p>
<p>Monitoring the prices of competitors and reacting to price changes is normal and legal activity for businesses. But algorithmic pricing systems can take things a step further by setting prices above where they would otherwise be in a <a href="https://arxiv.org/pdf/1802.08061.pdf">competitive market</a> because they are all operating in the same way to maximise profits.</p>
<p>This might be good from the perspective of companies but is a problem for consumers who have to pay the same everywhere they go, even if prices could be lower. Non-competitive markets also result in less innovation, <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/443448/Productivity_and_competition_report.pdf">lower productivity</a> and ultimately less economic growth. </p>
<h2>What can we do?</h2>
<p>This poses an intriguing question. If programmers have (unintentionally) failed to prevent this collusion from happening, what should happen? In most countries, tacit collusion (where companies don’t directly communicate with each other) isn’t currently seen as an illegal activity.</p>
<p>However, the companies and their developers could still be held responsible as these algorithms are programmed by humans and have the ability to learn how to communicate and exchange information with competitor algorithms. The <a href="http://europa.eu/rapid/press-release_IP-17-201_en.htm">European Commission</a> has warned that the widespread use of pricing algorithms in e-commerce could result in artificially high prices throughout the marketplace, and the software should be built in a way that doesn’t <a href="https://www.freshfields.com/globalassets/our-thinking/campaigns/digital/mediainternet/pdf/freshfields-digital---pricing-algorithms---the-digital-collusion-scenarios.pdf">allow it to collude</a>.</p>
<p>But as long as the algorithms are programmed to deliver the greatest profit possible, and can learn how to do this independently, it may not be possible for programmers to overcome this collusion. Even with some restrictions put in place, the algorithms may well learn ways to overcome them as they look for new ways to meet their objective.</p>
<p>Attempting to control the market environment to prevent conscious price monitoring or market transparency will also undoubtedly result in more questions and create new problems. With this in mind, we need to better understand this kind of machine learning and its capabilities before we bring in new regulations.</p><img src="https://counter.theconversation.com/content/112179/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Graeme McLean does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The AI behind retail websites has learnt the best strategy is to copy each other’s prices – and that can see them ‘collude’ to keep them high.Graeme McLean, Lecturer in Marketing, University of Strathclyde Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1118062019-02-18T13:08:27Z2019-02-18T13:08:27ZThe public may never see a report from Mueller’s investigation<figure><img src="https://images.theconversation.com/files/259165/original/file-20190214-1736-14ds33w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Will the public ever see a report from Special Counsel Robert Mueller?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/174784997?src=fddcud85MIapyBoGDVTgkw-1-95&size=huge_jpg">Shutterstock</a></span></figcaption></figure><p>Almost from the day of <a href="https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russia-investigation.html">Robert Mueller’s appointment as special counsel</a>, the media and the public have expected that his investigation will end <a href="https://www.washingtonpost.com/outlook/2018/11/12/congress-made-starr-report-public-it-shouldnt-hide-muellers/?utm_term=.3a11eec47ebf">with a report to either the Congress or the public</a> or both. </p>
<p>I’m a <a href="https://dickinsonlaw.psu.edu/academics/faculty/resident-faculty/stanley-brand">law school professor who teaches</a> a course on the <a href="https://www.pbs.org/wgbh/pages/frontline/shows/counsel/office/history.html">independent counsel, the predecessor of the special counsel</a>. </p>
<p>For eight years, I was the general counsel for the U.S. House of Representatives, the chief legal officer responsible for representing the House, its members, officers and employees in connection with legal procedures and challenges to the conduct of their official activities.</p>
<p>I believe that the public’s expectation that they will see a report from the Mueller investigation is unrealistic. That expectation appears to be based on a misunderstanding of the legal principles involved in making any such report available to anyone outside of the Department of Justice.</p>
<h2>Regulation reflects history</h2>
<p>The previous law creating special counsels – which has now lapsed – directed the special counsel to report to the House of Representatives <a href="https://www.law.cornell.edu/uscode/text/28/595">“substantial and credible information”</a> of impeachable conduct. </p>
<p>The <a href="https://www.govinfo.gov/content/pkg/CFR-2016-title28-vol2/pdf/CFR-2016-title28-vol2-part600.pdf">current regulation</a>, adopted during the Clinton administration, provides no such direction. </p>
<p>It says only that “[a]t the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report” <a href="https://www.law.cornell.edu/cfr/text/28/600.8">explaining the decision to either prosecute or not.</a> </p>
<p>The goal of those <a href="https://www.nytimes.com/2018/08/23/podcasts/the-daily/mueller-trump-congress.html">drafting the regulation</a> was to restore more control to the department over the special counsel after <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel030299.htm">what was seen as the excesses</a> of previous <a href="https://www.brown.edu/Research/Understanding_the_Iran_Contra_Affair/e-policing.php">independent counsels in the Iran Contra</a> and <a href="https://www.washingtonpost.com/wp-srv/politics/special/counsels/stories/counsel030299.htm">Clinton cases</a>.</p>
<p>Those excesses included overly broad and lengthy investigations such as <a href="https://library.cqpress.com/cqalmanac/document.php?id=cqal90-1113631#H2_3">the HUD Independent Counsel,</a> which took eight years to complete; expensive investigations, including <a href="https://www.politifact.com/truth-o-meter/statements/2018/may/23/donald-trump/mueller-probe-costing-20-million-donald-trump-says/">US$52 million estimated in one case</a>; and oppressive prosecutorial tactics, like <a href="https://www.washingtonpost.com/archive/politics/1998/02/12/lewinskys-mother-overcome-by-emotion-during-testimony/46ca3376-b1ed-4c99-8797-8c3e59198c61/?utm_term=.95ae9d32c086">subpoenaing Monica Lewinsky’s mother</a> to the grand jury.</p>
<p>Former Department of Justice official Neal Katyal, who drafted the regulations, has explained that returning a degree of control over the process to the Department of Justice would result in a restoration of the separation of powers balance between the executive branch and Congress in these cases. </p>
<p>“The special counsel regulations were drafted at a unique historical moment,” <a href="https://www.washingtonpost.com/posteverything/wp/2017/05/19/politics-could-still-block-muellers-investigation-i-know-i-wrote-the-rules/?utm_term=.2d93c5014dff">wrote Katyal in the Washington Post</a>. </p>
<p>“Presidents of both parties had suffered through scandals and prosecutions under the Independent Counsel Act…There was a chance to rethink things without either party fearing that it would give its political adversaries an advantage.” </p>
<h2>Grand jury mum</h2>
<p>Perhaps more importantly, much of any “Mueller report” would almost inevitably reveal materials presented during the grand jury proceedings. Yet federal law dictates that <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">grand jury proceedings are secret</a>.</p>
<p><a href="https://fas.org/sgp/crs/secrecy/R45456.pdf">There are exceptions</a>. Grand jury materials, for example, such as testimony and documents can be revealed in connection with a judicial proceeding at the request of the government, for state or Indian tribal law enforcement purposes, attorney disbarment proceedings or in connection with a violation of military criminal law. </p>
<p>But they can’t be revealed to Congress or the public unless under these exceptions. </p>
<p>The Department of Justice has vigorously opposed, in court, efforts by Congress to obtain such materials. In connection with the <a href="https://catalog.hathitrust.org/Record/010515417">congressional investigation of the E.F. Hutton</a> mail and wire fraud case in the 1980s, a <a href="https://fas.org/sgp/crs/misc/RL34197.pdf">congressional committee subpoenaed records</a> that had been reviewed by the grand jury and the Department of Justice filed an action to prevent disclosure.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259164/original/file-20190214-1758-1i6usvb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">FBI Director James Comey gave a roundly criticized press conference in 2016 to discuss not filing charges against Hillary Clinton.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Clinton-Emails/f72a7276fe7b46b99723fe9ed51d53c3/134/0">AP/Cliff Owen</a></span>
</figcaption>
</figure>
<p>Grand jury records and prosecutors’ decisions about individual cases <a href="https://www.law.cornell.edu/rules/frcrmp/rule_6">are shielded from public view</a> to protect those who may have been investigated but not charged. </p>
<p>The press conference about <a href="https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-clinton2019s-use-of-a-personal-e-mail-system">the investigation into Hillary Clinton’s emails held</a> by former FBI Director James Comey in July 2016 was widely criticized by former Department of Justice officials and prosecutors of both parties for deviating from this policy. </p>
<p>Comey acknowledged he was departing from normal procedure. </p>
<p>“This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would,” said Comey. </p>
<p>Some critics have linked Hillary Clinton’s election defeat to the statements by Comey that Clinton was “extremely careless,” even though he determined she did not commit offenses for which she should be prosecuted. </p>
<p>Rod Rosenstein, the deputy attorney general, <a href="https://ig.ft.com/trump-comey-memo/">explained the policy best</a>. Comey “laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook case example of what prosecutors…are taught not to do.”</p>
<p>Given all these limitations, in the words of NYU professor and <a href="https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.biography&personid=19943">legal ethicist Stephen Gillers</a>, the prosecutor has two choices: “<a href="https://www.nytimes.com/2017/03/24/nyregion/bill-de-blasio-campaign-finance.html">Indict or shut up</a>.” </p>
<h2>Big exception</h2>
<p>Finally, there is the Watergate precedent. </p>
<p>The grand jury investigating Watergate prepared a sealed report, with <a href="https://www.washingtonpost.com/local/public-safety/us-archivists-release-watergate-report-that-could-be-possible-road-map-for-mueller/2018/10/31/841cc938-dbb5-11e8-85df-7a6b4d25cfbb_story.html?utm_term=.066fb6ee8270">assistance from special counsel Leon Jaworski</a>, and requested permission from the court to <a href="https://www.lawfareblog.com/watergate-road-map-and-coming-mueller-report">release it to the House Judiciary Committee</a>. </p>
<p>The committee had requested such a report as necessary for its impeachment inquiry into crimes Nixon was <a href="https://www.nytimes.com/1974/08/09/archives/the-case-against-richard-nixon-a-catalogue-of-charges-and-his.html">alleged to have committed related to the Watergate burglary</a>. </p>
<p><a href="https://www.casemine.com/judgement/us/59149695add7b049345e3e4d">The court determined</a> that Rule 6(e) permitted transmission to the House, despite its restrictions on disclosure and no unambiguous exception for disclosure to Congress. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=925&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=925&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=925&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1162&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1162&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259161/original/file-20190214-1717-t2td44.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1162&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">U.S. District Court Judge John Sirica, who ruled in 1974 that a grand jury report could be shared with a congressional committee investigating Watergate.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Watchf-Associated-Press-Domestic-News-Dist-of-/f5e03a41ed854e2f8e878ce35288603e/29/0">AP</a></span>
</figcaption>
</figure>
<p>Nixon did not challenge the decision. The public did not, however, see it for decades. It remained sealed until 2018, <a href="https://www.washingtonpost.com/local/public-safety/us-archivists-release-watergate-report-that-could-be-possible-road-map-for-mueller/2018/10/31/841cc938-dbb5-11e8-85df-7a6b4d25cfbb_story.html?utm_term=.51d2e844e2a7">when a judge released most of it</a> in response to a lawsuit. </p>
<p>The release of the Watergate grand jury’s report happened under a very narrow and specific set of circumstances related to a House committee’s impeachment investigation. It remains a serious legal question whether release to Congress of the Mueller grand jury’s deliberations would be barred by the law.</p>
<p>No such House proceeding is yet underway to determine whether the president should be impeached. And there are a lot of “ifs” that would apply were such a committee to request access to any Mueller grand jury report: Even if impeachment of Trump were to be considered by the House, if the committee requested grand jury records, if the grand jury wanted to provide the House with testimony and if a judge allowed it, it is unlikely that Trump would respond as Nixon did and fail to appeal the decision. </p>
<p>Of course, Congress could attempt to subpoena the report. That would undoubtedly produce prolonged litigation.</p>
<p>None of this is to say that the “Mueller report” will not ultimately see the light of day. </p>
<p>Rather, there are significant legal and procedural hurdles to overcome in making it public and no clear precedent which can be relied on to predict such an outcome.</p><img src="https://counter.theconversation.com/content/111806/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stanley M. Brand does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Will the public ever see a report from Robert Mueller’s investigation of possible collusion between the Trump campaign and Russia? Maybe not. There are big legal hurdles to making it public.Stanley M. Brand, Distinguished Fellow in Law and Government, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1012872018-09-24T10:21:18Z2018-09-24T10:21:18ZSomething’s going on here: Building a comprehensive profile of conspiracy thinkers<figure><img src="https://images.theconversation.com/files/237506/original/file-20180921-129844-14x1gmj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A man holding a Q sign, a reference to a conspiracy theory group, waits to enter a campaign rally with President Trump, Aug. 2, 2018, in Wilkes-Barre, Pa.</span> <span class="attribution"><span class="source">AP/Matt Rourke</span></span></figcaption></figure><p>Here’s a theory: President Barack Obama was not born in the United States. Here’s another: Climate change is a hoax. Here’s one more: The “deep state” spied on Donald Trump’s campaign, and is now trying to destroy his presidency. </p>
<p>Who believes this stuff? Conspiracy theories have been cooked up for ages, but for the first time in history, we have a president who has <a href="https://www.nytimes.com/video/us/politics/100000004236529/donald-trumps-conspiracy-theories.html">regularly endorsed them</a>. Assuming that President Donald Trump’s preoccupation is genuine, he shares it with many fellow Americans. What explains it? </p>
<p>I’m <a href="https://muse.union.edu/psychology/joshua-hart/">a psychologist who studies</a>, among other things, people’s worldviews and belief systems. I wanted to figure out why some people gobble up conspiratorial explanations, while others dismiss them as the raving of lunatics.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/237507/original/file-20180921-129868-isb6k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/237507/original/file-20180921-129868-isb6k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=439&fit=crop&dpr=1 600w, https://images.theconversation.com/files/237507/original/file-20180921-129868-isb6k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=439&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/237507/original/file-20180921-129868-isb6k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=439&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/237507/original/file-20180921-129868-isb6k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=552&fit=crop&dpr=1 754w, https://images.theconversation.com/files/237507/original/file-20180921-129868-isb6k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=552&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/237507/original/file-20180921-129868-isb6k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=552&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">In 2012, Maricopa County Sheriff’s Office investigator Mike Zullo announced in Phoenix that President Obama’s birth certificate was a forgery.</span>
<span class="attribution"><span class="source">AP/Matt York</span></span>
</figcaption>
</figure>
<h2>Consistency in views</h2>
<p>By and large, people gravitate toward conspiracy theories that seem to affirm or validate their political views. Republicans are vastly more likely than Democrats to <a href="https://www.nbcnews.com/politics/2016-election/poll-persistent-partisan-divide-over-birther-question-n627446">believe</a> the Obama “birther” theory or that <a href="https://calthomas.com/columns/climate-change-hoax-exposed">climate change is a hoax</a>. Democrats are more likely to believe that Trump’s campaign <a href="http://nymag.com/daily/intelligencer/2018/07/trump-putin-russia-collusion.html">“colluded”</a> with the Russians.</p>
