Friday, March 20, 2020

COVID-19 and the Missing Bullet Holes

The story is told about how the US Army figured out the best way to armor its airplanes in WWII. Because armor slows planes down, it could not simply be layered on indiscriminately. So engineers had to figure out which parts of the plane needed it most. To find out, they inspected planes returning from battle. Because the planes were presumably being hit by anti-aircraft fire randomly, the parts of the planes that had no bullet holes must have been parts that could not afford to be hit, as planes being hit there were not returning. Those parts (the engines) got the armor.

I heard this story from my college room mate more than fifty years ago, but its logic, like the curious incident of the dog in the night time, stuck with me as a way to approach certain types of problem.  One such problem may be finding an "accidental" cure for COVID-19.

Recent reports suggest that chloroquine and hydroxychloroquine, anti-malarials long available generically in the US and used now for autoimmune diseases like rheumatoid arthritis and lupus, may prevent/cure COVID-19. The possibility of prevention (or cure so quickly as to amount to prevention) brings to mind the airplanes and their bullet holes. Everyone who seeks medical care for anything is asked for a list of medications they take. What if, despite the fact that something like .25% of the population takes CQ or HCQ  - I'm guessing; the number doesn't really matter so long as it's big enough - almost no one presenting with COVID-19 takes either of those drugs? Wouldn't that raise an inference that the drug is providing protection? And, of course, this bit of induction is not limited to these drugs. A bit of data-mining should reveal any significantly under-represented medication in the COVID-19 population.

Yes, clinical testing needs to be done, but, as Henry David Thoreau wrote, some circumstantial evidence is quite powerful, as when you find a trout in the milk. If people taking HCQ in France are getting better, and people already on CQ or HCQ here (and anywhere else) are not getting sick, We may have a way out of this mess before a real vaccine can be developed, tested, and distributed.

This thought must have crossed the minds of people in a position to look into it. So, if a popular medicine that incidentally prevents COVID-19 infection or symptoms is out there, it will be detected, and we will be back to our lives sooner than most people believe.

Tuesday, March 17, 2020

COVID-19 and the Birthday Party Model

I have long believed that the real reason kids have birthday parties is so that they can trade microbes. When else do we let strangers blow on our food? We let kids share microbes so that they will develop herd immunity. The contagion is contained because the kids' parents are largely immune to the bugs kids bring home. Not all of them, but enough of them for the birthday "system" to be a net plus.

COVID-19 differs from other diseases that are milder in childhood in one important way: adults are not immune to it. But that does not seem to me to rule out allowing young, healthy people, including otherwise healthy pre-senior adults (aka parents of school children) to contract and purge the disease as a way to create herd immunity. Instead of the total social distancing we are practicing, we should only be isolating high-risk populations. The rest of us should be getting on with our lives.

I also wonder how the economic effects of social distancing affect death from all causes. We don’t have universal healthcare, and, even if we adopted it tomorrow, one may expect that the economic dislocations of businesses shutting down will cause an increase in homelessness and death by other causes, including fear of emergency rooms.

My guess is that history will record that we over-reacted to this bug, not in the sense that we worried too much about it, but in that our response was insufficiently nuanced. The social distancing will last much longer than necessary because herd immunity will not be achieved until nearly everyone’s been vaccinated (as with smallpox in its day). We will look back and realize that we could have done more by doing less.

[Update: The herd immunity method was tried in the UK, but data suggested that the hospital system could not handle the surge of severe cases. A policy of case and family quarantine plus social distancing of high-risk populations might in fact reduce total cases, the so-called "area under the curve," but hospital beds create as constraint outside the simple epidemiological math.]

Tuesday, March 3, 2020

Obamacare is Still Constitutional

Having guessed right last time about SCOTUS's take on the Obamacare individual mandate, I am emboldened to guess again now that the Court has agreed to hear the latest challenge. Only this time, I'm afraid I may only be predicting what the dissenters will say.

In NFIB  v. Sibelius, Justice Roberts opined, correctly in my view, that the individual mandate in the ACA, which imposed a penalty tax on those who don't have health insurance, was a valid use of the tax power and was, therefore, Constitutional. At the same time, Roberts's opinion included dictum to the effect that the mandate was not authorized by the interstate commerce clause.  Seizing on the latter dictum, the idiot Republicans in charge of the Senate came up with a brilliant idea: reduce the penalty tax to zero. That way, there would be no tax on which the supporters of the mandate could hang their hats.

