Originally published on LinkedIn Pulse August 10, 2016 

By Brian E. Frydenborg (LinkedIn, Facebook, Twitter @bfry1981) August 10th, 2016

Matt Slocum/AP

AMMAN — As the story swirling around the Russian-hacked, Wikileaks-released body of e-mails from seven staffers of the Democratic National Committee (abbreviated as DNC and the braintrust/leadership organization for the Democratic Party) unfolded just before and during the Democratic National Convention, it came to light that some of these staffers had discussed Bernie Sanders in a critical manner and discussed ways to bring negative attention to his candidacy.

Cue one of the most overblown “scandals” in recent memory.

Much Ado About Nothing

A point lost in much of the commentary surrounding the leaked e-mails is that, rather than show any kind of specific smoking gun, they either showed explicit instructions not to act on these ideas/discussions or failed to provide any evidence that they were acted upon.

The e-mails are basically internal musings of private individuals working for a private organization, much like thoughts in a person’s head bouncing around but with something along the lines of telepathic communication at work between several individuals. Like any groupings of individual e-mails as part of any public or private organization, they don’t represent the organization as a whole or its official policy, but represent private discussions of private individuals who do work for the organization but are simply expressing private thoughts not meant for public consumption that nevertheless do represent their thoughts as individuals within a massive organization, yet we don’t know if they are meant to be 100% serious or more tongue-in-cheek than anything else, whether they are joking or maybe just playing devil’s advocate for something they’d like to see but know won’t ever materialize; basically, we know far, far less about the e-mails than what the people involved know, but they seem to give us a window into glimpsing the thought process of several DNC staffer, nothing more, nothing less. Sure, questions are raised, but drawing firm conclusions from these e-mails that there was any substantive action taken against Bernie Sanders and his campaign is not possible.

But such details and many others were lost in much of the media coverage and on the many, many Bernie Sanders supporters who ranged from leaning toward believing in an anti-Bernie conspiracy to “knowing” in their hearts that there was one, as they now “knew” they had the information they needed to give solid form to their dark, brooding thoughts, to lose it and go absolutely ballistic on the DNC, the Democratic Party, and Hillary Clinton.

Both the absurdity and the petulance of this genuine yet myopic outrage deserves to examined in detail.

Non-Democrat Tries to Take Over Democrats & They Don’t Like It… YAWN

First of all, I must, again, quote a friend of mine and his pithy yet spot-on social media post in which he wrote “so, lemme get this straight: some staffers from a national political committee expressed personal political opinions on their work email? ok, gotcha.” Perhaps Sanders supporters feel this is being unfairly dismissive, but as someone who has been a registered Democrat for my entire adult life, I beg to differ. For one thing, the vast majority of Clinton’s votes in the Democratic primary came from registered Democrats who preferred her 64% to 35% for Sanders, while the vast majority of Sanders’ votes in the Democratic primary came from independents, who preferred him 64% to 34% for Clinton. Last time I checked, the Democratic Party was a well-defined private organization with its own beliefs and people, with the full rights and freedom to control its membership and participation and pathways to both in order to prevent outside people and influences from hijacking it. 

In fact, Bernie Sanders was not even calling himself a Democrat until he decided to run for president over a year ago. So, for one thing, everyone, including Bernie Sanders supporters, needs to admit that Bernie was declaring himself to be a Democrat not because he had suddenly discovered newfound love and appreciation for the Democratic Party, its politics, and its officials; no, the longest-serving independent member of Congress in American history—one who had very often run and campaigned (and campaigned hard) against Democrats—was very much and very cynically using the party’s national-level apparatus and organizational strength as a way to project his ideas, his approach, his candidacy, and himself in marked contrast and in opposition to said party. Sanders even made it clear in the middle of March of this year that he was doing just this, explicitly saying that he ran as a Democrat to get more media coverage and money, musing to his interviewer that this interviewer “would not have me on his program” if he was running as an independent and further musing:

“Look, here’s the truth. You’re right, I am the longest serving independent in the history of the United States Congress…Do you run as an independent? Do you run within the Democratic party? We concluded– and I think it was absolutely the right decision, that, A, in terms of media coverage– you have to run within the Democratic Party.

Number two, that to run as an independent, you need– you could be a billionaire. If you’re a billionaire, you can do that. I’m not a billionaire. So the structure of American politics today is such that I thought the right ethic was to run within the Democratic Party.”

