Bob Schwartz

Category: Government

The Hopeful But Limited Relief of Having the New Kavanaugh Investigation

It is good news that there will be a new FBI investigation in the Brett Kavanaugh matter. Any movement towards a return to free, open and lawful democracy is welcome.

But before we pop champagne and release balloons, a reality check. Here are some ways the investigation could have little effect on the outcome—in fact, will be designed to have little effect, besides providing cover for vulnerable and/or spineless Republicans.

1. It is a limited investigation. We don’t know the scope, which is being directed by Trump. It could be as narrow as the single incident alleged by Christine Blasey Ford, the incident that was the subject of Thursday’s hearing. This could mean simply talking to her, to Brett Kavanaugh, and to the few people who were there—only one of whom, Mark Judge, is an eyewitness.

Judge has already said that as an effect of his chronic alcoholic blackouts, going back to high school, he has no memory, one way or the other, of the incident. There is no reason he won’t say the same thing to the FBI.

The investigation could be broader. It could include other allegations that have been made. It could include everything that Ford and Kavanaugh testified to during the hearing. It could thus involve Kavanaugh’s claims about his benign behavior, claims that have been refuted by a number of people who knew him in high school and college. It could include all this, but almost certainly will not.

2. Trump controls the report of the investigation. Trump ordered the investigation. His order presumably included a specific scope of investigation for the FBI to follow. Just as importantly, the report of the investigation will go directly to Trump, who can decide how much of the investigation report can be shared and who it can be shared with.

The worst case, which would not be surprising, is that no copies of the report will be distributed. Instead, senators will be allowed to review the report in the White House. They may be allowed to take notes.

All of this—any presidential redaction and any restricted distribution—are part of the desire by some for this investigation to be “confidential”…

3. The investigation is, in some unspecified way, supposed to be “confidential”. Judge has said he wants whatever he says to be confidential. Kavanaugh has indicated he expects it to be confidential. It is unclear what this means functionally. But it is easy to see the case that would be made:

The only reason we are doing this investigation is to further inform the senators responsible for deciding on confirmation. Others, whether other members of Congress or citizens in general, may be curious, but they have no compelling reason to see the detailed report, given that it contains sensitive information.

If that reasoning sounds extreme, that is, extremely suspect, it is. But if you need a basis for it, just look at the “investigation” that went into Kavanaugh in the first place, and look at the history of the Trump administration. No twisted attempt at hiding the truth is too absurd.

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“That’s Pride F***in’ Wit Ya”: Rod Rosenstein Could Never Figure Out Whether to Follow Self-Interest, Duty or Conscience

All public servants in the Trump era—from Senators and cabinet members on down—have three possible paths to follow:

Follow your self-interest
Follow your duty, to job and to country
Follow your conscience

Many of the highest level people in the government have taken the easy path of least resistance and most gain, and have chosen self-interest, even as they try to disguise it as duty or conscience. But a number of people, many of whom finally left the government—voluntarily or not—have had to wrestle with these choices.

Whatever is happening to Rod Rosenstein, a good public servant, he never seemed to be able to figure out exactly how to be a good public servant in such strange times. He knew he owed a duty to his office and to his country, which meant a duty to his president, but that came in conflict with his conscience.

I have previously cited the movie Pulp Fiction on the question of expedience, and I repeat it here.

At this point in the movie bad boss Marsellus Wallace (Ving Rhames) is convincing aging boxer Butch Coolidge (Bruce Willis) to take a dive:

I think you’re gonna find ­ when all this shit is over and done ­ I think you’re gonna find yourself one smilin’ motherfucker. Thing is Butch, right now you got ability. But painful as it may be, ability don’t last. Now that’s a hard motherfuckin’ fact of life, but it’s a fact of life your ass is gonna hafta git realistic about. This business is filled to the brim with unrealistic motherfuckers who thought their ass aged like wine. Besides, even if you went all the way, what would you be? Feather-weight champion of the world. Who gives a shit? I doubt you can even get a credit card based on that.