Congress eliminated the penalty in the tax cut act passed in 2017. They did not simply repeal the ACA, because, under the Senate's rules, they could reduce taxes by a simple majority, whereas actually repealing the law would require a vote that could be filibustered.  (Why Democrats want to get rid of the filibuster is beyond me.)

In their cynical attempt to kill the ACA by cutting its femoral artery, the GOP has, in my view, instead repealed the mandate and left the ACA legally, if not practically, unscathed. Without a penalty, there is no constitutionally cognizable mandate, and, without a mandate, there is no case. The resulting statute may not make sense, and it may not be actuarially sound, but it is what Congress has wrought, and it imposes on no one any burden the Constitution forbids. So, what's the problem?

The district court judge who ruled that the law was rendered unconstitutional by removal of the penalty tax wrote, in effect, that the mandate:
(i) survived removal of the penalty even though there is no legal consequence to ignoring it, 
(ii) is, by the logic of the opinion in NFIB, unconstitutional absent a tax to back it up, and 
(iii) is an integral part of the Act's structure, so that in being struck down, it takes the entire ACA with it. 
The district court's opinion has two key findings. First, the court determined that removing the penalty was not the same thing as removing the mandate, because the language imposing the mandate is still in the Internal Revenue Code (the provision was obviously not drafted by tax lawyers), and so  some people still feel obliged to obey it.  A handful of individual plaintiffs were actually dredged up to claim that they bought insurance out of respect for the mandate in the amended law. Second, and most crucially, the court found that the mandate was an integral part of the ACA structure and so its failure rendered the whole act void.

Neither of these findings can withstand much scrutiny. Congress does not create wrongs without remedies. If there is no sanction for non-compliance with the mandate, the mandate becomes "surplusage," words that Congress would have removed if it were doing a better job of drafting. There is no rational basis for leaving the mandate in the law without a penalty. There are some irrational reasons - e.g., so that it could be declared unconstitutional - but SCOTUS should (and I hope will) refuse to accept without an actual Congressional finding, that Congress intended to pass an unconstitutional law.

Sound jurisprudence demands instead that the Court simply declare the mandate void, rather than "accuse" Congress of intentionally sabotaging its own act.  Declaring the mandate void would obviate people's duty to obey it, providing complete relief to those poor sots who feel obliged to buy insurance despite the absence of any penalty for not doing so. (Obeying a law that Congress has implicitly repealed does not cause the law not to have been repealed.)

Removal of the penalty also makes untenable the court's finding that the surviving "unconstitutional" mandate is an integral part of the ACA. No doubt, the mandate was an integral part of the ACA when violating it gave rise to a tax. But, as they say, that was then, and this is now. If Congress removes the penalty without reasserting the centrality of the mandate, it must also be presumed to have "reconsidered" the centrality of the mandate.

The district court found that Congress did retain its finding that the mandate was an integral part of the law. That conclusion was based on Congress's failure to remove the language in the ACA that says so. But, as the judge said, removing the language would have violated Senate rules. Therefore, no more can be inferred from failure to remove the language declaring the mandate integral than can be inferred from failure to remove the mandate itself. If Congress commits itself to drafting poorly, all the Courts can do is interpret what is left. In this connection, it's worth noting that the whole section of the ACA defending the mandate was predicated on Congress's power to regulate interstate Congress. Arguably, SCOTUS voided the entire section when it said in NFIB that the mandate was not supported by that clause.

The district court judge recognized that removing the penalty would likely undermine Congress's intent in passing the ACA. But if that's the case, the repeal of the penalty should be regarded as repeal of the ACA, something the Senate rules do not permit, and so, cannot have been the Congress's intent. Yes, there's a certain amount of "gotcha" reasoning here. I am urging the Court to take Congress at its (implied) word that it intends its acts to be law, so the least possible damage should be done to a defective law to enable as much of it as possible to remain law.

In this case, the least damage is done by treating removal of the penalty as nullification of the mandate, with whatever practical consequences that may have. If the district court is right that the amended law does not work without a penalty tax, Congress is free to restore the penalty or create some other subsidy to make the ACA's pre-existing conditions rules affordable. That Congress made the ACA stupid is not reason enough to infer either that it intended to repeal the law, in violation of its own rules, or render the law unconstitutional, in violation of the Constitution.