<p>But some people are <a href="http://journals.sagepub.com/doi/abs/10.1177/1065912915621621">habitual conspiracists</a> who entertain a variety of generic conspiracy theories.</p>
<p>For example, they believe that world politics are controlled by a cabal instead of governments, or that scientists systematically deceive the public. This indicates that personality or other individual differences might be at play.</p>
<p>In fact, some people seem to be downright devoted to conspiracy theories. When conspiracy maven <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/08/06/this-is-why-alex-jones-has-been-able-to-get-away-with-exploiting-social-media/">Alex Jones’ content</a> was recently banned from several social media websites, the popularity of his Infowars news app <a href="https://www.nytimes.com/2018/08/07/us/politics/alex-jones-infowars-sandy-hook.html">skyrocketed</a>. </p>
<p>Scientific research examining the nature of the “conspiratorial disposition” is abundant, but scattershot. So in a <a href="https://econtent.hogrefe.com/doi/abs/10.1027/1614-0001/a000268">pair of new studies</a>, and with help from my student Molly Graether, I tried to build on previous research to piece together a more comprehensive profile of the typical conspiracy theory believer, and for that matter, the typical non-believer.</p>
<h2>Common traits</h2>
<p>We asked more than 1,200 American adults to provide extensive information about themselves and whether they agreed with generic conspiratorial statements. We tried to measure as many personal factors as possible that had been previously linked to conspiracy belief. Looking at many traits simultaneously would allow us to determine, all else being equal, which ones were most important.</p>
<p>Consistent with <a href="https://www.sciencedirect.com/science/article/pii/S0191886915001725">previous research</a>, we found that one major predictor of conspiracy belief was “<a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4373633/">schizotypy</a>.” That’s a constellation of traits that include a tendency to be relatively untrusting, ideologically eccentric and prone to having unusual perceptual experiences (e.g., sensing stimuli that are not actually present). The trait borrows its name from schizophrenia, but it does not imply a clinical diagnosis. </p>
<p>Schizotypy is the strongest predictor of conspiracy belief. In addition to experiencing the world in unusual ways, we found that people higher in schizotypy have an elevated <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/ejsp.2265">need to feel unique</a>, which has previously been linked with conspiracism. Why? Probably because believing in non-mainstream ideas allows people to stand out from their peers, but at the same time take refuge in a community of like-minded believers.</p>
<p>In our studies, conspiracy believers were also disproportionately concerned that the world is a dangerous place. For example, they were more likely to agree that “all the signs” are pointing to imminent chaos.</p>
<p>Finally, conspiracists had distinct cognitive tendencies: They were more likely than nonbelievers to judge nonsensical statements as profound – for example, <a href="https://www.washingtonpost.com/news/wonk/wp/2015/12/01/the-kinds-of-people-who-confuse-total-nonsense-for-something-really-deep/?utm_term=.ff6b8bf658e9">“wholeness quiets infinite phenomena”</a> – a tendency cheekily known as “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3023545">bullshit receptivity</a>.” </p>
<p>They were also more likely to say that nonhuman objects – triangle shapes moving around on a computer screen – were acting intentionally, as though they were capable of having thoughts and goals they were trying to accomplish.</p>
<p>In other words, they inferred meaning and motive where others did not.</p>
<h2>Is Trump a conspiracy thinker?</h2>
<p>Although we can’t know how he would score on our questionnaires, President Trump’s public statements and behavior suggest that he fits the profile fairly well.</p>
<p>First, he does display some schizotypal characteristics. He is famously untrusting of others. Donald Trump Jr. has described how his father used to admonish him <a href="https://www.newyorker.com/news/our-columnists/donald-trumps-donald-jr-problem">in kindergarten</a> not to trust anyone under any circumstances. The elder Trump is also relatively eccentric. He is a unique politician who doesn’t hew consistently to <a href="https://www.dallasnews.com/news/politics/2018/01/14/shattered-norms-trump-changed-presidency-forever">party lines or political norms</a>. He has espoused unusual ideas, including the theory that people have a limited lifetime reservoir of energy that <a href="https://www.theatlantic.com/health/archive/2017/05/trumps-unfitness/526677/">physical exercise depletes</a>. </p>
<p>President Trump also seems to see the world as a dangerous place. His campaign speeches warned about <a href="https://www.nytimes.com/2016/09/02/us/politics/transcript-trump-immigration-speech.html">murderous rapist immigrants</a> flooding across the border and black communities being in <a href="https://www.washingtonpost.com/news/post-politics/wp/2016/09/20/african-americans-are-in-the-worst-shape-theyve-ever-been-trump-says-in-north-carolina/">“the worst shape”</a> they’ve ever been. His inauguration address described a hellish landscape of “<a href="https://www.whitehouse.gov/briefings-statements/the-inaugural-address/">American carnage</a>.”</p>
<h2>Chaos needs comfort</h2>
<p>The dismal nature of most conspiracy theories presents a puzzle to psychologists who study beliefs, because most belief systems – think religion – are fundamentally optimistic and uplifting. Psychologists have found that people tend to adopt such beliefs in part because they <a href="http://journals.sagepub.com/doi/abs/10.1177/0963721417718261">fulfill emotional goals</a>, such as the need to feel good about oneself and the world. Conspiracy theories don’t seem to fit this mold. </p>
<p>Then again, if you are a person who looks at the world and sees chaos and malevolence, perhaps there is comfort in the notion that there is someone to blame. If “there’s something going on,” then there is something that could be done about it. </p>
<p>Perhaps, then, even the darkest and most bizarre conspiracy theories offer a glint of hope for some people. </p>
<p>Take the “<a href="https://www.nbcnews.com/tech/tech-news/what-qanon-guide-conspiracy-theory-taking-hold-among-trump-supporters-n897271">QAnon</a>” theory that has recently received a flurry of media attention. This theory features a nightmare of pedophile rings and satanic cults. But some adherents have adopted a version of the theory that President Trump has it all <a href="https://www.vox.com/policy-and-politics/2018/8/1/17253444/qanon-trump-conspiracy-theory-reddit">under control</a>.</p>
<p>If our research advances the understanding of why some people are more attracted to conspiracy theories than others, it is important to note that it says nothing about whether or not conspiracy theories are true. </p>
<p>After the <a href="https://www.history.com/topics/1970s/watergate">Watergate scandal</a> brought down a president for participating in a criminal conspiracy, the American public learned that seemingly outlandish speculation about the machinations of powerful actors is sometimes right on the money. </p>
<p>And when a conspiracy is real, people with a conspiracist mindset may be among the first to pick up on it – while others get duped. The rub is that the rest of the time, they might be duping themselves.</p><img src="https://counter.theconversation.com/content/101287/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joshua Hart does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Some people are habitual conspiracy thinkers – there’s a plan behind everything, and it’s usually malevolent. One scientist set out to understand who is likely to ascribe to these theories.Joshua Hart, Associate Professor of Psychology, Union CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1031092018-09-17T18:39:33Z2018-09-17T18:39:33Z‘Resistance’ to Trump and the 25th Amendment: impeachment by insiders?<p>The anonymous op-ed piece published September 5 in the <em>New York Times</em>, <a href="https://www.nytimes.com/2018/09/05/opinion/trump-white-house-anonymous-resistance.html">“I am part of the resistance inside the Trump administration”</a>, offered the “cold comfort” that there are “adults in the room” restraining President Trump from his worst “inclinations”. Those working in the White House who do not fully support Trump have the option of resigning and publicly signing their denunciation. But they stay, remaining loyal to an agenda of tax cuts, deregulation and a strengthened military that, “despite the president’s leadership style”, they feel they can move forward.</p>
<p>Ordinary US citizens or members of the military can wonder about the strength provided by a White House where the commander in chief is being secretly outmaneuvered by his staff. They can also judge the merit of cutting the taxes of the rich while <a href="https://www.washingtonpost.com/news/energy-environment/wp/2018/02/12/trump-budget-seeks-23-percent-cut-at-epa-would-eliminate-dozens-of-programs/">gutting the EPA</a> and other regulatory agencies. The author gives the impression that this situation might be tolerable until 2025, the end of a potential second Trump mandate.</p>
<p>If those who are part of the “resistence” inside the White House won’t resign, there are two Constitutional ways of removing a president. Indeed, these officials swore to uphold the Constitution before they swore to restrain Trump, so why don’t they use <a href="http://theconversation.com/impeaching-donald-trump-will-not-remove-him-from-office-94369">impeachment</a> or the 25th Amendment to do the job in an open, legal way?</p>
<h2>The 25th Amendment: tool of insiders</h2>
<p>The anonymous letter of September 5 specifically mentions the <a href="https://www.law.cornell.edu/constitution/amendmentxxv">25th Amendment of the US Constitution</a>. Section 4 of the amendment states that members of the Cabinet can turn power over to the vice president with a majority vote. Clearly, this would be the tool for White House insiders who wish to retain power for the Republican party. The authors dismiss this method, stating that there is no precedent for using Section 4 and if used it would certainly end in a “constitutional crisis”. But what does the admission of this White House plot mean for the future of this government?</p>
<p>As early as February 2017, journalists and pundits discussed Trump’s fitness for office in legal and procedural terms. David Brooks of the <em>New York Times</em> thought Trump <a href="https://www.nytimes.com/2017/02/17/opinion/what-a-failed-trump-administration-looks-like.html">wouldn’t even last a single term</a> and Steve Benen of MSNBC looked into the <a href="http://www.msnbc.com/rachel-maddow-show/why-the-25th-amendment-suddenly-getting-so-much-attention">history of the 25th Amendment</a>. That was in the first month of the Trump administration. Now that people <em>inside</em> the White house are discussing the 25th Amendment, how much we closer are we to Trump’s being removed from office?</p>
<h2>The 25th Amendment in history</h2>
<p>The first purpose of the Amendment, ratified in 1967, was to clear up ambiguities in the Constitution about the transfer of power to the vice president because of the president’s death, inability to serve or resignation (Article II, Section 6). The first three sections deal with procedures and titles. But Section 4 of the amendment adds new ambiguities to a situation that the original framers of the Constitution did not imagine.</p>
<p><strong>Section 1</strong>: Clarifies the title of the vice president as he takes charge. When John Tyler took over from the dead president William Henry Harrison in 1841, he insisted on the title “president”, and so has every promoted vice president since. Section 1 of the 25th Amendment gave this practice Constitutional standing.</p>
<p><strong>Section 2</strong>: Describes how to appoint a new vice president when the vice president has moved up, something not mentioned in the original Constitution and that had left the position vacant a number of times.</p>
<p><strong>Section 3</strong>: Elucidates transferring power when the president is alive and present but incapacitated, a problem introduced by Woodrow Wilson’s stroke in 1919. For many months, Mrs. Wilson shunted in and out of the president’s darkened bedroom interpreting his words for members of the government. She and his doctor obscured how ill Wilson was and Congress failed to addressed the problem after he died. During Dwight Eisenhower’s mandate, his medical conditions required him and Vice President Richard Nixon to sign agreements turning power over to Nixon until Eisenhower returned to his duties. The arrangement reassured the public but wasn’t sanctioned by the Constitution. John Kennedy’s assassination, which gave no time for special agreements, underlined the problem. The 25th Amendment, adopted during the Johnson administration, was the solution to all of these problems.</p>
<p><strong>Section 4</strong>: It provides for the promotion of a vice president to the office of president without the consent of the elected president and without his death or resignation. Because it was imagined for a case such as Kennedy’s assassination, where an unconscious president might recover, it allows a president to reclaim his office when he considers himself fit. Hence the certainty of a power struggle should Section 4 be used to dispose of a president who is conscious, active and unwilling to leave office. Needless to say, it has yet to used.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/236710/original/file-20180917-158222-15dzga1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/236710/original/file-20180917-158222-15dzga1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=336&fit=crop&dpr=1 600w, https://images.theconversation.com/files/236710/original/file-20180917-158222-15dzga1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=336&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/236710/original/file-20180917-158222-15dzga1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=336&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/236710/original/file-20180917-158222-15dzga1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=422&fit=crop&dpr=1 754w, https://images.theconversation.com/files/236710/original/file-20180917-158222-15dzga1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=422&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/236710/original/file-20180917-158222-15dzga1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=422&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">During President Dwight Eisenhower’s mandate, he and Vice President Richard Nixon signed agreements turning power over to Nixon until Eisenhower returned to his duties.</span>
<span class="attribution"><span class="source">Nixon Foundation</span></span>
</figcaption>
</figure>
<h2>The past uses of the 25th Amendment</h2>
<p>The 25th Amendment has come into play six times since Watergate.</p>
<p>Section 2 allowed Richard Nixon to name Gerald Ford to the post of vice president when Spiro Agnew resigned from the post amid a raft of corruption charges. Ford was confirmed by Congress at the end of 1973. When Richard Nixon was forced to resign the presidency in 1974, Ford became president and not acting president with the blessing of Section 1, though he had been named to the post by the man who had just left under a cloud and still lived. Ford pardoned Nixon and named Nelson Rockefeller to be vice president under Section 2, the third time the 25th Amendment was used.</p>
<p>Section 3 was first evoked in the letter written by Ronald Reagan in 1985 when he made his vice president, George H.W. Bush, acting president while he underwent surgery. In 2002 and again in 2007, George W. Bush more formally used Section 3 to name Dick Cheney as acting president during medical examinations involving anaesthesia. In both those cases, the acting presidency lasted no more than a couple of hours.</p>
<h2>The thorny issue of Section 4</h2>
<p>According to Section 4, the vice president and a “majority of the principle officers of executive departments”, usually called the Cabinet, can vote to send a declaration to the House of Representatives and the Senate saying that the president is not fit to serve. At that moment, the vice president becomes the acting president. However, the president can write his own declaration at any time stating that there is no impediment to his holding office and resume his duties at once. If it were a matter of a president regaining consciousness after an accident or sudden illness, this would make perfect sense, putting the elected president in charge of this transfer.</p>
<p>Section 4, however, allows a determined Cabinet and vice president to question the president’s decision and send another declaration of presidential unfitness to serve within four days of the president’s. At that point, both houses of Congress have 21 days to deliver a two-thirds majority confirming the president’s unfitness and thus the vice president’s ascension. Congress has an extra two days for this if it is not in session.</p>
<h2>The not-so-mysterious anonymous letter</h2>
<p>The possibility of vice presidential, Cabinet and staff disloyalty was probably only conceived of by the framers of the amendment as a political struggle. Hence the sensible, if sly, mention and dismissal of the 25th Amendment in the anonymous <em>New York Times</em> op-ed. They hold up the spectre of the chaos that could result from Section 4 being used to show that they are numerous enough, possibly a majority of the Cabinet, to do so if they wished.</p>
<p>The author backs away from that possibility because it would throw the question into the House and Senate, where two-thirds majorities would have to include Democrats. This would be Impeachment without the trial. It is conceivable that the Democrats might wish to remove Trump by Impeachment, but they certainly would not do so in favour of an unelected Republican cabal of Trump appointees. They would want the trial and exposure of Impeachment discrediting Republicans. Given Trump’s behaviour up to now, he would certainly not be passive in all this.</p>
