Three Recent Docu-dramas

     Three recent docu-dramas on Netflix have left me thinking about how our species deals with wrongness.  The first was a miniseries; the other two were feature length films; all three were based on real events.  Warning: plot spoilers ahead, though I’ll try to keep them limited.

     The Ripper is a four-episode mini-series about a series of murders in the County of York, England, in the 1970’s.  A woman walks alone in the wee hours of the morning, through a neighborhood of late-night bars believed to be a favorite hangout for hookers. Essentially, due to sexist attitudes that seem hard for us to believe fifty years later, the all-male detectives who become the series’ bumbling anti-heroes are insensitive to the possibility that a single mother in the modern world might have occasion to get a drink after work, and (quite sensibly) choose to walk home, rather than drive under the influence.  They become increasingly convinced of the theory that a woman walking alone in such a neighborhood at that hour of the morning must be a prostitute.   When other women are killed in similar ways, they realize there’s a serial killer at work, but their profile of the killer as a man who targets prostitutes becomes more than a theory.  As it gets shared with the detectives’ superiors, with the press, and with the public, their careers and the authority of their superiors in law enforcement become invested in it.  As the press hounds law enforcement for theories, those theories become part of “the truth known by all.”  Reputations, and the public’s confidence in law enforcement, in the press, and indeed, in government itself, are at stake. When evidence mounts that some victims were not prostitutes, the cops don’t abandon their profile of the prostitute killer, they theorize that the killer must have mistakenly thought that the victims were prostitutes.  (Someone is was wrong, not us.) Their attachment to their theory gets stronger and stronger as the murders mount, to the point that – well, there’s no need to ruin the whole plot.  It’s a fascinating expose of the power of confirmation bias, with extreme consequences we’d like to hope are rare – but which, methinks, probably aren’t.   

The second Netflix offering that left me thinking is Made You Look.  One promo description of it is, “A woman walks into a New York gallery with a cache of unknown masterworks. Thus begins a story of art world greed, willfulness and a high-stakes con.”  When the woman (Galfira Rosales) walks into the ultra-prestigious Knoedler Art Gallery with a single painting by a modern art master with no personal credentials and no proof of provenance for the artwork, Ann Freedman, Director of the gallery, is naturally  skeptical.  But Rosales has a credible story, so Freedman submits the painting to various experts for their opinions about the painting’s authenticity.  One after another, they vouch for the beauty and authenticity of the piece.  Some time after Freedman sells it for a substantial sum, Rosales comes to her with another painting, which Freedman also has evaluated for authenticity, and which, after the experts vouch for it, she also sells.  Over a period of some seventeen years, the process is repeated many times, until finally an evaluator questions the authenticity of a piece.  An investigation ultimately results in Rosales confessing that all the paintings she has sold to Knoedler and which Knoedler has re-sold to wealthy art afficionados — for a total of eighty million dollars – are forgeries.

In its review of the documentary, the LA Times calls Freedman “unrepentant,” a description I’ll get back to in a moment.  What stands out to me about the film is the harshness of Freedman’s critics as they accuse her of complicity in the fraud.  Many of the “experts” who originally vouched for the art quickly back off (once Rosales admits the fraud), claiming that their opinions as to authenticity were never really that at all. (Their reputations as experts being on the line, they strive to explain their own words as anything but the words of people who’ve been duped.)  Meanwhile, the wealthy art lovers who paid millions of dollars for fakes are acid in their condemnation of Freedman, certain that she was in on the fraud, clamoring for her imprisonment, ruination and (one imagines, if it were possible) her permanent exile from planet Earth.  Neither the experts nor the buyers who’ve been taken in seem “repentant” for their own gullibility, but that’s understandable:  human nature fights to preserve our sense of self-worth, and if that self-worth is imperiled by evidence we were duped, we naturally seek to pin the blame on others – in this case, on the evil, cunning, inexcusable co-perpetrator Ann Freedman, whose intentional trickery must bear the responsibility for our own mistakes.

One of Freedman’s harshest critics is New York Times reporter M.H. Miller, who is repeatedly featured in the film.  Miller is completely convinced that Freedman was in on the hoax.  He argues his case like a prosecutor, pointing to all the “obvious” reasons that Freedman must have known the works were fake. Unlike those who were duped, Miller’s certainty can’t be explained by the psychological needs of a duped victim.  Rather, it must be explained by the persuasive power of what Miller and The Times might call objective facts.  Of course, at the forefront of those facts is the eventual confession of Rosales.  Miller applies his expertise as an objective news reporter with all the benefit of hindsight.  He “knows the truth” – that the pieces were fakes – from the outset of his own understanding of the facts, and he condemns Freedman as complicit in the fraud, refusing to believe that she didn’t see things as clearly as he does.

I submit that when you “know the truth from the outset” people who saw things differently along the way inevitably look blind to it.  In any case, back to the review in the LA Times, calling Freedman “unrepentant,”  the description seems to me to suggest The Times’s implicit conclusion that Freedman was in on the hoax. On the West coast, just as on the East, then, objective reporters with the benefit of hindsight seem to share an underlying belief in objective truth.  If you’re seeking a Pulitzer prize for investigative reporting – as journalists these days all seem dedicated to doing – is there, perhaps, an essential requirement that you believe that objective truth not only exists, but that it can and should be convincingly exposed for what it is (by you)?  When one has the benefit of hindsight, clear logic and evidence must make Truth irrefutable, no?  Evidence that points to any other conclusion must not really be evidence at all, if properly understood.  And people who see the evidence as pointing in any other direction must, like Freedman, be guilty of wrongdoing.  And therefore “unrepentant.”

But the art experts who vouched for the authenticity of the fakes defended their reputations by trying to explain away their prior words.  (Unrepentant?) The wealthy but duped buyers never admitted their gullibility, defending their purchases by pointing to the reputation of the Knoedler Gallery and the sheer deceptive skill of its con-artist Director, Freedman. (Unrepentant?) In fact, Freedman is the only character in the drama who says she was duped, the only character willing to acknowledge that, despite her life’s work as an art dealer, she made some stupid mistakes. Sure, she liked the idea of being in on the discovery of  previously unknown works of masters, and of bringing them to the world’s attention.  If they were real, she profited; if not, she didn’t.  Her self-interest and sense of self-worth therefore blinded her to the evidence of forgery.  But as I see it, Freedman acknowledges as much, and no one else involved comes close to the depth of her own acceptance of responmsibility.  Everyone else tries to cast blame elsewhere.

     The third Netflix offering that got my attention, Spotlight, is an account of the Boston Globe’s investigation into Catholic Church pedophilia in Boston.  Like The Ripper and Made You Look, it ultimately paints a picture of eventually-known truth, on the one hand, and years of widespread blindness to that truth, on the other.  It, too, is a study in the human capacity for being wrong.  As the extent of pedophilia in the church becomes gradually clearer, it isn’t only the Church itself that tries to cover it up.  Parishioners deny it. Law enforcement denies it.   Family members of victims deny it.  Lawyers and prosecutors deny it.  Each element of the population with a role in the drama has its own self-serving psychological influences – I won’t call them “reasons” – for being blind to the extent of the problem.  I don’t think it’s a better docu-drama than the other two, but as I see it, Spotlight does us a favor.  The best part of it, for me, is that one storyline within Spotlight deals with The Globe’s own culpability, it’s own past blindness to the extent of the problem.  As everyone else is asking how complaints could be ignored and abuse excused for so long – by others Spotlight depicts The Globe as asking the same question of itself.

 The Globe, it seems to me, was complicit, but now, to its great credit, is portrayed as acknowledging as much. I might even say that the Globe comes across as “repentant.”  But Mr. Miller, of the New York Times, seems convinced that anyone with a brain should have seen what he sees, while the L.A. Times calls Ms. Freedman – and only Ms. Freedman – “unrepentant” when she alone has admitted to her wrongness.  Alas, I often feel that such self-righteous condemnation of the motives and beliefs of others is – how best to put it – a “sign of the times”?

All three are worth watching, both as studies of our human capacity for wrongness, and of how we respond when our ideas are tested by contrary evidence. All in all, a good mix to remind us of the ways we may be wrong.