Perhaps the ACA's opponents should have argued that the surviving mandate opens non-compliers up to civil liability, some sort of class action of payers against non-payers for the damage done to the healthcare system by their failure to comply with Federal law. Such liability would give the mandate teeth, which would subject it to the Interstate Commerce test that it failed last time around. Thing is, the mandate is in the Internal Revenue Code. That's no place to find substantive private law. I will, therefore, defer consideration of civil liability until someone raises it.

In short, the cynical GOP assholes who control the US Senate have put SCOTUS in a bind. The Court must hold that the 2017 amendment to the ACA (i) implicitly repealed the ACA, contrary to Senate rules, (ii) intentionally rendered its own law unconstitutional, contrary to its raison d'etre under Article I of the Constitution, or (iii) implicitly removed the mandate, but did not repeal the entire ACA or make it unconstitutional. That choice seems easy to me. But maybe that's just me.

Sunday, December 15, 2019

Impeachment - Not There Yet.

I'm still a Never-Trumper, but I favor rejecting him at the polls over impeaching him in Congress. (Ideally, I’d have Congress impeach him next November, after he loses the election, just to denounce him and disqualify him for future office.)
Alleging corrupt intent is too easy and too tempting.
One strong argument against impeachment was made just this morning by Sen. Rand Paul in an interview with Jake Tapper: If your rival’s son robs a liquor store, can you be impeached for demanding he be investigated? Note that I said “impeached,” not “criticized.” A good president would react to news that his rival’s kid is a criminal with “The Justice Department is handling that, and I don’t want to comment on it.” But we don’t have a good president. We have a godawful president. Still, the sin of demanding an investigation of a real crime is way closer to “maladministration” — being a godawful president — than to high crimes and misdemeanors.
So the Dems must fall back to the specifics of the Trump/Biden case. We all know that Trump was not really interested in the Bidens’ corruption, because we all know that he is a corrupt individual who believes in corruption as a way of getting things done. But we can’t impeach him for being a horrible human being, something we knew in 2016. Nor should we take official action against him based on what “we all know,” because we all can come to “know” a lot of things that aren’t true.
I am not saying that we lack evidence that Trump’s motives in the Ukraine affair were electoral. My problem is that I cannot find a bright enough line between what Trump did and what he would have been doing if the Bidens were in fact worthy of investigation (whether or not actually guilty of anything). Too much of the Dems’ case depends on the claim “There is no evidence that Joe ever acted to favor Burisma.” When did the absence of evidence become evidence of absence? Absence of evidence is, indeed, the core of Trump’s weakest defense. We have been subjected to hours of baloney about his not explicitly stating that the aid to Ukraine was contingent on the investigations he was demanding. How can the Dems complain about that defense when their “proof” that Trump’s motive was corrupt is that “there is no evidence” that the Bidens were corrupt?
Maybe that’s why we hear so much about foreign involvement, with continual references to the mention of foreign intrigue in the Federalist. But the argument is circular. The Dems say that Trump is seeking political assistance from Ukraine. Trump says he is demanding help with uncovering American corruption. We have cooperative intelligence arrangements with foreign governments. Australia tipped us off to Russian meddling. That information had positive, but not dispositive(!), political effects for Sec. Clinton. So getting help from foreign powers in matters that have political ramifications is not an impeachable offense. No, it comes back to the fact that Trump is a lying SOB. But all politicians are allegedly lying SOBs. In this case, the allegation of lying is supported only by the absence of evidence that the alleged lie (viz. that the Bidens are corrupt) is true.  That's an evidentiary hole that leads, in my view, straight to the voting booth. 
Politics ain't beanbag
