Unpublished Op-Ed

Mark Kleiman and I wrote this in February 2017, but never had it published. I thought that it might be worth posting at this time.

Some Words of Advice for Federal Employees

Receiving directives inconsistent with good government – if not worse – creates one of the most difficult situations a civil servant can face. As former Justice Department staffers, we have some advice to offer Federal employees when such situations arise, as they seem likely to do often under the current regime.

1.       When told to implement a policy that is counter to statute, regulation, or the stated and authorized goals of the agency, take good notes; such directives rarely come in writing. Then go back to your office and write down your understanding of the recommended policy, making sure you have correctly described what you were told. Then send that account as a memo to your superior.

2.       Whether or not you receive a reply, follow up with a detailed list of issues and concerns, both pro and con, involved with proposed policy or action. Describe them in full context and cite the relevant legislation, executive orders, and constitutional issues. Send that, too, up the chain of command.

3.       You may also be at the receiving end of threats or other problematic situations that are meant to intimidate you. Write a memo to yourself and share it with a trusted friend as soon as possible, to establish a time line.

4.       Do not use your office phone or computer (or cell phone while in the office) for personal reasons, least of all to complain about these situations, as this may open you up to attack. If your agency expects you to be available for phone calls and text messages around the clock, get a cell phone that you use only for official business. You might want to use a text messaging app that encrypts the message, and ask your recipients to do the same.

5. Maintain a contemporaneous, written log on a ruled ledger with a sewn binding, so removal of any page will show. Enter every meeting, call, and significant email on successive lines in ink, leaving no spaces. Fill in any space on the right with a slash, so nothing can be added. Note the date, time, attendees, subject, and conclusions. Absent minutes, no one else will remember what happened a day later, so your record will become dispositive. This approach, laborious though it is, can provide valuable protection for anyone from a GS-1 to a cabinet officer.

6. If you decide to talk to a reporter, get the ground rules clear first. “On background” means you can’t be identified, but your agency can; “deep background” means that even your agency isn’t mentioned.  Any communication to the press about official business not previously cleared by your agency’s public information office will probably put you out of bounds; consider whether you’re willing to take the consequences. If you’re later asked about whether you were the source of a story, either tell the truth (and be prepared to find a new job) or refuse to answer.

There are already reports that White House Chief Strategist Steve Bannon has taken steps to erase the paper trail behind various Executive Orders. All the more reason for career civil servants and the political appointees more loyal to the country than to the ruling cabal to make as much of a record as possible.

Michael Maltz is Emeritus Professor of Criminal Justice and of Information & Decision Sciences at the University of Illinois at Chicago. He was a research analyst with the National Institute of Law Enforcement and Criminal Justice during the Nixon administration and had to deal with some questionable directives.

Mark Kleiman was Professor of Public Policy at the New York University Marron Institute of Urban Management. He served as Director of Policy and Management Analysis for the Criminal Division in the Carter and Reagan Administrations, never receiving an improper order.

How should Congressional Dems handle the debt ceiling?

Make a long list of demands, and choose a shorter list of “must-haves,” with an eye to electoral appeal as well as substantive advantage.

I had missed this Kevin Drum post from last month (Note to self: Never miss a Kevin Drum post!) and the WashPo article it refers to.

Tl;dr:

The Federal Government will hit the debt ceiling sometime this fall, and Democrats need to consider whether to pass a “clean” increase or instead to hold it hostage to various things we want. Kevin is (tentatively) on the side of adhering to the norm of not using the threat of national insolvency as a political lever.

I might agree, if such a norm existed. But Republicans smashed it all to pieces when Obama was President, so respecting it now looks too much like unilateral disarmament.

It seems to me the right question is: What should Democrats in the House demand as the price of passing a “must-pass” bill? My answer would be: Demand everything, including the kitchen sink, and negotiate from there, with a few “must-have” demands.

Possible demands can be roughly sorted into two bins; for each bin I’ve provided possible examples.

