Actual Malice

Interesting article by Glenn Reynolds, law professor at the University of Tennessee, and proprietor of Instapundit.  In the guise of reviewing a new book, which he quite likes, by Samantha Barbas; Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, Reynolds suggests a new approach to libel law.

The 1964 Supreme Court case limited the ability of public officials to sue for defamation.  The case was triggered by an advertisement in the Times designed to raise funds for the efforts of Martin Luther King Jr and other civil rights advocates campaigning in the South.  Unfortunately, the ad contained a number of factual errors, creating potential liability for the Times and an opportunity for segregationist officials to strike back against a thorn in their side.  Two Alabama officials quickly won jury verdicts totaling $1 million.  Reynolds notes the stakes for the Times:

The $500,000 judgments would be chump change to the NYT today, even adjusted for inflation (the online Inflation Calculator shows $500,000 in 1960 as amounting to $5,124,375 today).  But the Times was poorer then, and in the middle of a financial crisis and an expensive confrontation with the printer’s union.  There was reason for worry that if these lawsuits succeeded, the proliferation of copycat suits would either bring the Times down financially or completely neuter its coverage.  And other organs would not be immune.

Sullivan's attorney stated that the only way for his client to lose the case was if the Supreme Court changed the law.  It did:

Deciding that the libel law of the past 150+ years offered too much power over national media to local officials, the Court established a new rule:  Where a public official claimed libel, he/she would have to show that the publisher acted with “actual malice,” meaning knowledge of falsity, or a “reckless disregard”as to whether the report was true or not.  The “actual malice” standard was an entirely new invention of the Court, and wasn’t even argued by any of the parties.  Brennan chose that standard because he knew the Times would lose on a negligence standard, since it had in fact been negligent. 

But, over time, the Court expanded on its original ruling:

But when government officials come together to use government institutions against private entities, it looks less like a duel and more like war.  So it’s plausible that in this special circumstance the First Amendment might reach farther than it has historically reached in libel cases.

This provides a useful and compelling defense of the Sullivan decision, and a plausible reading of it as well.  The only problem is that it’s not what actually happened.

Sullivan’s legacy quickly became one of generalized protection for the institutional press against, basically, anyone who might call it to account for false and defamatory content.  In very short order, the “public official” standard, which is manageably limited to government officials, became the elastic “public figure” standard, which means whatever judges want it to mean, as illustrated in this clip from the movie Absence of Malice:

In the St. Amant case, the Court interpreted the “reckless disregard” part of actual malice to only involve publications choosing to publish anyway when they entertained serious doubts about the accuracy of the material – there was no duty to investigate even outlandish charges so long as there was no subjective doubt.  And proving the subjective doubt became much more difficult as the Iqbal and Twombly cases held that charges of malice must be “plausibly” pleaded before any discovery – which would yield information demonstrating the existence of such doubts -- could even commence.

The result, according to Reynolds, is that the current standard:

. . . amounts to a subsidy, allowing press outlets to externalize the costs of poor or slanted reporting by dumping them on those defamed, and on news consumers, rather than paying those costs itself in the form of libel judgments and insurance premiums.   It is perhaps no coincidence that trust in the press has declined steadily since right about the time the decision was handed down.  And it is probably no coincidence that American politics has become more acrimonious and divided over the same period.

This analysis holds true anytime you tilt a playing field in favor of some person or institution.  It encourages bad decision making because the risk of consequences are so low.  I've seen this personally at play with federal administrative agencies, which between Federal court deference doctrines, and the overly expansive authority granted legislatively, know they can be sloppy and get away with it because the chances of successful challenges are low and the time and cost involved in such challenges discourages contests in the first place.

His prediction, which I hope proves to be correct:

My own prediction is that the Court will not formally overrule Sullivan but that it might return to the “Public Official” rather than the “Public Figure” standard, and that it will probably overrule St. Amant, and, even more likely, Iqbal/Twombly.

At The Border

It's worth listening to this entire press conference in Nogales AZ by Senators Sinema (I-AZ) and Lankford (R-OK) regarding their recent border visit. Sinema is chair of the Senate subcommittee on the Border, while Lankford is the ranking minority members.  They have made several prior visits, and Sinema has been very vocal about the need for better border control.

Sinema, Lankford Hold Press Conference at Arizona/Mexico Border https://t.co/OGVLwz5axY

— Sen. James Lankford (@SenatorLankford) May 24, 2023

 A few things that jumped out at me:

The composition of border crossers has changed dramatically with Spanish-speakers no longer in the majority.  More and more illegals are coming from Central and South Asia, Russia, Africa, and China.

Unlike with Mexico and some other Spanish speaking countries, where we have agreements allowing us to access criminal records, we have no way of knowing if these illegals from other regions are criminals.

The Mexican cartels control the flow of illegals, determining when and how many are coming on any given day.

Border Patrol personnel are bogged down processing asylum requests at Ports of Entry and unable to adequately police the rest of the border.

Only about 10% of asylum requests are legit.

Notwithstanding the above, once the asylum requests are made the applicants are released within the United States and it usually takes years before they have a hearing, which they often don't show up for.

Not stated directly by the senators, but evident to anyone knowledgeable, is the Biden administration's game playing with the process and with public reporting of illegal entry to the United States.  They know the public is unhappy with the collapse of border security so they want to appear to be doing something, but they also want to keep the flow of illegals coming.

I applaud the effort by both senators to come up with a bipartisan legislative proposal, but doubt they will be successful.  The dominant Progressive wing of the Democrats is opposed to anything that would stop the border flow (and they hate Sinema) and a number of Republicans are opposed to any compromise and would rather keep the border as an open political issue.

The bigger problem is that President Obama, and now President Biden, have sent the message the compromise is not possible legislatively and any Republican supporting a compromise would be a chump.

Compromise means both parties don't get everything they want.  Sometimes it means compromising in the middle, sometimes it means I get this provision and you get that provision.  Any Republican participation in a compromise will require increased border security and enforcement.

With his DACA Executive Order, President Obama demonstrated that, with the stroke of his pen, he could undo a legislative compromise and there was nothing his opponents could do about it.  And President Biden has demonstrated that with Democratic control of the federal bureaucracy, he can make any statutory language meaningless by manipulating the budget and enforcement process.

It's hard to see how any Republican legislator could support compromise legislation, no matter how good the wording is, because any Democratic administration will simply gut the enforcement provisions via the bureaucracy.

A Bipartisan Note

Axios reports that Congressional lawmakers of both parties are expressing interest in changing Medicare policies that currently allow hospitals to charge more for the same service than when it is provided by a private doctor.  This is a crazy policy which over the past decade had led to the purchase of many private practices by hospitals, because it allows hospitals to increase their profits (yes, even "non-profit" hospitals which can be very lucrative places to work at).

I had this conversation with my PCP in Connecticut before we moved.  He liked private practice and building a relationship over the long term with his patients, but financially things were getting tighter between Medicare and private insurance rules.  He explained that hospitals get paid more by Medicare for providing the same service than he could get in private practice and it was why so many doctors were selling their practices to hospitals and becoming employees.  The process results in yet another set of rules (hospital) further interfering with the doctor-patient relationship.  Before than I had no clue this was an issue but since have heard the same from other physicians in private practice.