I carry a very strong presumption in favor of the voters being the ones to punish political chicanery.  In a democracy, everything a leader does should have political consequences, and everything a leader does should take into account the extent to which public opinion will favor or condemn it. The matter is subtle: leaders must lead, but they must not coerce. We are seeing this issue play out with healthcare. We know the system is broken, but we are not ready for Medicare for all. If Sen. Warren changes her position on M4A to reassure union workers that they will not be forced to give up their plans, that may sound like opportunism to some, but it sounds like “listening” to others. Who’s to say that the politics did not change her mind about the best policy to pursue? Answer: the voters. NOT the Congress of the United States.
Getting re-elected is what politicians do. News accounts of the machinations relating to impeachment never fail to mention their political ramifications. The GOP is concerned with protecting its vulnerable senators, and the Dems are concerned with protecting their vulnerable representatives. Are these people’s exercise of their public responsibilities not being affected by their political self-interest? How is that different in kind from what they are accusing Trump of doing?
Was Mulvaney wrong? Do we not do “it” all the time? Yes, Mulvaney was “admitting” that there was a quid pro quo for releasing the Ukrainian aid, but that still leaves the “we do it all the time” argument on its own merits. It’s a different argument from the one Trump first made, but that’s it may still be a good argument, and the Dems who are calibrating their impeachment moves with their political fates in mind are having a hard time refuting it. If it’s so bad to trade foreign aid for political favors, what do we think of basing impeachment decisions on political effects? Has the left wing not “extorted” an impeachment process out of Speaker Pelosi by threatening her speakership? Should they all be “impeached”?
I believe that we must be leery of prosecuting "political" crimes  criminally or by impeachment.  Trump certainly sought to extort a political favor from Ukraine, with no benefit to the USA. But given a system of government in which political gain (i.e., public approval) of one’s official decisions is at least relevant to most such decisions, a president seeking to “steal” an election by coercing a foreign government to help him slime a rival does not in my judgment rise to the level of high crimes and misdemeanors. This is especially true when, as here, the voters will in fact get to vote on the guy and his publicly exposed conduct months after any impeachment process will have ended.  (If we can't vote Trump out, do we really deserve to govern ourselves?)
The strongest argument for impeachment, in my view, is that the President is attempting to rig the next election, i.e. that we cannot “let the voters decide,” because if we don’t oust the sonofabitch, the voters won’t actually be able to decide. But our politics features the sage observation “he stole it fair and square.” One test of a political leader is the ability not to be taken advantage of by bad actors. If Trump can steal the election from you, then Putin could probably steal the world from you. 
I believe Trump won the nomination because none of his opponents could actually humiliate him, despite his being the worst person ever to run for the office. There they were, up on the stage, being asked if they would back the GOP nominee whoever it turned out to be. Only Trump refused to raise his hand. Any decent candidate would have joined him and said, loud and clear, that if the Party nominates Trump, he or she would do everything in his power to defeat him. Instead, these would-be “leaders” showed a level of cowardice completely incompatible with the presidency. The question might as well have been “Who is too stupid to see that Donald Trump should not be President of the United States?” They answered that question honestly, and the rest is history.
The Democrats and the electorate both need to redeem themselves for their horrid performance in 2016. If either fails to do so, then a strong case can be made that we do not deserve to govern ourselves. Who knows? Maybe that is in fact the case.  Maybe democracy has hit the wall of diminishing returns, where everything people can agree to do has been done, and all that's left to do are things we must be forced to do. There is no rule of nature that says otherwise. Seems an important thing to discover, though, and having Trump on the ballot in 2020 strikes me as the best possible way to discover it. 

