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Juan Cole | Could Trump Go to Jail for Payoff to Porn Star Stormy Daniels?
Juan Cole, Informed Comment
Cole writes: "I think the state prosecution of Trump for the Stormy Daniels payoff is the most potentially explosive case, precisely because no pardon could be proffered by President Biden in the genteel tradition of keeping presidents out of jail."
he New York County (or Manhattan) District Attorney, Cyrus Vance, Jr., has been scrutinizing Donald Trump’s illegalities for some years now, but appears to have been reluctant to lodge charges while Trump was president. The Barr Department of Justice maintains that a sitting president cannot be indicted, though such a policy runs counter to the whole notion that in a republic, the leader is just a first among equals and not a king who rules by divine right. Vance, since he works for New York State, is not bound by DOJ federal rules, but appears not to have wished to get tied up in court over this procedural issue.
Vance no longer has to worry about that problem. Donald Trump will be a private citizen on January 20. Moreover, Trump cannot seek preemptively to pardon himself from a crime brought in a state court, nor could President Biden pardon The Donald for crimes against the state of New York. Only Governor Andrew Cuomo could pardon Trump if he were convicted in state court. What do you think? Would he do it?
The Manhattan District has empaneled a grand jury to consider the proceedings designated Trump v. Vance, 19-cv-08694. The grand jury proceedings are secret, but Manhattan DA Vance has indicated that it is looking into a number of matters, including Trump’s payoff to porn star Stephanie “Stormy Daniels” Clifford, but also “bank, tax and insurance fraud, as well as falsification of business records.”
DA Vance has sought 8 years worth of Trump, Inc. tax returns, and while Trump has fought the subpoena, his challenge has been consistently turned back by several courts. It seems likely that he will now get these records. There is evidence that Trump undervalued his New York properties in order to avoid taxes.
Me, I think the state prosecution of Trump for the Stormy Daniels payoff is the most potentially explosive case, precisely because no pardon could be proffered by President Biden in the genteel tradition of keeping presidents out of jail. Moreover, it would be great legal theater, in a way that dry business or tax fraud would not. I hope the judge allows cameras. Imagine Ms. Clifford’s testimony on national television.
Trump paid Ms. Clifford for sex in 2006 while he was married to Melania. On the eve of the 2016 election he directed his attorney, Michael Cohen, to conclude a non-disclosure agreement with Ms. Clifford for $130,000. Cohen was reimbursed by Trump, Inc. via a dummy corporation Cohen set up for the purpose. It is not clear whether campaign funds were used, but that would be a further illegality. Trump was afraid that Ms. Clifford might reveal the tawdry incident of prostitution by a married man to the press, which might sink his presidential bid if it offended the party’s evangelicals and little old ladies (“blue hairs” in campaign parlance).
If things unfolded in this way, Trump was guilty of election fraud, since he knowingly spent money on a “good” for his campaign and did not report it. Nor were donation limits observed. He could be fined $260,000 and sent to prison for 5 years.
The case would be relatively easy to prove, since the government raided Cohen’s office for records, and Cohen himself is willing to testify.
If Trump were convicted of election law violations for trying to cover up paid-for sex, I think that would do more to hurt Trumpism than anything else. His fanatical followers would be put in the position of trying to deny that Trump had sex with a porn star, or to deny that he illegally paid hush money to cover it up, and that is a hard defense to make among evangelicals, just because it would be hard to talk about these matters. Somewhere along in Trump’s third year in Rikers, my guess is that the sheen would be permanently off him.
White House Press Secretary Kayleigh McEnany attending a Trump rally in Lititz, Pennsylvania, October 26, 2020. (photo: Saul Loeb/AFP/Getty Images)
Jay Rosen | America's Press and the Asymmetric War for Truth
Jay Rosen, The New York Review of Books
Rosen writes: "The Republican Party-now committed to minoritarian rule, not democracy-needs fictions to sustain its power. And that means a collision with honest journalism."
ournalism” is a name for the job of reporting on politics, questioning candidates and office-holders, and alerting Americans to what is actually happening in their public sphere. “The press” is the institution in which most journalism is done. The institution is what endures over time as people come into journalism and drift out of it. The coming confrontation can be summarized thus:
The Republican Party is increasingly a minority party, or counter-majoritarian, as some political scientists put it. The beliefs and priorities that hold it together are opposed by most Americans, who on a deeper level do not want to be what the GOP increasingly stands for. A counter-majoritarian party cannot present itself as such and win elections outside its dwindling strongholds. So it has to be counterfactual, too. It has to fight with fictions. Making it harder to vote, and harder to understand what the party is really about—these are two parts of the same project. The conflict with honest journalism is structural. To be its dwindling self, the GOP has to also be at war with the press, unless of course the press folds under pressure.