Proponents of change are advocating for "site-neutral" payments where it does not make a difference where the service is provided.

Along with some bipartisan Congressional support, Axios reports that think tank support is also across the political spectrum:

Proponents include the Koch-led Americans for Prosperity, the center-left Progressive Policy Institute and high-profile health policy scholars like Brookings Institution's [liberal] Loren Adler and the American Enterprise Institute's Brian Miller [conservative].

As you might expect, the American Hospital Association is fighting back.  Axios reports:

"We need to be sure we bring enough discomfort to make sure members understand this is a non-starter," Stacey Hughes, AHA's executive vice president for government relations and public policy, told hospital executives at a Washington, D.C. conference this week.  "If we can do that well, we hope that goes to the back burner and doesn't see the light of day in a true markup," she said.

The AHA is pretty powerful.  We'll see how this goes, but changing the current rule would be good policy.

Unbarred

Bari Weiss, a progressive purged in 2020 from the New York Times, interviews former Attorney General William Barr.  I've excerpted some of the interview below and added my commentary in bold.  Bari does excellent podcasts with a wide variety of interesting people.  You can find the full podcast here. 

Barr was the Trump administration's indispensable man.  Without his willingness to take on the AG role, the administration's ability to govern would have continued to be impaired (leaving aside the remarkable ability of Trump to get in his own way) and the Mueller investigation would have continued until Biden took office, because the purpose of the investigation was to defeat Donald Trump.  By the time Mueller was appointed, the principles already involved in the investigation knew there was "no big there there" as the FBI's Peter Strozek wrote Lisa Page in May 2017.

It was a difficult and thankless task.  The best Barr could do in trying to undo the politicization of the Department of Justice under Eric Holder, was to work around the edges and control the worst excesses.  I'm glad he did it.(1)

 BW: I want to begin with a quote from your wife, Christine. “The Left and the Press have lost their minds over Trump and Trump is his own worst enemy. Any sacrifice you make will be wasted on this man.”  That’s what she told you in 2019 before you joined the Trump administration. Obviously, you did it anyway, which is why we’re talking. But was she right? 

THC:  Christine Barr is very perceptive.  Trump will eventually turn on everyone who is not 100% with him.(2)  In that way, he's like the progressives who cast into the darkness anyone who does not demonstrate 100% alignment with their mantra.  Like Bari Weiss, for example.

AG BARR: She was, as usual, dead on. The left has lost their mind over Trump. Trump Derangement Syndrome is a real thing. But Trump is his own worst enemy. He’s incorrigible. He doesn’t take advice from people. And you’re not going to teach an old dog new tricks. 

THC: Yes. And that's why I will not vote for him if he is nominated in 2024.  More on this in a comment below.

AG BARR: I hoped that it wasn’t true. I thought there was a chance he would rally to the office and be more disciplined in his behavior. I thought he might recognize that the presidency is a unique office, which is not only a political leader but the head of state, representing the whole nation. I hoped he would rise to the occasion. He didn’t.

I said to him when I first started that I thought he was going to lose the election unless he adjusted a little bit. And if he did adjust, he could go down in history as a great president. He continued to be self-indulgent and petty and turned off key constituencies that ultimately made the difference in the election. 

THC: I agree.  Exhibit 1 is his clown show covid press conferences.  Andrew Cuomo and Trump have very similar personalities.  The only difference is that at least Cuomo could fake empathy.  Also, Trump is a one trick pony - if you attack him, he will attack you.  Once the press realized this, they simply baited him at the covid press conferences and he fell for it every time.  A big contrast with DeSantis, who when I first started watching him in the spring of 2020 always responded on his own terms (along with actually understanding the growing research literature on covid, as well as the related policy issues - another contrast with Trump).

AG BARR: [On Russia collusion] Information has now come out that supports the proposition that these ideas really got going because of a political ploy by the Clinton administration to try to hang Putin around Trump’s neck and claim they were in cahoots. I never thought there was any basis for this. The Russians did apparently hack and dump. They stole emails and they dumped them out in the public. That is really the extent of what happened. And that is their stock and trade—that’s what they do all the time. They don’t have to collude in order to do that. It never made sense to me that they would get Americans involved in that operation. 

Putin also had his own reasons for despising Hillary Clinton. He didn’t need any other motivation to go in and screw around with the 2016 election. The things that Trump was being accused of—the policy positions he took— had a constituency within the Republican Party for a while. Before the 2016 election, Kissinger had talked about the idea of Finland-izing Ukraine and recognizing that Russia had deep interests in Crimea. These were not wacky ideas. And they didn’t necessarily mean that he was in the pocket of the Russians. 

THC: Yes, as far as that goes, but Barr's institutionalism blinds him to the fact there were two threads to the Russia collusion hoax.  The first was the Clinton campaign, the second the intelligence community.  Those interests eventually combined.  As to the policy positions, here is a prime example of how the Democrats, the intelligence community, and the media distorted the GOP position - the Ukraine platform statement at the 2016 GOP convention - read The DC Bubble & The FBI.

. . . That was curious because, after the election, the dossier and the other stuff they had been relying on had collapsed. It was pretty clear not too long after the election that this whole thing was a farce. Yet that’s when both the F.B.I. doubled down on it, and the mainstream media kicked in. I always thought that was very strange. 

THC: Not strange.  The collapse of the dossier was irrelevant.  The goal after the election was to undermine the credibility of the Administration, hamper its operations, force it to constantly respond to Fake News about Russia, and to keep the Mueller investigation going as long as possible to create the mirage that something of substance was being investigated as well as hoping to lure Trump into agreeing to an interview so he could be charged with false statements.  The media, led by the New York Times, publicly announced their goal was to get Trump out of office, so creating a narrative in support of the hoax was their core mission.

AG BARR: I think it ended with Bob Mueller’s testimony over the summer of 2020. It really collapsed at that point. I’ve been surprised that the mainstream media and the people who fanned this to the point of hysteria haven’t come back to say: “Yeah, there was a big lie in 2016 that has hurt the country and distorted our politics and foreign policy throughout the Trump administration. It was unjust. It was wrong. And we made a mistake.” Very few, if any, have come out to say that. 

THC:  Because this is all about the creation and maintenance of a narrative.   Just as the objective truth about the 2020 election does not matter to Donald Trump, the objective truth about Russia does not matter to Democrats and their media allies.  The increasing lack of attachment to reality in American life across the political spectrum spells disaster, if not checked.

BW: If the firing of F.B.I. Director James Comey wasn’t obstruction, how would you describe it? Do you think that it was unwise? 

AG BARR: I would describe it as something that should have happened long before. Everyone I knew in Republican and Justice Department circles, including me, was advising Trump at the very beginning of his administration to fire Comey before we even knew his role in Russiagate. It’s because Comey, in my opinion, has some of the personality characteristics that can lead people, like J. Edgar Hoover, to run the F.B.I. according to their personal whims. I thought it was dangerous and that he should go. 