Saturday, June 29, 2019

How do you say "nightmare" in Spanish?

The Democrats's first round of debates was a never-Trumper's nightmare. Bad as it was all around, a few embarrassments stand out.

First was the plethora of VP contenders, book floggers, and otherwise supererogatory deadwood. I like the idea of political parties, but only if they have some coherence.  Tom Perez has admitted that he wanted all of those people on stage, and he wanted fireworks, because it generated "earned media."  Is that what we have political parties for? To earn the attention of the ratings whores who run our media?

No, Mr. Perez.  If the 2016 election should have taught party leaders anything, it's that the party should limit the field to people with the support of its leaders. Nancy Pelosi, good as she is as a Speaker, is a feckless party leader.  Her voice should count, and it should be loud.  The party is not served by Eric Swalwell's proof that back-benchers should be seen and not heard, Maryanne Williamson has no business on the debate stage, Andrew Yang should run for dog-catcher before President, and on and on.  And Bernie Sanders?  What part of "party" does the DEMOCRAT party not understand?  Of course, the party should work to defeat him; he isn't even a member!  Yikes.

And then there's the circular firing squad, led by Kamala Harris. After feigning reluctance to criticize a fellow Democrat, Sen. Harris implied last week that Mr. Biden was "celebrating" segregationists.  She didn't have the courage to accuse him of doing so; he simply said that she didn't think anyone should do it. (Sometimes, context is everything.) But by the night of the debate, she had dropped all pretense. After clearing up, for those of us in doubt, the burning question of whether Mr. Biden is a racist - she said he is not - she accused him of "praising" segregationists and then, again after protesting that the debate shouldn't be a food fight, proved that point by throwing him under the bus, rehearsing a forty-year-old grievance, choreographed with the Tweet of a picture of herself as pickaninny in pigtails.  Food fight? No. Knife in the back?  Sure.  The left says she won the debate.  Wrong. Donald Trump won it.

The debate about healthcare was not about healthcare.   Everyone up there was for universal coverage. The debate was about whether private insurance companies were a sufficient cause for our broken system. Those opposing private insurance did so out of hatred for their profit motive.  There was no substantive discussion about the quality of care, the negotiating prowess of private entities vs. the corrupted government, or anything else.  Single payer is one thing, but a government-run health system - can you say "VA", little girl? - is something quite again.

A special vote of thanks to the moronic José Díaz-Balart. He asked each of the candidates whether someone whose only violation of the law was entering the country illegally should be deported, conjuring up images of good people living long commendable lives, but describing as well thugs with MS-13 tats the minute they exit the tunnels.  They haven't committed any crimes here either. So all those lawyers on the stage put on their pander suits and said they would not deport those people.  Mayor Pete at least had the sense to frame his response as a use of resources, but the right answer was simply "How long have they been here? Twenty minutes or twenty years?" If practical, illegal entry should be a tort, the remedy should be deportation, and there should be a statute of limitations. The first day of law school, students are told that they will learn how to think like lawyers, but some learn only how to think like politicians. They all sounded like they were for open borders, or at least for some kind of game where, if you can make it over the fence, you get to stay.

Meanwhile, again in response to a "yes or no" question, they all say that their government-run health plans would cover illegal immigrants.  Mayor Pete got to say that his plan would "cover them" by letting them buy in like anyone else, but, one assumes that the poor among them would be equally subsidized. I know he's the intellectuals' darling, but that may just mean that his sophistry is more sophisticated. The herd effect pretty much requires that we treat anyone here so that their illness or disability does not affect the rest of us.  As Anatole France wrote, the law in its majesty forbids rich and poor alike to sleep under bridges, beg in the streets, and steal bread.  If we don't want people doing those things, we must make poverty less common and less oppressive. The same is true of illnesses, especially infectious disease.  Out of what kind of spite do we not treat tuberculosis in an illegal immigrant?

But the issue is subtle and connected to the deportation problem. So long as deportation is a risk, illegal immigrants will not seek help, and the unhelped can be a dangerous presence. So maybe a case can be made for a high wall and amnesty for those who get over it, not for their benefit but for ours.  A common sense position would hold that the fewer people get in, the more we can do for them. But common sense isn't how one gets elected here anymore. Qué lástima.

Speaking of which, we should not let the whole Spanish business go unremarked. I suspect that I know as much Spanish as Cory Booker, probably a bit less than Beto O'Rourke, and a lot less than Mayor Pete (who only spoke Spanish when addressed in Spanish). But I know enough to recognize a thick "American" accent, and I found it embarrassing to hear these people conduct US politics, however poorly, in a foreign language.  This is not Canada.  Ici on ne parle pas l'espagnole. Aquí, nosotros parlamos inglés. At least that's what the independent voters we want to lure away from Trump do.

To answer my title question, then, the debates me dan pesadillas; they gave me nightmares. They resurfaced everything Hillary did wrong. Even when the occasional candidate mentioned the "working men and women," it was in the context of zero-sum class warfare, not bigger-pie optimism. Wages are paid from gross revenues.  You can't pay factory workers more if you lower the price of what they make. That's not to say that some prices aren't out of hand, just that restoring collective bargaining, not taxing the rich, is the winning Democrat message.  Don't kill the goose; fatten it and change the sharing rules.

In short, two tough nights for conservative never-Trumpers. I will vote for whichever of these left-wing wackos gets the nomination, just as I voted for HRC, who was not a left-wing wacko but, to her shame, consternation, and comeuppance, played one on TV. I prefer misguided to evil, and one does not choose among the candidates one wants; one chooses among the candidates one gets.

Did I mention las pesadillas?