Sanders even had to be intensely pressured by his inner circle to run as Democrat, something he really, really didn’t want to do, and not an independent, which was his initial plan, before his advisors insisted he do an about-face. Even today, his official Senate website proudly touts his career as an independent in the second sentence of his “About” page and labels him currently as an independent. His was to be a hostile takeover, whose very campaign was fueled by and defined by his longstanding disdain and contempt (even encouraging of hatred) for the Democratic Party and its standard bearer, Hillary Clinton. And even in the middle of the Democratic National Convention, Sanders announced that he would be returning to his work in the U.S. Senate not as a Democrat, but as an independent.

Thus, the undeniable truth is that while Sanders ran as a Democrat for not quite 15 full months (and he really only declared himself full a Democrat for not quite 9 of those months, doing so in November, in time to be eligible for the New Hampshire primary while also pledging to run in future elections as a Democrat, a pledge which he apparently just went back on in in claiming to be an independent again), he wanted to take over the Democratic Party rather than join it. That means that other than in a purely opportunist sense for these last 15 months and in no deeper sense at all over the course of his 25-year congressional career and of his overall 45-year political career has Bernie Sanders ever really been a Democrat. 

So while Sanders is perfectly within his rights to attempt a hostile takeover within certain bounds, the Democratic Party is also within its rights to protect itself, its interests, and its people from such a hostile takeover within certain bounds.

The Right to (Political) Self-Defense, in Praise of Political Elites, & the Limits of Democracy/”The People”

Does this Democratic Party, which had its own accustomed ideas and approaches different from those of Sanders, have a right to organize itself in such a way as to help prevent a hostile takeover? Of course it does, which is why a good chunk of primaries (including those of very populous and thus electorally important states like New York and Florida) are closed primaries, where only party members who have registered to be in a party well before the primary can vote in that party’s primary.

As Andrew Sullivan noted recently, too much democracy and too open a system actually creates fertile ground for tyranny and chaos. The Founding Fathers were explicit: the people were not to govern, but their representatives as chosen by them were. In the American system of government, political parties run by political elites familiar with the complex machinery of government play an important role in the running of a system that negotiates the many competing views and interests of any diverse, modern democracy, and just as their role should not eclipse and supplant that of the people, the role of the people should not eclipse and supplant this important role played by elites. 

This idea of balance is not anything new, and such balance between people and elites was what the ancient Greek writer Polybius saw as the secret to ancient Rome’s success over 2,000 years ago. Whether reading the ancient advocates of republican government or The Federalist Papers, it is clear that a dominant philosophy is one of checks and balances, with both the government and the people checking each other and themselves being seen as ideal; yes, the people, hardly infallible, need to have their power checked, too, no matter how angry that idea may make some. And if ever there was a time for elites and the system to check the often temporary, misguided will of the people in American electoral history, it is today with Trump as a serious contender.

In America, elites today are basically the only thing other than the Constitution that stand between at least the semblance of orderly governance on one side of the spectrum and, on the other side, a system that would “operate” much like a room full of many people with very divergent views arguing endlessly on an issue and finding they are unable to come to a collective decision save for the majority simply imposing its will on the minority: a Tocquevillian “tyranny of the majority.” As James Madison wrote in “Federalist No. 55,” “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” 

Doing away with political elites’ powers as gatekeepers and stewards for political party operations and nominations goes hand-in-hand with the process of those same elites’ role of performing the key negotiative function in the American political system becoming increasingly eclipsed by elites’ almost servile fidelity to the momentary whims of the masses, measured by ever more ubiquitous and frequent public opinion polls (polls that increasingly determine a politician’s course of action, rather than inform it). While such elites in America have tended to rely on support from diffuse interest groups and populations in the past, the more open electoral system of late has seen a move towards support from more vocal, passionate extremists, most recently characterized by the rise of the Tea Party, and, after that, Trumpism and Sandersism. With the backroom an increasingly rare space for deal-making and being replaced by a laser-focused public spotlight that leaves less flexibility and often loses sight of the bigger picture, posturing has come to be more and more a substitute for deal-making, the true essence of governing.

Fairness and Earned Advantages

An important role for political elites and party apparatuses doesn’t mean they should be able to do anything regardless of how their rank-and-file members feel and the public as a whole feels; it doesn’t mean that the party can, or should, make it impossible for major change, prevent new ideas and new candidates from competing, seek to formally disqualify new blood, or work as an organization in its entirety to stack the deck as favorably as possible against a competitive insurgent. But it also sure doesn’t mean that they are going to roll out the red carpet for a candidate like Sanders, do everything to his liking, make it as easy as possible for him to compete, and not throw up some obstacles or play some defense.