<h2>Bypassing impeachment to keep the upper hand within a majority under threat</h2>
<p>Section 4 of the 25th Amendment is not a serious possibility in the present case. The person or group in the White House who conceived of the letter to <em>The New York Times</em> is trying out something else, unprecedented. Convinced that the Republican Party has been weakened by Trump and that this weakness will become manifest in the November election, they are asking their base and their financial supporters to maintain them in power.</p>
<p>To be effective, they need continued support by majorities in the House of Representative and the Senate. These Republicans have done their arithmetic and made their calculations. The House of Representatives, which traditionally shifts away from the president’s party at mid-term elections, <a href="https://projects.fivethirtyeight.com/2018-midterm-election-forecast/house/">will almost certainly give a majority to the Democrats in November</a>. In January, when those new Representatives take their seats, the pressure and temptation to vote on the some version of the Articles of Impeachment – including those <a href="https://abcnews.go.com/Politics/democrats-introduce-articles-impeachment-president-trump/story">filed in late 2017</a> – will be overwhelming.</p>
<p>Those articles will be based on charges of Trump’s receiving emoluments from foreign powers (Article I, Section 9, Clause 8 of the Constitution), which will be persuasive given his extensive international real estate empire. There will be charges about communications between Trump’s campaign and foreign powers to influence public opinion and subvert the election of 2016 based on the growing information from the Mueller investigation. Buy now the Mueller investigation has convinced many that Trump is at least an “unindicted co-conspirator” in connection to some charges. That is what <a href="https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-confirms.html">Richard Nixon was called</a> when Republican senators started to desert him.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/236711/original/file-20180917-158234-4o0but.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/236711/original/file-20180917-158234-4o0but.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/236711/original/file-20180917-158234-4o0but.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/236711/original/file-20180917-158234-4o0but.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/236711/original/file-20180917-158234-4o0but.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=487&fit=crop&dpr=1 754w, https://images.theconversation.com/files/236711/original/file-20180917-158234-4o0but.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=487&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/236711/original/file-20180917-158234-4o0but.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=487&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Thanks to the 25th Amendment, Vice President Gerald Ford became president in 1974 when Richard Nixon resigned. He later pardoned Nixon and named Nelson Rockefeller to be vice president, also under the 25th Amendment.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Pardon_of_Richard_Nixon#/media/File:President_Ford_announces_his_decision_to_pardon_former_President_Richard_Nixon_-_NARA_-_7140608.jpg">Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Impeachment: a political tool of outsiders</h2>
<p>What the letter’s anonymous author or authors cannot do is to use impeachment to remove Trump, because it is the tool of the party opposed to the president. It has been <a href="https://theconversation.com/a-friendly-reminder-impeaching-donald-trump-will-not-remove-him-from-office-94369">used several times</a> and in the case of Richard Nixon, the House Judiciary Committee’s voting for Impeachment Articles led to the president’s resignation. But the Democrats were in control of the House of Representatives and thus leading the charge against Republican Richard Nixon. In the case of Bill Clinton, a Republican House of Representatives with a Republican-dominated Judiciary Committee voted for Impeachment Articles and actually sent them to the Senate for trial.</p>
<p>Why did Nixon resign while Clinton stood trial in the Senate? The legal qualities of the cases against the two presidents were important, but far more important was relative party strength in the two houses. The Impeachment Articles voted against Nixon passed after years of Watergate scandal, lost court cases and other battles – Republicans were abandoning Nixon, and joined Democrats in the committee vote. When he resigned, Nixon knew that the same thing would happen when the House voted. After the <a href="http://watergate.info/1972/06/23/the-smoking-gun-tape.html">“smoking gun tape”</a> – where Nixon and staff discuss the cover-up days after the Watergate burglary – was released on June 23, 1972, just days before his resignation, he could count on only 15 Republican votes for acquittal. He needed 34.</p>
<p>This letter to the <em>New York Times</em> indicates that some in the White House don’t believe that Republican senators, in the majority at present, will necessarily stay loyal to Trump in an Impeachment proceeding. Meanwhile, in the midterm elections, where only one third of Senators are up for election, and where by chance, many Republican seats are among the safe two-thirds and many Democratic seats are being challenged, several upsets are expected: a Democrat may win in West Virginia where Trump won by 40%, and another may win in Texas where Trump won by 9%. This will not be enough to give the Democrats in the Senate, where an impeachment proceeding takes place, a two-thirds majority necessary for conviction unless some Republicans join them.</p>
<p>When the letter’s authors state that “like-minded colleagues [who] have vowed to thwart parts of [Trump’s] agenda and his worst inclinations”, they can’t just be appealing to the Trump base, which still supports him. They can’t just be appealing to the super-rich Trump supporters who benefit most from the tax cuts and deregulation of banking and environmental measures and the rest because at this point, they can’t ensure a majority in the House.</p>
<p>The author or authors write knowing that some shake-up will come, but with the assurance that whether Trump is impeached and convicted, impeached and just embarrassed for a while or sidelined some other way, they will remain in the White House, defending the Republican agenda. Impeachment with an unlikely conviction and Trump’s removal will result in a Mike Pence administration. The unlikely successful application of the 25th Amendment Section 4 will result in the same thing. The letter assures those who understand it, that even now the US government is in the hands of senior White House officials, the most senior of which is, of course, Vice President Mike Pence. It’s an appeal to Republican senators not to do what they did as Impeachment Articles were assembled and voted for against Nixon. They can abandon Trump secretly and preserve the power of the Republican party, the same way that people within the White House have.</p><img src="https://counter.theconversation.com/content/103109/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Meigs a reçu des financements de l'Université de Paris Diderot et du LARCA(UMR 8225). </span></em></p>The claim of “resistance” inside the White House offers the possibility of government by Trump appointees who prefer to keep their positions rather than publicly denounce a man they disapprove of.Mark Meigs, Professeur d'Histoire et civilisation US, Université Paris CitéLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1019732018-08-22T02:48:52Z2018-08-22T02:48:52ZWith Cohen and Manafort both guilty, the pressure on Trump is rising<figure><img src="https://images.theconversation.com/files/233017/original/file-20180822-149493-1242pry.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protestor outside the Virginia courtroom where Paul Manafort was convicted of fraud on Tuesday.</span> <span class="attribution"><span class="source">Michael Reynolds/EPA</span></span></figcaption></figure><p>The <a href="https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=span-ab-top-region&region=top-news&WT.nav=top-news">guilty pleas</a> by Michael Cohen, Donald Trump’s former lawyer and fixer, and <a href="https://www.nytimes.com/2018/08/21/us/politics/paul-manafort-trial-verdict.html">conviction</a> of Paul Manafort, Trump’s former campaign manager, this week no doubt deepen the US president’s legal problems.</p>
<p>Occurring nearly simultaneously in separate courtrooms, the developments were the most dramatic yet in the <a href="https://theconversation.com/explainer-what-is-a-special-counsel-and-what-will-he-investigate-in-the-trump-administration-77952">ongoing investigation</a> into Russian interference in the 2016 US elections.</p>
<p>But do they pose an existential risk to Trump’s presidency? This obviously depends how special counsel Robert Mueller’s investigation continues to develop in Washington. But in terms of how damaging Tuesday’s events are for Trump, there are competing schools of thought. </p>
<h2>Things are looking bad for Trump</h2>
<p>The Manafort verdict was the first time Mueller’s investigation has been tested in court. Trump has spent months deriding this “witch-hunt” against him, but even witches get a trial and Manafort largely, though not completely, lost his. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1030940529037651968"}"></div></p>
<p>Manafort was convicted of <a href="https://www.wsj.com/articles/paul-manafort-jury-trial-verdict-day4-1534861860">eight of the 18 charges</a> he faced relating to tax and bank fraud with his personal finances. Manafort was Trump’s campaign manager in 2016, though his crimes largely predate that three-month tenure. While Manafort’s convictions are not directly related to Mueller’s probe into Russian interference in the 2016 elections, the impression the Trump campaign was staffed by white-collar criminals is now much stronger.</p>
<p>Manafort <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/08/19/paul-manaforts-complicated-ties-to-ukraine-explained/?utm_term=.948ee997072f">was also in the pay</a> of a Russian-backed leader in Ukraine, former President Viktor Yanukovych. When Yanukovych was <a href="https://www.washingtonpost.com/world/europe/ukraines-yanukovych-missing-as-protesters-take-control-of-presidential-residence-in-kiev/2014/02/22/802f7c6c-9bd2-11e3-ad71-e03637a299c0_story.html?utm_term=.b96f4a248d02">ousted from office</a> in 2014, that source of income dried up, forcing Manafort to find new and nefarious ways to support his lavish lifestyle. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/q-a-why-is-paul-manafort-on-trial-and-what-does-it-mean-for-donald-trump-100399">Q+A: Why is Paul Manafort on trial and what does it mean for Donald Trump?</a>
</strong>
</em>
</p>
<hr>
<p>The problem for Trump is the possible nexus between himself, Manafort and Putin that Manafort’s guilty verdicts could expose. That will likely be tested when the former campaign chair <a href="https://edition.cnn.com/2018/08/16/app-politics-section/mueller-manafort-evidence-next-trial/index.html">goes on trial in Washington</a> next month for his alleged crimes linked to his Ukraine consultancy.</p>
<p>Cohen’s plea bargain also makes a possible charge against Trump more stickable. Importantly, Cohen has gone further than anyone else in <a href="https://www.newyorker.com/news/current/jon-ossoff-on-how-to-talk-about-special-elections-and-the-ohio-twelfth">directly implicating</a> Trump as a co-conspirator in some of his actions. If Trump did authorise his former personal lawyer to <a href="https://www.bbc.com/news/world-us-canada-45265546">pay off women</a> with whom he had had extramarital affairs and told him to do so in order not to derail his 2016 presidential campaign, he may be guilty of campaign finance violations, at the very least.</p>
<p>Together, the legal travails of Manafort and Cohen bring the Mueller investigation into the White House. It has so far just been banging on the windows. Trump has been able to skirt the malfeasance of his former advisors through the court of public opinion. The problem is that the United States is a government of laws and of actual courts that <a href="https://twitter.com/realDonaldTrump">bully-pulpit tweets</a> cannot indefinitely protect him from.</p>
<h2>This won’t hurt Trump that much (at least, not yet)</h2>
<p>Trump has earned a sort of immunity by profusion. He commits so many <a href="https://www.theguardian.com/us-news/2018/jul/19/very-aggressive-trump-suggests-montenegro-could-cause-world-war-three">faux pas</a>, is <a href="https://abcnews.go.com/Politics/trump-blame-sides-charlottesville-now-anniversary-puts-spot/story?id=57141612">politically incorrect</a> so often, skirts potential legal issues so frequently, that no one transgression ever seems to stick. </p>
<p>Former President Richard Nixon committed one clear crime and <a href="https://www.telegraph.co.uk/news/0/watergate-nixon-impeached/">paid the price</a>. But what is Trump actually guilty of? Having dubious business and political associates? What president hasn’t had those? </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-friendly-reminder-impeaching-donald-trump-will-not-remove-him-from-office-94369">A friendly reminder: impeaching Donald Trump will not remove him from office</a>
</strong>
</em>
</p>
<hr>
<p>Sexual relations with women other than his wife? <a href="https://en.wikipedia.org/wiki/Bill_Clinton_sexual_misconduct_allegations">Bill Clinton did as much</a> and is regarded as one of the most successful presidents of recent years.</p>
<p>Trump’s supporters also don’t care about any of this. Many see the trials of Manafort and Cohen as the elite going after Trumps’s associates because they can’t land a glove on their hero. </p>
<p>This popular sentiment is a vital currency for the Trump administration. He has thus far <a href="https://www.washingtonpost.com/news/politics/wp/2018/07/24/why-is-trump-so-much-more-popular-with-republicans-than-past-presidents/?utm_term=.ba9392100d8e">remained enormously popular</a> with his base, despite the gathering legal clouds. He is particularly adept at exploiting his victim-in-chief status. The most powerful man in the world is protected in the court of public opinion by his victimhood – a remarkable state of affairs.</p>
<p>And another important point: there is still <a href="https://apnews.com/ea3e3e6b24034a88b3f397e77028c73e/Q&A:-What-Cohen's-plea,-Manafort's-verdict-mean-for-Trump">no clear crime</a> that would make Trump impeachable. There is still not enough in the Manafort verdict and Cohen plea bargain to force Republicans to desert the man on whom their <a href="https://www.reuters.com/article/us-usa-election-republicans/its-trumps-party-now-and-us-republicans-could-pay-in-november-idUSKBN1J937X">fortunes</a> in the November midterm elections (and beyond) depend.</p>
<p>American politics is about to become even more partisan and personal because the legal stakes have just gotten higher. Are they high enough to end the Trump presidency, though? Probably not. There is some way to go and many more days in court before we can answer that with any confidence.</p><img src="https://counter.theconversation.com/content/101973/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy J. Lynch does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The legal travails of Paul Manafort and Michael Cohen bring the Mueller investigation into the White House.Timothy J. Lynch, Associate Professor in American Politics, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1014622018-08-21T13:44:25Z2018-08-21T13:44:25ZInquiry sets out how parts of the private health care sector in South Africa can be fixed<figure><img src="https://images.theconversation.com/files/232462/original/file-20180817-165943-p5tvvc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>A <a href="http://www.compcom.co.za/healthcare-inquiry">Health Market Inquiry</a> into South Africa’s private health care sector has established that the market is dominated by a few players. In such an environment, non-competitive behaviour such as collusion and excessive pricing tends to <a href="https://theconversation.com/why-the-dominance-of-big-players-is-bad-for-south-africas-economy-92058">thrive</a>. These dominant firms withhold key information which leaves consumers disempowered and at the mercy of monopolistic enterprises.</p>
<p>South Africa’s medical schemes market reflects acute domination by a few players. A few examples illustrate this. Among a total of 22 medical schemes open to the public, one scheme, Discovery Health Medical Scheme, is home to 55% of all medical scheme beneficiaries. Among the administrators contracted by medical schemes to manage and administer medical insurance, two companies – Discovery Health and Medscheme – account for 76% of total gross contribution income. And as much as 83% of private hospital beds are owned by the three large hospital groups: Netcare, Mediclinic and Life.</p>
<p>On top of this a handful of big corporations have controlling stakes in the few players that dominate the private health care industry, with some individuals serving as directors on the boards of multiple companies. </p>
<p>The report argues that the lack of competitive pressure feeds high prices for medical goods and services. The situation is made worse by information asymmetry – customers know much less than the companies offering the services – which makes for uninformed consumers. </p>
<h2>Closing the gap</h2>
<p>The report makes recommendations to close this information gap under five broad themes:</p>
<p>Standard benefit packages: Medical schemes should be required to offer a similar standard benefit package. This will allow those purchasing medical insurance to make better informed choices based on value-for-money.
