Tuesday, June 13, 2017

What Privilege?

Part of the art of the dodge is in being willfully inarticulate.  Or in willfully not trying very hard to speak as clearly as one thinks.  I won't try to quote A.G. Sessions on the privilege that seems to have the Democrats on the Intelligence Committee so flummoxed.  If he had stated his position clearly, they might have figured out how to deal with the problem.  But, being a skilled obfuscator, the A.G. relied on "policy" - never a legal basis for anything - and forced the poor Dems to ask for a copy.  Yikes.

Here's what A.G. Sessions would have said if he felt obliged to speak clearly:  
All confidential communications between the President and anyone else in the Executive Branch are privileged.  Only the President can waive that privilege.  He does not need to "assert" it; it applies until it doesn't, and the Attorney General has no power to pretend that it doesn't.  Where, however, the President has publicly revealed a communication that would otherwise be covered by the privilege, the action implies that the President does not consider that communication privileged, and so someone privy to that communication can discuss it publicly.  
So, when the President says publicly "I asked Rod Rosenstein and Jeff Sessions for their views on Jim Comey," the communication ceases to be privileged, and the A.G. can properly, i.e., without breaking privilege, tell the Senate that the President "asked him" for his advice on Comey.  That testimony would not, pax, Senator King, amount to "selective" use of the privilege in question, however one frames it.

But Sessions did not expressly rely on Executive Privilege, because the President has not asserted it, as if that were necessary to its application.  Instead, Sessions relied on a policy of the Justice Department, which appears very much to walk like executive privilege and quack like executive privilege.  That's because it is executive privilege.  Otherwise, it would be nothing more than a wish that Congress could rightly ignore.  

This confusion serves Trump very well.  Not one Senator asked Sessions "Could the President authorize you to answer these questions?"  The answer is clearly "yes."  Leading to the follow-up "Will you ask the President to allow you to answer these questions?"  Stonewall that, Mr. Sessions. As things stand, the President can say he didn't "assert" Executive Privilege even has he hides behind it.  All because the Attorney General could get away with invoking the privilege on the President's behalf by reference to a bright, shiny object - the DOJ's policy (of tacitly treating Executive Privilege as asserted until waived) - that the Senators are now all trying to get a copy of.  

Where does that leave Mr. Comey's disclosure of things the President said to him?  The President is free to say that Comey is lying about his conversations with the President and, at the same time, claim Executive Privilege as to what he and Comey talked about.  Comey himself made this clear when he described a newspaper story as false but declined to say in what regard, because that would reveal things that should not be made public.  What is less clear is whether the President can order Comey, now a private citizen, not to disclose his recollections of conversations that arguably have a bearing on his personal status.  Privilege means "You don't have to tell Congress"; that's not the same as "Don't tell Congress."  Or is it?  I'm going to leave that hot potato for another day.

Thursday, June 8, 2017

No Comment

A lot of noise is being made these days about what Jim Comey did and did not say publicly.  Almost all of that noise is logically fallacious.  Comey tried to explain the matter using what he called the "slippery slope" analogy, but no one was listening.  He should have been more forceful.

The answer to the question "Why couldn't he simply say that Trump was not under investigation?" is simply this: "What would he have said if Trump were under investigation?"

If a reporter asks the FBI whether X is under investigation, there is only one suitable answer:  "No comment." Every other answer is wrong, because any other answer means that there are at least two possible answers: "No Comment" and [the other answer].  And, if that other possible answer is "No," "No Comment" must imply "yes"; otherwise, the "No" answer would have no reason to exist.

Already, we are seeing the fall-out of the possibility of "No" being an answer.  Comey testified
(i) that when he last spoke to President Trump, he told Trump that the FBI was not investigating him, and 
(ii) that his statement to Trump was true.  
Items (i) and (ii) are entirely separate things.  Item (i) is an action Comey swears he took in private.  Item (ii) is a public statement about an investigation that Comey swears is true.  It would be practically impossible for Comey to deny item (ii) without raising the possibility that he was lying to Trump, but that's why he should not have added item (ii).  Indeed, if asked whether what he told Trump was true, he should have answered "I can't comment publicly on whether an investigation was ongoing."  That sounds bizarre, and it would likely be treated as bizarre by the bozos who make hay out of things that sound bizarre.  But Comey could logically have said this:
"I can testify publicly to what was said by President Trump and me and to what I have done in connection with the matter.  Neither of those things requires me to make a public statement as to the truth of what I told President Trump, and, because there can be only one such statement - "No comment" - I am making that statement.  You should not infer anything from my statement, as it is the only one I am able to make, and so it carries no information with it, as if I did not hear it being asked.
Information theorists will see the heart of the matter quickly.  Information is anything that reduces the degrees of freedom in a system.  That's a high-sounding, generalized way of saying that if there are two possibilities (yes and no), and a statement about those possibilities causes there to be one possibility ("YES!!"), then that statement carries information.  If the statement does not reduce the number of possibilities ("No comment"), it carries no information, and nothing can be inferred from it.  For that description of things to be valid, however, it is essential that "No Comment" be the only possible answer.  Otherwise, there are more than one possible answers, so giving either one of them reduces the degrees of freedom in the system of answers and carries information.  Thus, there must be only one possible answer to the question if that answer is to deliver no information.