The Broad Brush

Breaking many weeks of silence on this blog, I feel compelled to say that a conversation I had yesterday led to a question I found interesting.

My friend was upset about the attack on the Capitol  – as was I.  But I was also upset about the mainstream media’s coverage of the event.  When this difference became apparent to us both, my friend asked which was worse – an illegal, violent and destructive attack on the capital, or (assuming I was right that it existed) a certain form of media bias in the coverage of the event.

My friend offered several reasons for thinking the attack on the capital was worse.  It was planned.  Premeditated.  Illegal and destructive.  It resulted in four deaths.  It was a direct attack on the very focal point of American democracy.

I couldn’t disagree with any of that; the attack, I believe, deserves complete condemnation.  Yet I have to say that I think the particular sort of media bias I perceive is worse, if measured by the degree of threat I believe it poses to the freedoms our democracy stands for.

Before I explain, allow me to share something another friend recently sent to me.  It was a broadsheet, self-published by one M. Carey in 1815, appealing for civility in the aftermath of the war of 1812.  “The Olive Branch,” it was titled.  “Faults on Both Sides.”  “A Serious Appeal on the Necessity of Mutual Forgiveness and Harmony.”  It contained a quote from Polybius which I now share:

“If we pay a proper regard to truth, we shall find it necessary not only to condemn our friends upon some occasions, and commend our enemies, but also to commend and condemn the same persons, as different circumstances may require.”

I have rarely encountered a piece of wisdom I value more.  Yet I am hard-pressed to find evidence of its survival in the world today.

Polybius went on to explain:

“For just as it is not to be imagined that those who do great things should always be pursing false ideas, so neither is it probable that their conduct can always be exempt from error.”

When was the last time I heard a politician, or a news anchor, or a Facebook poster, condemn any aspect of something they favor, or some person with whom they are allied?  When was the last time I heard anyone commend any aspect of an opponent’s behavior?  I fear we have lost the wisdom of Polybius.

To forestall any charge that I myself fail to commend the good deeds of my enemies, permit me to depart from past practice and state directly a few of my beliefs about Donald Trump.

  • Personally, I approve of his picks for the Supreme Court and his choice of William Barr as his attorney general; I think efforts to discredit those appointees have often been politically motivated and disingenuous. 
  • Personally, I think Trump may have been right to leave so much of the fight against the COVID virus to the states; not that his approach didn’t cause problems, but because I fear that centralized control out of Washington may have created even worse problems.  Ultimately, I think it’s very hard to assess how things might have played out with a more federally-mandated approach.
  • Personally, I think Trump was right when he said, about the tragedy in Charlottesville, that there were good and bad people on both sides, a statement for which he has been widely criticized.
  • Personally, I think it perfectly acceptable that the U.S. Census would ask respondents to indicate whether they are citizens of the United States, another position for which Trump has been widely criticized.

Having voiced such approvals for some things Trump has done, am I now anathema to Trump-haters?   Do I risk being attacked by them as “the enemy”?  Sadly, I think I do. 

Sadly, therefore, I think I need to add my opinion that Trump has proved to be the worst President the country has ever had.  I think I need to add my opinion that while I might not support his impeachment for incitement to riot, I would support his impeachment for divisiveness, and especially for being derelict in his duty to facilitate an efficient transition of power.  Personally, I am thankful and relieved that in just a few more days, we will finally have someone else as our President.

But now, of course, I will be attacked by Trump’s supporters because, as one Trump supporter recently told me, to express such views proves that I have been “duped” by the liberal media. 

The wisdom of Polybius – that in the search for truth, we have to be able to find both good and bad in the same people – seems unacceptable today, on both sides of the political divide. 

In my view, Mr. Trump’s arrogance has facilitated the growth of an arrogance among his opponents, an attitude I’ve taken to think of as “liberal McCarthyism,” the effective blackballing of anyone who questions liberal wisdom.  As I see it, many liberals have come to behave like sharks aroused by the presence of blood, with carte blanche to criticize everything about Trump and to dismiss out of hand anyone who agrees with him about anything, because the man is so obviously wicked that agreeing with him about anything proves you’re wicked too.  Anyone who might have ever supported or agreed with him about any point, no matter how small, is now responsible for every harm the man has ever caused.  In the last several days, there’ve been calls for expelling from Congress those duly elected representatives who dared to object to the votes in the electoral college.  There’ve been repeated references in the mainstream media to the “violent mob of 40,000 Trump supporters” who participated in the rally in Washington, because some of them attacked the Capitol.  Last night’s local news reported how a man was fired because of his participation in the pro-Trump rally; the explanation being that “participating in the rally” was inimical to the organization’s values.

Where would we be if every outbreak of illegal acts by Vietnam war protestors caused the mainstream media, and the country, to dismiss the views of the thousands who protested peacefully?  Where would we be if the riots of 1967 had caused the country to turn its back on the civil rights movement? 

Thankfully, the media have gone to great lengths to point out that the destruction and looting that has happened during otherwise peaceful Black Lives Matter protests should not be attributed to the many who had nothing to do with such behavior.  But in the past several days, I’ve heard anchors, field reporters and the so-called experts they’ve interviewed decry and condemn the “mob of pro-Trump protestors” who gathered in Washington.  What has happened to the distinction between the peaceful majority and the destructive few?  The mainstream media and many anti-Trumpers seem, from my perspective, to be caught up in a frenzy of condemning all pro-Trumpers, painting them all now with the broad brush of riot, destruction, treason and death.

“No,” they will say to me. “You’re wrong.  Don’t you understand that to have anything to do with the protest in D.C. was to lend support to the violence?”

“No,” I will answer.  “I don’t understand that at all – and there was a day that you didn’t either.”

So, back to the question I find interesting:  Which is worse, the abhorrent, intentional, destructive attacks by those who broke into the Capitol, or the condemnation of everyone who is of a particular opinion, or who participates in a rally in support of that opinion, because of the abhorrent acts of a few?

My own opinion on the question flows from my assessment of the degree of threat posed by the two wrongs for the future of democracy. 

Whatever the number of people who broke into the Capitol Building, their vile and despicable behavior actually worked to their disadvantage.  As a direct result of their conduct, Republicans who’d planned to object to electoral votes decided not to do so.  My sense is that as an indirect result of their actions, they did more to unify the country against them and their cause than anything Chuck Schumer or Nancy Pelosi have ever done.  Some of them have been arrested and charged.  One can hope that all will be punished.  But as I see it, their actions never posed a threat to the future of the country as a whole, and in hindsight, actually helped to unify the country against them and their criminal manner of protest.

Meanwhile, however, it seems to me that the mainstream media and much of the country is now condemning “the mob of Pro-Trump protestors who gathered in Washington” for engaging in the worst sort of conduct.  At least one specifically put the blame on “all 40,000” of them.  Expel a congressman for objecting to a ballot?  Label participation in a peaceful protest “treasonous”?  Say that all those who went to Washington to participate in the rally were responsible for the tragic deaths that occurred? Fire people because their attendance at the rally is not consistent with your organization’s values? I’ve heard every one of these assertions made, some repeatedly.  And not by deranged fanatics, but by the so-called “experts” and respected news media types who guide much of American public opinion.

     If even a million people feel that way – much less fifty or a hundred million as I fear – then in my view, because of the prevalence of their attitude and their allies’ acceptance of it , they constitute a greater risk to the country’s future than several hundred widely-condemned law breakers.  That many people, painting with that broad a brush, broadcasting country-wide and enjoying each other’s approbation, potentially empower and nourish each other.  I already hesitate to express some of my opinions publicly, because I fear I will be attacked and demonized for entertaining them.  For the past twenty years or more, I’ve been becoming ever more left-leaning in my views; I’ve been what Democratic candidates consider a key swing voter, who might well be persuaded to vote for them, and indeed, I increasingly have.  But at times like these, I fear a new McCarthyism of the left, one that doesn’t welcome me for all the many issues on which I agree with them, but one that condemns me because of the few respects in which I don’t conform to their agenda. As a result, I feel pressured to take refuge on the right.

