Thumbing through latest issue of the Yale Law Report recently, I came across my class secretary's quarterly musings in which he recounts how he first heard Hillary Clinton speak at our fifteenth class reunion, the year her husband was running for his first term. His heart went pitter-pat, and he thought, "How I wish I could vote for her for President." He goes on to write how excited he is to be finally able to do so this year.
The author of those words was one of my closest law school friends and one of the brightest. Yet I couldn't read his entry without going slack-jawed: How could anyone be excited to vote for Hillary. To hold one's nose and declare her the lesser of two great evils, I can fathom. Even such stalwart conservative writers as Bret Stephens, Max Boot, Mark Thiessen and Jennifer Rubin have announced that they will follow that course. But excitement?
A strong case can be made for both candidates. It consists of three words: What's the alternative?
Hillary Clinton's rap sheet is too long to review. Never in the history of the Republic has any high office holder sought to monetize political power on the scale of she and her husband. Stealing the White House furniture when they left the White House and selling pardons in the last days of Bill's presidency are the perfect metaphors for all that came before and after.
As president, Clinton chief constitutional duty would be faithfully executing the laws of the United States. How can she take an oath to do so, when she has consistently shown that she does not view those laws as applying to herself or her husband? Andrew McCarthy, chief prosecutor in the first World Trade Center bombing case, was not joking when he wrote that Hillary should be prosecuted under the federal racketeering statutes (RICO) for the manner in which she turned the State Department into an adjunct of the influence peddling operation of the Clinton Foundation.
The intertwined tentacles of the Clinton Foundation, Teneo Consulting, and the State Department bear all the markers of criminal enterprise. Thanks to WikiLeaks and Judicial Watch's Freedom of Information Act requests, we now are privy to a raft of email requests for favors from Doug Band of the Clinton Foundation to senior State Department aides Cheryl Mills and Huma Abedin. Under special dispensation, Abedin was allowed to be simultaneously employed by Teneo Consulting, co-founded by Band, and the State Department. And Mills also took a job with the Clinton Foundation after leaving her job as senior counselor to Secretary of State Clinton.
Perhaps the most egregious State Department intervention on behalf of a major donor to the Clinton Foundation was that benefitting Frank Giustra. In 2005, Bill Clinton lobbied Kazakhstan's ruling despot to grant uranium mining rights to Giustra's mining company. Shortly thereafter, Giustra donated $31.3 million to the Foundation, and pledged another $100 million.
When that same despot subsequently arrested the director of the state-controlled uranium agency, the State Department energy envoy pressed the Kazakhstan government to recognize the previously issued licenses to Giustra's company. Subsequently, Russia's state nuclear energy corporation sought to purchase control of Giustra's company, and thereby gain control of one-fifth of the world's known uranium reserves. That required approval from Hillary Clinton's State Department. It was granted.
In 2011, Chelsea Clinton grew so concerned about the way the Clinton Foundation was being run that she commissioned an independent investigation by the law firm of Simpson, Thatcher, and Bartlett. Victoria Bjorklund, considered one of the leading national experts in the laws governing foundations and charities, headed that investigation. The resulting report was scathing, and included a finding that many large donors expected "a quid quo pro" for their contributions, something that is bright-line illegal. The report further found that the Foundation consistently ignored all standard best practices for foundation good governance.
In a 12-page memorandum included in the report, Doug Band described how his firm Teneo Consulting, directed major corporate donors to the Clinton Foundation, and otherwise benefitted what he dubbed "Bill Clinton Inc." during the period Hillary Clinton served as secretary of state. Not only did the Foundation, which employees many long-time veterans of Clinton campaigns and provides luxury travel to Clinton Family members, gain multi-million dollar contributions, but former president Clinton was paid enormous speaking and other fees. One of those perks was an over $17 million dollar contract for serving as "honorary chairman" of a for-profit university. In the memo, Band boasted that he had worked out contracts with clients who donated to the Clinton Foundation that would personally pay the former president $66 million over the next decade.