This should cover prescribed minimum benefits as well as cost-effective out-of-hospital care and primary and preventive health care.</p>
<p>In this way, consumers can easily compare the prices of the basic option offered by different schemes and make decisions based on value-for-money. The coverage offered under this package will be exempt from co-payments to medical schemes or additional billing by providers. </p>
<p>Reimbursement and pay for performance: Doctors and specialists are currently paid for every individual service provided to the patient on a reimbursement basis, called fee-for-service payment. This often results in overuse and over-prescription, known as supply-induced demand. The problem of supply-induced demand is worsened by the fact that the prices of medical services are unregulated.</p>
<p>This needs to change and alternative ways to reimburse doctors and specialists needs to be found that links the service they offer to how they perform. </p>
<p>Medical brokers: The position and role of brokers in the South African medical aid industry has been <a href="https://theconversation.com/why-south-africa-needs-to-discipline-the-private-healthcare-industry-100410">precarious</a>. For one, its not clear whose side they’re on as they are often paid by and working for only one specific scheme which dilutes their objectivity.</p>
<p>And the fact that the majority of consumers are allocated a broker by default, through a practice called opt out, is highly problematic.</p>
<p>The report recommends that the opt out practice should be changed to one that allows people to opt in. Scheme members will be able to exercise their choice of making use of the services of a medical broker – or not – on an annual basis. </p>
<p>Clients without brokers will pay proportionally lower scheme membership fees. They will also be able to directly engage with medical schemes rather than through brokers, including applying for membership.</p>
<p>Disclosure of information: The report recommends that customers must be given far more information than is currently the case. This should include, for example, details on the costs of particular care. And, as a matter of course, service providers should declare their interests in facilities being used. For example, a service provider should provide the patient with information on their shareholding in the facility where the service is being provided. They must also declare their financial interest in any product they use, dispense or prescribe.</p>
<p>Another recommendation is that all fee-for-service tariffs should be published and displayed at each place where patients make contact with the health care system. This includes the consulting rooms of doctors and specialists as well as hospital reception areas. Other information of interest and value to the clients of private medical schemes should also be put in the public domain. This could include information on the results and value of adopting alternative methods to pay health care providers.</p>
<p>Information on administrative costs and income from broker fees should also be published by the Council for Medical Schemes on an annual basis.</p>
<p>Voice and participation: The report calls for consumer activism. This includes attendance by scheme members of their insurer’s Annual General Meeting. </p>
<p>The report also calls for activism by civil society organisations. These can make representations to the proposed forum responsible for setting fee-for-service tariffs.</p>
<h2>The long road ahead</h2>
<p>A number of factors will determine how fast, and how far, change takes place.</p>
<p>Certainly, the legislative changes needed to make it possible for the inquiry’s recommendations to be implemented will take time. And the success of many of the initiatives will ultimately depend on buy-in from medical schemes, scheme administrators, and medical practitioners. </p>
<p>Equally critical will be the capacity to effectively manage and to hold accountable new institutions – such as a Supply-Side Regulator – as proposed in the report.</p><img src="https://counter.theconversation.com/content/101462/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frederik Booysen does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Findings from South Africa’s Health Market Inquiry makes recommendations to close the information gap between service providers and consumers.Frederik Booysen, Professor of Economics: School of Economic and Business Sciences Frederik Booysen, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1002272018-07-27T11:43:27Z2018-07-27T11:43:27ZOxford-style debate: Morning-after reflections on the ephemerality of Trump<figure><img src="https://images.theconversation.com/files/228301/original/file-20180718-142408-p5x0hx.JPG?ixlib=rb-1.1.0&rect=0%2C11%2C1500%2C956&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Michelle Mielly, Grenoble Ecole de Management.</span> <span class="attribution"><span class="license">Author provided</span></span></figcaption></figure><p><em>This article, the third in the Oxford-style debate series based on the motion <a href="https://theconversation.com/fake-news-meets-fact-in-an-oxford-style-debate-revival-96253">“The impact reflected by Trump is here to stay”</a>, argues against the motion, focusing on the fleeting, transitory spirit captured in Trump’s presidency. The second article in this series <a href="https://theconversation.com/oxford-style-debate-a-toast-to-trumps-new-wage-america-and-tomorrows-hangover-97135">“A Toast to Trump’s New-Wage America… And Tomorrow’s Hangover”</a>, expounds the economic rationale for the motion. Here is the response to the second article.</em></p>
<hr>
<h2>Foreword</h2>
<p>I ask you to vote against the motion that states “The impact reflected by Trump is here to stay” for three main reasons. First, <em>deep and implicit biases</em> cause us to overestimate the power of this current phase of our political life, and therefore predict the future impact incorrectly and irrationally. Secondly, <em>emotions</em> played a significant role in the US elections and aftermath. The viral nature of social media’s reach resulted in an emotional contagion that has intensified the polarisation of Republicans and Democrats and their perceptions of the impact reflected by Trump. Third, the impact of Trump is much more ephemeral than we think today because research on social norms demonstrates that <em>we can focus our efforts to shift social norms</em> back in another direction through the use of the same social media tools led to Trump’s rise.</p>
<p>Trump’s entry into the White House came as a surprise to many, particularly highly educated, urban voters who scoffed at his blustery hyperbole and confidently noted the 4-point lead that Clinton enjoyed in the polls up until Election Day. Now, 20 months and much disbelief later, we can ponder what has happened so far, and the potential impacts.</p>
<p>There’s no denying that Trump’s rise to power has changed the face of American politics and taught us something about the fragility of our democracy – and the power of the unexpected. The rise of a real-estate tycoon turned reality-TV star to the highest office of American politics indeed evoked unparalleled emotions on the left and the right in the US. The heated emotions that this spectacle continues to raise actually parallels a longstanding, legitimate frustration of a large portion of American workers who lost their jobs to <a href="https://www.everycrsreport.com/files/20110121_RL32292_052f3d33cf65dbf3091bffbb714fada7940dc475.pdf">offshoring, outsourcing, or automation</a> and saw their <a href="https://www.brookings.edu/multi-chapter-report/revitalizing-wage-growth-policies-to-get-american-workers-a-raise/">wages stagnate or decline</a> for decades. My colleagues have established these facts very well in <a href="https://theconversation.com/oxford-style-debate-a-toast-to-trumps-new-wage-america-and-tomorrows-hangover-97135">their arguments on the “great decoupling</a>” of income and growth.</p>
<p>What’s more, the <a href="http://www.pewresearch.org/packages/political-polarization/">“hyper-polarisation” of the American electorate</a> has been going some time now; and as early as 1998, critics like <a href="http://www.hup.harvard.edu/index-maint.html?isbn=9780674003125&content=reviews">Richard Rorty</a> condemned the erosion of the Democrats’ support for the poor and the working classes, predicting that sooner or later the American left would witness a spectacular rise in “Weimar Republic-like” populism. Critics noted in 2014 that the Democrats were not so different from Republicans in their increasingly <a href="https://www.forbes.com/sites/stevenhayward/2014/01/08/how-did-the-democrats-become-the-party-of-the-rich/">cosy relations with the super-rich patrons</a> who support the party and ensure its financial backing. In hindsight then, the 2016 election of Trump should not have caused such surprise. It is a logical consequence of the divisive, rancorous relationship between the Republicans and Democrats. As <a href="https://www.sciencedirect.com/science/article/pii/S0261379415001857">recent electoral research</a> has demonstrated, the only thing new here is the degree of negativity that each side is feeling for the other – and it has increased.</p>
<p>Our opponents argue that the effects of Donald Trump’s ascension will be long-lasting and indelible in our political landscape. We would like to examine this perspective, and the arguments behind them, and bring a different set of issues to the table. Because we have no way of knowing what will happen in this volatile <a href="https://triple-c.at/index.php/tripleC/article/view/835/0">Twitter-populist presidency</a>, we cannot predict if the effects will be long-lasting, but with my colleague <a href="https://en.grenoble-em.com/annuaire/gazi-islam">Gazi Islam</a>, we’d like to think that they are not as long-lasting as you think today…</p>
<h2>Impact bias</h2>
<p>Biases begin in <a href="https://sites.fas.harvard.edu/%7Emrbworks/articles/2009_Baron_SPPC.pdf">early childhood</a>, when we start to understand what social groups we belong to, and internalise assumptions about our role in the world around us. In other words, we have <a href="https://www.rutgersuniversitypress.org/learning-race-learning-place/9780813554297">learned a lot of the biases</a> from our immediate community, which is human and part of our survival.</p>
<p>Another aspect of our survival instinct is to <em>overestimate the importance of events at the moment they occur</em>. We see our survival differently depending on our political tendency, as <a href="http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0052970">recent research</a> on Conservatives’ vs. Liberals’ brains has demonstrated. Behavioural science has taught us that decision-making and prediction-making under uncertainty mobilises our emotions, which often lead to <a href="http://psycnet.apa.org/record/1974-02325-001">irrational choices</a> and false judgments. We also tend to <em>overestimate the enduring impact of emotion-causing events</em>, and set a value on those events. Otherwise known as the <a href="http://journals.sagepub.com/doi/abs/10.1111/j.0956-7976.2004.00704.x?journalCode=pssa">impact bias</a>, people miscalculate what will happen in the <em>future</em> based on how they feel in the <em>present</em>. Today we are overwhelmed with <a href="https://arxiv.org/abs/1702.05638">hyperpartisan</a> information on social media and in the news, and we tend to react before we think.</p>
<p>It is therefore first important to recognise the powerful role of biases in our political identities. The question is not “are we biased”, but rather <em>how are our biases impacting our emotions and political passions</em>?</p>
<h2>The role of emotions</h2>
<p>We have experienced acute emotional contagion in our American political identity. Trump has used <a href="http://www.tandfonline.com/doi/abs/10.1080/15295036.2016.1266686">emotional rhetoric</a> to inflame both sides of the spectrum, with the campaign vitriol lingering over friends and family members who no longer speak to each other at the <a href="https://www.nytimes.com/2016/11/16/us/political-divide-splits-relationships-and-thanksgiving-too.html">Thanksgiving table</a>, or <a href="https://www.reuters.com/article/us-usa-trump-relationships-insight/from-disputes-to-a-breakup-wounds-still-raw-after-u-s-election-idUSKBN15M13L">families breaking up</a> over their political differences.</p>
<p>It has been demonstrated that social media had a huge role to play in these emotional break-ups, and unwittingly, we now know that those Twitter tweets and Facebook posts were being created and shared by humans and bots alike. Meme farms in distant countries churned out images and fake news to fan the flames, and many of us kept on re posting, liking, and sharing them – or being outraged by them. Angry online groups <a href="https://www.abc-clio.com/ABC-CLIOCorporate/product.aspx?pc=A4541C">pitted fellow citizens against each other</a> as the new enemy to take down. Interestingly, while we were squabbling and infighting, we helped a more traditional enemy, the Russians, <a href="https://www.sciencedirect.com/science/article/pii/S0262407916317869">infiltrate and influence our election</a>. We were the unwitting accomplices of Russian hackers.</p>
<p>With the passage of time, other events will occur that alter or change the current emotional state and the focus will shift to other issues. Social media can be used to accelerate that process.</p>
<p>I’d like to remind everyone that just as we were influenced, we can counter influence. The emotional roller coaster that brought Trump into the White House can be the same one that takes him on the ride all the way outside of the White House in 2020.</p>
<h2>The volatility of social norms</h2>
<p>The third point is that if we maintain a struggle to not let this be the new normal, then we can appreciate the fact that social norms actually change much faster than biases, which are persistent and implicit. <a href="http://journals.sagepub.com/doi/abs/10.1177/0956797617709594">Elizabeth Paluck’s work</a> on social norms and the impact of the voice of authority has shown us consistently how important it is to have community leaders who model a given behaviour or attitude, either condoning a leader, or condemning his or her actions. She shows us how easily social norms can shift if figures of authority enable (or disable) the shift. Whether in studying bullying, genocide, or Supreme Court decisions, the recognised voices of societal authority hold great sway over what is normal, or not.</p>
<p>This means that norms, unlike biases and emotions, can be used for the common good (or common evil). The very forces that helped propel Trump to power could now be the same ones that set the stage for his downfall. Trump uses Twitter like a celebrity, and his campaign managed Facebook well for fundraising – which in turn propelled him into the White House. The more that authority figures across the world use those very tools that brought Trump to power, the more they can counter his impact, which could be very short-lived, if we can shift the norm.</p>
<p>We are against the motion that gives Trump enough legitimacy to have a lasting impact. We are against a motion that acknowledges him for anything other than a colourful comic figure vying for the spotlight, an entertainer “performing” the act of presidency. Lest we make him the “norm”, we must continually struggle to refocus on what’s next after Trump.</p>
<p>We are in a critical period of history, amid a major political and democratic crisis. Yes, Trump is a symptom of that crisis. But we must think about what we can do <em>practically</em> to not let Trump become the new “normal”. We have to explore civic actions that will enable us to counter his influence and deny him that privilege.</p>
<p>To sum this up, we can look to <a href="http://www.theory.org.uk/ctr-gram.htm">Antonio Gramsci</a> who, when jailed by Mussolini during the period leading up to World War II, noted in his <a href="https://cup.columbia.edu/book/prison-notebooks/9780231157551">Prison Notebooks</a>, that a crisis</p>
<blockquote>
<p>“consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear”.</p>
</blockquote>
<p>In today’s unsettling interregnum between our dying past and the new future we will embrace, morbid symptoms have appeared. But we have at our disposal the means to treat them.</p>
<hr>
<p><em>The next article in this series, “Trump, Society and the Perpetual Feedback Loop”, will argue for the motion: “The impact reflected by Trump is here to stay”.</em></p><img src="https://counter.theconversation.com/content/100227/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Mielly ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>Third in the Oxford-style debate series, this article argues against the motion that “the impact reflected by Trump is here to stay” by focusing on the transitory nature of his presidency.Michelle Mielly, Associate Professor in People, Organizations, Society, Grenoble École de Management (GEM)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/985832018-06-21T11:23:06Z2018-06-21T11:23:06ZRussian influence in the Brexit vote? We don’t really know how to deal with that<p>A series of allegations regarding Russia and the 2016 EU referendum in the UK have been published the Observer newspaper, part of the Guardian stable. The claims centred around Brexit campaign Leave.EU (separate to the official Vote Leave campaign) and businessman Arron Banks, who bankrolled it in money and services to the tune of £12m, <a href="https://www.theguardian.com/politics/2017/nov/01/electoral-commission-to-investigate-arron-banks-brexit-donations-eu-referendum">reportedly</a> becoming the biggest political donor in UK history.</p>
<p>The country’s Electoral Commission has already fined Leave.EU £70,000 after an investigation in which it was “<a href="https://www.electoralcommission.org.uk/__data/assets/pdf_file/0018/243009/Report-on-Investigation-Leave.EU.pdf">satisfied beyond reasonable doubt</a>” that the campaign failed to declare £77,380 in its spending return for the referendum. This would have pushed it over the allotted £700,000 spending limit for the campaign.</p>
<p>But the allegations concerning Russia are altogether more difficult, troubling and potentially challenging for British lawmakers.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1008385969295372289"}"></div></p>
<p>The Observer reports that documents it has seen <a href="https://www.theguardian.com/politics/2018/jun/09/arron-banks-russia-brexit-meeting">suggest</a> that there were multiple meetings between the leaders of Leave.EU and high-ranking Russian officials between November 2015 and 2017, two of which were said to have been held the week that Leave.EU launched its official campaign. The second allegation is also particularly interesting – that the Russian ambassador introduced key figures in Leave.EU to a businessman who purportedly offered Banks an opportunity to buy Russian goldmines. This also included a trip to Moscow to meet partners behind a gold project. Banks has repeatedly denied involvement with Russian officials or that Russian money played any part in the Brexit campaign.</p>
<h2>Influence is many-headed</h2>