Saturday, March 2, 2019

Naming Names - the Public Michael Cohen Hearing

A lot happened when Michael Cohen appeared before the House Oversight Committee, so much that something might have been overlooked.  The media have dissected the stuff that sells papers, but there was something that plucked a certain civic string that hasn't been plucked in almost seventy years. The press ignored it, perhaps because ignoring it butters their bread.  But I am oddly and gnawingly discomfited by it.

I'm talking about Cohen naming the names of Trump's henchmen.  The prosecutors with whom Cohen is cooperating have all the names.  Congress could certainly get them in a list provided privately.  Why, then, did the Democrats - you know, the ones who railed about Comey saying bad things about someone he did not think should be indicted - feel so free to have some more names of people who may or may not eventually be indicted, disclosed publicly?  Wouldn't "Can you give us a list of people who have evidence of Trump's skulduggery?" have sufficed? Did these people's children have to hear their Dads' names on TV? Do these people deserve to be hounded by reporters on Michael Cohen's say-so?

Our pols do not seem to recognize the difference between a precedent and a one-off.  Consider the filibustering of judges. Mitch McConnell - a truly dreadful human being, but I digress, sort of - used the filibuster to prevent confirmation of qualified judges rightfully appointed by President Obama.  That was subversive and inexcusable.  Harry Reid's "nuclear" response to McConnell, dispensing with the filibuster for appointments other than SCOTUS justices, was unanimously opposed by Republicans. Allegedly, they thought it was a bad idea.  Yet, when they got control of the Senate, they did not undo it.  Reid's rule change came back to bite the Dems in the butt, and, good government being always the farthest thing from Mitch McConnell's mind, the Republicans have kept Reid's rule in place. Apparently, it, and they, have mellowed with age.

So, a one-off response to an unprecedented GOP abuse of the filibuster became a precedent rather than a caution.  The same thing is happening with the President's border wall "emergency."  The Democrats simultaneously rant about how the President has no power to do what he is doing while wetting their pants over the possibility that their President will get to do the same thing with guns and opioids and climate change.  Given what they see as a good chance of winning the White House eventually, the ideologues on both sides of the Congress are eager to take Congress out of the President's way when he's on their side.  This ridiculous, unconstitutional fraud is all too likely to become a precedent, because the members of a feckless Congress would rather abdicate their responsibilities than perform them.

But back to Cohen.  There was a difference between the HUAC and McCarthy hearings, on the one hand, and the Trump hearings today. The substantive issues today are not political.  The people that Cohen named are not accused of subversion or disloyalty, just maybe covering up venality. How is it that the naming of possible traitors is now seen, rightly, as loathsome, whereas the naming of cogs in the Trump money machine is applauded as a "road map" for Congress? Still, the theatricality of public naming was the same. Here's a piece from Chapter 10 of Victor Navasky's Naming Names:
The testimony of Kimple, Silver, and Erwin, combined with intelligence from the FBI and countless other government sources ... meant that the last thing the Committee needed to do its job was to accumulate more names. Moreover, almost all the witnesses who named names publicly preceded their public testimony with a private, executive-session rehearsal, which means that the public hearings were indeed largely ceremonial. ... Names were turned on and off like water by the Committee's counsel and investigator, depending on the symbolic goal of the day. 
And of course, named names get published with alacrity.  What else can one expect of the commercial media? That they should give a fig about the private consequence of public gossip?  They don't have enough evidence to name these people themselves as miscreants, but they sure as hell have absolutely incontrovertible evidence that Michael Cohen says they are involved in shady dealings. The things said by Michael Cohen may not be true, but his saying them is news.  If those things are names of people with real lives, reputations, and families put at risk, all the better. "Run that tape again!  We don't ever get names.  This is unprecedented!" Yeah, because it's such a fucking awful thing to do.  But it's not unprecedented now.  Just like getting rid of the filibuster for judges, it's a bad idea, a one-off, a desperate measure for desperate times, and maybe not even appropriate then. Reid's (reversible but not reversed) nuclear option was right, the other firsts regrettable.)

Sadly, the whole Trump Presidency is a one-off, occasioned, I believe, by the GOP's sabotage of the an unready President. The question is whether we will learn from it not the President can do, but what the electorate must not do.