Whether Mr. Trump attempts some sort of ongoing role in public life, he is all but gone as our president.  His departure marks the time to search for ways to heal the divisiveness he helped to create.   Painting with a broad brush, condemning the many for the conduct of the few, is the fodder by which divisiveness can only continue to grow.

Polybius understood that if we really want truth, we have to recognize that our friends are capable of wrong, and our enemies capable of good.  We have to stop thinking “you’re either for us or against us.”  We have to put away the broad brush of condemnation for the abhorrent conduct of the few.   Or at least, if we feel forced to paint with that broad brush, we need to recognize how much we contribute to divisiveness, how many in the middle we may drive into the opposing camp, and how much we, too, may share blame for the next death that occurs.

Thanksgiving

After feeling profoundly embarrassed for our country since election day, I am feeling thankful today. First, for the fact that much of the Earth is still green and the sky still blue; second, for my family and friends; and last, for the privilege of living in a country where most elected officials graciously submit to rule by those they disagree with.

A Season for Everything

     Hunkered down now, I think I’m like most of us are these days: nervous, on edge, and mindful of worst case scenarios.  My own playlist seems stuck on the last days of Pompei, the last days of the dinosaurs, and the last hours of 1999 when we took one last deep breath of life before experiencing Y2K.  Each tells me a lot about the dangers of predicting the future.

    I’ve spent much more time trying to understand the past than the future, and that habit has led me here, writing how we may be wrong because, whether it’s an effort to understand what life was like in ancient Egypt or what my wife said to me just five minutes ago, I am constantly reminded how hard it is to reconstruct the past, which has a way of slipping through our fingers, being gone forever, impossible to revisit in order to test it, or measure it, or take any more photographs of it, leaving us with only the scattered few relics which somehow found their way into our attics.  I’ve often thought that in one sense, at least, it’s actually easier to predict the future.  If we say that the world will end tomorrow, that’s something we can actually test.  When tomorrow comes, we can not only agree upon, but know, with relative certainty, whether we were right or wrong.  The past is not so easy.

     But whether we’re looking forward or backward, we can’t know, now, if we’re right about the conclusions we reach.  Predictions about upcoming election results, about stock market performance, about the future course of global pandemics, can only be based on comparable situations in the past.  We extrapolate from the known we’ve experienced to the unknown that looms ahead.  But in so doing, we assume a repetitiveness that may be misleading, especially when our ideas are based on the experience of mere lifetimes (like the surprised citizens of Pompei) but even when they’re based on a broader historical record (like those among the dinosaurs who’d studied the  Cambrian explosion — I imagine them sitting around, contemplating how far and well they had come since those days, at the moment the asteroid hit.)  Predicting the future always carries with it a bias in favor of the past, and past experience is very poorly suited to predicting the unprecedented. 

     Y2K teaches us that doomsayers may be wrong.  The eruption of Vesuvius that wiped out Pompei and the Chicxulub impactor that wiped out the dinosaurs teach us that calamity may strike even when no one’s predicting it.  It’s too late to hope that COVID-19 will be the dud that Y2K turned out to be.  There’s still time to hope it won’t be the end of life as we know it.  It is, of course, a time for diligence, not panic.  But within all the precautions we take to fight this invisible enemy, I like to remember that the poor souls who died at Pompei would have been dead for nearly two thousand years now anyway, even if Vesuvius hadn’t erupted.  And even more, I like to remember that if an asteroid hadn’t wiped out the dinosaurs, Mammalia would never have thrived, Humanity never existed.  From our limited perspective, the Chicxulub disaster was the best thing ever.  And from the perspective of those who will inherit this planet from us – the ones we often say we care so much about – we just don’t know how they will view the pandemic of 2020. Perhaps they’ll see it as the beginning of great new things.

     It is in that spirit that while I hunker down at home, wiping off door handles with my sanitizer, wondering if it would do any good to start praying again, I remind myself that I will be dead two thousand years from now, one way or another, and that perhaps the demise of us baby-boomers will save the social security system for our grandchildren.  Perhaps the crisis which forces us to stay home will lead to a world of less extended travel, more stay-at-home work, more locally-sourced foods, and ultimately, a just-in-time rescue of the world from global warming.  We just don’t know, and with uncertainty comes not only bad stock markets but room for hope.

      And here it is, spring time after all.  As I hunker down, I see birds building nests, I see squirrels and rabbits in the yard, and most comforting of all, I hear people talking about “us” – about coming together for each other, about our responsibility toward each other, about the sacrifices that health care workers and others are making for us.  As Pete Seeger reminded us, there’s a season for everything. By my former calendar, this particular season should be bringing me nightly news of Republicans and Democrats insulting each other, modeling animosity and disrespect for our grandchildren. I KNOW that as a result of COVID-19, I haven’t had to listen to quite so much of that recently.  Perhaps, COVID-19 is ushering in a new season, with a new calendar. And that, my friends, strikes me as a very good thing.

Impeachment Again

     While I may be wrong, I believe there are good grounds for impeaching presidents.  I just don’t think the House has chosen wisely in its effort to define what they are.

     Consider the second proposed article of impeachment.  It essentially charges the president with “obstructing Congress” by refusing to comply with Congressional subpoenas. My problem here is that I don’t think a President is required to do whatever Congress orders him to do. As I see it, refusal to comply with a subpoena is a perfectly valid way of contesting its legality.  As best I recall, it is not uncommon for a party in litigation to refuse to comply with a subpoena, as one of the ways of getting a court to decide whether the subpoena is legitimate.  And it seems to me that in cases involving the separation of powers, it’s similarly legitimate for a president to refuse to comply with a subpoena, anticipating that Congress would then have to go to court to seek to enforce it.

    By way of analogy, in order to challenge the validity of Jim Crow laws, Rosa Parks had to “violate the law,” triggering her arrest for  refusing to sit in the back of the bus.  This was risky, but a legitimate way to get judicial review of the constitutionality of the law in question.   In order to get the courts to consider his status as a conscientious objector, Mohammed Ali had to “violate the law” by refusing to submit to the military draft.  Risky again, but legitimate.  The courts have developed a doctrine of “standing,” a doctrine designed to prevent just anybody from asking the courts to decide purely hypothetical questions.  “Standing” means that to challenge a law, you have to be actually affected by it.   For reasons of “standing,” violating a law is sometimes required in order to get a court to consider its validity.   If you want to challenge a local zoning law in court, you may have to violate the law (as interpreted by the zoning board) or you won’t have standing.  If you think a provision of the Internal Revenue Code is unconstitutional, you’ll probably have to violate the I.R.S.’s interpretation of the law, getting assessed taxes and penalties, before you’ll have standing to challenge that law in court.  There were various examples of this in my own  practice of employment law.  Often, it’s risky.  If you lose such challenges, you suffer the consequences.  But if you win such challenges, the ultimate prize is a finding that you were actually within your rights all along – in effect a ruling that, like Rosa Parks and Muhammed Ali, you were never really in violation of the law in the first place.

     If Congress were King, I’d favor the impeachment of presidents for refusing to comply with its subpoenas.  But Congress is not King.  In our system of law, it is the Courts that are the arbiter of what is and isn’t against the law.  It seems to me that impeaching a president for refusing to comply with Congressional subpoenas that haven’t been considered and approved by the Judiciary turns the separation of powers on its head. If Congress starts removing presidents just because those presidents don’t submit to its orders, I fear for the balance of power that is the cornerstone of our system of government. 

     Consider next the first article of impeachment.  In it, the House is charging the president with abuse of power— specifically, by pressuring a foreign government to take an action that would interfere in the U.S. electoral process .  Now, I favor impeaching presidents for anything that would interfere with the U.S. electoral process, but I find an important distinction between things that would interfere in the process and things that could affect the outcome.  Specifically, I find it helpful to distinguish between three types of conduct that might be considered potential interference.

     The first type I’ll call “direct” interference in the electoral process itself.  Impeding access to the polls.  Casting fraudulent ballots.  Bribing election officials.  Falsifying results.  I think pressuring a foreign government to engage in such direct interference surely ought to be grounds for removal from office.  But such direct interference is not what the House is alleging.