Fairness doesn’t mean you start off with an equal voice at the table to one of a political party’s longtime standard bearers, and it sure doesn’t mean that people at the table aren’t and don’t have a right to rally behind that standard bearer. The crowd of people who choose to not be registered Democrats covetously standing around the table sure doesn’t automatically get to control the table, its menu, dishware selection, doilies, tablecloth color, and music selection, no matter how loud and proud they are. Yes, like any new member of a sports team or business or organization, there are dues to be paid, and the people who are already there and there for some time have certain natural advantages that come from their relationships with the parts of that organization and the people working in it. The blood, sweat, and tears borne of these ties, earned over time, are themselves example of the dues these people paid over the time they have put in and sacrificed. 

To suggest that a new person should immediately be given such benefits without actually earning them, or that the people who have such benefits should forfeit them even though they have earned them by building relationship over time through sacrifice and teamwork, is, frankly, absurd in the extreme. In fact, one would be hard pressed to find any institution anywhere that allows for such a system where the neophyte is given the same respect, access, and support as the veteran. What is fair to expect is that the rules governing their behavior be the same in the event of competition; but the athlete who puts in more time, training, and works better with his teammates has every right to such advantages, having earned them, just as much as the new athlete has every right to expect that the rules on the field (if not the locker room) will be the same for all.

The Case of (& for) Superdelegates

The question is all about degree, and the superdelegates are a case in point: should Party leaders—those who are most loyal, work the hardest, have put in the most time, and have been in the trenches for years—have an actual say in the Party’s nomination process? Well, of course, why shouldn’t they!? And why shouldn’t they collectively have a meaningful say, separate from their votes as private citizens and being able to endorse candidates and weigh in on the race throughout? This is not giving them any more power voting-wise in a general national election than any other citizen, for we are talking about their own Party’s nomination process, not the general election. 

Think of corporate boards: the board votes on major decisions, not the employees. Well, the Democratic Party basically gives employees the main say, but has a small board that also weighs in. I actually like the idea of superdelegates, because it shows the Party actually is and means something, that it carries a certain weight; in this way, then, the Party is more, far more, than simply the sum of its voting members’ collective will and whatever its voters decide at any given time. Superdelegates allow the Party to have a rightful say as an organization in their organization’s nomination process. The people’s voice still reigns supreme in the outcome, as delegates bound by voters’ votes (“pledged” delegates) represent over 85% of all the delegates, with superdelegates accounting for less than 15%. And throughout the entirety of sueprdelegate history, a majority of superdelegates has never, ever voted for anyone other than the candidate who had secured the most pledged delegates. 

For the next presidential election, Clinton and Sanders supporters on the Party’s rules committee have agreed to, and are moving on, a proposal that would bind about two-thirds of the superdelegates to the results of the state voting contests but would still allow Senators, House Representatives, Governors, and other prominent Party leaders to vote as they please, preserving the identity of the Democratic Party as something more than just the temporary will of voters at a given point in time.  

One thing is for damn sure: Republican Party officials sure wish they had had superdelegates who could have stopped Trump, and if the Democratic Party nomination process had resulted in someone like Trump, I sure hope the superdelegates would have gone against such a candidate, as intended. 

Another scenario is worth consideration: what if Sanders had gotten essentially a tie with Clinton or even earned slightly more votes and pledged delegates than she did, but, as is currently the case, she still won the vast majority of registered Democrats and Bernie Sanders won on the backs of non-Democratic independents; in such a situation, there is a good case to be made that the superdelegates should favor her and push her over the edge to victory since 1.) they would be acting to shore up the will of the actual members of the Democratic Party 2.) independents are far less reliable voters than Democrats and their turnout is consistently lower, too 3.) the Party owes actual Democrats far more than independents, whose support is fickle 4.) both Sanders’ approach to politics and his actual policy proposals are objectively delusional given political realities 5.) Sanders would certainly do worse than Clinton in a general election given that his views and methods are so far out of the mainstream and so far to the left of most Americans in a country where 47 out of 50 states contain more self-identified conservatives than liberals and since the polls that earlier showed him as performing better than Clinton in a general election are demonstrably historically inaccurate. Of course the Party would be smart to (and would likely) move their positions a bit closer to those of Sanders and his independent backers in an effort to win them over, but to back Sanders for the nomination, for all these reasons, would have been a bad move, even a suicidal one. However, if a majority of registered Democrats had picked Sanders, the case would be much harder to make that the superdelegates should support Clinton and they likely would not have enough votes to give her the nomination, all things being equal.