<p>These allegations are, at present, just allegations. At this stage it is unclear which – if any – rules have been broken and what the consequences would be if they had. But the communications, according to the reports, do tell us something about different ways of peddling influence in elections and referendums. It’s especially interesting for those of us who research the area of political financing. We follow the money, But what if there’s no money? “Follow the deal that could materialise (as money) at a later date” doesn’t quite have the same ring to it.</p>
<p>In a <a href="https://theconversation.com/british-election-spending-laws-explained-and-why-they-need-updating-93980">previous article</a> I outlined that money, in electoral terms, is hydraulic. Like water, it’s uncontrollable. It flows into the political system, finding its way around legal obstacles that are placed in its way. If money is hydraulic, then influence is the hydra. It has many heads, all of which present unique challenges for those trying to prevent it occurring unduly.</p>
<p>In <a href="http://www.sussex.ac.uk/profiles/202704">my work</a> I show that there are two broad types of corruption in politics. The first – donor-based corruption – is a relatively simple quid pro quo. Money is given as funding in exchange for a political service. This might be a favour, a particular policy, or some form of patronage or ennoblement. The second is deferred gratification – a type of corruption based around personal links and relationships. Wealth might still play a role, but corrupt activity is less likely to take the form of a tangible quid pro quo. It’s instead more likely to take an opaque form – a revolving door or the promise of future business deals.</p>
<h2>A different kind of corruption</h2>
<p>In practical terms this shows us that we shouldn’t think that cutting off obvious sources of (illicit) money into the political system will cut off the only potential corrupting influence. The hydra is a many-headed beast, legislation should reflect this. We often think that measures such as introducing a cap on donations and increasing levels of state funding will reduce levels of corruption in politics. While there are <a href="https://scscsussex.wordpress.com/2015/10/17/of-nuclear-zombie-blasters-and-party-funding/">many good reasons</a> for introducing more state funding of political parties, this is not one of them.</p>
<p>The way that money and influence was weaponised in the 2016 referendum has provided a multitude of lessons for academics, policymakers and journalists alike, even before the question of a Russian role came up.</p>
<p>Finally, it should also be noted that Banks and his colleague Andy Wigmore seem to revel in the role of chief mischief makers. Wigmore <a href="https://www.huffingtonpost.co.uk/entry/arron-banks-i-am-not-an-evil-genius_uk_5b1f9be7e4b0adfb826da5b9">told a House of Commons committee</a> that he sees his role, partly, as that of an “agent provacateur”. After that, he <a href="https://twitter.com/jimwaterson/status/1008257822495264768">sent a picture</a> of himself with a Soviet colonel in Cold War Berlin to Jim Waterson, media editor of the Guardian, saying it would “help with the Russian agent theme”. Many of the statements they make should be taken with massive a pinch of salt.</p><img src="https://counter.theconversation.com/content/98583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sam Power received funding from the Economic and Social Research Council. </span></em></p>The rules are clear on campaign donations but meetings with foreign representatives are more of a grey area.Sam Power, Research Associate in Party Membership and Engagement at the Sir Bernard Crick Centre for the Public Understanding of Politics, University of Sheffield and Associate Tutor, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/943692018-04-05T19:53:12Z2018-04-05T19:53:12ZA friendly reminder: impeaching Donald Trump will not remove him from office<p>On September 24, 2019, US Speaker of the House Nancy Pelosi announced that the House of Representatives had launched a <a href="https://www.nytimes.com/2019/09/24/us/politics/democrats-impeachment-trump.html">formal impeachment inquiry</a> against President Donald Trump.</p>
<p>While the announcement was a shock, it didn’t come out of thin air given that there has been impeachment talk since the day Trump unexpectedly won the 2016 election, a contest marred by <a href="https://www.newyorker.com/magazine/2018/10/01/how-russia-helped-to-swing-the-election-for-trump">interference from Russian hackers</a>. The speculation ramped up with every twist and turn of investigation by special counsel Robert S. Mueller, during which 34 figures associated with Trump – including former campaign manager Paul Manafort, former national security advisor Michael Flynn and his personal lawyer Michael Cohen – were <a href="https://time.com/5556331/mueller-investigation-indictments-guilty-pleas/">indicted, convicted or pleaded guilty</a>. Mueller chose to <a href="https://www.nytimes.com/2019/04/18/us/politics/mueller-report-russian-interference-donald-trump.html">not bring charges against the president himself</a>, however, yet specifically did not exonerate him.</p>
<p>What pushed the House of Representatives to finally launch a formal investigation are allegations that Trump repeatedly urged Volodymyr Zelensky, the president of Ukraine, to find <a href="https://www.nytimes.com/2019/09/20/us/politics/trump-whistle-blower-ukraine.html">compromising information on the son of former US vice-president Joe Biden</a>, one of the leading candidates for the 2020 presidential election. In a possible attempt to encourage Zelensky to cooperate, the Trump administration had <a href="https://www.washingtonpost.com/national-security/trump-ordered-hold-on-military-aid-days-before-calling-ukrainian-president-officials-say/2019/09/23/df93a6ca-de38-11e9-8dc8-498eabc129a0_story.html">frozen military aid to Ukraine prior to the call</a>.</p>
<p>Despite the seriousness of the latest allegations, however, history indicates that even if Trump is impeached, he is likely to stay in office</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/214227/original/file-20180411-554-1naib4b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/214227/original/file-20180411-554-1naib4b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=362&fit=crop&dpr=1 600w, https://images.theconversation.com/files/214227/original/file-20180411-554-1naib4b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=362&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/214227/original/file-20180411-554-1naib4b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=362&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/214227/original/file-20180411-554-1naib4b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=455&fit=crop&dpr=1 754w, https://images.theconversation.com/files/214227/original/file-20180411-554-1naib4b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=455&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/214227/original/file-20180411-554-1naib4b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=455&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Impeachment march in Portland, Oregon, on March 1, 20/17.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/161075283@N02/28027035369/in/photolist-JGDTaK-DZrvaH-22h3J66-22yK78L-JGDCxt-FvCbWj-FvC9B9-FvCnTE-22h3znp-23AFQtJ-JGDTCi-22h3nNx-23AFLuG-23AFEVL-22h3Az4-FvC9fC-23AFYLL-JGDCWK-JGDXye-22h3yK2-DZroXT-DZrDAv-23AFQdy-JGDJfR-22h3p74-FvCmsU-22h3zxp-FvC9wu-23AFXK7-JGDThD-23AFCLq-FvC9Ym-DZrEGP-23AFCCQ-23epDhx-22RHMfW-22wgyWz-Fvy5nf-22HULWL-23NLrZc-HhdHcQ-25mgygj-25mgHnL-2441Rvc-25mgGmC-22E6GF9-2441kXV-2441S4X-JREE1H-FERFHC">MB298/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<h2>Some history</h2>
<p>American impeachment law has its origins in the English Civil War, but not everyone at the 1787 Constitutional Convention thought <a href="https://constitutioncenter.org/blog/what-the-founders-thought-about-impeachment-and-the-president">it should be applied to US presidents</a>. Some felt that the legislative branch’s trying the executive was a breach of the separation of powers. Benjamin Franklin pointed out that if a president could not be removed for his misdeeds while in office, he would have every motivation to remain in office and would do so by any means – including tyranny – and could only be <a href="http://www.shestokas.com/constitution-educational-series/constitutional-impeachment-an-alternative-to-assassination/">removed by death</a>. The clauses for impeachment of the highest magistrate passed. Provisions of this kind only passed in France in 2014.</p>
<p>In the US Constitution, impeachment and conviction are not the same things. To impeach is to bring charges against a high-office holder. “The House of Representatives… shall have the sole Power of Impeachment,” the Constitution states (<a href="https://www.usconstitution.net/xconst_A1Sec2.html">Article I, section 2</a>). That means that the charges or articles must be brought in the House and can pass with a simple majority. The trial, however, will take place in the Senate. “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” (<a href="https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm">Article I, section 3</a>). It is thus possible to remove a sitting president from office, but this procedure does not make it easy or likely given the political hold he has on his party. A two-thirds majority in the Senate means that 67 out of the 100 senators must vote in favour of conviction.</p>
<p>To remove presidents, Articles of Impeachment have only been passed through the House of Representatives Judiciary Committee three times in US history and only been passed by the House of Representatives to the Senate for trial twice. For judges and other high officials, impeachment proceedings have been started in the House 62 times and Articles of Impeachment have been approved by the House 19 times, sometimes resulting in conviction and removal of Federal judges, one as recently as 2008, for <a href="https://constitutionallawreporter.com/article-03-section-01/impeachment-of-federal-judges/">perjury and bribery</a>.</p>
<h2>Andrew Johnson, 1867: survived</h2>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/212987/original/file-20180403-189801-1ygth3x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/212987/original/file-20180403-189801-1ygth3x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=752&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212987/original/file-20180403-189801-1ygth3x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=752&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212987/original/file-20180403-189801-1ygth3x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=752&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212987/original/file-20180403-189801-1ygth3x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=945&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212987/original/file-20180403-189801-1ygth3x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=945&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212987/original/file-20180403-189801-1ygth3x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=945&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Andrew Johnson, vice president and later president. He escaped impeachment by a single vote in 1867.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/ooocha/2593097381/in/photolist-4X9ivx-4SJnTF-2ThZyb-G6ZPNk-eH9jEA-9T28xz-JnUpGH-yTWkvJ-JszfPX-bcAbc6-CWzuDy-6x9SiK-o2HwnJ-YVnwaq-ZXYGCw-4Sr4Kx-dVnKGr-ddGYz9-ddH1PG-ddH1Hu-ddGXbZ-ddGZEQ-ddGXk4-ddGYqn-ddH1A5-ddGXvg-6Zd3qC-5A1HL4-Y3rNnz-213CWTk-ZXYFL1-ZXYEXs-213CVwc-ZXtNgJ-ZZpUhy-ZXYEnj-G4vfyn-ZXtNQu-ZVnbVY-RqCr4R-CU18A9-ZZVkzE-ZXngWd-ZZVh2Y-YY26ks-G6ZRTH-ZZVhPj-YY2dzh-YY2ahL-ZZV2jS">Marion Doss/Flickr</a></span>
</figcaption>
</figure>
<p>In the case of presidents, however, every time political questions of power have been palpably important. A congress dominated by one party has never impeached or convicted a sitting president of its own party. When Richard Nixon, a Republican, resigned, both houses were controlled by Democrats. When Andrew Johnson, a Democrat, came within a vote of conviction, both houses were controlled by Republicans.</p>
<p>Johnson, from a southern slave state, was vice president when Abraham Lincoln, a Republican, was assassinated. Johnson was the <a href="https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Johnson.htm">first president to face Articles of Impeachment</a>. The accusations against him now seem obscure and even inconsequential compared to what Trump has been accused of. To keep the Radical Republican Edwin Stanton in control of Reconstruction in the South after the Civil War, Congress passed the “Tenure of Office Act,” which required the president to seek the Senate’s advice and consent before removing cabinet and other high government officials. Believing the Tenure of Office Act to be an unconstitutional breach of the separation between executive and legislative powers, Johnson fired Stanton while Congress was out of session on August 5, 1867.</p>
<p>This brought about a face-off with the Republican-dominated Senate. In those post–Civil War days when many of the recently rebellious southern states had no representation in Congress, there were only 54 senators and of those, only 9 were Democrats. After the Senate trial, 35 Republicans voted to convict Johnson. The nine Democrats were joined by 10 Republicans, making 19 votes for acquittal. It would have taken 36 guilty votes to reach the two-thirds majority necessary for conviction. With an overwhelming majority in the Senate, the Republicans were unable to remove Johnson.</p>
<h2>Richard Nixon, 1974: resigned</h2>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/214229/original/file-20180411-570-zf25p8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/214229/original/file-20180411-570-zf25p8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/214229/original/file-20180411-570-zf25p8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/214229/original/file-20180411-570-zf25p8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/214229/original/file-20180411-570-zf25p8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/214229/original/file-20180411-570-zf25p8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/214229/original/file-20180411-570-zf25p8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Official portrait of Richard M. Nixon, 1971.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Richard_M._Nixon_30-0316M_original.jpg">White House/Flickr</a></span>
</figcaption>
</figure>
<p>Richard Nixon’s Impeachment Articles – obstruction of justice, abuse of power and contempt of congress – had all passed, 27 to 11, 28 to 10 and 21 to 17, with Republicans joining Democrats each time in the voting on July 27, 1974. Nixon’s hold even on his own minority Republican party had been weakened by the Watergate scandal and hearings that had played on television throughout 1973. Several related and much-publicised trials and investigations weakened him further since the June 1972 Watergate break-in. The day the impeachment articles passed committee, the House Minority Leader, Republican John Rhodes, estimated that there would be 300 votes for impeachment in the House, far more than the simple majority of 218 needed to send the case to the Senate for trial. The Senate Minority Leader, Republican Hugh Scott, estimated 60 votes in the Senate for conviction, only a little short of the 67 needed. Could Nixon have survived a Senate trial? Probably not.</p>
<p>On July 24 the Supreme Court had ruled that all the White House tapes, not just a selection, had to be released as part of the Watergate investigation. On August 5, 1974, the White House released the <a href="http://watergate.info/1972/06/23/the-smoking-gun-tape.html">“smoking gun” tape</a> of June 23, 1972, recorded shortly after the famous break-in. The tape demonstrated that Nixon had known then of the White House connection to the burglary and had <a href="http://watergate.info/1972/06/23/the-smoking-gun-tape.html">approved of the cover-up</a>. When senior Republican senators Hugh Scott and Barry Goldwater met with Nixon on August 7, just over a week since Scott’s 60-40 vote estimate, they told Nixon he had only 15 votes for acquittal left in the Senate. He needed 34. A majority of 56 Democrats in the Senate could not have convicted Nixon without bipartisan support, but with the serious charges and the years of much-publicised investigation, bipartisan support had lined up against Nixon. He could be convicted as well as impeached.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/212990/original/file-20180403-189816-ijq4ay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212990/original/file-20180403-189816-ijq4ay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=327&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212990/original/file-20180403-189816-ijq4ay.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=327&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212990/original/file-20180403-189816-ijq4ay.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=327&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212990/original/file-20180403-189816-ijq4ay.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=410&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212990/original/file-20180403-189816-ijq4ay.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=410&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212990/original/file-20180403-189816-ijq4ay.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=410&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Richard Nixon resigned on August 9, 1974, rather than risk impeachment and conviction.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/5/57/Richard_Nixon%27s_resignation_speech.jpg">Wikimedia</a></span>
</figcaption>
</figure>
<p>The 1998-1999 case against Bill Clinton didn’t come close to the seriousness of Nixon’s in either the importance of the accusations or the voting. The Senate was divided 45 Democrats to 55 Republicans. No Democrat voted against Clinton, so neither the perjury charge nor the obstruction of justice charge ever came close to the 67 votes needed for conviction. In fact, 10 Republicans joined the Democrats to acquit Clinton of the perjury charge, 55 to 45, and 5 Republicans joined the Democrats to acquit on the obstruction of justice charge. The House of Representative votes that set up the impeachment trial in the Senate look like a purely partisan decision to take advantage of a 221 to 211 Republican advantage in the House, hardly based on the merits of any case that could have been tried.</p>
<h2>Donald Trump, 2019?</h2>
<p>In the 2018 mid-term elections, the <a href="https://www.nytimes.com/2018/11/06/us/politics/midterm-elections-results.html">Democrats won control of the House of Representatives</a>, allowing the house to launch a formal impeachment inquiry after the Ukraine scandal broke out. Should the house decide that a trial is warranted, they can send Impeachment Articles to the Senate – but the upper house is still controlled by the Republican party, 53 to 47. While Republicans have recently shown some rare solidarity with Democratic colleagues, going so far as to <a href="https://www.nytimes.com/2019/09/24/opinion/impeachment-inquiry-trump.html">call for transparency on the part of the Trump administration</a>, it would take 67 votes, or two-thirds of the 100 senators, to convict in an impeachment proceeding, and this has never been done.</p>