Let me explain what I mean by that. The Atlantic’s Ron Brownstein sees the same thing I see. In his recent article on “why the 2020s could be as dangerous as the 1850s,” Brownstein quotes several Republicans who admit what is happening:
The Democrats’ coalition of transformation is now larger—even much larger—than the Republicans’ coalition of restoration. With Trump solidifying the GOP’s transformation into a “white-identity party…a nationalist party, not unlike parties you see in Europe…you see the Democratic Party becoming the party of literally everyone else,” as the longtime Republican political consultant Michael Madrid, a co-founder of the anti-Trump Lincoln Project, told me.“Republican behavior in recent years suggests that they share the antebellum South’s determination to control the nation’s direction as a minority,” Brownstein writes. That’s why they went to such lengths to deny Obama a Supreme Court pick and sacrificed everything to get Amy Coney Barrett on the Court. “It’s evident in the flood of laws that Republican states have passed over the past decade making it more difficult to vote. And it’s evident in the fervent efforts from the party to restrict access to mail-in voting this year.” (Add to that list: interfering with the census; crippling the Post Office.)
These events suggest to Brownstein—a journalist who has reported on politics for thirty-seven years—that “Republicans believe they have a better chance of maintaining power by suppressing the diverse new generations entering the electorate than by courting them.” That’s what a counter-majoritarian party has to do: suppress voters, but also project fictions, like the proposition that voter fraud is rampant.
It’s an empirical question: is there a lot of voter fraud in the United States? Does it affect elections? And the question has been answered, not once but many times. So here is what I mean by “the conflict with honest journalism is structural.” The GOP has to rely on fictions like voter fraud to make its case, and if the press wants to be reality-based it has to reject that case.
But how badly does the press want to be reality-based? How far is it willing to go? Forced into it by Trump’s flood of falsehoods, journalists routinely fact-check statements like “there is substantial evidence of voter fraud,” and declare them false. And that’s good! But will they stop amplifying strategic falsehoods when powerful people continue to make them? Will they penalize politicians who come on TV to float fictions like that one? Will the Sunday shows quit having them on? And will the press revise the mental image on which its habitual practices rest?
Two roughly similar parties with different philosophies that compete for power by trying to capture through public argument “the American center”—meaning, the majority of voters—and thus win a mandate for the priorities they want to push through the system. On that buried picture of normal politics, the routines of political journalism are built.
There are no routines purpose-built for a situation in which, as Ron Brownstein put it, a minority party, the GOP, is “deepening its reliance on the most racially resentful white voters, as Democrats more thoroughly represent the nation’s accelerating diversity.” There is nothing in the playbook of the American press about how to cover a party that operates by trying to suppress votes, rather than compete for them.
Faced with these kinds of asymmetries, journalists will have to decide where they stand. But the choice for a program like Meet the Press, a network like NPR, a newsroom like The New York Times’s, or a news service like the AP is not which team to join, the Democrats or the Republicans. (Anyone who puts it that way is trying to snow you.) The choice, rather, is whether to continue with a system of bipartisan representation, in which the two parties get roughly equal voice in the news because they are roughly equal contenders for a majority of votes, or whether to redraw their practices amid the shifting reality of American politics, in which the GOP tries to control the system from a minority position—white nationalism for the base, plutocracy for the donor class—while the Democrats try to bring order to their unruly and slowly expanding majority.
Bipartisan fairy tale v. adjustment to a shifted reality sounds like no choice at all. What self-respecting journalist would not side with depicting the world the way it is?
That seems an easy call, but it isn’t. An observation I have frequently made in my press criticism is that certain things that mainstream journalists do are not to serve the public, but to protect themselves against criticism. That’s what “he said, she said” reporting, the “both sides do it” reflex, and the “balanced treatment of an unbalanced phenomenon” are all about.
Reporting the news, holding power to account, and fighting for the public’s right to know are first principles in journalism, bedrock for sound practice. But protecting against criticism is not like that at all. It has far less legitimacy, especially when the criticism itself comes from bad-faith actors. Which is how the phrase “working the refs” got started. Political actors try to influence judgment calls by screeching about bias, whether the charge is warranted or not.