    Rather, the House is alleging pressuring a foreign government to take action that could be expected to influence some U.S. voters, and thus, the election outcome.  In my view, the conduct charged raises serious questions about when and why actions taken on the world stage that could affect election outcomes constitute “interference” with the electoral process.    If the president succeeded in pressuring Iran to cease its nuclear weapons development, there’s little doubt that such action could affect the election outcome in the president’s favor, but I can’t see that the same as interference in the process.   Would pressuring Saudi Arabia to investigate the murder of Jamal Khashoggi  result in “interference” in our elections if it affected the outcome?  Would pressuring North Korea to investigate the treatment of U.S. student Otto Warmbier, if such an investigation benefited the incumbent president?  In my view, we want our presidents to pressure foreign governments, and it makes no difference to me that, if the pressure works, the result would influence voters in favor of the president or his party. 

     Two of the words I find most troubling in the Article proposed by the house are the little words, “that would.”  The President is not even accused of soliciting action “for the purpose of” influencing the election.  He is accused of seeking action “that would” influence the election, i.e., the election outcome.     One might argue that Lincoln saw the Emancipation proclamation as something “that would” help him win re-election.  One might argue that FDR saw the New Deal as something “that would” help him win re-election.   One might argue that Lyndon Johnson saw the Warren Commission’s investigation into the assassination of JFK as something “that would” help him win re-election.. Parties and candidates are always doing things for political purposes, i.e., doing things that will enhance their prospects for re-election.  I just can’t conceive of impeaching presidents for conduct because their actions would “interfere with elections” by having an impact on election outcomes.

     My view does not change simply because the target of the requested investigation is a political opponent or relative of a political opponent.  Many Presidents, from Abraham Lincoln to Jimmy Carter and Ronald Reagan, have been embarrassed by the conduct of close relatives.    Imagine that, in some future election cycle, evidence surfaces that suggests that Opponent O’s cousin may be conspiring with foreign companies to import drugs into the U.S.   Obviously, announcement of an investigation into such a possibility  might embarrass Opponent O and thereby affect the election outcome.   Do we want to discourage President P from soliciting a foreign country to undertake an investigation of the matter, because such an investigation would amount to interference with the election?  I think not.

     I would suggest that there is a third category of arguable election “interference” – and I think many of those who favor the impeachment of Mr. Trump may be motivated by the belief that his conduct falls into this third category.  I’ll call it the Fake News Category.  Impeachable offenses in that category might include, say, doctoring a videotape of one’s political opponent to make it appear she said something she really didn’t.  Photoshopping an opponent’s face onto a picture of someone doing something despicable.  Making up fake news stories for the purpose influencing votes.  In my view, this sort of conduct – widely acknowledged to be on the rise, widely predicted to become even more common in the future – is not direct interference with the electoral process.  But, to me, it is still problematic, even thought it is designed to affect election outcomes rather than election processes.  In my view, creation of such fraudulent news poses a threat to the integrity of our electoral outcomes every bit as serious as direct interference with processes, like stuffing ballot boxes, etc. I could favor articles of impeachment that directly accuse an incumbent president of intentionally fabricating such fake news for the purpose of affecting election outcomes.  And I suspect that Trump’s opponents believe that the President’s solicitation of Ukraine was tantamount to fabricating fake news.  But the Article the House is now considering does not accuse the president of fabricating fake news.   Rather, it accuses him of soliciting an investigation that would influence U.S. voters.

     Nowhere is free speech more important than in the political and electoral process. Charges of fabricating “fake news” are essentially charges of intentional fraud on the electorate.  An essential element of fraud is a misstatement of fact, known to be false when made, and made for the purpose of inducing someone to rely on the false statement to their detriment.  Intentionally creating fake news for the purposes of misleading the electorate amounts to such fraud, and should not be tolerated. But calling for an investigation into smoke is not the same as asserting the existence of fire when one knows there is in fact no fire.   In my view, if a President thinks she sees smoke, even about a political opponent, calling for an investigation to determine if there is a fire strikes me as a very legitimate use of power – and one we should want to encourage in  our presidents, not despite a possible impact on the outcome of elections but because of such impacts, in which investigations help to bring out facts and in which the electorate is able to assess thje evidence and how that evidence impacts their votes. Even now, members of the House are calling for an investigation of the President, anticipating that it will affect the outcome of upcoming elections  Should that turn their very votes for impeachment into impeachable offenses themselves? Do we want a world in which all our elected representatives risk impeachment any time they call for investigations into their opponents?

     Some, I suspect, would say that Trump’s calling for an investigation of Hunter Biden was tantamount to a fraudulent falsification of fact because allegations of impropriety by Biden have already been “discredited.”  But Ukraine is a country with a history of corruption.  The prior investigation I’m aware of only found no evidence of a violation of Ukranian (not U.S.) law. Was the prior investigation thorough? Unbiased? Not itself the result of corruption? Might a new investigation unearth evidence of a violation of U.S. law, or simply information the U.S. electorate might find relevant to its voting in an upcoming election? Investigations are meant to dig deeper into the truth.  In my view, calling for them does not come close to the kind of manufacture of fake news that I would consider good grounds for impeachment.

     For these reasons, I am not a fan of the House’s articles of impeachment, as drafted.  That said, there are other grounds for impeachment I would not mind seeing the House approve.  If Mr. Trump is suspected of fabricating false statements in order to affect election outcomes, I say charge him with fraud on the electorate. If the evidence supports the charges, I say remove him from office because of it.   In fact, I’ll go even further.  Just as I believe that impeaching for bribery will tend to discourage bribery and impeaching for cover-ups will tend to discourage cover-ups, I believe that impeaching for eating hamburgers will tend to discourage eating hamburgers.  What constitutes good ground for impeachment is a political question, not a legal one. And I believe the grounds chosen can be expected to have an in terrorem effect on the behavior of future presidents, discouraging them from engaging in whatever type of conduct is seen as grounds for impeachment – even if its eating hamburgers.  

     As a result, while I oppose impeaching presidents for refusing to comply with Congressional subpoenas, and I oppose impeaching presidents for pressuring foreign governments to conduct investigations that could affect U.S. election outcomes, I would LOVE to see Congress impeach this president (and several of their own number) for “Fomenting National Divisiveness.” As I see it, particulars to such articles might include such things as “Making public statements and otherwise manifesting such extreme disrespect for others as to exceed the bounds of propriety in a pluralistic society.”  Evidence in support of such charges could certainly include fabrication of false news stories, calling for investigations of opponents in bad faith, etc– but the gist of such charges would be the disrespect and divisiveness involved.  If presidents (and members of Congress) were to fear impeachment for “fomenting national divisiveness,” I believe they would be influenced to call for greater harmony; that they would tend to manifest greater respect for those who disagree with them; that political rhetoric would soften, and that civility in political debate would increase.  In my view, those would be very good results –not for one party or the other, but for the country as a whole.

Disturbing Video

A good friend of mine recently included me on the recipient list when he forwarded a very disturbing video.  After viewing all 14 minutes of it, I was left wondering what portion of the people who view it find it disturbing for all three of the reasons that I do.

The subject of the video – white Los Angeles police offers chasing a black suspect through a housing project, on foot – is the sort of subject we hear a lot about these days. And the reasons it’s disturbing are familiar.

This particular video combines audio taken from police communication channels with audio and video from a surveillance camera and multiple police body-cams. It appears on the internet courtesy of the New York based Sergeants Benevolent Association, an organization of cops.  It’s narrated in large part by podcaster, commentator and author, Colin Flaherty.  (Flaherty, whose focus is apparently on black-on-white crime, is the author of books with titles like “Don’t Make the Black Kids Angry,” “White Girls Bleed a Lot” and “Into the Cannibals’ Pot.”) 

The video shows what a difficult job cops have enforcing the law these days as a result of resistance and disrespect in communities they serve.  This video makes that point very effectively – and (I think) disturbingly so.  In the video, residents of the housing project call the pursuing police officers “M.**F.**’s.  One of the black residents – seemingly nothing more than a by-stander – suddenly pulls out a pistol and shoots one of the pursuing officers.