Comey's slippery slope argument says that if the FBI says it is not investigating X, it must also say that it is not investigating anyone else about whom it is asked, unless, of course, it is investigating that person.  So, if the answer isn't "no," it will be read as "yes," even if it is spelled "No comment," and there goes the FBI's ability to investigate someone without publicly saying so.

This is a big deal.  It explains everything about why officials don't say things publicly even when it is clear that they know the answer and may even be clear to everyone what the answer is.  Any deviation from "No comment" makes any subsequent "No comment" more meaningful than it needs to be.

Thus, Comey testified that, in connection with the matter of Secy. Clinton's emails, he was permitted to say, to Congress and in press briefings - it's not clear why - that the FBI had opened a "matter," but not an "investigation."  That bothered Comey, who said "We're the Federal Bureau of Investigation," so it makes no sense for us to open anything but and investigation.  But A.G. Lynch's justification for ordering him to call it a matter was that the FBI does not comment on whether it has opened an investigation.  But, by creating an alternative statement to "No comment," A.G. Lynch had made "matter" mean something other than "No comment," and the only reasonable thing it could be made to mean, when opened by the Federal Bureau of Investigation, was, duh, an investigation.  Again, Comey should have been directed not to say anything about the matter, other than "No comment." And now it looks like the A.G. was trying to provide cover for Mrs. Clinton, when, perhaps, she was trying, unsuccessfully, to adhere to a policy without understanding its most important instrument: "No comment."

Sunday, May 28, 2017

Plus ça change

"We, the German Führer and Chancellor, and the British Prime Minister, have had a further meeting today and are agreed in recognizing that the question of Anglo-German relations is of the first importance for our two countries and for Europe. We regard the agreement signed last night and the Anglo-German Naval Agreement as symbolic of the desire of our two peoples never to go to war with one another again. We are resolved that the method of consultation shall be the method adopted to deal with any other questions that may concern our two countries, and we are determined to continue our efforts to remove possible sources of difference, and thus to contribute to assure the peace of Europe."  Neville Chamberlain after Munich.

"This call for driving out terrorism is a message I took to a historic gathering of Arab and Muslim leaders across the region, hosted by Saudi Arabia.  There, I spent much time with King Salman, a wise man who wants to see things get much better rapidly.  The leaders of the Middle East have agreed at this unprecedented meeting to stop funding the radical ideology that leads to this horrible terrorism all over the globe."  Donald Trump after Riyadh.

Friday, May 26, 2017

The Rough Beast is a Piss-Ant

Above all else, Donald Trump  will be remembered for his smallness.  Not the hands nonsense, but the petty, petulant, puerility of his time on the world stage. Send not to know for whom the baby monitor tolls.  We have elected a puling nonentity and sent him out to represent us at the big-boy table.  Shame on us.  Shame on the Republican Party for having so little to offer.  But mostly, shame on us as a nation.

Vladimir Putin is popular in Russia.  People say it's because he suppresses information about his flaws, but I don't believe that's so.  I think he is popular because a classy leader is a luxury that the Russians have not been able to afford, ever.  Gorbachev might have been such a leader, but the fact that he has been supplanted by a fascist thug says something about the kleptocratic soil in which Russia grows its leaders.

Trump is living proof that the US can no longer afford the luxury of a quality President.  The GOP gerrymandered the Congress into a feckless mess with an approval rating of 19%, every missing 81 points of which are the other guys' fault.  They aren't to be pitied - they thought they were putting party over country - but there is a delicious irony to their having hoist themselves on their own petard.  When swing voters don't matter, cooler heads have no reason to prevail.  Instead, morons get elected, Congress becomes a swamp, sixteen Tweedle-dees run for the Presidency, and an abomination slouches toward Washington to be born.

Read some Gibbon.  Read Shakespeare's "Julius Caesar."  And then read Yeats:

Turning and turning in the widening gyre
The party cannot hear the ward leader;
Things fall apart; the centre cannot hold;
The Tea Party is loosed upon the world,
The heartless tide is loosed, and everywhere
The ceremony of compromise is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

Or something like that.  I'm quoting from memory.