  • Procedural/rule-of-law/democracy items
  1. Compliance with all Congressional subpoenas
  2. Production of Trump’s tax returns
  3. A Special Counsel to inquire into violations of the Emoluments clauses
  4. Defensive measures against foreign interference in U.S. elections, including a stronger FARA
  5. A new Voting Rights Act, with a standard for the maximum waiting time at the polls and an explicit ban on using criminal justice financial obligations to deny the right to vote
  6. An explicit ban on partisan gerrymandering in Congressional elections (clearly within one of Congress’s enumerated powers and thus fairly bullet-proof in court)
  7. Taking the citizenship question off the 2020 Census
  • Substantive policy items
  1. Card check
  2. $15 minimum wage
  3. Banning family separation at the border
  4. Disaster relief including California and Puerto Rico
  5. More money for Head Start
  6. Fiscal incentives for states to adopt Medicaid expansion
  7. Reversal of the Trump tax breaks for returns with more than $1M in annual income
  8. A down payment on college debt relief
  9. Medicare buy-in
  10. More money for the opioid crisis
  11. A program to reverse the rise in maternal and infant mortality
  12. [Fill in the blank] about women’s pay equity
  13. [Fill in the blank] about global warming/climate change
  14. Ending support for Saudi Arabian warmaking in Yemen
  15. Rural broadband
  16. Postal banking in any county with more than x% of households unbanked
  17. Arbitration reforms to avoid people’s being required to sign their rights away

I don’t see any harm in making the list fairly comprehensive, with appeals to a variety of interests and opinions. Then the question is what to absolutely hold out for.

Trump’s tax returns are the obvious candidate from the RoL list, just because he’d have very limited public sympathy if he tanked the economy to protect himself from corruption charges. But forbidding the Executive from spending any money to challenge Congressional subpoenas in court, and providing stiff statutory penalties both on an individual level and via withholding appropriated funds for non-compliance, would certainly be high on the list. From the substantive-policy column, I’d be tempted to hold out for card check, since I agree with Kevin that union power is the key both to reversing the increase in income inequality and in deciding who wins elections. But that’s probably a bridge too far: the Republicans would almost certainly prefer to crash the country’s credit than give working people a fair break. So pick whichever two or three of the rest poll best.

This can’t be done overnight, so both the think tanks and the committees need to get to work ASAP on putting the list together and writing the necessary legislative language.

Swarthy Levantines Fighting

I wouldn’t dream of attributing Rep. Ilhan Omar’s concern about Palestinians to her having loyalties divided between the US and a Muslim caliphate, so I don’t accept her attributing Jews’ concern about the survival of the Jewish state to our having loyalties divided between the US and Israel.

If by any chance this analogy helps the Congresswoman grasp why her criticism has been taken ill, that would be swell; because otherwise we Dems are engaged in a pointless display of “Let’s you and him fight.” [Almost] needless to say, it wasn’t Jews who decided to blacken her name by connecting her with 9/11 in a scurrilous poster; it was West Virginia Evangelicals who voted for Trump. So let’s keep eyes on the prize here: most people who hate Jews hate Muslims just as much, if not more, so don’t give them ammunition by talking about the divided loyalty of any subgroup of swarthy Levantines.

That canard—not criticism of Israel—is the anti-Semitism we’re complaining about. (The ‘divided loyalty’ smear has gotten quite a workout in American history: because he was Catholic, John F. Kennedy was accused of being in thrall to the Pope.) Yes, Bibi is awful and should be in jail; yes, AIPAC represents the most retrograde right-wing notions about how to protect Israel. No, I don’t have to endorse BDS to acknowledge Likud’s shortcomings, any more than you (Congresswoman) have to get up every morning and say “9/11 was terrible” before you can be listened to about American policy in the Middle East.

As it is written: in a democracy one should neither give offense lightly, nor take it. I’m prepared not to take offense, provided you’re prepared to acknowledge that you might have given offense without meaning to. I realize you’ve already done this once, after your comment about Jews’ financial power, and that repeated demands for apology are irksome; but perhaps that will give you pause the next time you get ready to stereotype people—allies on every other subject—with whom you disagree.

Why you can skip the SOTU

The word considerable does not mean what most people think it does. It means “needing or deserving of consideration” , not “big”  or “a lot” .  It means what everything Donald Trump says is not, and tonight’s speech (and the post-speech tweets and flailing about by flacks and shills that will follow) will be more proof: Trump’s discourse is not considerable and should just be ignored as such. 