THC: Agree.  This should have been done on January 20, 2017.  The worst mistake Trump made.  I believe he kept Comey only because he knew of Hillary's dislike of him, another example of his reactive mode and inability to think things through.  She would have fired him on day one.   Trump talked tough, but Hillary is actually much tougher.

BW: Did you underestimate Trump’s disregard for the truth and disregard for the results of the election? 

AG BARR: I underestimated how far he would take it. I thought on December 14, when I tendered my resignation, the states had all certified the votes. To me, that was it. That was the last stop. There was no process beyond that which would allow him to challenge the election. I thought it was safe to leave at that point. I was wrong. I did not expect him to take it as far as he did with these very whacky legal theories that no one gave any credence to. 

THC: I also underestimated how far he would go with this insanity.

AG BARR: [After, in early December, he told an AP reporter that DOJ found no evidence of fraud significant enough to impact the election]  He was in a little dining room that adjoins the Oval Office. He was as furious as I’d ever seen him. He confronted me and said, “Did you say this to the AP?” And I said, “I did. Because it was the truth.” I went over some of the allegations. He said there was plenty of evidence of fraud. I explained in some detail why the allegations didn’t fly. I told him that there were only five or six weeks to challenge a presidential election because the Constitution requires the Electoral College to meet at a certain date and he didn’t have much time. He’d already wasted five of your six weeks with this crazy stuff about the Dominion machines. He’d wheeled out this clown show of lawyers that no reputable lawyer is willing to work with. 

AG BARR: [On his leaving the Administration in late December and being complimentary to Trump in his resignation letter].  I was somewhat demoralized that he was leaving office this way. The left says, “Oh, you said all these nice things about him in your resignation.” But I felt that what he should do was focus on all his achievements and leave with dignity. Whether he thought there was fraud or not, he had his day in court and he lost. 

So I was demoralized that he was going out the way he was. I thought it was very unfair to all the people, especially the younger people, who had worked in the administration. It hurt them getting jobs and it also hurt the Republican Party, which I thought up until then, could take the high ground as the party of law and order. 

BW: So in other words, you were giving him a script for himself, rather than saying what you felt? 

AG BARR: Well, I did feel it. I just want to make it clear that I supported President Trump. I liked his policies. Up until the election, I didn’t have a problem with his policies. I found him very difficult to work with and I think it took a lot of effort from all his cabinet secretaries, not just me, to keep things on track. (He never really listened to his lawyers, so it was hard to keep things on track.) But I thought we got to the election in pretty good shape and I was proud of the record of the administration. 

I think things went off the rails after the election because I think he felt he had nothing to lose at that point. I was trying to say, “Look, you do have to take a bow for what you were able to accomplish.” I said in that letter that what I believe was distinctive about his administration was he was unjustly treated. He was sinned against with Russiagate. That colored the whole administration. I still think that had people responded to his victory speech—which I thought was a very diplomatic speech the night he won in 2016—we would have seen a different Trump. I think once he thought that the F.B.I. was coming after him and trying to throw him out of office, that affected not only Trump but also his hardcore supporters, who were made very suspicious. I think it fundamentally distorted our politics during his administration. I felt that it was important to say that he did fight against this Trump Derangement Syndrome. And he did accomplish a lot. And it was historic. The economic growth and the fact that people who had been left out previously were starting to participate more. It was a tragedy that Covid arrested that progress, but it was a historic accomplishment. 

THC: In one of my Russia collusion posts, I remarked that with Trump you started with someone who was gullible and susceptible to believing in conspiracy theories, and then his opponents actually constructed a real conspiracy with the Russia nonsense, which only made his tendencies worse.  I did not believe something like the collusion hoax was possible back in 2016.  The past few years have reoriented my thinking.

BW: How did you feel watching this? You’re someone who has served this country for decades. You’re also someone that served this administration and tried as best as you could to keep it on the rails. What were you feeling as you watched this scene go down? 

AG BARR: I was disgusted and mortified and feeling very angry. I felt this whole thing had hurt the Republican Party and hurt the reputation of the administration even more than before. I was angry about that. Everyone I knew in the administration was angry about that. I also felt that it was just a Keystone Cops exercise. There wasn’t a genuine threat of overthrowing the government, as far as I was concerned, it was just a circus. That’s true of a lot of things that Trump arranges. I felt that one of the sub themes of the administration was that when the president runs into people who don't agree with him, he tries these little jury-rigged operations with people who are not in government and they are frivolous. So the whole thing, to me, was a big embarrassment. 

THC: "as far as I was concerned, it was just a circus.  That's true of a lot of things Trump arranges" is how Trump has always operated.  He lives in the moment and once the moment passes, he improvises his next action based on the response he generates.  That works for reality TV, not such much as the chief executive of the United States.

AG BARR: I would say that it was a riot that got out of control. People breached the Congress, and were attacking police. Obviously not all the demonstrators were doing this. 

I would say it was an effort to intimidate Congress and the vice president. I haven’t heard words from the president that I would consider incitement under the law. That’s a very high bar because of our First Amendment, and it should be a high bar. But I did feel that he was morally responsible for it because he led these people to believe that something could happen on Capitol Hill that would reverse the election. That there’s something they could do involving pressuring the vice president and Congress that would overturn the election. 

AG BARR: Number one is that I think a lot of the attacks on the F.B.I. are over the top because a decision like this is not made by the F.B.I. In fact, I don't think the F.B.I. would push a decision that it’s best to go in and search and obtain those documents after being jerked around for a year and a half. The decision would be made at the Department of Justice, by subordinates of the AG, and ultimately signed off on by the AG. The F.B.I. would be told to go and execute it. I think the idea that the F.B.I. is the problem here is misplaced. 

Number two—and the main reason I’m irritated at the whole episode—is that it actually strengthens Trump and strengthens Biden and hurts the Republican Party going into the midterms. The focus has once again returned to President Trump and his persona and his modus operandi instead of the pocketbook issues that had been the focus before. I think this has been a bad development for the Republicans’ hopes in the midterms. That’s why I find it frustrating, because there’s political fallout.

THC: I partially agree with Barr but his reference to "pocketbook issues" indicates, that like many of the old-line GOP, he doesn't completely get what is going on today.  Institutional reform, in and out of government, and taking on cultural issues, is as high a priority.  The days of Republicans comfortable on economic issues, talking the Chamber of Commerce line, but unwilling to confront the other issues are over.  The Mitt Romney and Larry Hogan types have no national future.

BW: What do you say to conservatives who say: Why should we possibly trust these institutions anymore? You still give them the benefit of the doubt, but many in your party don’t. 

AG BARR: I think the Russiagate thing, to the extent that the F.B.I. was misused, was a series of decisions made by high-level officials in the F.B.I. I don’t think that Chris Wray is that type of leader, nor do I think the people around Chris Wray are those types of leaders. I think there are problems in the F.B.I. but it’s not that Wray is going to wake up and say, “How do I throw the F.B.I.’s weight around and interfere in the political process?” Just the opposite. I think he’s very cautious about that. 