Hillary Clinton's private server, which FBI director James Comey described in his scathing July press conference as having exposed highly classified government information to foreign hacking, was set up specifically to avoid scrutiny of the web of relationships involving the State Department and the Clinton Foundation and related entities during her tenure. As such, the server not only violated the federal espionage statute making it a crime to handle classified documents in a "grossly negligent" fashion -- Comey's fanciful reading of the statute to require intent to damage the United States, i.e., treason, notwithstanding -- but, according to McCarthy, also constitutes an additional act of fraud in furtherance of the racketeering activities of the Clintons conglomerate.
Recent leaks from WikiLeaks, Judicial Watch Freedom of Information Act requests, and FBI interviews in the private server investigation have yielded a daily serving of juicy tidbits, including: Hillary's State Department security detail detested her for her rudeness, condescension, and temper tantrums, and did everything possible to avoid being assigned to her; Clinton believes every politician must have a private and public position on issues, meaning nothing she says can be believed; campaign chairman John Podesta agrees with Senator Mark Kirk's description of the Iran nuclear deal -- a deal Hillary publicly supports -- as likely to lead to nuclear war and appeasement on the scale of Chamberlain at Munich; and campaign manager Robbie Mook directed that Hillary make no mention of her support of Israel before Democratic groups.
SO BOTH CANDIDATES are thoroughly unsuited to be president -- like Tolstoy's unhappy families, each in his or her own way. I could respect someone who decides to vote for Hillary out of fear that Trump's ignorance of foreign affairs and the vanity that makes it impossible to acknowledge that ignorance makes him too dangerous. And I could respect someone who chooses Trump because he will be more supportive of Israel, hopefully appoint better Supreme Court justices, might rely heavily on vice-president Mike Pence, and will not further advance the identity politics destroying America and making it impossible to address urgent problems -- in short, because he is not Hillary. And I can respect someone who will not be complicit in either one becoming president and refuses to vote for one or another.
It is worth noting, however, that there has been a vastly different response to the respective standard bearers in the Republican Party/conservative movement and in the Democratic Party/progressive movement. Put simply, there is no Democratic #Never Hillary hashtag. True, Hillary barely defeated a doddering socialist in the Democratic primary, and many Democrats are less than thrilled with her as a candidate. But not a single prominent Democratic politician has announced that he or she will not support her. None of the organs of the liberal or progressive commentariat has denounced her. Indeed the press has been completely on board the campaign train -- sending debate questions in advance, clearing articles with the campaign high command for approval. In short, hack work.
By contrast, Republican senators like Ben Sasse have cast their lot with #Never Trump. Few, if any, Republican candidates have campaigned with him or even deigned to have a picture taken together with him. The Republican National Committee has pulled funding from the presidential campaign. Most important, the intellectual elite of the conservative movement, with the exception of those around the Claremont Review, are either at the head of #Never Trump -- i.e., William Kristol's The Weekly Standard -- or fellow travelers with #Never Trump -- e.g., Commentary, National Review. Even those not associated with #Never Trump spend copious ink documenting his failures.
Charles Krauthammer and George Will cannot vote for either candidate, but plenty of respected conservative thinkers, especially foreign policy thinkers, have announced for Hillary, as have dozens of senior State and Defense appointees in the two Bush administrations.
THE DIFFERENCE captures much of what distinguishes conservatives from progressives. Conservatives have principles. And the rules of the game, not just the results, matter. Trump's policy positions violate their principles to a very great degree and his character is not acceptable, in their eyes, for the president of a great country. Voila, #Never Trump.
For progressives, however, power always trumps principle, or, put another way, the amassing of power is the only principle. The rules of the game do not matter, only who wins. From its inception the progressive movement has harbored deep suspicion of American republicanism and the Constitution's system of checks and balances and limited government. The ur-progressive, President Woodrow Wilson first came to prominence proclaiming the Constitution outdated for the modern world and advocating for a stronger executive. Teddy Roosevelt, the 1912 Progressive Party standard-bearer, described the movement as springing from impatience "with the impotence which springs from over-division of governmental powers."