My favorite description of “protecting against criticism” comes from a former reporter for The Washington Post, Paul Taylor, in his 1990 book about election coverage: See How They Run. A favorite quote of mine from that:
Sometimes I worry that my squeamishness about making sharp judgments, pro or con, makes me unfit for the slam-bang world of daily journalism. Other times I conclude that it makes me ideally suited for newspapering– certainly for the rigors and conventions of modern “objective” journalism. For I can dispose of my dilemmas by writing stories straight down the middle. I can search for the halfway point between the best and the worst that might be said about someone (or some policy or idea) and write my story in that fair-minded place. By aiming for the golden mean, I probably land near the best approximation of truth more often than if I were guided by any other set of compasses– partisan, ideological, psychological, whatever…Yes, I am seeking truth. But I’m also seeking refuge. I’m taking a pass on the toughest calls I face.
I am seeking truth. But I’m also seeking refuge. To me, these are some of most important lines ever written about political reporting in the United States. Truth-seeking behavior is mixed with refuge-seeking behavior in the normal conduct of journalists who report on politics for the mainstream press. That’s how we get reports like this on October 28 from NPR’s Morning Edition:
On the right, they’re concerned about the integrity of mail-in ballots. They’re hearing from President Trump, who is stoking those fears by claiming, without evidence, that the system is rife with fraud. And on the left, people are worried about another scenario. In their worst fears, Trump is ahead on election night and either his campaign or his Justice Department tries to end vote-counting prematurely. And disputes over vote-counting could go on for days or weeks. So activists on both sides are making plans to mobilize.
In this kind of journalism, the house style at NPR, the image of left and right with matching worries is the refuge-seeking part. That Trump is stoking fears by claiming without evidence that mail-in ballots are rife with fraud is certainly truth-telling. The point is not that refuge-seeking necessarily injects falsehoods; rather, it is designed to be protective. NPR, the fair-minded observer, stands between the two sides, endorsing the claims of neither. That’s how the report is framed: symmetrically.
But the underlying reality is asymmetric. Mail-in ballots are a safe and proven way to conduct an election. Fears on the right are manipulated emotion and whataboutism. Meanwhile, threatening statements from Trump like, “Must have final total on November 3rd” lend a frightening plausibility to the concerns of Democrats. The difference is elided in NPR’s report, which states: “Political activists and extremists on both the right and left are worried the other side will somehow steal the election.” It’s true: they are both worried. But one fear is reality-based and the other is not. Shouldn’t that count for something?
This is how the political scientist Norm Ornstein arrived at his maxim: “a balanced treatment of an unbalanced phenomenon distorts reality.” Again, what self-respecting journalist would not side with depicting the world the way it is? Well, take that NPR journalist conforming to house style, in which truth-seeking is mixed with refuge-seeking, and refuge-seeking often provides the frame due to institutional caution, misplaced priorities, and internalized criticism from an aggressive right.
If we trace refuge-seeking behavior in the press back to its origins in the previous century, we find two main tributaries: a commercial motive to include as many people as possible and avoid pissing off portions of the audience, which rose up as newspapers consolidated, and the professionalization of what had once been a working-class trade, which put a premium on sounding detached and telling the story from a position “above” the struggling partisans. Closer to our own time came a third pressure: the right’s incredibly successful campaign to intimidate journalists by complaining endlessly about liberal bias.
But as Brian Beutler of Crooked Media wrote last week, some things have changed:
Decades of right-wing smears have driven the vast majority of conservative Americans away from mainstream news outlets into a cocoon of right-wing propaganda. Those mainstream outlets have responded [by] loading panels and contributor mastheads with Republican operatives or committed movement conservatives; chasing baseless stories to avoid accusations of bias; adhering stubbornly to indefensible assumptions of false balance; subverting the truth to lazy he-said/she-said dichotomies. None of it can or will appease their right-wing critics, who don’t mean to influence the media, but to delegitimize it. None of it has drawn Fox News viewers and Breitbart readers back into the market for real news.The right has its own media ecosystem now. As the GOP becomes more devoted to white nationalism and voter suppression, it makes less sense for the public service press to chase that core audience or heed its complaints about bias. Beutler and I are making the same point to mainstream journalists: these are people on the right who want to destroy your institution; it’s time you started acting accordingly.