The Case for Closed Primaries

Yes, Americans have constitutionally guaranteed rights to vote for their representatives and their president, but no Constitutional or inherent right to weigh in on who the political parties will provide as their candidates for president; that’s for the parties to decide.

Basically, independents are lucky when they get to participate in a party’s nomination process, but it is their decision to not affiliate with a party that prevents them from voting during a party’s nomination process if they live where there is a closed primary. If a person chooses not to affiliate with a party, that’s a good indication that that person does not share the values of that party nearly as much as the people who do choose to affiliate with it. And political parties are all about citizens with shared values organizing to gain political power for like-minded purposes. So what gives an independent and inherent right to participate in any party’s nomination process? Nothing, nothing at all, except it a state party organization feels generous and, instead of a closed primary, it holds an open one.

Sometimes this can lead to mischief: according to various exit polls, in West Virginia’s open primary, anywhere from a huge minority of Bernie Sanders voters to a significant majority of them indicated they would be voting for Trump in November; as Trump had already basically won the Republican nomination contest, it is possible some of Trump’s supporters wanted to hurt Clinton, who had also virtually won the nomination but was in a much tighter race with Sanders, by voting for Sanders. With restrictions on primary participation, such mischief is more than possible…

In addition to this mischief, open primaries prevent parties from having any control over who weighs in on their nomination process in those contests, leaving them open to possible takeovers, and kill the major incentive for people to register and become real members of a party, supporting it over time. It essentially weakens the middleman roll that parties and elites play between voters and individual candidates, leaving them more susceptible to demagogues and increasing the likelihood of voting based on personality rather than on a set of shared values and principles.

Conclusion: Fair Does Not Mean Surrender to the New Guy & We Still Need Political Parties to Be an Actual Thing

The point is, the Party and its officials have every right to support the candidate they think best represents the party’s ideas and values, who has supported the Party through thick and thin, and has the best chance of winning and the best ability to govern. As the conservative RedState pointed out, with this e-mail “scandal,” people were complaining about the Democratic Party doing what the Republican Party already does openly and to a far more intense degree. In fact, virtually any political party anywhere will favor its own longtime loyalists over outside critics; if there was an American “Democratic Socialist Party” that was the only major U.S. political party besides the Republican Party, and Hillary Clinton was a “democrat” trying to push the Democratic Socialist Party hard towards the center, you can sure bet that the people at the Democratic Socialist National Committee (DSNC) would be discussing ways to marginalize her and protect their favored candidate. This is just basic, elemental politics and basic, elemental human and organizational behavior.

In the end, allowing a fair vote (sometimes only among registered Democrats and sometimes allowing independents, per those local decisions), laying out and enforcing the same rules for all candidates, and not directly giving one candidate material resources that another is not offered is about all that can, and should, be expected. Asking people working within the Party to not privately express or have preferences, to avoid discussing strategy to benefit one candidate or another as part of private internal discussions that mention actions that will be given no official sanction or approval by the party apparatus, or to not put up any even informal resistance to a hostile takeover is an absurdly delusional expectation that goes against human nature and the modus operandi of any organization.

Well, going back to the DNC e-mails, Bernie was allowed to compete in the Democratic Party primary even though his actual standing in said party for this election was questionable; both he and Clinton had to compete under the same rules, and while the Party “favored” her in so much as the vast majority of registered Democrats supported her and obviously the vast majority of officials in the Democratic party supported her, there is zero evidence that any of the voting was conducted in a way designed to benefit Clinton over Sanders and suppress Sanders voters, or that any material benefit was given to the Clinton campaign that was not offered to the Sanders campaign. Clinton won because more people voted for her (especially more Democrats), giving her far more pledged than Sanders. Not the DNC, not anybody or anything, “stole” the election from or “rigged” the election against Sanders.

Many Sanders supporters are furious that these e-mails showed that DNC staffers did not like Bernie Sanders. But he didn’t like them or the Democratic Party well before he decided to run for president. Without any other evidence of anything substantive actually coming from these e-mails, there is no “scandal,” just passionate supporters—mostly people who aren’t even Democrats—of a losing, outsider candidate furious that they were not able to succeed in a hostile takeover of a party they generally both already did not like and with which they chose not to affiliate…

Nothing terribly newsworthy here, let along surprising or improper.