<p>Only in the case of Richard Nixon did that look possible and only after years of public hearings and trials over Watergate. Even then, it was probably the <a href="https://www.politico.com/story/2018/08/05/watergate-smoking-gun-tape-released-aug-5-1974-753086">“smoking gun” tape</a> sapping support in Nixon’s own party that caused him to count the votes again a few days after the tape’s release. There were 56 Democrats, 1 independent, 1 conservative and 42 Republicans in the Senate in 1974. Nixon had lost the support of all but 15 senators by August 7. He resigned.</p>
<p>Should Donald Trump face Impeachment Articles in the Senate, the result will be embarrassing, awkward and paralysing to the US government. However, it is highly improbable that those articles will get much further. There is rigid partisan control now, and no hint of the broad bipartisan support that finally brought down Nixon. And of course, Trump is not sensitive to Constitutional arguments in the same way as Nixon, a lifelong political man. Trump notices all insult and injury, as did Nixon, but insults and injury seem to increase Trump’s belligerent determination, where eventually they undermined Nixon.</p>
<p>Thus, barring a truly dramatic change in events, we are likely to see Trump serve out his first term, which doesn’t end until <a href="https://en.wikipedia.org/wiki/Presidency_of_Donald_Trump">January 20, 2021</a>.</p>
<hr>
<p><em>This article has been updated to reflect ongoing events, including the September 2019 launch of an impeachment inquiry and the results of the 2018 mid-term elections.</em></p><img src="https://counter.theconversation.com/content/94369/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Meigs ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>On September 24, 2019, Speaker Nancy Pelosi announced that the House had launched a formal impeachment inquiry against the president. But as history shows, the outcome is anything but assured.Mark Meigs, Professeur d'Histoire et civilisation US, Université Paris CitéLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/885412017-12-04T03:05:12Z2017-12-04T03:05:12ZShould lying to the FBI be a crime?<figure><img src="https://images.theconversation.com/files/197476/original/file-20171204-5378-j6s6zl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former National Security Adviser Michael Flynn, center.</span> <span class="attribution"><span class="source">AP Photo/Andrew Harnik</span></span></figcaption></figure><p>On Dec. 1, Michael Flynn, former national security adviser to President Donald Trump, <a href="https://www.nytimes.com/2017/12/01/us/politics/michael-flynn-guilty-russia-investigation.html?_r=0">pleaded guilty</a> to the charge of lying to the FBI about his contacts and conversations with Russians. </p>
<p>Flynn admitted to violating the federal statute <a href="https://www.law.cornell.edu/uscode/text/18/1001">18 USC Section 1001</a>, which prohibits making “false statements” to government officials. </p>
<p>As someone who teaches a course called Secrets and Lies and has <a href="https://searchworks.stanford.edu/view/11382916">written about</a> how common it is for people to lie in their dealings with the government, I was not surprised to learn either of Flynn’s lies or the government’s response to them. However, I was surprised to read President Trump’s tweet on Saturday apparently acknowledging that he knew Flynn had lied to the FBI and fired him because of it.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"937007006526959618"}"></div></p>
<p>Despite the personal moral objections that most people have to lying, the law under which Flynn was charged by Special Prosecutor Robert Mueller is a <a href="https://repository.jmls.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1069&context=lawreview">controversial one</a>. It applies in a <a href="https://fas.org/sgp/crs/misc/98-808.pdf">sweeping manner</a> to “any matter within the jurisdiction of the executive, legislative, or judicial branch.”</p>
<p>Moreover, unlike the crime of perjury, the false statements statute means that a person can be punished for lying even if he was not under oath in <a href="https://www.law.cornell.edu/uscode/text/18/1001">an official proceeding</a>, and even if he was not warned that lying would be punished. </p>
<p>So, why is it against the law to lie to government officials?</p>
<h2>False statements and the right to remain silent</h2>
<p>American law generally is aggressive in criminalizing lying, in part because it offers citizens an alternative if they fear the consequences of telling the truth to a government official.</p>
<p>That alternative is found in the Fifth Amendment’s protection against compulsory self-incrimination. It affords individuals a right to remain silent and allows them to avoid speaking damaging truths. When it was added to the U.S. Constitution, the Fifth Amendment was partly a <a href="https://books.google.com/books/about/Origins_of_the_Fifth_Amendment.html?id=XLIVAQAAIAAJ">reaction to abuses</a> perpetrated by England’s Courts of Star Chamber, which operated from 1487 to 1681. Those courts were used to suppress opposition to royal policies, and they used torture to exact confessions from the King’s enemies.</p>
<p>It was also a recognition of the natural law principle that no person should be forced to become an instrument of his own demise.</p>
<p>However, as the late Justice Antonin Scalia <a href="https://supreme.justia.com/cases/federal/us/522/398/case.html">once explained</a>, “Neither the text nor the spirit of the Fifth Amendment confers a privilege to lie. ‘[P]roper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely.’” </p>
<p>Flynn did not invoke his Fifth Amendment right to remain silent. He chose to answer the questions posed by the FBI. </p>
<p>While we can never know exactly why he did so, we do know that silence is very <a href="http://press.uchicago.edu/ucp/books/book/chicago/T/bo3627888.html">hard to maintain</a>. This is especially true in the face of a question that might expose one to legal jeopardy. In such a situation, many people feel compelled to speak when they are asked to do so. They want to seem cooperative, or to try to exonerate themselves.</p>
<p>Silence <a href="https://cases.justia.com/california/supreme-court/2014-s202107.pdf?ts=1408035715">accomplishes neither</a> of those goals. Nonetheless, the law requires that if people choose to speak to government officials they must do so truthfully.</p>
<h2>Making lying to the state against the law</h2>
<p>The prohibition of false statements traces its origins to the Civil War, when Congress <a href="https://repository.jmls.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1069&context=lawreview">reacted to</a> a “‘spate of frauds’ submitted by military con artists scamming the United States War Department.” It forbade people in the military from making fraudulent requests for payments from the government. Soon, however, the <a href="http://www.law.msu.edu/king/2008/Avsharian.pdf">law was broadened</a> to include similar requests when made by any person or corporation.</p>
<p>To successfully <a href="https://supreme.justia.com/cases/federal/us/270/339/case.html">prosecute someone</a> for making a false claim, the government had to show that that the accused cheated the government out of money or property. In the 1930s, Congress <a href="https://supreme.justia.com/cases/federal/us/312/86/">removed the requirement</a> that there had to be a resultant financial harm. This constituted a substantial departure from what the legal commentator Giles Burch calls the <a href="http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4688&context=uclrev">traditional view</a> that “police authority does not… include the power to punish suspects who lie.”</p>
<p>Since the 1930s, the statute used against Flynn <a href="https://www.lawfareblog.com/law-lying-perjury-false-statements-and-obstruction">has experienced</a> a “creeping expansion.” As a result, it has become a powerful tool that criminalizes what someone says even in cases, like that of <a href="http://www.washingtonpost.com/wp-dyn/content/article/2007/03/06/AR2007030600648.html">Scooter Libby</a>, longtime aide to former Vice President Dick Cheney, when the government cannot prove any other wrongdoing. </p>
<p>Critics argue that 18 USC Section 1001 now has <a href="http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4688&context=uclrev">too broad</a> a reach. They worry that it gives prosecutors what United States Supreme Court Justice Ruth Bader Ginsburg <a href="https://supreme.justia.com/cases/federal/us/522/398/case.html">once called</a> “extraordinary authority…to manufacture crimes.” Yet despite the expansive use of the false claims statute, American law sometimes has looked the other way when lies are told. Thus prosecutions for perjury have been <a href="https://www.jstor.org/stable/1142605?mag=why-is-perjury-so-rarely-prosecuted&seq=1#page_scan_tab_contents">quite rare</a> and courts have generally <a href="http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4615&context=flr">been reluctant</a> to enforce section 1001.</p>
<p>Moreover, they sometimes <a href="http://caselaw.findlaw.com/il-court-of-appeals/1410085.html">invoked a doctrine</a> called the “exculpatory no” to excuse individuals who falsely denied guilt in response to an investigator’s question. In 1998, the Supreme Court put an end to this practice. As <a href="https://supreme.justia.com/cases/federal/us/522/398/case.html">Justice Scalia explained</a> at the time, “Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function.”</p>
<h2>The harm of Flynn’s lies</h2>
<p>I’d argue that in Flynn’s case, 18 USC Section 1001 was used correctly and to good effect. What Justice Scalia said in his 1998 opinion helps us identify the harm Flynn did. His lies indeed “perverted the function” of the FBI and impeded it from doing what it must do in a nation governed by the rule of law – prevent government officials and those seeking power from subverting our system of government.</p>
<p>The philosopher Immanuel Kant long ago <a href="https://www.amazon.com/Kant-Critique-Practical-Reason-Immanuel/dp/1452801347">noted that</a> lies like Flynn’s threaten the foundations of organized society and “vitiate the source of law itself.” Never has Kant’s insight been more pertinent than it is in the United States today.</p><img src="https://counter.theconversation.com/content/88541/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It hasn’t always been, writes legal expert.Austin Sarat, Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/867822017-11-12T09:45:11Z2017-11-12T09:45:11ZWhy it’s time competition law was applied to sport in South Africa<figure><img src="https://images.theconversation.com/files/193773/original/file-20171108-27037-195x465.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> </figcaption></figure><p>An increasing number of popular sports clubs, like Manchester United and Real Madrid, have their stocks publicly traded in major stock exchanges around the world. This underlines the view that sport is no longer simply a cultural spectacle. It’s also become <a href="https://repository.up.ac.za/bitstream/handle/2263/23738/dissertation.pdf?sequence=1">big business</a>.</p>
<p>This applies to South Africa, where football, rugby and cricket have become big commercial affairs. Because sport isn’t formally recognised as an economic sector in South Africa, figures are hard to come by. But data from the South African Department of Sports and Recreation <a href="http://www.srsa.gov.za/MediaLib/Home/DocumentLibrary/Case%20for%20Sport%20-%20Oct%202009%20(Final).pdf">estimates</a> that in 2009 sporting activity contributed about 2.1% to the country’s GDP – that’s about R41 billion.</p>
<p>It’s beyond doubt that the contribution of sport as a sector to the country’s economy has increased over the past decade. Not only does sport create paid employment within the game, it also supports other economic sectors such as tourism and infrastructure development.</p>
<p>But, like many other sectors of the South African economy, the business of sport is riddled with unfair practices that probably infringe the <a href="http://www.compcom.co.za/wp-content/uploads/2014/09/pocket-act-august-20141.pdf">Competition Act</a>. Until recently, for the most part these had been allowed to go unchecked by competition authorities. </p>
<p>There are signs that this might be changing. Following an investigation, the country’s competition commission has announced it will be <a href="http://www.compcom.co.za/wp-content/uploads/2017/01/FOOTBALL-AGENTS-TO-BE-PROSECUTED-FOR-PRICE-FIXING-002.pdf">prosecuting</a> football agents, their companies and the South African Football Intermediaries Association <a href="https://www.iol.co.za/sport/soccer/psl/competition-commission-target-sa-soccer-agents-for-fixing-prices-11540391">for</a> “fixing prices and other trading conditions”. </p>
<p>The case relates to the practice of agents fixing the price or commission that has to be paid when players and coaches change clubs. This is also the case when players and coaches sign or renew corporate sponsorship deals. </p>
<p>The commission’s case against football agents is significant because it brings sport in line with standard rules of business, and recognises the important role that sport plays in the economy. The case relates specifically to football agents, but the principle it’s trying to assert has relevance and will apply to the actions of agencies in other sporting codes as well. </p>
<p>Applying competition law to sport will promote fairness, professionalism, efficient resource allocation and economic development. The case also brings South Africa in line with other countries and regions in the world. In <a href="http://ec.europa.eu/competition/sectors/sports/overview_en.html">Europe</a>, for example, various sporting activities have already been subjected to the scrutiny of competition law. </p>
<h2>Threats to competition</h2>
<p>There are lots of practices in sport that are viewed as being “normal” but that should in fact be cause for concern because they may undermine the Competition Act. </p>
<p>One example are rules for sports leagues and competitions that benefit, favour or give one club – or a few clubs – an advantage over others. What’s often ignored is that sport clubs in the same league or competition are in effect in competition with each other for what is often a significant amount of prize money. </p>
<p>The competition principle could be infringed if clubs of equal status in the same association or league are deprived of the opportunity to compete – or if they’re placed in a competitive disadvantage – without a justifiable sporting or operational reason. This could amount to an exclusionary act in terms of section 8 of the Competition Act. </p>
<p>Sports clubs are also in competition with each other for corporate sponsorships. Some big clubs enjoy a significant proportion of the market share. This gives them the financial power and prestige to attract players and coaches from other clubs. </p>
<p>This power may be used in ways that amount to an abuse of dominance from a competition law perspective. The most common example of anticompetitive conduct in this context is what is known in sports circles as “taping up”. This is where top - and often wealthy clubs – secretly court players or coaches from other clubs, promising them better deals. It would amount to an abuse of dominance if this was done without first getting the consent of the club to which the player or coach is contracted. </p>
<p>Competition law also supports the view that using one’s financial strength to destabilise rivals, for example by poaching their key staff, may be <a href="http://uir.unisa.ac.za/bitstream/handle/10500/21908/thesis_munyai_ps.pdf?sequence=1">anticompetitive</a>. </p>
<p>Broadcasting, the holy grail of modern sports, may at times also fall foul of the Competition Act. The main areas of concern are the terms and conditions of broadcasting rights. For example, the dominance of a preferred broadcaster – and excluding rivals from the market – could be entrenched when a sports league, competition or association awards a lengthy and generally exclusive broadcasting contract to a dominant player.</p>
<p>Ticketing for sport games could also be another problem area. A dominant ticketing company could be using its power to persuade or force associations or clubs to enter into exclusive ticketing agreements with it. This may raise competition concerns because it excludes rivals, or limits their ability to sell tickets.</p>
<h2>The way forward</h2>
<p>There is wide recognition that sport has transformed itself from a social activity into an economic activity with potential to spur economic development. Stakeholders involved in sport may soon need to realign their rules, policies and practices to ensure compliance with the provisions of South Africa’s Competition Act.</p><img src="https://counter.theconversation.com/content/86782/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Phumudzo S. Munyai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The business of sport in South Africa is coming under the focus of the Competition Commission on concerns that some practices may be uncompetitive.Phumudzo S. Munyai, Senior Lecturer: Competition Law, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/840992017-10-11T14:44:20Z2017-10-11T14:44:20ZSouth Africa’s competition body is being distracted by market inquiries<figure><img src="https://images.theconversation.com/files/188812/original/file-20171004-30164-1698bpa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>It’s become common for South African politicians to <a href="http://www.fin24.com/Companies/Financial-Services/collusion-case-strengthens-zumas-hand-in-battle-with-banks-20170216">blame</a> slow economic growth in the country on private sector corruption, anti-competitive market structures and abuse of market power by dominant firms. </p>
<p>Although this is sometimes simply a cover for the government’s own poor performance, the fact is that historically South Africa’s economy has been <a href="https://theconversation.com/south-africa-must-tackle-dominant-firms-to-achieve-better-wealth-distribution-68759">deeply anti-competitive</a>. Private sector players have a strong leaning towards anti-competitive conduct. The task of fixing the fault lines rests with the Competition Commission.</p>
<p>The principal way the Commission meets its mandate is through investigating and prosecuting cases of suspected anti-competitive conduct brought by complainants or initiated of its own accord. The other way it can fight anti-competitive behaviour is by launching a <a href="http://www.compcom.co.za/public-passenger-transport-market-inquiry/#">market inquiry</a>. This is a formal investigation into the general state of competition in a particular sector. </p>
<p>Industries that have faced market inquiries include <a href="http://www.compcom.co.za/banking-enquiry/">banking</a>, <a href="http://www.compcom.co.za/healthcare-inquiry/">healthcare</a>, the <a href="http://www.compcom.co.za/retail-market-inquiry/">retail</a> grocery sector, <a href="http://www.compcom.co.za/public-passenger-transport-market-inquiry/">transport</a> and the market for data in the <a href="http://www.compcom.co.za/data-market-inquiry/">telecommunication</a> sector. Market inquiries are meant to complement the core functions of the Commission, which is to investigate and prosecute instances of anti-competitive conduct. While these procedures are reactive in nature, market enquiries by contrast are seen to represent a more proactive approach in competition law enforcement.</p>