Watching President Trump lecture the NATO chiefs on their obligations to the US was really, really painful.  The US has every right to pressure its allies into paying their "fair share" toward the defense of their own soil, but the idea of hectoring them in public should make any American's skin crawl.  With so much going on in the world, so many points to make in a public speech, our guy wants to know who ordered the lobster.  And yet, an astounding and sobering number of self-styled "Americans" actually think this bozo is a better leader than Hillary Clinton.  Or John Kasich or JEB Bush.

Like Willie Loman, when this many voters talk, attention must be paid.  We must take another look at Germany in the late 1920's and see why Hitler's, er, quirks, were overlooked.  If stupid people are empowered to vote, they don't suddenly become smart.  Rather, they just vote for stupid things - solutions that sound good fast, because no one else is offering any solutions at all.  So, no, Mr. Eliot, the way the world ends is not with a bang or a whimper.  It's with a snivel.

Tuesday, May 16, 2017

Or, in the alternative, I had every right to...

To paraphrase Voltaire, if the high-five did not exist, the Russians would have to invent it.

The famous (among lawyers) example of arguing "in the alternative" goes like this:
My dog doesn't bite. Or, in the alternative, my dog was tied up that night. Or, in the alternative, you were not bitten. Or, in the alternative, my dog was provoked.  Or, in the alternative, I don't have a dog. 

That's pretty much how the Trump administration addresses the Orange Peril's blunders.  Why was Comey fired? Because he was unfair to Hillary. Or, in the alternative, because this thing about Trump and Russia is a Hillary-sponsored hoax.  Did Trump leak classified information to the Russians last night?  Well, the formerly respected H.R. McMaster says he was in the room where it happened, and it didn't happen.  Or, tweets the leader of the free world, in the alternative, I had every right to do it.

The Russians have won the Powerball, and they've taken their winnings as an annuity payable over the political life of Donald Trump.  One can only pray that it is short, and that it ends non-violently.  I'll stop typing now, as this is probably already old news...

Sunday, May 7, 2017

It's Only Money (Healthcare Edition)

Is there anything seriously wrong with either Obamacare or the GOP House bill that money couldn't cure?  What are the gripes about Obamacare?  It forces you to buy insurance you don't want.  Would a sufficient subsidy not cure that?  Insurance companies can't make money, so they withdraw from state exchanges.  Would a sufficient subsidy not cure that?

And the GOP bill that lets states set up high-risk pools for people who are very sick.  The Dems' only objection is that such funds have historically been underfunded.  Would a sufficient subsidy not cure that?

Topology fans - yes, there are topology fans - there must be - are fond of pointing to the torus - a solid object with a hole in it.  Like a bagel, or a teacup.  To the topologist, these are the same thing.  (How different is a meatball pizza from a cheeseburger, really?)  Well, any healthcare system that covers the poor and covers sick people after they get sick - when else would they be covered? - is going to be like any other at heart.  The risk has already been socialized, and the only question is whether there will be enough money delivered to providers to get them to deliver enough care.  Everything else is a detail.

Socialized benefits are paid for by taxes, broadly understood as an economic hit imposed to cover the cost of mutual benefits bought by the collective.  Buying insurance you don't want is a tax (just ask Justice Roberts), and inflation is a tax.  Price controls act as a tax.  Export tariffs on drugs sold at a higher price here than abroad impose a tax.  And, of course, explicit taxation is a tax.  But it's all the same to us topologists.  Everyone is getting healthcare, and, as a consequence, we are taxing whomever should be taxed, and in whatever way, as our politics determines.

I have my preferences regarding tax policy, but that's for another day.  For now, it's sufficient to note that any politically acceptable U.S. healthcare system post-Obama will require a lot of public money to pay for people who cannot afford the care they need.  Any legislative scheme that does not come up with that money will fail.  The murderers in Congress killed Obamacare by underfunding it.  The House Bill grossly underfunds the state pools without creating large enough subsidies to entice private companies.  Governors are in a bind: their constituents won't be able to buy coverage from insurers who are not there or afford coverage from pools that are underfunded.

No, the House Bill is not law, nor will it be.  But no new law will work unless it adequately subsidizes the cost of care.  Of course, that gives the government a big stake in cost control - e.g., the aforementioned export tariff on drugs sold to public health systems abroad - but that is a detail to be worked out.  The important thing is that no system that is underfunded can work.  Unfortunately, our pols don't much care whether a plan works; they just care who will get credit if it does, or - what may be a more valuable prize - blame if it doesn't.