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Originally published on LinkedIn Pulse July 22, 2015 

By Brian E. Frydenborg (LinkedIn, Facebook, Twitter @bfry1981) July 22nd, 2015

Published by Stupidparty Math v. Myth thanks to Patrick Andendall

Reuters

Updated July 26th to include a link in concluding paragraph to analyst and Slate.com writer Fred Kaplan’s excellent piece highlighting the irrationality of Senate Republicans on the Iran deal and to a New York Times article highlighting the fact that Republicans were against the deal even before it was finalized or the details of it were released and available for review.

AMMAN — Treason is not a word that should ever be used lightly.  Expressing a dissenting opinion during wartime, for example, should not be thought of as treasonous, even though some still seem to think that using that word is appropriate.  Challenging your government, its officers, and your fellow citizens when you believe they are incorrect is also something that a sane definition of treason should not include.  In the words of the great journalist Edward R. Murrow, “We must not confuse dissent with disloyalty.”

And yet, how you express these opinions, and who you are and in what capacity you are speaking, can matter in certain circumstances.

With the Obama Administration’s twenty months of negotiations with Iranian President Hassan Rouhani’s negotiators on a nuclear deal (full text here) to prevent or slow Iran’s ability to acquire nuclear weapons production and deployment capabilities ending in (despite some delays) a momentous, historic success, we reached those certain circumstances during the negotiations with a letter signed by forty-seven out of fifty-four Republican senators, nearly half of the one-hundred-strong United States Senate, our senior legislative body.  This extraordinary action can also be viewed as one-sixth the power and authority of our government, being roughly one-half of one-third of one of our three co-equal branches of national government (the other two being the presidency’s Executive Branch and the federal courts of the Judicial Branch).  The short letter of the senators, authored by Sen. Tom Cotton and titled “An Open Letter to the Leaders of the Islamic Republic of Iran,” basically claimed that the president and his officials alone could not conclude a meaningful agreement without their approval and could only reach “a mere executive agreement,” that most of them would likely still be senators when Obama leaves office in January 2017, and then concluded that the “next president could revoke such an executive agreement with the stroke of a pen and the future Congress could modify the terms of the agreement at any time” (with “any time” not actually being true because any president could veto any changes and that veto would be insurmountable without a two-thirds vote against the president in both the House and Senate).  The letter was directly addressed to Iran’s leaders and was clearly designed to sabotage and undermine the Obama Administration’s efforts towards reaching an agreement with Iran on its nuclear program (meaning that both Republican hardliners and Iran’s Islamic hardliners found common cause in opposing the agreement; Republicans, in fact, often find themselves empowering America’s enemies through their actions).  The letter was produced and released on official United States Senate stationary with the official Senate letterhead and was signed by forty-seven sitting senators.  They were not merely conveying their opinions as individuals, but were conveying them as senators and in their official capacity.

The relevant historians find this to be unprecedented, including the official Senate Historian himself who said that “We haven’t found a precedent…That doesn’t mean there isn’t a precedent. After 200 years, it’s hard to find anything that unprecedented.”  In the end, he says, “We really didn’t find anything.”  Secretary of State John Kerry, the Obama Administration’s point man on negotiations with Iran complained of the letter’s unprecedented nature.  The complaints did not stop there…

Now, there are some basic lessons from American history and some principles behind our Constitution that these forty-seven Republican senators, and those who support them, seem to miss.  Actually, we can say this about a whole lot of things when it comes to Republicans and conservatives, who often seem to prefer the disaster that was the Articles of Confederation (see the thoughts on its “Deficiencies” of Founding Father, author of the Constitution, and [fourth] President James Madison) over our Constitution and constantly read the latter as if it was the former (they should read Federalist No. 63, in which Madison discusses the need for both government power and the people’s liberty to be checked).  That could be a whole other article, but the point about the Republican senators’ letter goes back to issues from the very period of the Articles of Confederation that led to its being scrapped in favor of the Constitution (see The Federalist Papers Nos. 15-22).  The period of 1781–1789, during which the Articles of Confederation governed the United States, saw tremendous chaos in the realm of the new nation’s foreign affairs.  Though in theory foreign policy was supposed to more-or-less be conducted by the national Congress of the Confederation, in practice the weak and ineffectual national government proved unable to prevent individual states and individual people from meddling in foreign policy, confusing other parties as to who really speaking for the United States and with real authority.  To say this led to misunderstandings and crises would be an understatement.  After the Constitution went into effect in 1789, over time “Americans began to see alternative negotiating as treason.”