<p>But market enquiries may also prove to be a <a href="http://www.compcom.co.za/wp-content/uploads/2014/09/Banking-Enquiry-Griffiths-Gumbie.pdf">burden</a> on the Commission. And I believe that they’re distracting it from its core function of busting clear or promising cases of anti-competitive conduct. </p>
<h2>Strengths and weaknesses</h2>
<p>The advantage of market inquiries is that they’re a proactive weapon in the Commission’s arsenal against industry-wide anti-competitive practices.</p>
<p>Importantly, they provide the Commission with information and insights into the dynamics and workings of particular industries. And the Commission can use information gleaned through an inquiry to determine appropriate enforcement action and policy intervention. Market inquiries can also shake up industries and force incumbents to stop anti-competitive behaviour.</p>
<p>But enquiries also have their weaknesses.</p>
<p>The Commission is unable during market inquiries to use its powers to enter and search premises and take possession of things and information it can use as evidence against implicated firms. As such market inquiries rely on the goodwill of respondents who must answer questions fully and honestly. In reality, this doesn’t always happen. And experience shows that the offence of perjury (lying under oath) hasn’t been enough of a deterrent to stop people from lying, or telling half-truths to the Commission.</p>
<p>On top of this, the fear of personal criminal liability as a result of the cartel offence is a disincentive for directors of companies to tell the truth when they’re called upon to provide evidence in market inquiries. This means in order for their outcomes to be credible, market inquires depend largely on the cooperation of affected firms and industries. This is not always feasible. </p>
<h2>General enquiries</h2>
<p>Another issue is that market inquiries are only general inquiries into the state of competition in a particular market. They are not investigations into the conduct of individual companies. Because of this, the findings of a market inquiry - even when they go against particular companies - don’t automatically constitute a legal finding of wrongdoing against an individual firm. </p>
<p>This means any firm implicated by a market inquiry doesn’t face any immediate consequences. For action to be taken against any firm implicated, the Commission must initiate a fresh and specific investigation or complaint against it. This raises the question: what then is the role of market inquiries? Is it just information gathering? If so, are there no efficient ways of doing so? </p>
<p>There is also little evidence that market inquiries do improve competitiveness. This is because even when measures more aggressive than market inquiries have been taken, for example record breaking fines being imposed against some firms, anti-competitive behaviour hasn’t stopped in many sectors. </p>
<p>In fact, in some industries it has increased. For example, the 2006 Competition Commission <a href="http://www.compcom.co.za/banking-enquiry/">inquiry into the banking sector</a> did not foster a culture of competition in that sector. <a href="http://www.compcom.co.za/wp-content/uploads/2014/09/Banking-Enquiry-Griffiths-Gumbie.pdf">Research</a> conducted to assess the impact of the Commission’s banking inquiry shows that the inquiry didn’t result in any appreciable consumer benefits, particularly lower banking fees as a result of increased competition. And a number of banks are currently being <a href="https://probonomatters.co.za/2017/02/south-africa-prosecutes-banks-for-price-fixing-in-the-trading-of-the-rand/">prosecuted</a> for price fixing. </p>
<p>Another shortcoming is the time it takes to complete a market inquiry. Because market inquiries cover entire sectors, they are lengthy processes. This has the potential of weakening subsequent competition investigations or complaints against particular firms. This is because any firm implicated in a market inquiry has time to get rid of evidence that might prove their involvement in anti-competitive practices. </p>
<p>And lastly, market inquiries are a drain on the resources of the Commission. They cost a lot of money, require the appointment of people with expertise in a targeted industry, and absorb Commission staff who might otherwise be able to pay more attention to its core work. </p>
<h2>Alternatives</h2>
<p>Of course, market inquiries attracts good publicity and public sympathy for the work of the Commission. But the interests of South Africans would be served better if the Commission focused on its core mandate - the investigation and prosecution of clear cases of suspected anti-competitive behaviour, regardless of industry in which they occur. The Commission’s limited resources should be channelled towards fulfilling this important goal. </p>
<p>To enable this to happen, market inquiries should be done by state departments or regulatory authorities in affected industries. A precedent exists for this: the 2004 banking enquiry commissioned by the South African National Treasury and Reserve Bank.</p><img src="https://counter.theconversation.com/content/84099/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Phumudzo S. Munyai does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s Competition Commission may be wasting resources in undertaking market inquiries as they are expensive and yield little results.Phumudzo S. Munyai, Senior Lecturer: Competition Law, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/795372017-06-23T01:15:19Z2017-06-23T01:15:19ZWhat happens if Trump’s White House invokes executive privilege?<p>Donald Trump’s presidency has been defined by a central theme: Trump’s belief that ordinary rules and laws do not apply to him.</p>
<p>Trump has made clear that he believes it is up to his <a href="http://www.businessinsider.com/trump-james-mattis-override-torture-2017-1">personal discretion</a> to order torture – even though torture is <a href="https://www.counterpunch.org/2008/05/06/under-u-s-law-torture-is-always-illegal/">illegal under all circumstances</a>. In ordering a <a href="https://www.usatoday.com/story/opinion/2017/04/07/syria-attack-legal-only-congress-can-say-column/100163700/">military strike against Syria</a> in April, Trump brushed aside constitutional requirements that Congress approve such action unless the U.S. faces imminent attack. And he has defended his presidency by <a href="http://www.huffingtonpost.com/brianne-j-gorod/can-courts-hold-trump-accountable_b_13306772.html">falsely claiming</a> that the <a href="http://www.msnbc.com/rachel-maddow-show/trumps-new-boast-the-president-cant-have-conflict-interest">president is incapable of having conflicts of interest</a>.</p>
<p>I have argued in the past that Presidents George W. Bush and Barack Obama showed there is reason to be concerned about post-9/11 presidents testing the <a href="https://www.kirkusreviews.com/book-reviews/chris-edelson/power-without-constraint/">legal limits of their power</a>. The stakes are even higher now with Trump. He has demonstrated <a href="https://www.nytimes.com/2016/12/16/opinion/sunday/is-donald-trump-a-threat-to-democracy.html">authoritarian tendencies</a> and <a href="http://www.marketwatch.com/story/trumps-kleptocracy-could-be-turning-the-us-into-a-banana-republic-2017-05-03">contempt for the rule of law</a> that goes beyond anything Bush or Obama did. </p>
<p>The issue may be coming to a head with investigations into Russian interference in the 2016 election and possible obstruction of justice. As the nation has watched witnesses appear before congressional committees and read Trump’s tweets about Department of Justice officials, the key question to ask now is whether Trump <a href="http://talkingpointsmemo.com/edblog/a-very-very-dangerous-situation">will refuse</a> to let any investigation continue. If he does so successfully, Trump will effectively place himself <a href="https://lawfareblog.com/disabled-executive-special-counsel-investigation-and-presidential-immunities">beyond the reach of the law</a>.</p>
<h2>The rule of law</h2>
<p>The various ongoing investigations are all, in theory, governed by legal rules. <a href="https://www.documentcloud.org/documents/3726385-Order-3915-2017-Special-Counsel.html#document/p1">Special Counsel Robert Mueller’s task</a> is to speak to witnesses, review documents, gather evidence and decide whether there is any basis for prosecution under federal law. Congressional committees, meanwhile, hear from witnesses who testify under penalty of perjury if they lie under oath. </p>
<p>But such legal rules are not self-enforcing. When the rules are violated or flouted, someone has to act in order to give them force and meaning.</p>
<p>Attorney General Jeff Sessions’ recent testimony before the Senate Intelligence Committee is a case in point. Sessions refused to answer a number of questions about communications he’d had with the president. By itself, that is not extraordinary. If the communications were protected by executive privilege or involved classified information involving national security matters, there may have been a legitimate basis for Sessions to decline to answer senators’ questions. After all, the Supreme Court has recognized that <a href="http://markrozell.gmu.edu/wp-content/uploads/2014/05/Presidents_Executive_Privilege_Rozell_and_Sollenberger.pdf">the Constitution implicitly allows</a> the president to invoke executive privilege in some circumstances in order to protect the confidentiality of discussions with close advisers in the executive branch. </p>
<p>But Sessions, the top lawyer for the U.S. government, <a href="http://www.salon.com/2017/06/14/trump-sessions-and-the-executive-privilege-paradox-did-the-president-leave-his-most-loyal-follower-out-to-dry/">did not point to any legal grounds</a> for his refusal to respond. He simply said he <a href="http://www.salon.com/2017/06/14/trump-sessions-and-the-executive-privilege-paradox-did-the-president-leave-his-most-loyal-follower-out-to-dry/">could not speak about private conversations</a> he’d had with the president, and that he was <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">protecting Trump’s ability to claim executive privilege</a>, if he later decided to do so.</p>
<p>Sessions was not the first. A week earlier, <a href="https://www.washingtonpost.com/blogs/right-turn/wp/2017/06/07/outrageous-contempt-of-congress/?utm_term=.c4864e548194">Director of National Intelligence Dan Coats similarly declined</a> to answer questions involving conversations he’d had with the president. Like Sessions, Coats did not invoke privilege, conceding that he <a href="https://www.usnews.com/news/national-news/articles/2017-06-07/lawmakers-challenge-officials-refusal-to-talk-trump-comey">wasn’t sure there was any legal basis</a> he could rely on.</p>
<p>As <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">Sen. Martin Heinrich noted</a> during the hearing, that’s not the way executive privilege is supposed to work. If the administration wants to invoke the privilege, it must do so expressly. In that case, the matter would be worked out either in <a href="http://www.libertylawsite.org/2012/07/12/the-constitution-and-executive-privilege/">negotiations between the executive and legislative branches</a> or (less frequently) through review by the federal courts. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/175228/original/file-20170622-12015-jfc8rr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Richard Nixon points to the transcripts of the White House tapes.</span>
<span class="attribution"><span class="source">AP Photo</span></span>
</figcaption>
</figure>
<p>The most famous example of a court weighing in on executive privilege was the <a href="https://www.law.cornell.edu/supremecourt/text/418/683">Supreme Court’s 1974 decision in U.S. v. Nixon</a>. President Richard Nixon’s administration refused to hand over Oval Office tapes, claiming recorded conversations were protected by executive privilege, as defined by the president. The court rejected this view, observing that constitutional separation of powers depends on checks and balances that prevent any one branch from self-policing. The court found, in this case, the need for checks on power outweighed the executive branch’s interest in keeping discussions confidential. With the <a href="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/16/the-missing-18-12-minutes-presidential-destruction-of-incriminating-evidence/?utm_term=.98bae4cd1030">specter of impeachment looming over him</a>, Nixon was forced to hand over the tapes. He resigned from office a few weeks later.</p>
<p>At the close of Sessions’ testimony, Sen. Richard Burr <a href="http://www.politico.com/story/2017/06/13/full-text-jeff-session-trump-russia-testimony-239503">instructed Sessions</a> to “work with the White House to see if there are any areas of questions that they feel comfortable with you answering…” That’s not good enough: If the legislative branch is to enforce the rule of law, witnesses must be compelled to answer legitimate questions under oath. </p>
<h2>Will Congress act?</h2>
<p>Special Counsel Mueller may be investigating the president to determine whether his actions amount to <a href="https://theconversation.com/did-sessions-and-trump-conspire-to-obstruct-justice-79388">an obstruction of justice</a>. Trump has already fired former FBI Director James Comey, and <a href="https://www.lawfareblog.com/if-trump-fires-mueller-or-orders-his-firing">there is speculation</a> that he might also fire Special Counsel Mueller in an effort to bring the investigation to a close. Sen. Ron Wyden has warned that, if Trump fires Mueller, it would be an <a href="https://twitter.com/DavidWright_CNN/status/876813652183187456">attack on the rule of law</a> itself. The onus would fall squarely on Congress to <a href="https://newrepublic.com/article/143293/trump-fires-robert-mueller-impeached">either initiate impeachment proceedings</a> or else acquiesce in a presidential power grab.</p>
<p>As Sen. Heinrich noted, when witnesses refuse to answer questions but fail to provide any sufficient legal reason for doing so, they are <a href="http://www.businessinsider.com/what-is-executive-privilege-jeff-sessions-testimony-2017-6">obstructing investigation</a> – preventing Congress from carrying out its inquiry. If other senators agreed, they <a href="https://www.vox.com/2017/6/14/15796078/jeff-sessions-testimony-russia-donald-trump-comey-fbi">could vote to cite the witness(es) for contempt</a>, which could lead to criminal prosecution.</p>
<p>Congress could also threaten to hold up Trump’s nominations to key positions such as federal court judges, or refuse to move on the administration’s legislative priorities like tax cuts for high earners (it <a href="http://markrozell.gmu.edu/wp-content/uploads/2014/05/Presidents_Executive_Privilege_Rozell_and_Sollenberger.pdf">took some similar actions</a> in response to Nixon). Congress could even begin impeachment proceedings if it decided presidential misconduct rose to the constitutional level of “high crimes and misdemeanors” – for instance, if Mueller’s investigation concluded that there is evidence to support this conclusion.</p>
<p>Of course, since Republicans are members of the same party as the president, none of this is likely – yet. But if Trump administration officials continue to make investigation difficult, and if Trump escalates an already tense situation by continuing to question Mueller’s legitimacy or even by firing the special counsel, Republicans may face <a href="http://talkingpointsmemo.com/edblog/a-very-very-dangerous-situation">a crucial test on behalf of American constitutional democracy</a>.</p><img src="https://counter.theconversation.com/content/79537/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Edelson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Laws that limit presidential power won’t enforce themselves – Congress must act.Chris Edelson, Assistant Professor of Government, American University School of Public AffairsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/475972015-09-25T04:31:04Z2015-09-25T04:31:04ZWhy South Africa’s tough new competition law is proving hard to implement<figure><img src="https://images.theconversation.com/files/95225/original/image-20150917-7534-175vfwx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Amendments to South Africa's competition law provides more scrutiny of pricing practices in oligopolistic markets. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Changes to South Africa’s competition law have widened the scope for the country’s antitrust bodies to punish anti-competitive behaviour. But implementing the changes, which were passed into law five years ago, is proving to be fraught. </p>
<p>The <a href="http://www.saflii.org/za/legis/num_act/caa2009229.pdf">Competition Amendment Act</a> gives the Competition Commission powers to investigate complex monopoly conduct in a market. Under certain conditions, it allows the Competition Tribunal, which adjudicates competition issues referred to it by the Competition Commission, to prohibit such behaviour. Complex monopoly is where firms tacitly act as if they are a single firm in setting prices in the market. </p>
<p>The provision that gives these powers, Section 10A, has not yet been enforced more than five years since the amendments were promulgated. It is one of a number of amendments that have not come into operation. It is not clear what is causing the delay. One possible explanation is that government is aware that some of the sections may be unconstitutional. It may be trying to avoid unintended consequences or difficulties in the operation and credibility of the amendments.</p>
<h2>Extending liability</h2>
<p>If Section 10A comes into effect it will mark a significant change in the country’s competition law. It extends the liability for prohibited anti-competitive practices by firms beyond an agreement or concerted practice to include tacit coordination in certain concentrated market structures and circumstances. </p>
<p>One consequence of this would be increased scrutiny of pricing practices in oligopolistic markets. These are markets where only a few firms compete. The banking sector in South Africa is one example. </p>
<p>It is well-known that oligopolists are <a href="http://www.jstor.org/stable/1825536?seq=1#page_scan_tab_contents">‘interdependent’</a> in their pricing decisions. The prices they charge are based partly on their competitors’ anticipated responses. </p>
<p>Recognition of their common interest often leads to less vigorous price competition and prices that are elevated substantially above competitive levels. Examples of these kinds of pricing practices are: </p>
<ul>
<li><p>price leadership, where a firm sets the price and its competitors follow; </p></li>
<li><p>meeting competition clauses, such as matching competitors’ prices; </p></li>
<li><p>most favoured customer clauses in contracts; </p></li>
<li><p>uniform delivered pricing policies; and </p></li>
<li><p>facilitating practices, such as exchanges of price information and price signalling.</p></li>
</ul>
<h2>Collusion taken to a whole new level</h2>