Now the night of the fight, you may fell a slight sting, that’s pride fuckin’ wit ya. Fuck pride! Pride only hurts, it never helps. Fight through that shit. ‘Cause a year from now, when you’re kickin’ it in the Caribbean you’re gonna say, “Marsellus Wallace was right.”

Note: For those who haven’t seen Pulp Fiction (why not?), in the end Marsellus Wallace gets his, in the spirit of Quentin Tarantino’s sense of rough and uncertain justice.

Ray of Light: Trump’s Pardoning May Be Like a Slot Machine

The likelihood of any individual being pardoned by Trump will be affected by Trump’s craziness, unreliability and lack of loyalty. It will be like a slot machine. And that may be a good thing for justice and the rule of law.

Even though I have long accepted that Trump would try to pardon almost everyone who is charged or convicted in the course of the investigation, Paul Manafort’s plea agreement to cooperate raises an encouraging insight:

If you were one of the dozens of people who are getting caught in this net, facing possible years in prison, and Trump told you to your face—not just through an intermediary, not just through hints on Twitter—that you could expect a pardon, would you believe him and depend on him to keep his word?

Of course you wouldn’t believe him and depend on him to keep his word. Which means, just like Manafort, you have to hedge your bets. It is possible that if you agree to cooperate, Trump might still pardon you. On the other hand, if you agree to cooperate, Trump might go crazy and refuse to pardon you. And in the worst case, you might stonewall and take your punishment, but because of some crazy voices in Trump’s head, he might still refuse to pardon you. Who knows? With Trump it’s a roll of the dice, a spin of the slots. As a defendant, are you willing to bet ten or twenty years of your life on a Looney Tunes character? I bet not.

 

The Difficult Realities of Impeaching Trump

Yesterday was an encouraging day for those who hope to see the uncovering and dismantling of the corrupt and un-American Trump enterprise. Trump’s former campaign manager Paul Manafort was convicted; Trump’s former fixer Michael Cohen pled guilty and directly implicated Trump in his criminality. Even the likelihood that Manafort and others who haven’t turned on Trump will be pardoned doesn’t take away from the day’s significance.

This has raised hopes that Trump will be impeached if the Democrats are successful in the midterm elections. Which means—not wanting to burst the rare bright balloon of yesterday’s news—it is time for a reality check.

Let us say that the Democrats win a majority in both houses of Congress.

The impeachment process begins in the House, with hearings and a simple majority passing articles of impeachment. In a Democratic House, that should be no problem.

The trial for removal of a president then takes place in the Senate. If the Democrats do win a majority in the Senate, it will be a small majority at best. Let us say that they have a 53-47 majority. Conviction for impeachment requires a two-thirds majority, which is 67 votes. So 14 Republicans would have to vote to remove the president.

You may think that what we will have learned by then about Trump’s corrupt presidential conduct and fitness for office will finally move Republican Senators to agree to his removal. (As a matter of fact, if you privately asked Republican Senators today whether they would rather have Mike Pence in the White House immediately, the answer would be a unanimous yes.) But not a single thing we have seen indicates that any sitting Republican Senator—that is, those who are not leaving office—is willing to stand up to Trump. Why would we think that we can find 14 or so Republican Senators with the courage to remove him from office, no matter how egregious the evidence?

Okay, enough reality. I would like to be totally wrong about this. Let’s enjoy this moment of hope for American restoration.

Trump Turns to a Depression-era Solution to Help the Farmers He Is Hurting

Library of Congress, Farm Foreclosure Sale in Iowa, ca. 1930-1940

Washington Post:

White House readies plan for $12 billion in emergency aid to farmers caught in Trump’s escalating trade war

The U.S. Agriculture Department on Tuesday plans to announce a $12 billion package of emergency aid for farmers caught in the midst of President Trump’s escalating trade war, two people briefed on the plan said, the latest sign that growing tensions between the United States and other countries will not end soon….

The money would be extended just as voters in some of the most heavily impacted states are preparing to cast votes in the midterm elections. There are several key Senate races in farm dependent states like Missouri, North Dakota, and Indiana this November, and the outcome of those races could determine who controls the chamber next year.

The White House has searched for months for a way to provide emergency assistance to farmers without backing down on Trump’s trade agenda, and the new program will extend roughly $12 billion through three mechanisms run by the Department of Agriculture.