Still, with a new government in place and officials navigating in unchartered waters, it would take some time for clear limits to be established and understood.  While the primacy of the Executive Branch in foreign affairs was clear in the Constitution as originally worded, what crossed the line and how this line would be enforced was not as clear.  This gray area was left for Congress, Executive practice, and the Federal Judiciary to decide.  And that is what began happening.  When hostilities on the open seas emerged with Revolutionary France during the undeclared “Quasi-War” (1798-1800), a private citizen named George Logan took it upon himself, without approval from the government, to travel to France in 1798 to negotiate on behalf of the United States.  In response, Congress passed a law known as the Logan Act in 1799 that basically criminalized unauthorized diplomacy.  This law still remains on the books today and has been modified slightly in the modern era, yet there has never been a full prosecution of anyone over this law; over the entire history of the Act, only one Kentucky farmer was charged with violating it in 1803, but his case was never even brought to trial.

In terms of the Senate Republicans’ Iran letter, there seems to be a consensus among serious non-partisans and policy analysts that the letter itself is almost farcically silly and “embarrassing”; it presumes to lecture on U.S. Constitutional mechanisms, then proceeds to mischaracterize one of the key mechanisms in question, claiming that Congress “ratifies” treaties when actually it simply give its advice and /or necessary (but not sufficient) consent to the president, who makes the ultimate decision on ratification if and after the Senate votes to consent (in Iran’s snarky responses to the letter, the fact that the Senators mischaracterized their own Constitution was, embarrassingly, not lost on the Iranians).

However, there is some debate among scholars and analysts as to whether or not the letter is a clear violation of the Logan Act.  Some say it is a clear violation, others feel it is more gray, some say it is pointless to even determine this because prosecution under the Act is both impractical and unlikely.  If you’re thinking that Logan was outside the government and that that means senators can’t be in violation of the Act, before we go any further, it is time to open up the U.S. Constitution that both restricts and empowers the Federal Government.  For forty-seven Republican senators, and anyone who agree with their action of sending a certain letter to Iran’s Supreme leader at this moment in time on the subjects it covered, they may need to blow the dust off of their copy.

Article I is the section of the Constitution that lays out the powers and responsibilities of the U.S. Congress, and it very clearly does not authorize Senators or any other member of Congress to engage in foreign relations or negotiations of their own accord.  However, in Article II, which deals with the powers of the President, the U.S. Senate is given “Advice and Consent” roles in Section 2 in relation to the President’s and the executive branch’s express powers to be the executors of foreign policy: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Congress legislates, but the president executes the actions of government.  The Constitution was clearly designed to have one principal agent, the president (and any people to whom he chose to delegate authority), act in the arena of foreign relations with the Senate’s “Advice and Consent.”  Having multiple centers of gravity in the same type of power with respect to foreign relations would have been to invite chaos and disaster and inconsistency (as during the Articles of Confederation era), and this the Constitution clearly avoids having.  The president’s Constitutional powers empower the presidency to make “presidential or sole executive agreements” without a Congressional role, agreements that fall short of the stature of “Treaties” that can be subjected to future change or rejection but are hardly insignificant.  That is not to say the Senate has no role, as clearly the President is supposed to act with senators’ “Advice and Consent,” and best practice and the best results come from when the president and the Senate work together in the process of treaty-making, with the president often delegating senators to negotiate or involving them in negotiations.  However, with the treaty Power falling under Article II, and the president having “Power, by and with the Advice and Consent of the Senate,” and not the other way around, it is clear that the president leads and that senators cannot act independently of the Executive Branch in this realm, save to offer their “Advice” or to withhold their “Consent.”  Advising and Consenting in no way even implies unilateral insertion into an official process or unilaterally officially communicating to active parties in an official negotiation; there is no Constitutional room for senators undermining the Executive Branch’s negotiating positions and negotiations through official non-legislative action directed specifically at negotiations or the parties involved in them; such actions would be clear violations of both the language and spirit of Article II, Section 2, of the Constitution.  And even though they are sitting government officials, the senators were clearly not authorized to conduct this sort of (un)diplomatic action, so it was thus likely a violation of the Logan Act.

