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Rose Report: 4 Sand Traps in Trump’s Peace Plan

Binyamin Rose

Political gifting may be distasteful, but it’s getting harder to rule it illegal

Wednesday, November 22, 2017

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"It is absurd that the administration is willing to recognize yet another Arab Palestinian state, while refusing to recognize even a small Kurdish state, despite the Kurds having refrained from terrorism and having been crucial allies for decades,” says Eugene Kontorovich, a constitutional law professor at Northwestern University and part of the Kohelet Policy Forum. “Moreover, the danger of recognizing a Palestinian state is that it’s the kind of move that is impossible to reverse. Whereas the Palestinian side of the bargain can always be abandoned.” On the plus side, Kontorovich says the news leaks describing a possible new deal suggest several promising developments, such as the abandonment of the previous administration’s insistence that a Palestinian state be based on 1949 Armistice Lines, or that Jewish settlers be expelled as part of such process. “That of course means that the Palestinians will never actually accept this deal. But it doesn’t mean they won’t pocket any concessions in their favor, which always becomes the floor for new negotiations.” 


The leaked news reports say merely that the Palestinians would declare a state and the US would accept it. It’s not so simple. Under international law, prerequisites for statehood include: a) effective and independent government control; b) the possession of defined territory; c) the capacity to freely engage in foreign relations; and d) effective control over a permanent population. For now, if you grouped the above prerequisites into a multiple-choice test, the answer would be e) none of the above. So the entire concept is problematic because the PA is incapable of doing any of the above without Israel’s direct involvement. The idea that Palestine could be born as an amorphous, borderless entity is unlikely, which probably means that sections of Judea and Samaria currently under PA control would end up being part of their state. And as Kontorovich asks: “If Hamas takes over, as it did in Gaza, would the US ‘un-state’ the State of Palestine? Of course not.”


As president, Donald Trump still markets his expertise as a businessman, and any prudent businessman is careful with whom he deals. Yoram Ettinger, a retired Israeli ambassador, and a longstanding source of mine, said it best this week, when he wrote: “The choice of business and social partners should be based — objectively — on a proven track record, not subjectively on unproven hopes and speculation.” Ettinger then ticked off a long list of allies that the Palestinians have partnered with in the last century, including the Muslim Brotherhood, Nazi Germany, North Korea, Cuba, Venezuela, China, Russia, and Iran. “In 2017, Hitler is still glorified by Palestinian officials and media, and Hitler’s Mein Kampf is a best-seller in the Palestinian Authority,” Ettinger notes.


As of now, if you ran a popularity contest between the Ebola epidemic and Donald Trump among leftists, Ebola would probably win. It will be illuminating to see the left’s reaction to a Trump administration peace proposal that embraces many of the left’s pet positions, including Palestinian statehood, and makes Netanyahu and the right squirm. Will the left find an elegant way to embrace the idea, but not the man behind it? And if Trump’s initiative falls apart, like every other peace plan before it, he will probably find that the left scorns him more than before, and that the support he gained from the Israeli right will dissipate.



Law and Order

The Trend Is Menendez’s Friend

Convicting a politician of bribery has never been harder. That’s either a positive or a negative, depending on which legal expert you ask, or whom you support politically.

A federal judge declared a mistrial in the case of US Senator Robert Menendez (D-NJ), after jurors failed to reach a verdict on 18 counts of fraud and bribery. In the last three months, corruption convictions against two New York State politicians, former senate majority leader Dean Skelos and former assembly speaker Sheldon Silver, were reversed on appeal.

In each case, the government alleged the politicians received gifts or other compensation and repaid them by bestowing political favors. None of the defendants denied that they received certain favors, but insisted that they did nothing wrong.

Federal bribery statutes make it a crime for a public official to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act.”

However, last year, the Supreme Court tweaked the definition of an “official act” in overturning the conviction of former Virginia governor Bill O’Donnell, who was charged with receiving expensive gifts such as a Rolex watch and expensive clothing in return for promoting a campaign donor’s business interests.

While Chief Justice John Roberts admitted the O’Donnell episode was “distasteful,” his majority opinion was that politicians are not necessarily breaking the law when they do favors for friends: “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”

Even the Supreme Court’s liberal wing voted unanimously to concur with Justice Roberts that typical unlawful official acts would include interfering in a lawsuit, court proceedings, or some other explicit official activity such as pending legislation. However, holding a meeting, making a call, or arranging an event does not cross the line into illegality.

Ironically, some legal experts contend that the Menendez, Skelos, and Silver cases are instances where prosecutors got caught playing “gotcha.”

Writing on ScotusBlog, attorneys Pete Patterson and John Ohlendorf of the Washington law firm Cooper & Kirk, PLLC, quoted Justice Jackson, who said that “prosecutorial discretion becomes a threat to liberty when its scope is so broad that a prosecutor can ‘pick people who he thinks he should get, rather than pick cases that need to be prosecuted,’ freeing him to go after individuals whose only crime is ‘being attached to the wrong political views.’ ”

On the other hand, Fred Wertheimer, president of Democracy 21, noted that officeholders do not “routinely” get Rolex watches or $20,000 worth of designer clothes in return for setting up meetings or doing other kinds of similar services for constituents.

“While elected officials can be expected to share the views of their political supporters and constituents,” says Wertheimer, “it is not ‘responsiveness’ for an officeholder to promote the views of a constituent in return for being showered with gifts, thousands of dollars’ worth of expensive clothing for their spouses, and tens of thousands of dollars of loans. It is corrupt practices.

“It is behavior that increases the public view that the system is rigged to allow those who pay the piper to call the tune.” (Originally featured in Mishpacha, Issue 686)

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