Making it harder to vote and harder to understand what the party is for are parts of the same project. “Inviting a Republican on to a reputable news show to claim Republicans support pre-existing conditions protections doesn’t offer viewers the Republican position,” says Beutler, “it offers them a lie.” The choice is between truth-seeking and refuge-seeking behavior. That confrontation is coming, whether journalists realize it or not. Even if Trump is gone, a minority party with unpopular positions has to attack the reality-based press and try to misrepresent itself through that press to voters. This has been true for a long time. But after Trump’s takeover, it is newly unignorable.
My advice: there isn’t any refuge anyway, so you might as well shoot for truth.
Vice Adm. Vivek Murthy, pictured at the Lake Nona Impact Forum in 2017, is a former surgeon general and is one of three co-chairs of President-elect Joe Biden's COVID-19 advisory board. (photo: Alex Menendez/AP)
Biden Names 13 Health Experts to COVID-19 Transition Advisory Board
Scott Neuman, NPR
Neuman writes: "President-elect Joe Biden named 13 health experts to his Transition COVID-19 Advisory Board on Monday, advancing his plans despite uncertainty over how much the Trump administration will cooperate amid its ongoing legal challenge to the election results."
The panel will be co-chaired by three people: former Food and Drug Administration Commissioner Dr. David Kessler of the University of California, San Francisco; former Surgeon General Vivek Murthy; and Dr. Marcella Nunez-Smith, an associate professor of medicine and epidemiology at Yale.
"The advisory board will help shape my approach to managing the surge in reported infections; ensuring vaccines are safe, effective, and distributed efficiently, equitably, and free; and protecting at-risk populations," Biden said in a statement issued early Monday morning.
Biden made COVID-19 a central part of his campaign, calling for a stronger and more coordinated federal response to the pandemic even as President Trump downplayed the virus and criticized Dr. Anthony Fauci, the nation's leading infectious disease expert. Trump has called Fauci an "idiot" and a "disaster" and suggested that he might fire him after the election.
Nearly 10 million Americans have been diagnosed with the coronavirus, and infections in recent days have set new records, topping 100,000 per day. Nearly 238,000 Americans have died from COVID-19 since January.
"Dealing with the coronavirus pandemic is one of the most important battles our administration will face, and I will be informed by science and by experts," Biden said in the statement.
The advisory board will work to create a plan to bring the pandemic under control — a process Biden says will begin immediately after his Jan. 20 inauguration.
The team includes several people who have served in senior public health positions in the federal government. The roster includes Dr. Rick Bright. Bright was ousted as head of the government's leading-edge research agency, Biomedical Advanced Research and Development, earlier this year after he criticized the federal government's pandemic response.
Also on the advisory board are Luciana Borio, a biodefense and disease specialist who has worked for the National Security Council, and Eric Goosby, who was President Barack Obama's global AIDS coordinator.
Pharmaceutical giant Pfizer announced Monday that an experimental vaccine it has been working on has been shown to be 90% effective at preventing COVID-19. Biden, in a statement on Monday separate from the one announcing the advisory board, expressed cautious optimism over the development.
"Americans will have to rely on masking, distancing, contact tracing, hand washing, and other measures to keep themselves safe well into next year," he said. "Today's news is great news, but it doesn't change that fact."
"That is the reality for now, and for the next few months," the president-elect said. "Today's announcement promises the chance to change that next year, but the tasks before us now remain the same."
Although the vaccine still requires FDA approval and faces other regulatory hurdles, Pfizer said it expects to have 50 million doses of the new vaccine by the end of 2020, enough for 25 million people. In 2021, the company expects to produce 1.3 billion doses.
Murthy, a key adviser to the Biden campaign, recently told NPR that a Biden administration would have "a laser focus on ensuring that people get ... adequate testing and clear information."
"We have to function as one nation. That means having a national plan," Murthy, said.
On Friday night, Biden said, "I want everyone — everyone — to know on Day 1, we're going to put our plan to control this virus into action."
In a tweet on Saturday, Bright said: "It's time to heal America. Time to stop the virus."
Voters in Michigan, one of the states where residents received misleading robocalls about the election, casting their ballots on November 3, 2020. (photo: Getty Images)
FBI, FCC Investigating Robocalls That Told at Least 800K Swing State Residents to "Stay Home"
Kate Cox, Ars Technica
Cox writes: "Both the FBI and the Federal Communications Commission are investigating a series of suspicious robocalls that warned recipients to 'stay home' on Election Day in an apparent attempt at voter suppression."