It’s chilling.   It’s disturbing.  Today’s cops do face a tough job, and the video makes an important point. 

At the same time, I am disturbed by the racist commentary that runs throughout the video.  It mimics black accents.  It refers to the housing project residents as scam artists and welfare queens, and to males who “bounce from baby-mama to baby-mama” to game the welfare system. It suggests that hostile communities typically take Obamaphone video of arrests because their videos will give them a “payday.” It says that President Obama’s administration granted crime to blacks as an entitlement.  It concludes that the one thing a cop is never, ever, allowed to do – because it’s a “firing offense” – is to “make a black kid angry.”  Hyperbole and racially charged rhetoric run throughout.  I’ve never listened to Flaherty’s podcasts or read any of his books.  But I wouldn’t be surprised to learn that his detractors, if not his supporters, accuse him of fomenting white supremacy.  At a minimum, I have little doubt that he’s controversial, with both passionate supporters and angry detractors.

That the video is being distributed by the Sergeant’s Benevolent Union, and that it was passed on to me by a good friend who’s a retired cop – makes me wonder whether this is the sort of thing police unions are generally promoting these days – and if so, whether the cops and former cops who promote it see the same racism in it that I see.   

Do they see a video like this as part of the problem, or part of the cure, for the abusive treatment cops sometimes get these days?  Do they see the video as divisive?  Do they see it as  likely to increase, or to diminish, perpetuating black resentment of law enforcement?  

Here’s a link to the video.

https://cdn-cinemr.minds.com/cinemr_com/980666186651697152/360.mp4

I hope that by providing the link, I don’t get accused of supporting white supremacy or being anti-cop.   I feel moved to share the video because of the third thing about it I find disturbing: namely, my concern that among those who view it, some will find it disturbing for revealing the excesses of black communities, some for revealing the excesses of white cops, and hardly anyone for both reasons.

Is it possible to be disturbed by both sides?  Have we become so polarized that in order to support one side, we can no longer see the other? I worry about that third thing — polarization –as much as I worry about either disrespect for cops or racial bias.  Once again, I hope I’m wrong in thinking hardly anyone else is disturbed by both.  If you watch the video and think I’m wrong to worry, I’d love to hear from you. 

You Never Know

I haven’t written for a while.  I haven’t had anything new I felt compelled to say.  One school says blogs need to be written regularly, at least once a week, so that readers will form the habit of opening and reading them.  But I think that’s modern business BS talking – the folks who gave us spam and robocalls. I side with the other school, the one that believes in delivering value.  As I look back at my past posts, I see some that lacked it.  I never should have posted them.  I don’t want to add to an unwanted glut, for the sake of regularity.

Another reason I haven’t posted recently is that three longer writing projects have taken hold of me again. Two of them relate to the We May Be Wrong theme, so I haven’t lost interest in WMBW.  I’m just not ready to describe what those longer projects are about.  They’ll have to speak for themselves, when they’re ready.  I hope you find them engaging, when it’s time.

Meanwhile, here, I’ll just share a few odds and ends.

1. I love my TV science shows, especially those about the Universe and Astrophysics.  More than any other group I know, astronomers astrophysicists seem willing to admit the vastness of the things we do not know.  In just the past few months, I’ve learned so much about the errors of past truths I once was told was fact. Current theory tells us that we do have nine planets after all, that our solar system once had two suns, that there are super big black holes at the center of every galaxy, that there are tiny black holes in lots of nearby places that are super hard to detect, that there’s one black hole bearing down on us that may suck us up or gobble up the sun and spin us off into frigid space, and that we’d have no way to spot it until it was just three years away. My favorite admission of all is that most of the universe consists of dark matter and dark energy –just labels the physicists give to things they know absolutely nothing about.

2. A year or so ago, when I decided to watch TV news again, I sampled various sources in search of neutral reporting.  The closest I came was CBS’s Evening News with Jeff Glor.  So in the months since then, I watched Jeff Glor’s broadcast every night.  For the most part, I thought the broadcast reported the news neutrally.   Last week, CBS discontinued the show due to low ratings.  (Imagine that!  Wonder why?) Trying to interpret the PR lingo explaining CBS’s thinking makes me worry that CBS has given in.  That to increase  its viewership, it has decided to report “stories” designed  to arouse passions, as opposed to neutral news.  If this is what has happened, I mourn the loss and fear the aftermath.  If we end up with a liberal media reporting only liberal truths to liberal viewers, and a conservative media reporting only conservative truths to conservative viewers, the ideal of a unified, inclusive America will not be possible.  How can we survive if we take our facts from entirely different places?

3.  In the past few months, I’ve thought I could give my support to a Centralist party, if one existed.  It’s platform would say nothing of specific issues.  It’s promise would simply be to keep an open mind, to be inclusive, and to search out compromise between extremes.  I genuinely think that, as a process, that’s as important as any specific issue.  That it’s the only way for us to survive. If a candidate adopted such a set of promises, he or she would have my vote.

4. This week’s news reported that Joe Biden is talking about unity, intending to run for President as the candidate of the middle.  If that bears out in the months to come, he may end up getting my vote!  Imagine that!

5. Years ago, in the Publix cafeteria, absorbed in a lunch time conversation about writing, I opined that a good story-teller can make a good story out of anything – even a door knob.  I don’t know why the doorknob came to mind – probably because of the phrase, “dead as a doorknob.”   But in the twenty years since, I’ve had occasion to make the same observation  repeatedly – that even the dullest things contain with them something from which a talented story-teller could create an engaging story.  And I’ve always phrased it the same away, “even stories about door knobs.”   Well, this morning, I challenged myself.  In the two hours since, I’ve entertained a slew of thoughts about how to write an engaging story about a doorknob.  Maybe I’m wrong, but I think it’s worth a try.

6.  If you can make an engaging story about a doorknob, surely you can attract readers with neutral reporting about real news. Maybe that, too, is worth a try?

7. Who knows what surprises the year ahead may bring!  A resurgence in interest in neutral reporting? Yours truly supporting Joe Biden for President?   A fascinating story, debuting right here in this blog, about  a doorknob?   

Like the astrophysicists say, you never know.

— Joe

Precedential Impeachment

I was heartened this week that in the debate over the legality of the national emergency declared by President Trump, people are talking about the precedents such declarations set.   This has nothing to do with my feelings about immigration, but my feelings about precedent  – both those precedents set in the past, and whatever new precedent we may set by decisions made today. 

As we grow closer to issuance of the Mueller Report and the possibility of  impeachment – which I’m still predicting – I thought the time right to reflect on precedent.

I begin with a reminder of some precedents set by voters.  After Marion Barry, then a married Mayor of the District of Columbia,  was caught on tape in an FBI sting soliciting sex and doing crack cocaine with a girlfriend, he was convicted by a majority-black jury and did time for the crime.  Yet immediately after his release from prison, his constituency reelected him, first to City Council and then to Mayor.  His campaign slogan was, “He May Not Be Perfect, But He’s Perfect for D.C.”  He won by large margins.

In his 1963 inaugural address as governor of Alabama, George Wallace, champion of the Jim Crow laws, declared that he stood for “segregation now, segregation tomorrow, segregation forever.”  Yet he was reelected Governor of Alabama several times and in 1968, carried five states in his third party campaign for President.

In 1969, Teddy Kennedy drove a young girl off a bridge, failed to report the fatal accident until others had already found her, and until any alcohol in his system had had time to dissipate.  He paid money to the girl’s family to make no public comments.  And yet, a year later, he was re-elected to his Senate seat by a 62% majority.  By the time he died, he’d been reelected six more times.  There was widespread support for his subsequent campaign for the Presidency.

I didn’t support any of these three politicians, but I’ve always supported the electorate’s right to be represented by whomever they desire.  American Democracy has survived in part bcause we have enough faith in our system that we’re content to wait until the next election cycle, to vote out administrations we find abhorrent.  As the cases of Barry, Wallace and Kennedy seem to make clear, we don’t require our political candidates to be free of wrongdoing.  The will of the electorate being supreme, it apparently includes the power to forgive, excuse, or simply ignore the misconduct of a candidate for office.  Misconduct is not, per se, grounds for disqualification, ineligibility, or removal.  If George Wallace had won the presidential election, would he have then been subject to impeachment for his segregationist views?   Should Ted Kennedy have been expelled from the Senate for his crimes at Chappaquiddick?  If he’d been elected president, would he have been subject to impeachment for those crimes?