Matthew Yglesias, a prominent progressive blogger, went so far as to celebrate Hillary's cynicism and ruthless pursuit of power as positive qualities. After her reversal on TPP (the Trans-Pacific Partnership trade pact), Yglesias wrote, "From her adventures in cattle trading to . . . her email server, Clinton is clearly more comfortable than the average person with violating norms and operating in legal gray areas."
And that devotion to winning at all costs, concludes Yglesias, is what makes her a perfect leader for the Left in the current moment of "permanent constitutional crisis: a person who cares more about results than process [i.e., procedural norms], who cares more about winning the battle than being well-liked, and a person who believes in asking what she can get away with rather than what would look best."
The basic rule of republican government -- laws will be made by the people's representatives who stand for election at regular intervals -- is not one to which most progressives subscribe. Nor are the rights of free speech dear to them -- witness the modern university campus and the guidance letters from the Obama administration Department of Education -- or freedom of conscience -- consider the Left's current total rejection of RFRA statutes.
Donald Trump, it must be admitted, exhibits a lot of worrisome authoritarian traits. He has advocated a loosening of American libel laws, speaks admiringly of "strong man" Putin, and seems to believe the president has unlimited powers.
His virtue, however, is that he would be incompetent in acting as president on those tendencies. He doesn't know where the levers of anti-democratic power lie nor would he have access to them. And his own party would stifle his exercise of executive power at every turn.
Not so Hillary. She knows where the levers are and how to use them. That is the function of a modern Yale Law School education: Learn how to use power in ways that the cretins of the world cannot stop you, even if they happen to be the majority.
In an important article in the September 26 National Review, "Hillary Is an Embodiment of the Left's Disdain for Democracy," Yuval Levin and Ramesh Ponnuru make this case in detail. The greatest institutional threats to American democracy are, in their account: executive action, the modern administrative leviathan, and an outcome-driven judiciary. President Obama has boasted "I've got a pen and I've got a phone" to make policy by executive order, when Congress fails to do his bidding. And Clinton has said she would defend and expand his executive actions.
The truth about Obamacare is not that legislators had no idea what they were voting for at the time. But even had they followed then Speaker Nancy Pelosi's advice to read it and find out what was in after passage, they would still have had no idea. The degree of delegation to various boards and administrative agencies in statutes like Obamacare and Dodd-Frank is really a transfer of law-making authority to unelected bureaucrats.
The administrative state has been with us since at least 1937, and it will not disappear overnight. But neither is there any doubt that it will expand rapidly in a Clinton administration, as it has under President Obama. Under a Republican president there are grounds to hope that the pace of growth will slow and there might even be some pruning back.
"Guidance letters" to universities and other institutions dependent on huge government funding have been one of the chief sources of the political correctness of the modern American university and the rapid growth of an administrative bureaucracy to enforce cultural sensitivity in all forms, unless one happens to be religious or a supporter of Israel. Though Trump too often confuses incivility and lack of basic manners with being un-P.C., this is probably the one area where he can be counted on to turn the tide a bit, if he can focus long enough.
And finally, Mrs. Clinton has made no secret of the kind of judges she will appoint. And we can be sure that they will not be in the mold of the Late Justice Scalia or Justice Thomas, or feel terribly constrained by the Constitution in reaching what they perceive as the "just and the good."
The only hope if Mrs. Clinton is elected is that she will enter office without any personal or policy mandate. Trump is the only Republican she could have beaten. And issues -- Obamacare, Libya, the Iran nuclear deal -- played almost no role in this forlorn campaign. She will need to reach across the aisle to have any hope of saving Obamacare from complete collapse. And the still ongoing criminal investigation of the Clinton Foundation will serve as another constraint on pulling every lever she might wish.