<p>Another pricing policy that will be affected by the amendment is the use of <a href="http://link.springer.com/article/10.1007/BF01079211">focal points</a> to set and adjust prices. A focal point price is a coordinated price set by two or more sellers, without communication, that can generate excessive profit way above cost and risk consideration. </p>
<p>The price coordination arises from a convergence of expectations or mutual understanding of what the appropriate market price should be and it is chosen for its salience, prominence or uniqueness in the market. </p>
<p>Examples of focal point prices are price ceilings such as credit card and loan interest rates or fees charged at maximum rates set by legislation or regulation. </p>
<p>Another example is price floors such as minimum wages. Or the conversion of South African banks’ prime overdraft rate fixed at 3,5 percentage points above the South African Reserve Bank’s repo rate. </p>
<p>If this amendment comes into effect, it will bring South African legislation closer to the economic approach of punishing collusive conduct advocated by antitrust scholars such as <a href="http://www.press.uchicago.edu/ucp/books/book/chicago/A/bo3628468.html">Richard Posner</a> and <a href="http://www.law.harvard.edu/faculty/kaplow/pdfs/atj_77_2.pdf">Louis Kaplow</a>. According to this approach, liability is determined by its effects or market outcomes, whether explicit or tacit, rather than being based on proof of the existence of an agreement. </p>
<p><a href="http://www.amazon.com/The-Theory-Monopolistic-Competition-Re-orientation/dp/0674881257">Economists</a> argue that the decision by a rational, profit-seeking firm to coordinate its activities with its competitors, whether expressly or tacitly, is essentially the same. The firm decides by balancing the benefits from colluding against the costs, including the risk of punishment by competition authorities.</p>
<h2>The scope is too wide</h2>
<p>The widening of the scope of collusive practices to include <a href="https://stats.oecd.org/glossary/detail.asp?ID=3172">‘conscious parallel conduct’</a> is therefore soundly based on economic theory and may act as a deterrent to firms charging excessive prices in highly concentrated markets. But implementing section 10Aa would trigger a number of problems and difficulties.</p>
<p>The broad scope of the Commission’s investigative mandate under the amendment is almost equivalent to a market inquiry. The difference is that the investigation is directed against the conduct of specific firms, rather than a market as a whole. If the Commission succeeded in establishing complex monopoly conduct, the firms involved could be held accountable for this conduct.</p>
<p>The overly broad scope of the provision means that it is likely to catch conduct that in reality is not harmful to economic welfare, the so-called false negatives. This is particularly the case when it comes to focal point pricing. </p>
<p>Focal point prices in many market circumstances can result in prices being set at elevated levels in comparison with prices that are independently determined by firms. As such, these are likely to be under scrutiny when the amendment comes into effect.</p>
<p>The amendment also provides scope for the Tribunal to impose structural remedies. The Tribunal is empowered to address this conduct by making an order that deals with the effect of the complex monopoly conduct on the market. Should it impose behavioural remedies to reduce prices, it would be acting as a price regulator. This is a function it is ill-suited to perform.</p>
<p>Consequently, if section 10A comes into effect, it may raise more concerns than it is likely to solve. The concerns include uncertainty and potentially harmful economic effects in oligopolistic industries, such as the banking industry. </p>
<p><em>This article is based on a <a href="http://www.sajems.org/index.php/sajems/article/view/803">paper</a> “Focal point pricing: A challenge to the successful implementation of Section 10a (introduced by the Competition Amendment Act)” by the authors and Jessica Staples, an Attorney of the High Court of South Africa.</em></p><img src="https://counter.theconversation.com/content/47597/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mike Holland receives funding from GIBS. He works for GIBS and consults to/owns shares in PriceMetrics (Pty.) Ltd. </span></em></p><p class="fine-print"><em><span>Jannie Rossouw does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s tightening up of its competition law enables it to punish collusive conduct by firms, but there are major obstacles to implementing the changes.Mike Holland, Director of Research at PriceMetrics and Lecturer at the Gordon Institute of Business Science, University of PretoriaJannie Rossouw, Head of School of Economic & Business Sciences, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/392852015-03-26T10:29:27Z2015-03-26T10:29:27ZTime to crack down on recidivist banks instead of slapping wrists<figure><img src="https://images.theconversation.com/files/75871/original/image-20150324-17680-xj5r7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Like the banks, John Gotti was known as the 'teflon don' because of prosecutors' failure to convict him for his alleged crimes. </span> <span class="attribution"><span class="source">FBI</span></span></figcaption></figure><p>Ordinarily, people face far greater punishment each time they are caught committing another crime. Federal sentences for recidivists go up dramatically. </p>
<p>But like green-shaded <a href="http://en.wikipedia.org/wiki/John_Gotti">teflon dons</a> – mobster John Gotti’s nickname for managing to stay out of jail – the largest banks have been repeatedly prosecuted over the past decade and yet have so far avoided any harsher consequences. Instead they’ve received “deferred prosecutions” or non-prosecutions that trade criminal charges for promised reforms and criminal fines.</p>
<p>Now, as a new wave of bank prosecutions threatens to crash over Wall Street, it is time for clearer rules for recidivist banks and corporations more generally. Last week, the Department of Justice seemed to be finally leaning in that direction when it issued <a href="http://www.justice.gov/opa/speech/assistant-attorney-general-caldwell-remarks-acams-anti-money-laundering-financial-crime">warnings</a> that it “will not hesitate to tear up” corporate settlements if they are violated. </p>
<h2>Wall Street recidivists</h2>
<p>Prosecutors are now investigating major banks for colluding together on foreign currency rates, following on the heels of prosecutions relating to money laundering, to violating international sanctions and to gaming key interest rates. Last year, Barclays and UBS had agreements with prosecutors <a href="http://washpost.bloomberg.com/Story?docId=1376-NE3QC86KLVSA01-1AH4NPL1DHUJ5HJV1ACDGTGS50">extended</a> for another year, pending further investigation. If the same banks have committed fresh crimes in such a short period of time, the banks should be treated as what they are: recidivists.</p>
<p>But in the past, the largest banks have almost without exception <a href="https://theconversation.com/the-department-of-justice-must-get-serious-on-too-big-to-jail-32256">avoided convictions</a> and sentences entirely, entering into deferred and non-prosecution agreements with prosecutors. </p>
<p>These lenient deals have become notorious. Eight banks have received multiple out-of-court deals of this type since 2001. UBS has settled three prosecutions in just the past five years. AIG, Barclays, Credit Suisse, HSBC, JPMorgan, Lloyds and Wachovia have each settled two cases. Some of these banks, despite agreeing to settle a single “case,” admitted conduct ranging over multiple operations over many years.</p>
<h2>Endless strikes</h2>
<p>Sweetheart deals with banks can disguise recidivism. The non-prosecution deals may not count as “strikes” – as in three strikes and they’re out. The terms typically say the company must not engage in additional crimes for two or three years, but often only if the subsequent wrongdoing is a “similar” offense. </p>
<p>What counts as “similar” is apparently open to interpretation. Few recidivist banks were treated more harshly the second or third time around – such as by receiving a criminal conviction – and some were treated more leniently. Under these deals, a bank’s lawyers could fairly complain, were a conviction considered, that they had no idea the bank might be treated as a repeat criminal, since they negotiated the deal precisely to avoid one. </p>
<p>One bank deal did rankle a federal judge. Barclays entered a 2010 <a href="http://lib.law.virginia.edu/Garrett/prosecution_agreements/sites/default/files/pdf/barclays.pdf">deferred-prosecution agreement</a> for violations of economic sanctions against countries such as Burma, Cuba and Iran. At the time, Barclays avoided a conviction, but paid a $300 million fine and — critically — agreed not to violate any US federal laws for two years. </p>
<p>Yet just two years later, Barclays was back in court again, having been caught with its traders colluding in setting a key interest rate. This time, Barclays received a more lenient <a href="http://lib.law.virginia.edu/Garrett/prosecution_agreements/sites/default/files/pdf/Barclays_2012.pdf">non-prosecution agreement</a>, with prosecutors <a href="http://lib.law.virginia.edu/Garrett/prosecution_agreements/sites/default/files/press_release/Barclays_2012_PR.pdf">citing</a> its “extraordinary cooperation.” </p>
<p>The judge who was still supervising the 2010 agreement asked for a good explanation why the collusion didn’t violate the earlier agreement – and why Barclays wasn’t treated more harshly – but ultimately he agreed to <a href="http://www.law360.com/articles/398876/judge-releases-barclays-from-criminal-sanctions-case">dismiss</a> the case.</p>
<h2>Solutions: convictions, sanctions, sentencing guidelines</h2>
<p>One solution to this problem is to put convictions on the record: banks should routinely be convicted for serious crimes, as <a href="http://www.justice.gov/opa/pr/credit-suisse-pleads-guilty-conspiracy-aid-and-assist-us-taxpayers-filing-false-returns">Credit Suisse</a> and <a href="http://www.justice.gov/usao/nys/pressreleases/June14/BNPParibasPlea.php">BNP Paribas</a> were last year. </p>
<p>If banks are convicted, a judge can punish a recidivist for violating probation. Judges can also simply decline to approve deferred-prosecution deals for recidivist banks. </p>
<p>A second solution is for federal prosecutors to strictly hold banks to task for violating earlier agreements. Last week’s DoJ warnings suggest they may be poised to do so informally in the months ahead. But banks should be on notice if the policy has changed. Clear Justice Department policy should require more severe sanctions for a recidivist bank or corporation, just as for individuals. </p>
<p>A third solution would be legislation or sentencing guidelines to adopt clearer and stricter rules for corporate recidivism generally.</p>
<p>“There is no such thing as too big to jail,” Attorney General Eric Holder <a href="http://www.politico.com/blogs/under-the-radar/2014/05/holder-no-banks-too-big-to-jail-187961.html">assured us</a> last May. I was not convinced, however, that the problem had become imaginary and titled my book exploring corporation prosecutions, “Too Big to Jail.” </p>
<p>In the past year, the Department of Justice has argued that record-setting fines — including the largest-ever bank fine against BNP Paribas — prove banks are no longer above the law. Yet without more meaningful reforms, “too big to jail” endures. Even with record fines, there remains the larger question: do prosecutions fundamentally change the banking culture, or will crimes remain a cost of doing business? </p>
<p>If the likes of the largest banks are not held strictly accountable despite repeat crimes, then calling slaps on the wrist criminal punishment distorts the very notion of what is criminal.</p><img src="https://counter.theconversation.com/content/39285/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brandon L. Garrett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Banks have become like Wall Street versions of “teflon don” John Gotti, able to avoid conviction despite repeated criminal prosecutions.Brandon L. Garrett, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/309072014-08-27T06:03:25Z2014-08-27T06:03:25ZFixing the fixers of petrol prices is no easy task<figure><img src="https://images.theconversation.com/files/57371/original/hfpg9dkp-1409033170.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia's corporate regulator wants to tackle what it believes is collusion in the petrol industry, but court action to date hasn't really succeeded. </span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>The Australian Competition and Consumer Commission’s latest foray into the difficult and politically charged arena of petrol pricing is just the latest in a long running saga that is unlikely to be resolved by the <a href="http://accc.gov.au/media-release/accc-takes-action-against-informed-sources-and-petrol-retailers-for-price-information-sharing">regulator’s Federal Court move last week</a> on industry pricing website, Informed Sources. </p>
<p>The ACCC is alleging the website, on which petrol retailers share their prices, has the effect of substantially lessening competition.</p>
<p>The saga is in part about petrol prices and the consumer hip pocket. But it is just as much, if not more, about whether it should be illegal for competitors generally to share information – information about future prices especially.</p>
<h2>Long battle</h2>
<p>The ACCC’s concerns about collusion in the petrol sector are longstanding. It has brought several proceedings alleging price fixing against petrol retailers over the years and has generally failed to convince the courts of its case.</p>
<p>Following high profile losses against independent service stations in Ballarat and Geelong in 2007, the ACCC tried to convince the government to change the law to make it easier to prove a cartel. While the Commission’s concerns were legitimate, the changes it suggested were not well formulated, and it failed to persuade the politicians.</p>
<p>Some years later, inspired by politics surrounding competition in the banking sector, the law was amended to ban bank executives from disclosing price and other commercially sensitive information to each other. That law has been heavily criticised, not least because of its single sector focus, and the ACCC has been trying to get the government to extend it economy-wide. It is an issue that will occupy the minds of the Competition Policy Review review panel, headed by Ian Harper.</p>
<p>The nub of the problem is that those setting out to collude and fix prices need no longer meet in smoke-filled rooms or talk in code on pre-paid mobile phones, and competition authorities do not need to use covert listening devices or wire taps to catch them in the act. There are many and varied ways in which businesses can coordinate their behaviour, and reduce the uncertainty of competition, including through the exchange of information. And, as illustrated by subscription websites of the kind used by Informed Sources, technology is making this even easier.</p>
<h2>Testing legal boundaries</h2>
<p>In other parts of the world, such as the European Union, information sharing between competitors is known as a “concerted practice”. In certain circumstances such practices are against the law and attract severe penalties. Competition authorities do not need to prove that the information exchange is anti-competitive. It is generally assumed to be so. </p>
<p>But in Australia, unless you are a bank executive, communicating with a competitor without actually committing to raise prices is perfectly legal. The only exception is where the ACCC can prove that there was an information sharing arrangement and it had the purpose, effect or likely effect of substantially lessening competition. That is what the ACCC is setting out to do in the Informed Sources case and, in legal terms, it is a tall order.</p>
<p>When he was appointed, ACCC Chairman Rod Sims promised that he would bring difficult cases that would test the boundaries of the law. He is doing that with this case. The ACCC litigation launched earlier this year alleging unconscionable conduct by Coles in its treatment of 200 suppliers is another example. Any attempt by the ACCC to clarify the many grey areas of competition law and assist businesses in complying with their legal obligations should be welcomed. However, the petrol case should also prompt policymakers to revisit the general issue of how collusion is defined and whether Australia should follow the European lead in broadening the definition of a cartel.</p>
<h2>Rethink Fuelwatch scheme</h2>
<p>The case should also prompt a rethink of the national Fuelwatch scheme that was proposed but abandoned in 2008. The national scheme was to be modelled on the scheme that operates in Western Australia. The WA policy requires petrol stations to report their prices to the state government 24 hours in advance of when they are set. The government then publishes these station-level prices online. In addition, stations are required to keep their prices at their reported levels for 24 hours until they report their next daily price to the government.</p>
<p>Preliminary results of ground breaking research at the University of Melbourne show that WA Fuelwatch is having a positive impact on competition and consumers are benefiting from lower prices at the fuel pump. The website information is enabling consumers to search actively for the lowest price on any given day and to stock up on low priced fuel when it is available. </p>
<p>What’s more, contrary to concerns that jettisoned the national scheme, the early research results show that WA’s petrol prices have not increased as a result of the scheme. They are in fact lower than prices in other states where Fuelwatch does not operate. This finding contradicts the concern voiced in relation to the national scheme that forcing petrol stations to keep prices constant for 24 hour periods would lead to consumers paying more.</p>
<p>The research highlights the importance of considering dynamics on both the demand and supply sides of a market in regulating its competitiveness. It also shows that enhanced information sharing through the use of technology need not have anti-competitive effects. Technology can also be harnessed to improve competitiveness, by using it to provide consumers as well as suppliers with more information. </p>
<p>In short, sometimes the more effective and less expensive way to activate competition is to empower consumers rather than to sue suppliers. This will come as no surprise to the ACCC.</p><img src="https://counter.theconversation.com/content/30907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The Fuelwatch research referred to in the piece is being funded by the University of Melbourne School of Government.</span></em></p><p class="fine-print"><em><span>David Byrne receives funding from the Australian Research Council.</span></em></p>The Australian Competition and Consumer Commission’s latest foray into the difficult and politically charged arena of petrol pricing is just the latest in a long running saga that is unlikely to be resolved…Caron Beaton-Wells, Professor, Melbourne Law School, The University of MelbourneDavid Byrne, Lecturer, Department of Economics , The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.