Yet even if there was not a violation of the Logan Act, or any law with a specific penalty, there is perhaps, then, an even stronger case to be made that the senators violated the Constitution and encroached on the prerogatives of the Executive Branch and the presidency.  In American jurisprudence, there is a concept known as the “sole organ” doctrine that is confusing and misunderstood and often taken out of context.  But, as constitutional scholar Louis Fisher shows in his lengthy and comprehensive discussion of the Executive Branch’s prerogatives regarding foreign policy, where there is little confusion among the framers of the Constitution and the Judicial Branch’s interpretation is in the consensus that the Executive Branch is the sole executor of foreign policy, and that this includes all communications to and through foreign powers.

And yet, what we have happening here today is exactly what the Constitution was designed to prevent: members of the Senate inserting themselves publicly and without presidential authorization into ongoing negotiations between the Executive Branch of government, acting within its Constitutional authority in its capacity for action, and the government of Iran.  To insert themselves directly into the negotiations with messages that expressly contradict both the intent and the spirit of the elected president’s administration is a clear violation of both the separation and the division of powers as laid out in the constitution.  And the fact that it was done to deliberately undermine the goals of a presidential administration engaged in active negotiations with a foreign power makes it treasonous any way you slice it or dice it.  That it does not fit the prosecutable Constitutional definition of treason as laid out in Article III Section 3 does not mean it does not fit the dictionary definition and spirit of the general concept of treason (it clearly does).  Senators may no more publicly use their office to undermine the president’s authority to engage in negotiations as an executive head of state than the president may issue an executive order that empowers himself or those acting on his authority to violate laws that Congress passes.  The Senate does not consist of one-hundred individual ambassadors-at-large-to-the-world able to act on their own impulses any more than the presidency consists of one legislator-at-large able to legislate at will.  To use Alexander Hamilton’s words in Federalist No. 75, “the Executive…[is] the most fit agent” for “the management of foreign negotiations,” a sentiment echoed by John Jay in Federalist No. 64.  That is partly why executive power and legislative power, unlike in Britain and other parliamentary systems, are divided and separated by our Constitution.  For a president to legislate or a senator to execute, is, if you’ll pardon the expression, un-American.

Thus, the Republican senators’ letter is clearly a violation of the Constitution, even if it may be less clear as to whether their letter is a prosecutable offense under the Logan Act.  Yet even worse than the their specific treasonous-in-spirit-act is the fact that their position is so wrong and dangerous for everyone involved: Americans, Iranians, all the peoples of the Middle East (including Israelis), and even the whole world.  

I have discussed the deal’s details before.  But even as Iran’s ability to produce a weapon would increase towards the end of the fifteen-year-agreement, the length of time required to make a weapon in the event of a breakdown in the agreement—termed “breakout time”—even at that juncture would still take longer than it would currently take Iran, before the implementation of this new agreement.  Now, Iran’s breakout time is two-to-three months; once the agreement is in place, it would take Iran a year to produce a bomb.  That’s a big difference in my book.