One significance of the Jewish ceremony of Bar Mitzvah is that the principal is now responsible for what he says: when an adult says he will do something, the odds that he will should go up, and in general people can depend on that and make corresponding commitments. What Trump says he will do has no such significance: his statements of intent are vacuous and ephemeral, as Mitch McConnell and the dozens people he has stiffed in business can attest.

When grownups assert facts about the world, the assertion has some bearing on what you should believe, though of course some are better informed than others or smarter.  When Trump says practically anything, his relentless, terrier-like, purposeful ignorance means it has no informative value whatever, whether he’s noodling about climate, Iran, the border, or trade data.

A third kind of discourse enlightens us about the speaker’s values: “I’m a Christian” is shorthand for a bunch of actions in the world one can expect the speaker to try to perform or not.  Trump’s value statements are as vacuous, and as labile—whether odious or decent–as his fact discourse. 

It’s not just a matter of mendacity, though his endless, insouciant lying about big things and small have a lot to do with this. He doesn’t misrepresent his values; he just doesn’t have any (except his own ego). If there were money to made from it, and he had permission from Laura Ingraham and Putin, he would as readily get on a climate alarm jag as he does about immigrants.

All of which has been a paralyzing problem for all of us and especially for the press.  Deference to his office, and long journalistic tradition, seems to require that when the president says “A is B”, the fact that he said it requires reporting, perhaps with a quote from another source who says “no, it’s not!” But when this president says absolutely anything, the event is not like any other president, or any other important public official saying something.  It has no bearing on anyone’s belief, on what he will do in the future, or on our views of him: it’s not considerable. It’s like a horserace prediction based on a dice roll. We’ve had two years of our press trying to treat Trump’s discourse as the utterances of a responsible, more-or-less-informed, responsible adult: it’s time to stop. The word lie is, thankfully, starting to be used to characterize his mendacities, but why tell us about something that will be inoperative or a passing fancy by the next news cycle?  We need a completely new convention, recognizing that the presidential utterance process has been replaced with an inconsequential–not considerable—model, and treating it like the “speech” of a parrot or random artificial speech generator.

Not considerable: how to listen to tonight’s speech, or why you can just ignore it.

Judge Incitatus

Caligula did not make his horse a consul, but the story fits Trump and Kavanaugh.

You all know that the crazy Roman Emperor Gaius Caligula (ruled 37-41 CE) made his horse a consul. Right? Wrong. There is no evidence whatever he did.

The main source of the story – Google tells me the only one [update correction, see comments] – is the Roman historian Dio Cassius. Roman History, Book LIX, 14.7:

One of the [chariot-racing] horses, which he named Incitatus, he used to invite to dinner, where he would offer him golden barley and drink his health in wine from golden goblets; he swore by the animal’s life and fortune and even promised to appoint him consul, a promise that he would certainly have carried out if he had lived longer.

So the source of the story claims that Caligula talked about making Incitatus a consul, the way Trump talked about assassinating Bashir al-Assad, but did not go through with it.

Even the watered-down version is fishy. Dio Cassius comes across as quite sober and was certainly very industrious, but he was writing 180 years later. The earlier historian Suetonius, whose gossipy Lives of the Caesars consists largely of lurid anecdotes, does not mention the incident mentions the consulship as a mere rumour. [Correction update, see comments]. Nor do the contemporary sources Seneca, Josephus, and Philo, writers of an altogether different calibre and reliability, and hostile to Caligula. So at most, Incitatus’ equine magistracy is something a mentally unfit four-year Roman Emperor may have joked about at drunken parties.

As a legend, it can still serve as an illuminating model. Fictional Caligula made his horse a consul. President Donald Trump is also clearly a work of dystopian fiction in progress, and the episode entitled “The Nomination of Brett Kavanaugh” is curiously parallel to Incitatus. Continue reading “Judge Incitatus”

Hurricane season again

There are more Florences to come.

Hurricane Florence, from the International Space Station

Hurricane Florence, downgraded to a tropical storm, continues to dump massive quantities of rain on South Carolina, with more to come. She looks like a rerun of Harvey, which flooded Houston last year, cost $125bn. Are these “Acts of God or of the Queen’s enemies”, in the picturesque language of old British insurance contracts?