In the department it’s spotty. There are some people in the career ranks that are partisans and can't check it at the door. And there are others that have more respect. 

I always say, “What’s the alternative?” We have these institutions that need reform. The first step is to win an election with a decisive majority that allows you to put a program into effect and fix some of these problems going forward. That is not done by just throwing fuel on the fire of outrage on one side of the equation while the other side does the same thing on their side. I don’t see anything productive coming out of that. I think we should basically try to persuade people. People like Youngkin, the Governor of Virginia, have shown that the Republican Party is a potential majority party.

THC:  I do not have the level of confidence that Barr still has in these institutions, and I certainly do not trust Christopher Wray.  Trump's wrecking ball approach is proven to be ineffective, so he is not the solution.  The rot in our institutions, and not just in government, is deep and will require a disciplined and Herculean effort, intelligently executed, to reverse.  I don't know if anyone, or any group, is capable of doing it, but Trump is definitely not.

AG BARR: I think you’re right that right now is a tremendous opportunity for the Republican Party. The defining dynamic of our period right now is the sharp leftward turn of the Democratic Party. That creates a huge opportunity because they’ve moved so far to the left, which can allow the Republicans to come in, as they did in 1980, and seize a decisive majority. That enabled Reagan to win two terms. It also forced the Democrats to elect a moderate Democrat like Clinton, who ran the country in the center. 

So it's a huge opportunity.  But instead of taking it, we are purging the party and starting civil wars over whether people are RINOs . . . The idea that there are RINOs, people that really don't support Republican principles, is simply not true.  What the president is defining as RINOs are people who are true blue Republicans and conservatives but who just have a problem with Trump personally.  This is all personal to Trump.  Trump is doing something that I can't think of any great leader in the past doing.  He controls, in my view, maybe a third of the Republican Party.  But what makes him powerful is that this is a man who's willing to say that if you don't do things my way and if I'm not the nominee, I'm taking my ball and going home.  I will sabotage anyone you put up.  He not only does that in the presidential election, but he'll also do that in state elections.  It's my person or sabotage. 

THC: I agree with Barr regarding what Trump is doing but, once again, I don't like the term RINOs, but Republicans unwilling to tackle the cultural and institutional issues do not have a future in the party.

AG BARR:  They were wrong, in my opinion, because although we've been sort of harping on the warts of Trumpism, I think the greatest threat to the country is the radical progressive movement and what it's degenerated into.

THC: Absolutely right.  The impulsive, chaotic nature of Trump and his followers can be disruptive and destructive but there is no institutional traction and also provides further rationalization for the Democrats to justify and exercise their authoritarian instincts.  The control of the federal bureaucracy, and of the major institutions in our country outside of government, has set the stage for the interlocking crackdown on dissent we are already seeing.  Moreover, the phony election reform bill, narrowly defeated in the Senate, would have federalized elections, preventing any efforts at state level attempts to control fraud, and would have established the groundwork for a permanent Democrat government at the federal level.  It is this institutional support that marks the difference between the dangerous tendencies in the Republican and Democratic parties.

In November 2021, Margaret Hoover of PBS interviewed the Chinese dissident and exile Ai Weiwei.  Based on something Ai had written, Hoover asked if he saw Donald Trump as an authoritarian.  I think she was surprised at the answer (the relevant part starts at about 15:45):

Ai: If you are authoritarian, you have to have a system supporting you.  You cannot just be an authoritarian by yourself.

He goes on to say that in today's conditions you could easily have an authoritarian and that, in many ways, the U.S. is already in that state, pointing to political correctness and its similarities to the Cultural Revolution of Mao.   It reminds me of the interview I saw with the Yeonmi Park, the young woman who escaped North Korea, endured more brutality in China, and eventually made it to the United States.  Reflecting on the political and cultural attitudes she encountered at Columbia University she remarked that "this is a suicidal civilization".

And you can read this piece on which party is an outlier on substance.

BW: In the 2024 election, if we have Joe Biden versus Trump, Kamala Harris versus Trump, or Gavin Newsom versus Trump, you’re voting Trump? 

AG BARR: Right now, I would say yes. 

THC: It's a no for me, under any circumstance.  I will work for, and support, the R candidate with the best chance to beat Trump, if he runs, and will not vote for him in the general, if nominated.  Nor will I vote for the D candidate.  Here are my 7 Theses on the subject:

(1) As Barr says, I think Trump had a clear path to winning in 2020 but his inability to control himself, dug him a deep hole.  He has even less ability to control himself now.

(2)  His post-election behavior was a disgrace and made him unworthy to be an American president.  Here's what I wrote on January 6, 2021.

(3)  From a purely political perspective, his post-election behavior was idiotic.  No sane person would have believed he would still be president on January 21, so what was his plan?  What was his thinking?  The agitation to get his most fervent supporters fired up about January 6 was a dead end.  It was reality show theater, as much of Trump's political career is.  After the rioters entered the Capitol what was supposed to happen?  Was there some rational path that led to another term for Trump?  And, at the same time, he was venting his personal spite in way that depressed R turnout in Georgia, losing control of the Senate.  If, after the electoral college vote on December 14, Trump had simply stated that while he thought there was election fraud, he accepted the results, and was certain, once the American people saw how the Biden administration governed, they'd be yearning for his return, both Trump and the party would be in much better shape today.

(4)  If Trump runs and fails to get the nomination he will sabotage the R nominee.

(5)  If Trump gets the nomination he will send two conflicting messages during his campaign - vote for me and the system is rigged against you, just as he did during the Georgia Senate runoffs - vote for the R's but, by the way, the system is rigged against you.  Trump depressed voter turnout.

(6)  If Trump runs and loses, as he did in 2020,  he will refuse to accept the results as legitimate, but this time he will have primed even more to believe him, and plunge us into an even more serious crisis than in the post-2020 election period.  The last time around he managed to lose R control of the Senate, so that we are left to the whims of Manchin and Sinema, as to whether the country will fall under a Democratic authoritarian regime.  His post-election behavior more broadly damaged R credibility, and a 2024 revenge tour will only add to this disaster.

(7)  If Trump wins in 2024, we will get a lot more of the bad and a lot less of the good.  He is focused on revenge.  He still shows no interest in the nuts and bolts of governance needed to address the serious issues we face.  He still has terrible judgment in the people he hires, and now that he's established a reputation as a terrible and untrustworthy boss, the types of people still willing to work for him are of the worst capability and character.  He'll be a 78 year old guy, set in his ways, with declining mental abilities.  Sound familiar?  The damage he will do to the issues I care about is incalculable.  

Donald Trump is a malignant force in American politics.

AG BARR: I like a lot of these guys, some of them much better than others. I don’t know Ron DeSantis that well, but I’ve been impressed with his record in Florida. I’m going to support whoever has the best chance of pushing Trump aside. 

What we’ve moved to is a bipolar system that’s more typical of revolutionary countries, where you have a party like the Marxists or some other totalitarian party trying to take power. It’s all or nothing and anything goes. It’s war by other means. That’s where we are, and it doesn’t end well. 