As I have written, and as President Obama himself has noted, those opposing this deal do not have logic on their side at all.  When negotiating a deal, both sides must make concessions; neither side will be totally happy with the results, and the fact that this deal is not a perfect deal from the perspective of the interests of America is simply the reality of negotiating a deal, and does not mean that the deal is a bad one, is not good, or should be rejected.  The idea that Iran would have likely given up more ground—whether, as Republican presidential hopeful Donald Trump claims, Iran would have cowed before the supposedly-awesome might of Trump’s negotiating skills, or whether, as reporter Major Garret obscenely suggested, that Obama should have jeopardized an entire nuclear deal affecting millions by tying it to the fate a few American citizens being detained by Iranian authorities (and I wouldn’t be surprised if they are released in the near future, much like Kennedy quietly and subsequently removed Jupiter nuclear missiles from Turkey as part of a secret caveat helping to end the Cuban Missile Crisis)—is just not grounded in reality, considering especially that Iran already gave a lot of ground.  So don’t let anyone tell you that a significantly better deal for the U.S. at this time could have been reached.  If sanctions were ratcheted up and a significant amount of time went by before resuming negotiations, perhaps Iran would be feeling more pressure, but it would also be much closer to a bomb or might already have one by the time negotiations resumed.  So, that would have been a bad risk to take.  No deal now, and no deal in the future, would have allowed Iran’s already strong nuclear program to continue unhindered, then, and nuclear weapons capability would have been certain in the near future.  No deal, with a nuclear Iran and Middle East with a deteriorating and expanding Sunni-Shiite regional conflict, is not in anyone’s interests, except ISIS and other terrorist groups.  And as Obama himself correctly made clear, “Put simply, no deal means a greater chance of more war in the Middle East.”  The only other realistic alternative to this risky status quo and this agreement, then, is a risky military path, from a single strike up to and including all-out war.  These military options seem to be the ones favored by Saudi Arabia’s new king and Israel’s Benjamin Netanyahu (one of the largest critics of the deal), who would love to have America fight a war against Iran on their behalf.  Yet even just a limited strike could risk a radicalization of the Iranian regime and to galvanize the people behind Iran’s ayatollahs, who aren’t exactly currently loved by many Iranians for leading their country to diplomatic isolation and economic sanctions.  A lot of people would die in those strikes and their responses, likely including many Israelis.  And an all-out war, with Iran’s mountainous terrain and large population, would make the Iraq war, by comparison, look like child’s play.  And I frankly don’t think Americans are willing to wage a war that could take much longer than our recent war in Iraq and result in far more casualties for Americans, especially when this deal presents a viable alternative to war.  Even with a war, it is very difficult to know that we would be able to eradicate Iran’s nuclear capability, and if Iran was in possession of any nuclear weapons during a war it was fighting on its own territory, if its situation were desperate, that would only increase the chances, not lessen, of the use of nuclear weapons in combat for the first time since Nagasaki in 1945.  If America stopped its efforts short of a full regime change and the eradication of Iran’s nuclear program—very tall tasks, indeed—then the result would be a humiliating disaster for America that would leave every party in a worse-off situation than before fighting began.  So, no, when this deal is stacked up against realistic alternatives—not Trump’s Celebrity Apprentice fantasy negotiations, but negotiations that would have taken place in the real world—there really is not a better alternative or one with less risk.  And this is the only one of the realistic options that does not involve massive bloodshed that severely limits Iran’s nuclear program and keeps it from developing a bomb for at least a decade and then some.

Perhaps most importantly, we have a chance to begin anew our relationship with Iran.  Recognizing this potential, over 100 former American ambassadors praised the deal.  The United Nations Security Council has already unanimously endorsed the deal, and has also voted to lift sanctions on Iran (the latter provoking complains from the U.S. Congress). This deal enjoys broad global support for good reasons.  I’m not going to mince words at all here: this is, clearly, Obama’s greatest achievement in foreign policy (including the killing of bin-Laden, whose relevance had decreased significantly in the years before his death) and possibly even of his entire presidency.  TARP and the stimulus packages were either a joint-effort with the departing Bush Administration and/or with Congress; this, on the other hand, was all Obama and his team.  This may very well be the biggest foreign policy development in over forty years, since Nixon went to China in 1972 and began a path that led to engagement between the two countries that has benefitted both nations in many ways and helped to prevent war between us.  No singe act of a U.S. presidential administration has happened from that 1972 trip until this Iran deal that has so much potential to be a game changer and to change the course of world history so greatly.  This is truly a monumental achievement of great substance that makes many millions of people safer than any of the realistic alternatives; Obama, Kerry, Rouhani, and their negotiating teams should be hailed as heroes.

But all the Republicans do is bash this deal, with incredibly myopic points that do not address any of the points I raised about realistic alternatives being far worse.  In fact, their behavior in general on the Iran issue has been highly irrational and deeply unproductive, in additional to being seriously harmful.  They don’t seem to want any deal, let alone one negotiated by the Obama Administration, regardless of its specifics, as they made crystal clear their opposition before the deal was even finalized and before they had even had time to be able to read through it once it was finalized.  The Republican clown-car of potential candidates vying to be their party’s choice to be the leader of the world would, if their words are to be taken seriously, dramatically escalate the likelihood of all-out war and would see current levels of bloodshed all over the Middle East very likely rise should any of them occupy the White House.  From supporting treasonous and un-Constitutional acts to endangering Americans, Israelis, Iranians, Arabs, and the world with awful policies and deeds that illogically undermine the very sound policies of the Obama Administration, the Republican Party is not to be trusted, respected, or voted into power because they are just so wrong.

See related article by same author: There Is No Logical Argument Against the Iran Nuclear Deal

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