Update:  Here we are one day later, and Sen Durbin is on CNN being asked, in connection with possible disclosure of the Mueller Report, to comment on Rod Rosenstein's argument that the DOJ has no business saying anything publicly about any citizen against whom it cannot make a solid criminal case. That, of course, was the Democrats' view of Comey's sin, and the reason for their objection to the DOJ handing over its Hillary files to Congress. Yet, Durbin has no problem saying that "the precedent has been set" for not respecting Rosenstein's corrective advice, as if bad behavior is somehow locked in place by some invisible ratchet.  Literally, words fail me here, so I'll stop.

Sunday, September 9, 2018

Crazytown, USA

So, what are we to make of this anonymous Op-Ed in the New York Times on September 5?  (I don't know if the link works for non-subscribers.)

A few questions:

What is a "senior official in the Trump Administration"?  The Times refuses to elaborate. What point is there to using words if you refuse to say what they mean?  I remember Robert Bork offering a thought experiment:
I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an inkblot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the inkblot if you cannot read it.
The Times has put an inkblot over the rest of "senior Trump Administration official means ...." rendering the term meaningless if we assume that the Times wouldn't publish an anonymous op-ed by anyone the readership would not view as senior anyway.  The Times's op-ed editor Jim Dao, in an interview with Brian Stelter of CNN, said:

"We were simply trying to abide by the standard that the Times in general would use when referring to someone who's not named."

On The Daily (the Times's podcast), he added, "I feel that we followed a definition that has been used by our newsroom in the past."  One hears the anguished moans of turtles all the way down.

FWIW, I will read "senior official" to mean "Trust us, this is big." I can't go all the way to "household name," given the ignorance shown in about 40% of American households.  But I'm thinking it's a honcho.  Still, there should be stated criteria, or there can be no "definition" that was used in the past, because that wouldn't have been a definition either.  On the contrary, there's no denying it's a non-definition definition.

Why an op-ed?

I heard Jeffrey Toobin say on CNN that this editorial is just an extended quote from an anonymous source.  Why didn't the Times op-ed editor say to the author "Go tell your story to a reporter"?  Here, Maybe the Times was baited by the "Fake News" rap.  The argument that Maggie Haberman, say, "made up" a source, or misquoted an unnamed source, is more likely to be believed by Trump's hoopleheads than the claim that the editorial board fabricated and author.  This is not an anonymous source; it is an anonymous author.  The Trumpsters have, of course, floated the idea that the author doesn't exist, but it just doesn't have the same oomph when you can't make what is said just one hated reporter's version of what an unnamed source has to say.

Why anonymous?

I am more sympathetic to the author's anonymity than many commentators. Some say the author - to whom I'll refer with male pronouns to save myself keystrokes - should step up, give his name, and resign. Well, what happens then?  One thing is that his best friends inside the White House become suspect, too. In another context, lawyers follow the maxim noscitur a sociis - a thing can be understood by the company it keeps. If we don't know who the anonymous author is, we don't know whom he eats lunch with or plays basketball with or sleeps with.  The "resistance"depends on its participants not being found out; identifying one may identify all.

Then there's the Murder on the Crazytown Express problem.  Let's suppose this author speaks for the entire coterie of resistors.  Maybe the "author" who presented himself to the Times is an avatar for the entire group, which effectively ghost-wrote the book, like Naked Came the Stranger.  It would be dishonest for the "author" to claim authorship.

Finally is a sort of fallacy of composition.  It may well be that the author, if he is a real person and not the voice of many, could leave with no real damage done.  But the standard critique we hear is that anyone who feels as the author does should resign.  Thus, if this author should go public and resign, then all of his fellows must resign, too.  Then who would be left to mind the store?

Why now?

Why expose this behavior, which, one must assume, will be rendered less effective going forward?  Maybe Woodward's book, in parts not yet shared with the public, exposes it.  (The book release is scheduled for 9/11/18.)  There are anecdotes  in the publicly known parts of the book about Gary Cohen and Sec. Mattis effectively deep-sixing Presidential actions, on the theory that, having the attention span of a goldfish, Trump will forget he even wanted to do what didn't get done.  Maybe he only wants to say things should be done with no particular interest in whether they get done.

But whatever efforts are being made quietly to keep the truck on the road, those efforts are impeded by their revelation.  Maybe the president will create some sort of Chief Compliance Officer for the staff, someone whose job it is to tell the Orange King when "Off with his head!" doesn't result in a head being off. 

That would not be a good thing.