THC:  Again, I think Barr is correct. Any corrective course we take entails dangers to this country's founding principles.  Our current dilemma led to this conclusion in my essay on Elihu Root:

America works to the extent the large majority of its citizens, no matter how they may differ, generally accept common process outcomes or "sometimes you win, sometimes you lose, sometimes it rains" (yes, I'm quoting Bull Durham).  This aspirational belief in neutral processes, supported by freedom of conscience and speech, along with equality under the law and due process rights, is the only way Root's vision can be sustained. 

Can we confront and defeat the enemies of liberal democracy merely by using the traditional Constitutional tools to achieve the aspirations set forth in that document?  Do we now face the scenario written of by Frank Herbert in Children of Dune:

When I am Weaker than you, I ask you for Freedom because that is according to your principles; when I am Stronger than you, I take away your Freedom because that is according to my principles.

Having effectively used our concept of tolerance (as something we owe each other) to seize control of institutions, these forces now seek to destroy the mutuality inherent in that concept and return to the older, medieval meaning of tolerance, as something bestowed by rulers and revocable at their discretion. 

Can we effectively oppose them using these long standing general principles, neutral processes and reliance on the Constitutional protections enunciated by Root or does that strategy lead to inevitable defeat if large portions of society refuse to play by the same rules?  Does it mean adopting the same techniques in order to defeat those who seek to embed these dangerous principles into our government and culture?  If so, how does one ensure that in doing so, we do not become what the enemies of American principles have become?  A decade ago, I never thought this question would arise and would certainly have objected to straying from those principles.  I underestimated what was happening within those institutions and am no longer certain as to the right answer; an answer that will determine if we will govern ourselves or be governed by others.

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(1)  Here's a sampling of what Holder did to destroy the reputation of DOJ:

- Proclaim himself as President Obama's "wingman" whose job it was to protect the president.  Any previous AG making that statement, particularly if a Republican, would have been condemned by the press, and prompt protests within the Justice Department.  Instead we heard crickets from within DOJ.  Interestingly, President Trump understood what Holder was up to.  We learned from the Mueller report that, on at least two occasions, he complained to his staff that he needed an AG like Robert Kennedy or Eric Holder to defend him.  He was right.  Jeff Sessions was an honorable man but he was no Eric Holder.

- When President Obama proclaimed on 60 Minutes that Hillary Clinton was innocent, even as his DOJ was supposedly conducting an investigation of her conduct regarding government emails, his AG, Holder's successor Loretta Lynch, failed to act on the President's improper intervention and appoint Special Counsel.  Once again, we heard no protests from DOJ attorneys.

- In 2014, two thirds of the Inspector Generals in federal agencies signed an open letter to Congress complaining that Holder's DOJ was interfering with their investigations.  The letter was a one-day story in the Washington Post and not covered in the New York Times.

- At the beginning of the Obama administration, Holder hired nearly 100 attorneys for the Civil Rights Division.  An IG report criticized Holder for ignoring highly qualified candidates and only hiring from four activist groups, including the legal funds for the NAACP and La Raza, all of whom take the legal position that the anti-discrimination language in the Civil Rights Act does not apply to white people.  This position is also taken by Kristen Clarke, the lawyer appointed by Biden to lead the Civil Rights Division of DOJ, as well as by Vanita Gupta, the current #3 at DOJ.

- Funneled tens of millions of dollars to activist groups supporting the administration as part of its settlement of lawsuits against major banking and other institutions, a practice ended when AG Sessions took office, though perhaps the GOP would have been smarter to emulate Holder's corrupt practices.

Today, we are saddled with a DOJ led by Democratic partisans and largely staffed by partisan Democrats, having now destroyed its credibility with half of America.

(2)  In footnote 1, I mentioned Jeff Sessions, who is also a perfect example of Trump's insistent on total personal loyalty and its short-sightedness.  Sessions was a very good Senator, knowledgeable about substance and process, an expert on the details of immigration law, and respected by his colleagues.  Like many Senators, he proved a bad fit as a Cabinet officer.  Trump was furious he recused himself on the Russia matter, something AG Holder never would have done, and I think a mistake as it was clearly part of the maneuvering to eventually get Special Counsel Muller appointed.  

In 2020, Sessions attempted to get the GOP Senate nomination in Alabama, and strongly supporting President Trump's policy positions. Trump, still angry about Sessions as AG, instead endorsed Tommy Tubs, or whatever his name is, an inexperienced candidate who knows nothing about policy or how the Senate operates but pledged 100% personal fealty to Trump.  That endorsement was enough for Tommy to get the nomination and win the election, but the GOP lost someone who knew substance and process, was an effective Senator, and was considered one of the Senate's leading experts on immigration, with similar views to Trump.  If Trump had won in 2020 he could have used someone like Sessions in the Senate.  Instead we have Tommy Tubs, a blockhead who will vote the right way, but has no ability to influence the greater outcome or the writing of legislation.

The GOP desperately needs skilled politicians who understand substance and process, and are willing to spend time on the details and understand how to negotiate.  Trump prefers loyal "show horses", who delight in tweeting and being the center of attention, like MTG and the high forehead guy from Florida, but who have no interest in governance or in learning how to do it.  "Owning the libs" is enough for them.  It is precisely why so much of what Trump did domestically was ephemeral and so effortlessly reversed by Biden.

School Days

I recently researched college costs, using my own experience.  My undergraduate and law school education from 1969 to 1976 cost (tuition + fees + board, the latter for five semesters) about $120,000 in 2022 dollars.  I looked at the current tuition + fees for the three undergraduate institutions (state university; community college; small liberal-arts college) and the law school I attended and that same education would cost $430,000 today.  These costs rose more than 3 1/2 times the rate of inflation, which is in line with other studies I've seen.

I think most of this rise is attributable to the increased emphasis on as many students as possible going to college, thus increasing demand, and the availability of increasing amounts of loan dollars to fund such education.  The result is reported to be a large number of graduates with useless degrees, huge debt, and poor paying jobs.

What to do about student loans is a topic of discussion over the past couple of years.  There is merit to the argument not to give any relief, as well as to the argument for some relief limited in amount and with an income cap to any such relief.  However, the worst of all worlds would be to give relief and not address underlying causes, which would just be absolving colleges and universities for their responsibilities for this mess, and give them further incentive to continue to raise costs at rates in significant excess of inflation.  In effect, student debt relief without associated reforms to prevent this from happening again would be a gift to academia.

Why not make institutions responsible for 50% of the defaulted debt of any student incurred during the time they attended the institution?

Perhaps, if the government continues to run the loan program, restrictions should be placed on the types of courses or degree programs or educational institutions eligible for loans, with an eye towards those likely to be of most value to the student after graduation, and the country.

Maybe a tax on endowments above $1 billion to help fund defaults or provide backing for loans (Harvard and Yale alone have endowments totaling $73 billion)?

Update: I forgot to add one other reform - allowing college loan debt to be discharged in bankruptcy, like most other debt, which would also help determine legitimate financial distress.