Voters in several states received “stay home” messages on or near Election Day.
Voters around the nation have received approximately 10 million of the automated "stay safe and stay home" calls, The Washington Post was first to report. YouMail, which offers smartphone apps for blocking spam calls, told the Post that the calls have been received in roughly 88 percent of all US area codes since the summer.
"If you wanted to cause havoc in America for the elections, one way to do it is clearly robocalling," YouMail CEO Alex Quilici told the Post. State and federal officials evidently agree.
Voters have also been receiving suspicious and deceptive text messages about the election, both The Washington Post and New York Times recently reported.
Michigan Attorney General Dana Nessel took to Twitter to warn Michiganders about the messages.
"Dearborn voters, text messages are reportedly being sent to trick you into thinking there are ballot sensor issues," she said Monday. "Do not fall for it, it's a trick!"
Tuesday, Nessel followed up with another message, warning, "We received reports that an unknown party is purposefully spreading misinformation via robocalls in Flint in an attempt to confuse voters there. Don't fall for it." She later added, "Law enforcement will never contact you and attempt to deter you from voting. If you receive a call like this, we want to know about it." She provided a tipline phone number.
A senior official with the Department of Homeland Security confirmed to the Post that the FBI is investigating the robocalls through its "normal criminal process."
“Unacceptable”
The FCC, as a body, did not say if it was opening an investigation into the matter. Commissioner Geoffrey Starks, however, did.
"I'm going to get to the bottom of this," Starks said in a tweet Tuesday afternoon. "Illegal robocalls and robotexts that seek to impact our elections are unacceptable."
Commissioner Jessica Rosenworcel, the other Democrat on the five-member commission, also made a post asking recipients of suspicious calls such as the ones described in the Washington Post story to file a complaint with the FCC.
The calls and texts are just two of many vectors through which rampant disinformation about the election has been traveling. Voters in swing states have been receiving the brunt of it, but they are not alone. False claims about polling locations, voting by mail, and interference by foreign or domestic actors have been widespread, and election officials around the country have been overwhelmed with worried calls. Social media outlets are trying to keep up, but it's going to keep being a long, weird road for quite some time.
Dison poses for a photograph inside a wooden structure providing shelter over his tent in the camp in Matamoros, Northern Mexico. (photo: Lexie Harrison-Cripps/Al Jazeera)
Asylum Seekers at US-Mexico Border: 'We Have to Keep Fighting'
Lexie Harrison-Cripps, Al Jazeera
Harrison-Cripps writes: "Some 800 people remain in what is now a tightly policed camp enclosed by a tall razor-wire topped fence."
READ MORE
Readers look at a newspaper carrying the photograph of Rwandan Felicien Kabuga wanted by the United States in Nairobi, Kenya, June 12, 2002. (photo: Reuters)
Rwanda Genocide 'Financier' to Face UN Tribunal at The Hague
AFP
Excerpt: "A suspected financier of Rwanda's 1994 genocide faces a pre-trial hearing in The Hague on Wednesday, a United Nations tribunal said on Monday."
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Windmill at Buffalo Lake National Wildlife Refuge in Texas pumping water from the Ogallala Aquifer. (photo: Leaflet/Wikimedia Commons)
Farmers Are Depleting the Ogallala Aquifer Because the Government Pays Them to Do So
Matthew R Sanderson, Burke Griggs and Jacob A. Miller, The Conversation
Excerpt: "A slow-moving crisis threatens the U.S. Central Plains, which grow a quarter of the nation's crops. Underground, the region's lifeblood - water - is disappearing, placing one of the world's major food-producing regions at risk."
The Ogallala-High Plains Aquifer is one of the world's largest groundwater sources, extending from South Dakota down through the Texas Panhandle across portions of eight states. Its water supports US$35 billion in crop production each year.
But farmers are pulling water out of the Ogallala faster than rain and snow can recharge it. Between 1900 and 2008 they drained some 89 trillion gallons from the aquifer – equivalent to two-thirds of Lake Erie. Depletion is threatening drinking water supplies and undermining local communities already struggling with the COVID-19 pandemic, the opioid crisis, hospital closures, soaring farm losses and rising suicide rates.
In Kansas, "Day Zero" – the day wells run dry – has arrived for about 30% of the aquifer. Within 50 years, the entire aquifer is expected be 70% depleted.