The funds will come through direct assistance, a food purchase and distribution program, and a trade promotion program. It will rely in part on a Depression-era program called the Commodity Credit Corporation, a division of the Agriculture Department created in 1933 to offer a financial backstop for farmers.

So the damage Trump is doing to farmers with his unnecessary and universally condemned trade war is potentially so great that he is turning to a solution from the Depression. Whether you call that telling, ironic or simply surreal, it is just one more milestone on a road to American parts strange and unknown—or more likely a road to nowhere.

To My Brothers and Sisters in the Law: Remember Professional Ethics in the Face of Tyranny

Some of my readers may be lawyers; certainly some colleagues, friends or members of their families are, so please pass this on if you would like. Many people involved in current immoral and unethical polices such as the forced separation of migrant children are also lawyers.

This is a brief chapter from On Tyranny: Twenty Lessons from the Twentieth Century (2017). Note that the Kindle edition of this essential book is only $3.99. It is the best and most conscientious $3.99 you can spend right now.


5. Remember Professional Ethics (emphases added)

When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.

Before the Second World War, a man named Hans Frank was Hitler’s personal lawyer. After Germany invaded Poland in 1939, Frank became the governor-general of occupied Poland, a German colony where millions of Jews and other Polish citizens were murdered. He once boasted that there were not enough trees to make the paper for posters that would be needed to announce all of the executions. Frank claimed that law was meant to serve the race, and so what seemed good for the race was therefore the law. With arguments like this, German lawyers could convince themselves that laws and rules were there to serve their projects of conquest and destruction, rather than to hinder them.

The man Hitler chose to oversee the annexation of Austria, Arthur Seyss-Inquart, was a lawyer who later ran the occupation of the Netherlands. Lawyers were vastly overrepresented among the commanders of the Einsatzgruppen, the special task forces who carried out the mass murder of Jews, Gypsies, Polish elites, communists, the handicapped, and others. German (and other) physicians took part in ghastly medical experiments in the concentration camps. Businessmen from I.G. Farben and other German firms exploited the labor of concentration camp inmates, Jews in ghettos, and prisoners of war. Civil servants, from ministers down to secretaries, oversaw and recorded it all.

If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.

Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following orders.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable.

The Very Small People Running America

The people running America are very small, starting with the president, and continuing down through his administration and his Republican supporters.

What does small mean?

Let us put it in terms these people will understand, since practically all of them claim to be faithful, most of them faithful Christians:

So God created mankind in his own image.
Genesis 1:27

That is, of course, aspirational. Not that people will be able to reach godlike heights of compassion and care. But that is the constant goal—interrupted by the shortfalls we are all subject to, being human as we are.

But maybe we’ve got it all wrong. Maybe God is petty and ignorant, uncaring and uncompassionate. In which case, those running America are being faithful, acting so small in the image of a very small God.

Or maybe they don’t understand the very first chapter of the Bible they embrace, or maybe they ignore it or skip it. Maybe they don’t understand, ignore or skip the entire Bible.

Anyway, these are very small people, faithful or just pretending to be. Way too small to be doing such a big job.

The U.S. lost track of 1,475 unaccompanied immigrant children it captured last year. Department of Health and Human Services says: “Not our legal responsibility.”

Everything you need to know about Trump and his administration is in this story (or in dozens of other stories). Not that public bureaucracies big and small don’t make mistakes, sometimes terrible ones. But that the appropriate and moral public servant response is to take responsibility, find out what went wrong, and work to fix it.

Instead, the response is either to blame someone else or to fall back on having no legal responsibility. No crime, no foul. We are going to be hearing a lot more of that in the months to come.

How in the world has Trump been able to assemble such an historically rotten administration? Leading by example?

Washington Post:

During a Senate committee hearing late last month, Steven Wagner, an official with the Department of Health and Human Services, testified that the federal agency had lost track of 1,475 children who had crossed the U.S.-Mexico border on their own (that is, unaccompanied by adults) and subsequently were placed with adult sponsors in the United States. As the Associated Press reported, the number was based on a survey of more than 7,000 children:

From October to December 2017, HHS called 7,635 children the agency had placed with sponsors, and found 6,075 of the children were still living with their sponsors, 28 had run away, five had been deported and 52 were living with someone else. The rest were missing, said Steven Wagner, acting assistant secretary at HHS.