A more radical solution would be for the government to exit the loan program altogether.  In 2010, the federal government took over the direct loan program.  The argument to do so was based on (1) ending alleged high-interest private bank loans, and (2) that the program would actually make money for the government.  Outstanding student loans were $811 million in 2010; today they amount to $1.7 trillion, and are running at a loss to the government.

I'm sure there are other good ideas out there and I'm open to them.  The only thing I'm 100% against is relief without reform.  And this is separate from the reforms desperately needed to address other issues in K-12, undergraduate, and graduate education.

Justice You Shall Pursue

I recently came across Justice You Shall Pursue, an interview with Charles Fain Lehman in Time Well Spent, the substack of Sotonye.  Sotonye is a pseudonym.  It's a Nigerian name, and the author claims to be a native West African, who's lived most his life in Los Angeles, and is a recent convert to Judaism.  

Lehman writes for City Journal, primarily on issues of crime justice, along with another City Journal writer, Rafael Mangual, author of the new book, Criminal (In)Justice, who's been recently interviewed by both Tucker Carlson and Trevor Noah, making him part of a very, very small group to be on both shows (I've never watched either).  You can find a summary of Mangual's thesis here). 

Sotonye asks interesting questions and Lehman speaks thoughtfully and avoids overstating his case.  Crime is not the sole focus.  At one point, Sotonye asks Lehman about being a parent, and I like his response:

. . . parenting is existentially satisfying in a way that many things aren't. A lot of what we fill our days with are "experiences," or sensual stimuli—television, social media, vacations, sports games, etc. etc. Those are great, don't get me wrong. I love to cook and eat, which is a primarily sensual experience. But I think many people often feel, in my view rightly, a certain emptiness associated with this lifestyle. "What is this all for?" we might ask, or, “What is the purpose of this?" "Why get out of bed in the morning?" One thing I have discovered as a parent is that this is basically not a question I need to ask anymore. The reason I get out of bed in the morning is because my son needs me to. Being a parent means having a whole other person whose whole world you are.

Of course his child is only two.  Let's ask him again after the teenage years!

Two thoughts prompted by the interview:

The first is whether the Civil Rights Act of 1964 (CRA) was a mistake in not limiting its scope to the problem we were trying to remedy - the exclusion of black Americans from the full scope of legal rights of citizenship, as well as their de facto exclusion from large parts of American life.

During the debates over the 14th Amendment after the Civil War, an alternative was proposed simply stating:

All national and State laws shall be equally applicable to every citizen, and no discrimination shall be made on account of race and color.

It was overwhelmingly defeated in the Senate and instead we ended up with the more complex and legally ambiguous version of the Amendment we have now, in which we are still debating what "due process of law", "privileges and immunities of citizens" and "equal protection" mean 150 years later. 

The one sentence version was doomed to defeat because, at the time, white Americans would not accept social equality for blacks, but in the long-term I think it would have served us much better.  Was the same true of the CRA, which I've always considered one of the two greatest federal legislative achievements of the 20th century (the other being the 1965 Voting Rights Act)?  It is something recent events have led me to question. (1)

Lehman does not make this argument, instead focusing on what he regards as policy changes under the auspices of the Act.  Nonetheless, it prompted me to see the analogy between what happened with the 14th Amendment and the CRA, as well as the repeated refusal of the Supreme Court to follow the literal language of the CRA (see Will Plessy Ever Be Overruled?), as pointing to a more fundamental problem.

Here's his take:

From the late 1940s, mainstream America became increasingly concerned with the status of black people . . . .  it became increasingly apparent to many Americans that black citizens, particularly in the south, were still subject to explicit and horrific discrimination. People were radicalized by concrete displays of this animus . . . To resolve this very particular problem, however, Congress passed an extraordinarily general, sweeping law, prohibiting discrimination on a wide variety of bases. In most parts, this law was formally colorblind. But many of its ambiguities and unintended consequences gave birth to a system that was anything but. 

The first development comes from how courts chose to understand the idea of discrimination. While the authors of the CRA had intended for the law to restrain discriminatory intent (there's Congressional discussion to this effect), judges and regulators (e.g. the EEOC) began to focus on discriminatory outcomes. They adopted explicitly color-conscious approaches, using disparate impact as evidence of discrimination, or seeking to impose quotas in higher education.

The second development is a product of the way that, rather than target blacks specifically, the CRA was written to confer protections—and therefore rights—on the basis of general categories. This was not really seen as a problem at the time, because America was more or less divided between blacks and whites, with only small Hispanic (not even really a discrete group) and almost no Asian population—conferring civil rights protections on the basis of race or ethnicity meant protecting blacks. But once the privilege existed, groups started jockeying for formal recognition as needing protection, which carried with it access to jobs and government resources. This situation was compounded by the 1965 Immigration and Nationality Act, which dramatically changed immigration law and heralded America's great ethnic transformation.

The second is being struck by how much of an oddball the United States is on free speech because in the rest of the world tribalism still reigns.  While I knew this, I was reminded of just how different we are when it comes to speech, even compared to other democracies.  The question for us is whether the New Racists will succeed in making us more like other countries, with all the enmity, jealousy, and enhanced conflict it would entail.  Lehman's take:

In reality, I think the woke program is pretty straightforward. Society is composed of groups, those groups are in conflict, one of those groups has more power than the other groups for historically contingent reasons, the best way to resolve that conflict is to work toward intergroup equality, and laws and actions should be evaluated in relation to how they resolve that conflict. Not only are these not inexplicable values, many other cultures embrace them. They are often, just as one stark example, the working framework for post-conflict multiethnic states. A favorite example of how these values play out is in hate speech: the idea that we should ban hate speech sounds totally weird in the American context, simply because we think about the right to speak as a fundamental political right, a basic component of citizenship. But hate speech laws exist all over the world! And when Critical Race Theorists (yes, the real Critical Race Theorists, like Richard Delgado) talk about the issue, they often invoke not only those cases, but also the value system that undergirds them.(2)  Hate speech harms target groups, we should be concerned about harm to those groups, therefore we should prohibit hate speech.

There's much more of interest in the full piece which was quite thought-provoking.  I have several disagreements with Lehman; he's a death penalty proponent, I'm opposed; he favors drug prohibition, while I'm undecided, though more inclined his way than twenty years ago (I do think the widespread media and academic normalization of drug use is a tragedy).

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(1)  My point is not whether other groups should have civil rights, but perhaps we would have been better served focusing on the unique circumstances of those involuntary brought to America, held in servitude, and their descendants.  Whatever other groups may have faced, the degree, extent, and duration of discrimination against these people is unparalleled in our history.

(2)  The value system that undergirds CRT in Delgado's own words:

Unlike traditional civil-rights discourse, which stresses incrementalism and step-by-step progress, critical race theory questions the very foundation of the liberal order; including equality theory, legal reasoning, Enlightenment rationalism, and neutral principles of constitutional law.

For the critical race theorist, objective truth, like merit, does not exist, at least in social science and politics.  In these realms, truth is a social construct created to suit the purposes of the dominant group. 