Saturday, April 8, 2017

Who Knew? (Sarin edition)

Not long ago, President Trump "discovered" to his amazement that healthcare is complicated.  "No one knew," he tells us, how complicated it was.  Because our President lives in an impenetrable shell of ignorance, we should not be surprised that he is shocked to learn that nerve gas is bad for babies.  But we should not mistake "his" response to Assad's recent gas attacks for something approaching sentience.  Rather, this attack was the smart move of the smart acorns that our blind pig in chief reluctantly put in charge of the NSC.

The Tomahawk attack had one goal: to cause Assad to stop using chemical weapons and, having no use for them, to stop producing them or storing them lest his stockpiles fall into his enemies' hands.  Our object is not to save Syrian babies.  We don't have a way to do that.  Conventional bombs are lethal, too, and we can't stop them.  We are not trying to change the outcome of the Syrian civil war.  We are not even trying to "punish" Assad the man.  We are instead trying only to make the production of nerve gas a bad idea.  If none is made, none can be sold to or stolen by people we cannot persuade not to use it.  That alone is reason to make the use of sarin unprofitable for Assad.

The strategic decision to make Assad regret using chemical weapons is worthy of a national discussion.  Instead, our foolish media obsess over the morality of its use, the legality of our intervention, slippery slopes, palace intrigues, and everything else that has nothing to do with this act.  The Pentagon has tried to make clear that this attack was intended to discourage the use of the weapons, not to change our policy on Syria per se.   Of course, that's not what the President himself said in his mawkish blather about babies, but who cares what he says?

I am a big fan of Miller's law, a bit of communication theory that tells us to interpret statements in whatever reasonable way will make them true.  That won't turn "Obama tapped my phones" into "my associate's conversations were picked up by legal surveillance of foreigners," but it does facilitate an understanding of what people acting in good faith are trying to communicate.  The spirit behind Miller's law extends to analyses of public policy.  We should interpret each action in whatever reasonable way will make it the right thing to do, completely ignoring as irrelevant any defenses of the action that don't hold water.  Just because an actor offers a bad reason for doing something does not mean that the thing was the wrong thing to do.

In the case of the attack on Syria, discouraging proliferation of sarin is the good reason for doing it.
Viewing the attack in that light, I come out in favor of the raid and give the Administration credit for conducting it.  That the White House chooses instead to go off on a moralizing tangent is beside the point.  According to news accounts, the Pentagon (not the White House) has put forward a reasonable defense and strategic context for the action.  That's where our attention should be focused, and if our President's brain weren't such a muddle, we could in fact focus it there.

Update, 4/14/17.  Sean Spicer got in trouble for saying that not even Hitler used gas on his own people.  On the same day, Sec. Mattis was saying that not even Hitler used gas on the battlefield.  The people on the left who get outraged for a living went nuts over Spicer's version, but no one made a peep about Mattis's statement.  Spicer, of course, is an inarticulate spokesman, a quintessential first hire for Trump.  Loyalty, first, then, when that doesn't work, settle for competence.  But finding a good spokesperson will be hard for Trump, because a press secretary can't speak any more clearly than his principal thinks.  Better to have a liar like Conway, who doesn't care whether she's making sense, or a dimwit like Spicer, who doesn't know whether he's making sense.

But I digress.  The real difference between Spicer's gaffe and Mattis's statement is not that the Defenese Secretary speaks more clearly than the Press Secretary.  The difference is captured in this article.  Mattis attacked the weapon, whereas Spicer, like his boss, attacked the user.  Mattis compared Syrian war-fighting and German war-fighting.  Spicer compared Assad's war crimes and Hitler's war crimes.  On his Sunday show "Reliable Sources," Brian Stelter made the interesting point that Trump's talk about the pictures out of Syria reflects the fact that we don't see the pictures of the damage done by conventional weapons.  As Stelter put it, Trump only saw the gas victims because their bodies were intact.  The pictures of conventional bombing victims are so horrific that news media won't show them.  Those attacks didn't move Trump, but the gas bombs did.  As our wordsmith in chief might say, sad.

Anyway, Spicer got in trouble for making a moral argument about someone not being worse than Hitler.  That's a no-no, because the survival of the Jewish people may hinge on no one ever being publicly judged worse than Hitler, even though any number of tyrants and psychopaths in power could give the guy a run for his money.  But it all starts with the idea that Trump was moved by the immorality of the gas-bombing and not by our national interest in having gas-based weapons go away.  Mattis didn't say anything about the relative evil of people, just about the threat to humanity posed by the unique power of the weapon itself as a force multiplier.

Spicer is a constant reminder of Trump's inadequacy as a President.  If the President had anything to say worth hearing, he'd be forced to find someone capable of saying it.  So far, however, nothing useful has been lost in translation.  If the guy steps in it from time to time, the Left's outrage machine can huff and puff if it likes, but there's really no substance there, and we ought not to be distracted by it.