With those questions in mind, I move on to the precedents Congress has set for removals from office.

Our Constitution permits Congress to expel its own members, on a two thirds vote.  Whereas presidents must be accused of “high crimes and misdemeanors,” there’s no similar standard set out before Congress can expel its own members.  One might imagine that with so many of them, there’s been a lot more crimes and misdemeanors committed by members of Congress over the years than by Presidents.  Yet only a handful of Congressmen have ever been expelled by vote of their peers.  The great majority of them were Congressmen from southern states expelled after those states succeeded from the union; they were expelled for “support of the Confederacy,” i.e., for conduct that essentially amounted to treason.  Clearly, others have left office voluntarily amid scandal and disgrace, but apart from those civil war rebels, there have apparently been only three members of Congress actually expelled.:

William Blount was charged with treason in 1797 after a letter in his handwriting proved that he was conspiring with Great Britain to take over Spanish Louisiana and Florida.  (As a major land speculator, Blount stood to profit from the predicted increase in land prices.)   Treason is often cited as the most obvious of “high crimes and misdemeanors.”. Interestingly, though, Blount’s home state of Tennessee continued to elect him to its state house; he served as its speaker until his death.

183 years later, Michael Myers of Pennsylvania was expelled for taking a $50,000 bribe from an FBI agent in connection with the Abscam scandal.  Proof, again, was rock solid. And in 2002, Jim Trafficant of Ohio was expelled after being criminal convicted on numerous counts of bribery, racketeering, and tax evasion. Again, solid proof.

Apart from that handful, that’s it.  My sense from this is that Congress has been amazingly cautious in expelling its own members.  By comparison, it has shown greater willingness  to go after presidents.  Still, it has only impeached two of them, Andrew Johnson and Bill Clinton.  Since Nixon’s impeachment was certain if he hadn’t resigned first, let’s add Nixon to the mix and call it three.  In case we’ve forgotten, I offer an attempt to summarize them:

President Andrew Johnson wanted to replace his Secretary of War, William Stanton.  Having succeeded to the presidency as a result of the Lincoln assassination, Johnson, a Democrat, had inherited Republican Stanton from Lincoln.  Johnson and Stanton had very different views on reconstruction, and Johnson felt he had the right to a cabinet of his choosing.  The Republican-controlled Congress disagreed, passing a law that prevented the President from dismissing cabinet members without its consent.  Johnson vetoed the law.  Congress overrode the veto.  Johnson considered the law an unconstitutional interference by the legislative branch of government with the prerogatives of the executive branch, so he dismissed Stanton anyway.  For that, he was impeached.

Johnson’s view about the constitution turned out to be correct.  Years later, the Supreme Court decided  that the law in question, restricting the President’s right to dismiss members of his cabinet,  had been unconstitutional.  But in the meantime, the Republic-controlled House had already impeached the Democratic president for the “high crime and misdemeanor” of violating their law by dismissing his cabinet officer.  History has judged the impeachment as a highly partisan political squabble that paid little heed to the opinions of the public.   The case strikes me as an example of how not to use the impeachment power.

The articles of impeachment drawn up against Richard Nixon for his involvement in Watergate were for “obstruction of justice” and “abuse of power” (which boiled down to actions taken to cover up and impede investigation of an illegal break-in by his agents and supporters) and for “contempt of Congress,” i.e., failing to comply with Congressional subpoenas.   Personally, I wonder about that last charge – whether an executive failure to comply with a legislative subpoena is the sort of separation of powers dispute that characterized the Johnson impeachment.  But as for the first two charges, they were (1) for crimes by Nixon (perjury and obstruction), (2) in connection with investigation into another  criminal act (essentially a burglary), (3) committed during the President’s term in office and (4) presumably committed for the purpose of influence his reelection.   Unlike the Johnson case, there was no viable argument that the criminal laws violated were unconstitutional.  In my view, the impeachment articles proposed against Nixon offer a better example of an appropriate use of the impeachment process.

I also find it worth noting that at the time of his near-impeachment, Nixon was a highly unpopular president whose approval rating in public polls had dropped to the mid -twentieth percentile level. A lot of the sentiment against Nixon was actually due to matters extraneous to the impeachment charges, most especially, his conduct of the War in Vietnam.  But regardless of the cause for his low popularity, the Nixon case raises the question of the extent to which public sentiment should be a consideration in impeachment proceedings.  Thinking of Marion Barry, George Wallace, and Ted Kennedy, I’m reminded that we live in a democracy, in which the public’s right to representatives of their choice should not be lightly trifled with.  Any removal of an elected official from office serves to put Congress in the position of second-guessing the expressed will of the electorate.  And as you might suspect in a post on WMBW, any decision by a few people to override the expressed preferences of millions risks being nothing more than arrogance.  As noted in an earlier WMBW post, arrogance is the taking to yourself of authority not rightfully yours.  In a democracy, any time Congress removes someone elected by the people,  it’s hard not to ask whether they’re overstepping their bounds.  That said, why would popular sentiment not be an appropriate consideration in deciding whether to impeach?  If “high crimes and misdemeanors” ultimately boils down to a political question, is that necessarily a bad thing? 

The impeachment of Bill Clinton was for alleged perjury and obstruction of justice stemming from sexual misconduct with Monica Lewinsky and Paula Jones.  An Arkansas state employee, Jones alleged she’d been brought to then Governor Clinton’s motel room by state troopers, where he propositioned her and exposed himself to her.  She filed her sexual harassment lawsuit against Clinton within the applicable three year period of limitations. 

In the Me Too era, it’s interesting that the Jones lawsuit was only dismissed because the presiding judge found she could not prove that Clinton’s conduct damaged her.  (Not that she hadn’t done so, but that she could not do so.) 

That quirk of history aside, Clinton was asked in the Jones lawsuit about his relations with White House intern Monica Lewinsky.  Clinton’s later admissions and public apologies remove any significant doubt that he did in fact have a sexual relationship with Monica Lewinsky.  But in sworn testimony on multiple occasions, Clinton denied having any sort of sexual relationship with her, or even being alone with her.  The charge of obstruction of justice was for trying to influence the testimony of Lewinsky and Clinton’s own White House Secretary to support him in his sworn denials – efforts quite similar, it seems to me, to the obstruction of justice charges against Nixon.   

At the time, there were many who defended Clinton by minimizing the national significance of a President’s sexual activities.  Clinton complained that the inquiries were an invasion of his “privacy.” But the charges against Clinton weren’t for the sexual activity, they were for the alleged obstruction of justice that surrounded it, and for the perjury Clinton committed. (Nixon was widely considered a liar, but he was not charged with perjury, i.e., lying under oath, as Clinton was.)  As in Nixon’s case, there were two levels of misdeed – the underlying one (burglary, in Nixon’s case, sexual harassment in Clinton’s) and the subsequent misdeeds for which impeachment proceedings were brought – obstruction of justice and perjury.  The Democrat Clinton was impeached, but while Republicans split on the vote to remove him from office, every Democratic senator voted to acquit him of all charges, so conviction by a two-thirds majority failed.

In today’s environment. It seems unlikely that Clinton’s sexual activities would be dismissed as easily as many dismissed it in the 1990’s.  So, if public sentiment is a factor (and I think it is, whether it should be or not), the acquittal of Clinton might have come down differently today.  And that’s true, I think, even though public sentiment about perjury and obstruction of justice has not seemed to change from what it was back then.  It’s public sentiment about sexual abuse by people in power that have changed.

I certainly wonder, if President Trump were impeached for committing perjury and obstructing justice with respect to, say, his relationship with Stormy Daniels, Democrats would unanimously vote to acquit him, as they did with Clinton.