If the vision of Delgado and other New Racists (including those embedded in the Biden Administration) were to triumph, we are looking at a very different country.  As I've noted elsewhere the analytical lenses brought to bear on society by white nationalists and the New Racists is the same; the only difference being who should end up on top at the end.  It is why the many liberals, progressives, and socialists I now read who oppose this movement, and have mostly been expelled from their former circles for their heresy, recognize the danger it poses to democracy; it is a totalitarian ideology.

Why America Can't Build

Interesting article from the online magazine Palladium, Why America Can't Build.  The author is Brian Balkus who has experience in the large project management field.  It poses the question of why do large infrastructure projects take longer to build and cost considerably more per unit than similar projects, not just in Asia, but in Western Europe where just about everything else costs more than in America.

The subject is actually broader than large projects and has become in recent years the subject of much study, often referred to as The Cost Disease; why does the cost of certain things, like electronics/computers, go down, while others, like healthcare/construction, go up?

In the case of large projects, Balkus starts with a Los Angeles freeway expansion that the company he worked for at the time, Kiewit, was managing and then extends the discussion to other examples like the fiasco of California's proposed high speed rail line, which California voters approved in 2008 and which now, fourteen years later, is $44 billion over budget, with very line actual work done.

The reasons specific to large projects identified by Balkus include:

- Environmental review requirements, including the use of litigation by opponents to slow projects down.  As Balkus notes:

The NEPA/CEQA process incentivizes the public agencies to seek what is often termed a “bulletproof” environmental compliance document to head off future legal challenges. This takes time, with the average EIS taking 4.5 years to complete. Some have taken longer than a decade. A cottage industry of consultants is devoted to completing these documents, earning themselves millions in fees.

- The lack of in house expertise at the agencies overseeing these projects, forcing reliance on outside contractors who often have interests other than speeding along a project.  Balkus writes:

These consultants were well paid, with the primary consultant compensation for HSR at $427,000 per engineer, compared with the Authority’s in-house cost of $131,000 per engineer. This structure creates a principal-agent problem where they are incentivized to maximize their billable hours. As a California State Auditor assessment of the project noted, consultants “may not always have the state’s best interest as their primary motivation.”

- Unionization, or more specifically how unions operate in the U.S., since as Balkus points out all of the European countries that do public projects at less cost also have unions working on the projects:

The fundamental problem isn’t unions per se, but rather the way that unions operate within parts of the U.S. system. The Netherlands has strong unions, but the Port of Rotterdam has been automated to an extent that has proven impossible in the U.S. due to union resistance . . . There are too many layers of permission needed to innovate, including groups whose interests run counter to innovation.

The result is that innovation is inhibited by both labor resistance and a decentralized government bureaucracy that has neither the incentives nor the capability of driving real change. Perhaps it should not be shocking that U.S. construction productivity has fallen by half since the 1960s . . .

According to Balkus, things are posed to get even worse:

President Biden has signed executive orders strengthening construction unions and increasing the stringency of NEPA requirements. 

As a counterexample, the author writes of Madrid's successful project to expand its subway system, which it did for a fraction of the per mile cost of similar projects in the U.S.  He also points out to exceptions in the U.S., including my home state of Arizona.

However, not every building environment in the U.S. is the same. Roughly 40 percent of U.S. megaprojects are in New York, California, or Texas. While megaprojects run into issues everywhere, the Texas projects have a significantly better track record than either of its coastal peers.

Other states have learned from their example. Arizona explicitly studied lessons learned from Texas when building the largest public works project in its history, the $1.7 billion Loop 202 South Mountain Freeway Project. By using a non-standard project delivery approach, this project was completed in 2019 in fewer than 1,000 days, an estimated three years earlier than what would normally be expected. Early coordination between the contractor and engineer ensured that the design issues that appeared on Sepulveda or HSR were avoided, saving the project an estimated $100 million.

Maybe that's why so much of America's new industrial capacity is being built in those two states. 

One objection to this type of critical review is that it is a legitimate choice to favor environmental and regulatory process concerns, and to preserve high paying union jobs.  I agree.  But those who do favor that approach also seem to be constantly harping on our need to improve infrastructure without any seeming awareness of the difficulties in undertaking such projects and why they cost so much.  It's a choice.  You can't have both.  Decide what your priorities are.

A few years ago I wrote a post about a video Rachel Maddow and Spike Lee did at the Hoover Dam about the need to do big projects like that in America, funded by the government, without any awareness of why it is so difficult to do projects like this in 21st century America.  The Hoover Dam project was approved by Congress in 1928, construction started in 1931 and was completed in 1936.  How many decades would it take to do this same project if it started now?  What are the odds it would even be approved?

Deciding on priorities will become even more important as we look to greatly expand solar, wind, and batteries over the coming decades.  The amount of metals and rare earths required for these technologies is staggering.  Unless we want to become dependent upon China for our future, this will require legal and regulatory changes to facilitate enormous increases in mining and metal processes.

It's not just mega projects that are subject to extended times.  Regarding just the regulatory review process, in the 1990s, at the company I worked for, we conducted a comparative study of how long it would take to get a new production line approved by environmental regulators at our plants in the U.S., France, and Australia.  All these countries were heavily regulated and the pollution control requirements very similar yet it took twice as long (several months) to get approval in the U.S.

Simpson's Paradox

Working throughout my life with numbers and statistics I was aware that at times how they are analyzed can be misleading but until a few years ago I was not aware of Simpson's Paradox.

Simpson’s Paradox is not the same as Homer Simpson’s Paradox* (which may, however, may explain other issues in America). Simpson’s Paradox occurs when a correlation present in different groups is reversed when the groups are combined. That happens when the ratios between the individual groups are different in the comparisons being made.

While aware of it in the pure numerical sense, I first encountered it in a political sense in 2011.  At the time Wisconsin Governor Scott Walker was being denounced as a Nazi for making changes in the collective bargaining power of unions, specifically for teachers, that would have reduced the costs of medical insurance**.  At the time, Wisconsin's existing law required school districts to obtain health insurance through the teachers union captive insurer.

One of the common talking points in opposition was that Walker's initiative was an assault on the quality of education in Wisconsin, and frequent comparisons were made to academic performance in Texas, where K-12 achievement scores were not as high.  The rhetorical question was always, "Do you want to make Wisconsin schools like Texas?".

The assertion about test scores was correct; students in Wisconsin scored higher than Texas.

However, if you looked at the data from the National Assessment of Educational Progress (NAEP), which administers the annual standardized test given to 4th and 8th graders to measure math, science and breaks down results by black, white and Hispanic the picture looks different. (NAEP does not test after 8th grade). In every case (with the exception of Hispanics for 4th grade science), black, Hispanic and white students in Texas scored higher than Wisconsin students of the same demographic. That’s in 17 out of 18 comparisons. In other words, black students in Texas outperformed black students in Wisconsin in math, science, and reading in both 4th and 8th grades. And, in all 18 categories, Texas students scored above the national average. Moreover, the gap between White and Hispanic/Black scores was less in Texas than in Wisconsin. Wisconsin looked better overall because it had a much higher percentage of white students.  Put another way, Texas student results were actually better and more equitable than Wisconsin.