Health and Human Services officials have argued it is not the department’s legal responsibility to find those children after they are released from the care of the Office of Refugee Resettlement, which falls under HHS‘s Administration for Children and Families. And some have pointed out that adult sponsors are sometimes relatives who already were living in the United States and who intentionally may not be responding to contact attempts by HHS.

Why Trump May Not Fire Department of Justice Officials (It’s Not Impeachment, a Constitutional Crisis or the Rule of Law)

It increasingly sounds like Trump is ready to rush in and try to stop the Mueller investigation:

A Rigged System – They [Department of Justice] don’t want to turn over Documents to Congress. What are they afraid of? Why so much redacting? Why such unequal “justice?” At some point I will have no choice but to use the powers granted to the Presidency and get involved!

Trump actually has no idea what the constitutional powers of the three branches of government are. He may not even know there are three co-equal and balanced branches of government. The only thing he knows is that he is THE PRESIDENT and that is the most powerful position in the world, EVER.

Trump’s firing people responsible for investigating him is wrong, is incident to a constitutional crisis, and breaches the fundamentals of the American rule of law. That won’t stop him. But this might:

If Trump proceeds with his improper intervention, every responsible lawyer currently working on his behalf, and every responsible lawyer being asked to represent him, should and may leave and run the other way. Because by continuing or taking on that work in the aftermath of such action by Trump, they are complicit—even if tangentially and collaterally—in supporting those actions. There is a case to be made that by continuing in those circumstances, lawyers are in breach of their oaths (lawyers are all sworn officers of the court) and of the rules of professional conduct.

All of which is not meaningful or comprehensible to Trump. But he might notice that there are fewer quality lawyers willing to touch his legal problems, and that number will get infinitely smaller if he carries out his threats.

“In the biographies of men and nations, success often arrives in a mask of failure.”

This isn’t about baseball, though the quote is from a baseball writer. Bill James is not just a superb writer; he is a thinker whose analysis of the game has changed baseball more than any other thinker has ever changed any game. You can look it up.

This is about optimism and hope. I was reading The New Bill James Historical Baseball Abstract (a 998-page volume whose title alone should tell you just how thoughtful Bill James is). He describes Robin Yount, who as of the time of publication James considered the Number 4 shortstop in baseball history:

Robin Yount (1974–1993, 2856 G, 251 1406 .285)

Robin Yount was a major league regular when he was 18 years old. We always wondered how good he would be, how much he would improve. In 1978, after Yount had been in the major leagues four years, he held out in the spring, mulling over whether he wanted to be a baseball player, or whether he really wanted to be a professional golfer.

When that happened, I wrote him off as a player who would never become a star. If he can’t even figure out whether he wants to be a baseball player or a golfer, I reasoned, he’s never going to be an outstanding player.

Yount was unhappy about suggestions that the Brewers would move him to the outfield. According to Dan Okrent in Nine Innings, “Yount didn’t merely reject the suggestion; he brooded about it, resented it, and lost himself in self-doubt. Members of the front office… saw Yount’s reaction as immature sulking.”

But as soon as he returned to baseball, Yount became a better player than he had been before; his career got traction from the moment he returned. What I didn’t see at the time was that Yount was in the process of making a commitment to baseball. Before he had his golf holiday, he was there every day, he was playing baseball every day, but on a certain level he wasn’t participating; he was wondering whether this was really the sport that he should be playing. What looked like indecision or sulking was really the process of making a decision.

This is often true. What Watergate was about was not the corruption of government, as most people thought, but rather, the establishment of new and higher standards of ethical conduct. Almost all scandals, I think, result not from the invention of new evils, but from the imposition of new ethical standards. Same thing with Yount; he wasn’t backing away from baseball; he was just putting the bit in his teeth, accepting new responsibilities. In the biographies of men and nations, success often arrives in a mask of failure. (emphasis added)