As with Nixon’s obstruction of justice, there was no question about the constitutionality of the laws Clinton was accused of violating.  As with Nixon, the charges against Clinton were for crimes committed during the term of office.  Since the misconduct by Clinton occurred during his second term of office, it was not designed to influence an upcoming election, as Nixon’s presumably was, so a removal from office could not be said to be any sort of remedy for election fraud.  But public sentiment was quite different than it had been in the Nixon case.  In contrast to Nixon’s abysmal public approval ratings, Clinton’s remained in the mid 60th percentile throughout his presidency, and reached a high in the mid 70th percentile after the impeachment proceedings.

Finally, I note that all three Presidential impeachments  so far have been brought by an opposition Congress – twice by Republicans against a Democratic President, and once by Democrats against a Republican President. No Congress has ever gone after a President of its own party.

Bottom line: there seems to be very little precedent for Congress to remove a president, or one of its own, from office.  Treason seems to be enough, and so does taking bribes, but there’s been a mixed record when it comes to perjury and obstruction of justice.  The differences seem better accounted for by partisan politics and by the political climate of the day, i.e., the popularity of the President accused.

I wonder whether, to some extent, this last factor is appropriate.  Other countries have procedures for recall elections.  In this country, we have them for other public offices.  Ultimately, in any democracy, one might think of impeachment and removal from office by Congress as a substitute for such a recall election.   I think the arguments are strong that Congressmen in red and blue states will, and should, be influenced in their actions by what they think their constituents want, and frankly, up to a point, I’m not bothered by that.  But Nixon should not have been impeached because he was unpopular, and Clinton should not have been acquitted because he was a Democrat.   There’s still precedent to be considered regarding the actual allegations made and proven.  And I strongly think it should be.

When Congress acts, I hope it doesn’t deprive us voters, collectively, of the right to be represented by the leaders we choose.  Otherwise, I may think them guilty of great arrogance. That said, I think there’s a point at which elected officials should unseat other elected officials, I just haven’t decided exactly where I think that point is. But as we try to sort such things out is, I hope we act consistently with past precedent, and with awareness that we’ll be setting precedent for the future as well.

Dealing with My Biases

I like to remind myself that I may be wrong. As a natural born egotist, I think it helps to make me more humble. But I don’t like it so much when I hope I am wrong.  When I hope I’m wrong, it’s usually because I don’t like what I’m currently thinking.  Today may be one of those times.

No one sees all the reactions my posts provoke, since the posts (and the reactions they provoke) appear in numerous places. A few reactions have appeared on this website, but they’ve been joined by numerous others. And my predictions about the impeachment of President Trump sure did provoke reactions.

“Provoke” does seem the right word here.  Judging by comments I’ve received so far, it seems my predictions were taken by a good number of my friends and correspondents as indicating I’ve already made up my mind about impeachment, i.e., that I already think Mr. Trump should be impeached and removed from office.  I’m told, for example, that I’ve been “duped” by his opponents.

It’s as if predicting a tornado is the same thing as favoring one.

I said in a recent post that I hoped to keep an open mind on the questions surrounding impeachment.  However, I did predict that Mr. Trump would be impeached by the House.  I predicted that he would not resign, and so would be tried by the Senate.  (By way of contrast, I’ve made no predictions about whether the Senate will remove him from office.) I predicted that we’ll hear much in the coming months about the meaning of the constitutional standard for removal from office, i.e., “high crimes and misdemeanors,”  and I hope to add to that discussion.

The problem appears to be that I also predicted my own eventual position: that once all the investigations are finished, once all the charges have been fashioned and all the evidence received, I would support his removal from office.

As I saw it, that prediction was much like my 1978 prediction that the Tampa Bay Buccaneers would have yet another losing season.  And my 1988 prediction that our side would lose our case in the U.S. Supreme Court.  And my 1995 prediction that my mother would live to be a hundred.  In none of these cases was I predicting my hope, only my expectation. Two of these predictions proved true, and one did not.  A prediction is no more than that, a guess about a future state of affairs.  Of course the outcome of the Buc’s 1978 season would depend on a lot of things not yet known when the prediction was made.  All my predictions would depend on things unknown when I made them, including my prediction about how I’d eventually feel on the matter of Donald Trump’s possible removal from office.  It’s all those things yet unknown that make a prediction a prediction.

I struggled with whether to include a prediction of where I guess (now) that I’ll end up on the matter of Donald Trump and his presidency (many months from now).  There were several reasons I did so, but it now seems that the prediction was taken by many as an announcement that I’ve already made up my mind.  In addition to the accusation of being “duped,” I’ve been asked several times why I think Mr. Trump should be impeached.  The answer is that (present tense) I don’t.  I simply predicted that, eventually, he will.  In the meantime, I am undecided.  And as I said in the earlier post, I will strive to remain undecided until the House has brought its charges and all the evidence is in. 

I’m not sure what to make of those who act as if they already have their minds made up.  Because they feel a certain way today, can they say, with confidence, that they’ll feel the same way tomorrow?  If so, what distinguishes that stance from the very definition of close-mindedness?

I think those are legitimate questions. But those are not the current thoughts that I said, at the outset here, that I dislike, and wish I was wrong about.  What I don’t like about my current thinking is that I think others may have reacted as they did not only because I didn’t express myself well enough, but also because we’ve become so jaded.  Do we believe that anyone who writes a blog must have already made up his mind?  Do we ask, “If not, why on earth would he be blogging?”  Have we got to the point that genuine open-mindedness has gone the way of the dinosaurs?   That it’s not possible for a blogger’s agenda to be, simply, that he wants to “think out loud” publicly, in an effort to foster a dialogue that will help us learn from each other?  Put selfishly, to help him make up his own mind? 

I hope not.  I hope I’m wrong about the way people think these days.  And I hope this post will help clarify where I’m coming from.  I hope that there are others who, like me, have not already made up their minds.  I hope we can talk, can learn from each other, and maybe even learn from those who have already made up their minds, regardless of which “side” they’ve taken.

But I’ll make another prediction: that upon reading this post, some will dismiss my claim of undecidedness.  Some will think I’ve made up my mind already, whether I realize it or not.  I predict they’ll draw this conclusion because my prediction reveals an anti-Trump bias.  And I predict that some will think me a hypocrite for denying that bias.

If so, let me answer that charge now.

Of course my prediction reveals a bias

I’ve already written in this space that I didn’t vote for Mr. Trump.  That alone reflects a bias.  On the other hand, I’ve voted mostly Republican in my life – does that mean I’m biased in Mr. Trump’s favor?  What about the fact that I spent a career defending clients accused of wrongdoing?  Of pointing out all the reasons that accusations alone do not prove guilt? Of believing that people are innocent until proven guilty?  What about the fact that I think the media has often been unfair in its reporting about Mr. Trump? Which way do those beliefs and experiences bias me?

Here’s what I think about bias: Every experience we’ve ever had helps shape our interpretation of everything yet to come.  In other words, our experiences inevitably create biases.  In fact, I believe, it is these experiences and the biases they cause that define who we are (or at least the way we think about the world around us).  The same, I believe, is true for every one of us.  The way I see it, we can try to guard against and compensate for the biases we recognize in ourselves – but those we don’t recognize, we’re helpless to overcome.

Those who read my earlier post, “Asking the Ad Hominem Question,” may remember my thinking on this point.  If all our opinions are a reflection of our biases, it’s good to identify and acknowledge why we think the way we do.  I wonder which of the people who read this would claim that they are not already biased by the things they’ve heard and seen and experienced.

I intend to follow developments as they occur.  Now, even before the new Congress is sworn in, I’m trying to take stock of my biases.  Acknowledging my predictions for the end game is in part an effort to help clear the way for the desired objectivity of my own future thinking.  

I do have initial thoughts about the impeachment proceedings I predict will come.   But I hope they are not set in stone.   I expect to be giving a lot more thought to them in the weeks to come.  And I hope that my eventual views will be informed by the wisdom and perspectives of those who visit WMBW in the months to come – whether you agree with the thoughts I share or not.