Some observers blame this situation on periodic drought. Others point to farmers, since irrigation accounts for 90% of Ogallala groundwater withdrawals. But our research, which focuses on social and legal aspects of water use in agricultural communities, shows that farmers are draining the Ogallala because state and federal policies encourage them to do it.
A Production Treadmill
At first glance, farmers on the Plains appear to be doing well in 2020. Crop production increased this year. Corn, the largest crop in the U.S., had a near-record year, and farm incomes increased by 5.7% over 2019.
But those figures hide massive government payments to farmers. Federal subsidies increased by a remarkable 65% this year, totaling $37.2 billion. This sum includes money for lost exports from escalating trade wars, as well as COVID-19-related relief payments. Corn prices were too low to cover the cost of growing it this year, with federal subsidies making up the difference.
Our research finds that subsidies put farmers on a treadmill, working harder to produce more while draining the resource that supports their livelihood. Government payments create a vicious cycle of overproduction that intensifies water use. Subsidies encourage farmers to expand and buy expensive equipment to irrigate larger areas.
With low market prices for many crops, production does not cover expenses on most farms. To stay afloat, many farmers buy or lease more acres. Growing larger amounts floods the market, further reducing crop prices and farm incomes. Subsidies support this cycle.
Few benefit, especially small and midsized operations. In a 2019 study of the region's 234 counties from 1980 to 2010, we found that larger irrigated acreage failed to increase incomes or improve education or health outcomes for residents.
Focus on Policy, Not Farmers
Four decades of federal, state and local conservation efforts have mainly targeted individual farmers, providing ways for them to voluntarily reduce water use or adopt more water-efficient technologies.
While these initiatives are important, they haven't stemmed the aquifer's decline. In our view, what the Ogallala Aquifer region really needs is policy change.
A lot can be done at the federal level, but the first principle should be "do no harm." Whenever federal agencies have tried to regulate groundwater, the backlash has been swift and intense, with farm states' congressional representatives repudiating federal jurisdiction over groundwater.
Nor should Congress propose to eliminate agricultural subsidies, as some environmental organizations and free-market advocates have proposed. Given the thin margins of farming and longstanding political realities, federal support is simply part of modern production agriculture.
With these cautions in mind, three initiatives could help ease pressure on farmers to keep expanding production. The U.S. Department of Agriculture's Conservation Reserve Program pays farmers to allow environmentally sensitive farmland to lie fallow for at least 10 years. With new provisions, the program could reduce water use by prohibiting expansion of irrigated acreage, permanently retiring marginal lands and linking subsidies to production of less water-intensive crops.
These initiatives could be implemented through the federal farm bill, which also sets funding levels for nonfarm subsidies such as the Supplemental Nutrition Assistance Program, or SNAP. SNAP payments, which increase needy families' food budgets, are an important tool for addressing poverty. Increasing these payments and adding financial assistance to local communities could offset lower tax revenues that result from from farming less acreage.
Amending federal farm credit rates could also slow the treadmill. Generous terms promote borrowing for irrigation equipment; to pay that debt, borrowers farm more land. Offering lower rates for equipment that reduces water use and withholding loans for standard, wasteful equipment could nudge farmers toward conservation.
The most powerful tool is the tax code. Currently, farmers receive deductions for declining groundwater levels and can write off depreciation on irrigation equipment. Replacing these perks with a tax credit for stabilizing groundwater and substituting a depreciation schedule favoring more efficient irrigation equipment could provide strong incentives to conserve water.
Rewriting State Water Laws
Water rights are mostly determined by state law, so reforming state water policies is crucial. Case law demonstrates that simply owning water rights does not grant the legal right to waste water. For more than a century courts have upheld state restrictions on waste, with rulings that allow for adaptation by modifying the definitions of "beneficial use" and "waste" over time.
Using these precedents, state water agencies could designate thirsty crops, such as rice, cotton or corn, as wasteful in certain regions. Regulations preventing unreasonable water use are not unconstitutional.
Allowing farmers some flexibility will maximize profits, as long as they stabilize overall water use. If they irrigate less – or not at all – in years with low market prices, rules could allow more irrigation in better years. Ultimately, many farmers – and their bankers – are willing to exchange lower annual yields for a longer water supply.
As our research has shown, the vast majority of farmers in the region want to save groundwater. They will need help from policymakers to do it. Forty years is long enough to learn that the Ogallala Aquifer's decline is not driven by weather or by individual farmers' preferences. Depletion is a structural problem embedded in agricultural policies. Groundwater depletion is a policy choice made by federal, state and local officials.
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