 

A bit of both. IPCC 4th Assessment Report, 2007, WG1:

A synthesis of the model results to date indicates that, for a future warmer climate, coarse-resolution models show few consistent changes in tropical cyclones, with results dependent on the model, although those models do show a consistent increase in precipitation intensity in future storms. Higher-resolution models that more credibly simulate tropical cyclones project some consistent increase in peak wind intensities, but a more consistent projected increase in mean and peak precipitation intensities in future tropical cyclones.

We’ve known for at least a decade, for the subset of “we” capable of wading through IPCC prose or reading more popular transcriptions of the science, which should include the press, TV weathermen and policymakers. In this case, the science is extremely simple in outline:

Warmer tropical seas → warmer and wetter air above them → conversion of extra heat energy into rotational energy by the cyclone mechanism → bigger and wetter hurricanes.

Sandy, Harvey, Irma and Florence have been hurricanes modulated by the modest global warming of 0.8 degrees C since 1880, the period with a full and accurate instrumental record. To be generous with the earlier uncertainties, let’s say at most 1 degree C above pre-industrial (say 1750). There is quite certainly more warming to come. Jerry Brown’s recent executive order, aiming at zero net emissions in California in 2045, was rightly hailed as brave political leadership (grandstanding to opponents). Sweden was there first, with the same date.  These are the cutting edge of real policy commitments; most countries have done nothing to translate into action their vague Paris Agreement commitment to zero carbon “in the second half of this century” (Article 4(1)).

Suppose by a miracle everybody else joined Jerry Brown tomorrow. We would, it seems, be on track to the more ambitious 1.5 degrees aspirational goal of the Paris Agreement. Meeting the main 2 degree cap only calls for moderate optimism, not a miracle. The range of good outcomes – never mind the bad ones – lies between doubling global warming from the pre-industrial level, and only increasing it by half.

More storms like Harvey, Irma and Florence are certainly on the way.

Continue reading “Hurricane season again”

Language gaps

I have been reflecting on two traditional habits of our media that have become not only dysfunctional but actively destructive.  First, reporting on Trump as though he is a basically serious person.  The press is, slowly, getting better about nailing Trump for lying, and using the word. Old habits die hard, and the habit of treating the discourse of a US president as being considerable, and assuming conventional links among utterance, belief, and intention is one of those. But it’s not working, because those links are broken in Trump’s case.

When someone says something, in any serious context, we take the utterance as some sort of forecast of behavior.  “Drive me around in my car and I’ll pay you $X” is a commitment, maybe enforceable in court; “I love you” uttered by anyone not a complete cad isn’t as firm an assurance of future behavior, but normal people take it as at least not meaning “I don’t care about you” or “Actually I love someone else”, and normal people say it, or don’t, knowing that.  People can change their minds, but the general rule applies,  especially for public figures and leaders: what you say is and is seen to be predictive of your future behavior. A colleague of mine said what it means to a Jew to be Bar Mitzvah is that you are now responsible to what you say.

Accordingly, presidential discourse has always been reportable as spoken: data that is predictive (not perfectly) of consequential actions. However flacks and commentators spin it, we have taken presidents’ words as considerable.   It’s time to stop what has become a mechanistic charade: we have a president whose speech, whether about values, beliefs, or promised action,  only predicts his behavior accidentally. He reneges on flat commitments like promises to give to veterans’ causes, to invest in infrastructure, and ‘deals’ like the one last fall about immigration.  He is relentlessly, doggedly ignorant about absolutely everything, so his statements of fact are not even hopes and wishes, but short-run chum for his most hateful base, whatever he thinks a rally audience wants to hear. When Trump’s rallies, tweets, and press events are broadcast the way a normal president’s events used to be, and when his environmental policies are presented as though the fact assertions they rest on are on this side of the line between knowledge and witchcraft, they are flatly misrepresented. “Trump said X today” is simply not the same kind of report as it would be regarding the utterance of a responsible adult; tradition is a poor guide now. “Trump said X” means “the last person (or rally crowd) who flattered Trump in his presence, or his latest instructions from Putin, told him to say X” and little more.

 

Continue reading “Language gaps”

The Red Hen, the baker, and refusing service

Sara Huckabee Sanders was asked to leave a restaurant in Virginia. I think this is a positive good, and I don’t think Masterpiece bakers had the right to refuse a gay couple a cake.