— Joe

The Impeachment to Come

First, a series of predictions: The U.S. House of Representatives will impeach Donald Trump.  He will not resign, so the Senate will conduct a trial on whatever charges are brought against him. The next couple of years there’ll be plenty of talk about the meaning of “high crimes and misdemeanors.”   At the end of the day, once all the evidence is in, I will approve of President Trump’s removal from office for “high crimes and misdemeanors.”  Until then, I will try (not always successfully) to keep an open mind.  I will view some participants and spectators as sharks in a feeding frenzy.  And I will not be able to restrain myself from commenting, especially when I think the street buzz fails to appreciate nuances or fails to put today’s events in historical perspective. 

Anticipating all that, and before the gavel brings the first meeting of the Impeachment Committee to order, I thought I’d ask a question intentionally broader than the eventual “high crimes and misdemeanors” question.  Namely, is Donald Trump the most independent, egotistical maverick who has ever served as president?

Perhaps he is.  Perhaps cabinet shake-ups, midnight tweets, criminal investigations and mounting criticism by members of his own party demonstrate that the man is out-of-control, a rogue who has lost all sense of attachment to the country and even to his own political party, an egotistical maverick who thinks he’s smarter than the combined wisdom on Capitol Hill and is prone to take the law into his own hands. 

But on the subject of mavericks, I thought I’d take a look at two pieces of historical data.  One of these is how often presidents have used their veto power.   An independent maverick willing to assert himself over the views of the Congress would seem likely to use the veto more often. 

The other is a president’s use of the Executive Order.  Bypassing Congress, presidents have sometimes attempted to make law by executive order.  The courts have often found that executive orders have exceeded proper presidential powers.   This is certainly not true of all executive orders.  The first such order recognized by the American Presidency Project was George Washington’s order that his cabinet members report back to him on the status of matters in their respective areas of responsibility.  There’s obviously a big difference between the executive activism suggested by that order and, say, Harry Truman’s order nationalizing the country’s steel mills.  So as a measure of presidential activism, the count of a president’s executive orders may be more problematic than a count of his vetoes.  As with vetoes, a president whose party is in control of Congress might be expected to use executive orders less than a president with an opposition party in power on Capitol Hill.  So there are obviously variables at play, not accounted for by the raw numbers  Still, one might expect a president who’s apt to take matters into his own hands, a president who tries to control the country personally rather than letting Congress do so, might be expected to issue more executive orders than a more docile, less activist president.

My thought was that the frequency of presidential vetoes and executive orders may provide at least some insight into the degree of ego and power various presidents have attempted to wield while in office.

In the following table, from FDR through Donald Trump, I’ve included the data for all the presidents.  Before FDR, I’ve included only those presidents who set new record highs for use of executive orders or vetoes.  I’ve used the president’s months in office to convert absolute numbers to monthly rates.  Here’s what I get, using data from the American Presidency Project and the U.S. Senate.

* Figures for Donald Trump are to date, i.e.,  December of 2018.

The numbers above don’t tell the whole story by any means. For example, hundreds of Cleveland’s vetoes were of private pension bills for Civil War veterans. Congress wanted to grant pensions to individual, named veterans after the Pension Bureau had investigated and denied them.  The bills presented the same issue again and again, and the result drastically inflated Cleveland’s total vetoes.

So the bare counts are no doubt subject to all sorts of explanations and interpretations.  But for me, the counts suggest a couple of things worth keeping in mind.

The first is that there have been two growth spurts in presidential activism as measured by these indicators.  The first spurt was when the country was being rended apart and put back together again over the slavery question. President Pierce nearly doubled the prior record of executive orders, Lincoln advanced it again, and after Lincoln’s assassination, Johnson and Grant, while trying to put the country back together again, more than doubled it again.  Meanwhile, Johnson and Grant each set new records for presidential vetoes, and did so by large margins.  It was certainly a tumultuous time.

The second spurt began with Teddy Roosevelt and ended with Harry Truman, a period spanning the Great Depression and two world wars.  That spurt is evident in both executive orders and vetoes, with FDR setting the all time record for both, despite the fact his party was in control of both houses of Congress for his entire presidency.  More tumultuous times.

Judged by that historical observation, in this time when the country is so polarized and divided, one might expect we’d have an activist president, at least as assessed by these measures.

The second observation I would make is more subjective, but I think important to think about, even so: namely,the correlation between a president’s “executive activism” as suggested by this data, and his reputation as a great president, as judged by history . To me, this will be important to keep in mind as we face the impeachment proceedings to come – not to argue that Donald Trump is a great president, but to help us remember what standard we’re judging him by, and if we remove him from office, what it is we remove him for.    

Putting Grover Cleveland aside, consider how history has regarded the other notables on the list:  Shortly after his election to office, President Lincoln ordered the arrest of several Maryland legislators who favored secession, right before a scheduled vote on secession, for the transparent reason of keeping Maryland from voting to secede.  (Now that was a bold display of executive activism!)  Yet history has judged that bold presidential action by all but forgetting it. 

Two years later, when Lincoln issued his most famous executive order (the Emancipation Proclamation) he took great pains to make sure it was “legal.” Lincoln disagreed with the U.S.Supreme Court’s recent decision in the Dred Scott case that, because slaves were private property  under state law, the federal government had no right or power to free them.  That decision was the law of the land, but Lincoln circumvented it by asserting that he did have power to confiscate property being used in rebellion against the federal government. So rather than having Congress do it, Lincoln freed the slaves by a stroke of his executive pen.  But recognizing the Supreme Court’s ruling, he only freed those slaves in the states that were in armed rebellion against the national government.  That respect for the rule of law is something Lincoln is much criticized for today.  Current progressive thinking would probably treat him better if he had contravened the law as then decided by the Supreme Court, and used his executive power to free all the slaves.  Lincoln was a maverick, but as judged by history, possibly not maverick enough.

Nearly a hundred years later, when President Truman used an executive order to place the country’s steel mills under federal control, the Supreme Court held his order unconstitutional. Truman is also third on the list of most active vetoers in history.  Yet Truman is highly regarded for his independence today.

Theodore Roosevelt, who set new records for issuing Executive Orders and established a reputation as one of the most egotistical mavericks to ever occupy the office, got his face enshrined on Mount Rushmore.   He is often considered one of the five greatest Presidents in American history.

And Franklin Roosevelt, who tried to pack the Supreme Court when too  much of his agenda was ruled unconstitutional, who set the record for issuing activist executive orders by a large margin, and who set the record for presidential vetoes even though his own party controlled Congress throughout his presidency, is widely hailed by many as the best president in history. He is certainly highly regarded by today’s “progressives” for his executive activism.

The point is that, as I see it, history has generally looked upon presidential activism with high regard  — at least when it approves of the goals a president  has pursued.  

So where does President Trump fall, on these measures of  ego and executive activism?  He has used the Executive Order more frequently than President Obama, but then, Obama’s use of the Executive Order was the lowest in modern times.  When compared to other modern presidents, Trump’s rate has been comparatively low.  And as for his use of the veto power, there have been 2,574 presidential vetoes since 1789 — not one of them by Mr. Trump.

There are a lot of ways to measure a President’s ego, independence, and executive activism. If measured by midnight tweets and rash statements made to the television news media, President Trump is surely the most arrogant President in history. (That’s an easy claim to make considering Andrew Jackson and Ulysses Grant had neither twitter nor TV.)   But measured by such quantifiable things as frequency of executive orders and vetoes, Mr. Trump has been far less of a maverick than either of the Roosevelts , Wilson, or Truman.  And as far as I can tell, being mavericks who were not always in line with their own parties had a lot to do with why such men have been regarded well by history. 

My point?  I simply hope that, as the impeachment proceedings progress, we keep in mind that impeachment was not designed to punish presidents for having policies and positions we disagree with.  Impeachment was not intended as a remedy for presidents with big egos, or even for those who run counter to the views on Capitol Hill or within their own political parties.  Let’s not impeach Donald Trump because he’s a maverick, unless we think that presidents yet to come who are cut from the mold of Jackson, Lincoln, Wilson and both Roosevelts  will deserve to be impeached for their  roguishness.  Let’s think long and hard, with a sound historical perspective, about the separation of powers, the presidency, and the best meaning to give to “high crimes and misdemeanors.”

I may be wrong, but I predict I’ll have more to say in the months to come about that term.  But those are my thoughts for now.  I look forward to hearing yours.

— Joe