There is nothing in the Masterpiece case to indicate that the customers behaved or intended to behave, professionally or personally, in a way that would hurt the bakers. The bakers thought a gay marriage sinful according to their own religion, but this only gives them the right to preach against it and to not enter into such unions. I suppose they can pick and choose their personal friends on such grounds also, but they can’t discriminate commercially.

Sanders is quite a different story.  She is on the public payroll, in the public eye, supported by taxes everyone pays.   She isn’t a civil servant working to implement the policies of an a legitimately elected administration  that operates within the larger norms and rules of democracy. She is a political appointee whose daily practice is to lie and deceive, actively subverting the function of the press,  in the interest of a hateful, mendacious, deliberately ignorant president who respects no norms, and whose praxis is to spread hate and fear. To injure the sick, the child refugee at our gates, the brown, the black, the poor, the young, and the unfortunate are not within the legitimate range of left-to-right American governance policy preferences. No member of the Trump administration deserves to have Luis[a] Gomez so much as wash a dish for her.

Back in the day, there was a legal status of outlaw whose disrespect for the law and its courts was so great that they were thought unworthy of the protections of those institutions, and left to the mercies of citizen vigilantes.  That was not good practice; even the Kelly gang deserved fair trials.  But the senior officials of the Trump administration are properly “outlaws” with respect to the norms and standards of civilized society, and they don’t have any right to hide behind those norms for the right to circulate in public.  Republicans who haven’t completely surrendered their consciences and brains to the Trump-Putin kleptocracy have a right to eat out in peace; Trump people at the level of Sanders have surrendered that right. They can  eat at home with whoever will still socialize with them, or perhaps at venues whose staff, customers, and owners aren’t their intended victims.  One more time; they should be pariahs not because of their beliefs, but because of their behavior, behavior actively hostile to wide swaths of the population and far outside the norms and conventions that entitle the rest of us to a peaceful night out among citizens.

Immigration

A moment of sympathy for Republicans.  Trump won’t protect them from the agony of an immigration debate or lead them through it in any useful way, and now they are being tasked by the zero-tolerance fiasco to show (or at least emulate) courage and decency they long ago threw on the political bonfire.  Today, he even denied them the tough, never-settle leader today’s GOP wants to cower behind, left them thousands of kids in secret prisons, and the larger issue remains.

It is an exquisitely difficult issue, especially for the rich and xenophobic. To enact any kind of immigration reform requires keeping the following balls in the air:

(1) Agriculture, hospitality, domestic service, home construction and repair, restaurants, and gardening are all important to rich people, whether as proprietors or consumers. All depend on a docile, cheap work force, often a seasonal one.  Americans will not tolerate lettuce prices high enough to support ag wages that get Americans to work in the fields, or hotel rates ditto.  Fear of ICE is almost indispensable in insuring docility.

(2) The hi-tech industry also depends on a work force that Americans will not pay to educate, especially in red states, so we also need an ample supply of H-1b immigrants who don’t need salaries that will amortize crippling student loan debts; they aren’t as cheap as farm workers, but their docility needs even more reinforcement, and not being able to quit their jobs helps with this.

(3) The Republican game plan, since the party’s consignment of its brain and conscience to Trump, demands that the image of immigrants as murderous brown gangsters, planning their assault on your job and your family in Spanish, be vividly front and center. It also requires a population on which the old, and many young, white  Trump-base frightened haters can look down.

(4) Trump himself requires regular opportunity to hurt the weak, unfortunate, sick, helpless, and poor, and to be seen doing so. Immigrants, especially refugees, are not indispensable for this–plain Americans with pre-existing medical conditions or dependent on Social Security, in any color, qualify–but are still very useful.

(5) Somehow the whole project has to enrich Trump personally, his circle of grifters, and the top 1% who gave him to us, or why bother? It’s really not clear how any particular immigration scheme can be monetized this way, though (1) and (2) are relevant.

[correction 21/VI/18: (5) above is not quite true; there is real money to be made from immigrant

abuse. ]

These criteria comprise pretty fundamental contradictions, and the discovery this week that there really are limits to the official cruelty Americans will tolerate makes everything so much harder. No wonder Republicans scatter like cockroaches at the approach of a reporter these days.