While researching this issue I came across another claim by those disputing claims of Texan prosperity - that its hourly wages were actually lower than the U.S. average. This was true at the time – the US average median hourly wage was $12.50, while Texas was $11.20.

However, what was ignored and was also true, is that if you separately compared average median hourly wages of whites, blacks and Hispanics in the United States to those of each of those groups Texas, they were higher for each group in Texas. 

In both cases the difference between the measurement of the groups individually and collective was because of the diversity of the Texas workforce and school population, which has lower percentages of whites and higher of blacks and Hispanics than Wisconsin and the U.S. as a whole, so that when combined the data led to a misleading conclusion.

Once aware of the paradox I began looking at such comparisons more deeply.  For instance, we have frequent claims that Scandinavian countries are better in material and health outcomes than the U.S.

Yet repeated studies comparing both life expectancy and wealth between the populations of those countries and of their descendants in the U.S., show those living in the U.S. do better. Here’s an example, focusing on economics:

Danish-Americans have a measured living standard about 55 percent higher than the Danes in Denmark. Swedish-Americans have a living standard 53 percent higher than the Swedes, and Finnish-Americans have a living standard 59 percent higher than those back in Finland. Only for Norway is the gap a small one, because of the extreme oil wealth of Norway, but even there the living standard of American Norwegians measures as 3 percent higher than in Norway.

The same holds true for every other comparison I’ve found between countries of origin, including in Latin America and Africa, and descendants in the U.S. The U.S. often shows up lower because of the very diversity of the American population, so that when combined you get a different result than if you look at the components.***

Once you start looking for Simpson’s Paradox, it shows up everywhere.

There are, of course, other statistical tricks used in political arguments.  Covid-19 has seen an eruption of these, from those switching back and forth between mortality and case incidence data depending on the point they want to make or failing to look at results for others in similar situations.  In the latter case, what springs to mind is the claim that Uttar Pradesh state in India successfully controlled Covid by distributing ivermection.  While it was true that cases declined 99% after the state took this action, cases declined by the same amount in the adjoining states which did not follow Uttar Pradesh's direction.

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* From the episode “Lard of the Grease:”

Homer: Okay, boy. This is where all the hard work, sacrifice and painful scaldings pay off.

Clerk: Four pounds of grease. That comes to . . . sixty-three cents.

Homer: Woo-hoo!

Bart: Dad, all that bacon cost twenty-seven dollars.

Homer: Yeah, but your mom paid for that.

Bart: But, doesn’t she get her money from you?

Homer: And I get my money from grease. What’s the problem?

**  Which, after the legislation was enacted, it did.  Some school districts took the savings and hired additional teachers. 

*** There is another aspect to be aware of, beyond the comparisons.  American rates for serious lifestyle health issues like diabetes, obesity, high blood pressure etc, are increasing across the board.  Regardless of international comparisons this is a serious problem.

Experiments & Tampering

 From the always thoughtful Arnold Kling:

W. Edwards Deming distinguished experiments from tampering. With an experiment, you change a process and explicitly compare the results to a baseline. With tampering, you change the process without rigorously examining the results.

For example, in education, most curriculum changes involve tampering. Schools rarely test to see whether a curriculum works.

I once sat next to a high official in the Department of Education, and he was horrified when I suggested experiments in education. “Would you want your child to be part of an experiment?” he asked, incredulously. “The schools do it all the time,” I responded. “They just don’t bother checking to see whether their experiments work.”

It is very hard to make a moral case against experiments that is not also an even stronger case against tampering. But we have a much higher tolerance for tampering than for experiments . . .  Saying that you are conducting experiment implies that you are uncertain. Tampering implies that you know what you are doing. Sadly, people have a higher tolerance for tampering.

You can read the whole thing here.

Your Future

This is for the younger folks out there; I'm an old guy so it doesn't matter for me.

Pay close attention to this scene from The Lives Of Others, one of the finest movies ever made.

Note this exchange:

You think we imprison people on a whim?

No.

If you think our humanistic system capable of it, that alone would justify your arrest.

And also observe the checkmark the Stasi instructor (1) places against the name of the student who asks whether it is inhumane to keep the prisoner awake for 40 hours.  If you are ever in a corporate training class on diversity, sexual harrassment, inclusion, or whatever trendy thing is on the agenda, remember to keep any negative thoughts or questions to yourself or just speak up to enthusiastically endorse whatever the presenter is saying.  They will be making checkmarks.

It's important to know who really holds the power.  As Kevin Williamson observed:

“If you want to know who actually has the power in our society and who is actually marginalized, ask which ideas get you sponsorships from Google and Pepsi and which get you fired.”

To help you along, here are some key terms and definitions you may find useful in order to succeed in your future:

Tolerance - the willingness to tolerate people and ideas you agree with.

Diversity - the willingness to accept all people as long as they agree with you.

Dialogue - the willingess of people to listen and follow your instructions as to what they should believe.

Problematic - ideas you don't agree with that require the silencing of those who express them and getting them fired from their jobs.

Justice - the result of treating people as group members and holding them guilty or praiseworthy based upon their immutable characteristics.

Speech - the equivalent of violence if you disagree with it.

Violence - not-violence if you agree with the cause.

And remember, the government of China is in the process of instituting Social Credit scores, rating its citizens on whether they fit harmoniously into the government's standards for society and using it to determine access to jobs, housing, and other everyday aspects of life.  A version of it will be coming here if 21st century progressives have their way.  So be on your best behavior.

Look at the bright side, your future may be a world of stultifying conformity but you'll do just fine.  Or at least okay.  Or at least survive.  As long as you know your place.  A place that will be determined by others. 

A few years ago I might have written this as satire.  It no longer is.

Sincerely yours,

From a guy who was a liberal back when we believed in freedom of speech, freedom of conscience, due process and equal treatment under the law.

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(1)  The actor playing the Stasi instructor lived in East Germany, where he was a member of an acting company, until the Berlin Wall came down in 1989.  When the Stasi files were opened he discovered several of his fellow actors were informing on him to the Stasi.

53 Transcripts: Flynn Flam

I've now finished reading all 53 transcripts (5,571 pages) and will begin writing posts trying to put it together but wanted to write on Michael Flynn in light of new developments in his case and how it ties into the testimony in the transcripts.

Catherine Herridge of CBS News has the full unredacted version of Susan Rice's famous "by the book" memo, written to herself, on January 20, 2017 regarding the January 5, 2017 meeting involving President Obama, VP Biden, herself, Sally Yates, Comey, Clapper, and Brennan. [CORRECTION: Clapper & Brennan were not at this meeting.  They attended the meeting immediately prior regarding the Intelligence Community Assessment regarding Russian interference in the 2016 election.] The existence of the memo has been known since 2018 but one paragraph had been completely redacted.  It is now available:

Director Comey affirmed that he is proceeding "by the book" as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian ambassador Kisylak. Comey said that could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying the NSC should not pass sensitive information related to Russia to Flynn. Comey replied "potentially". He added that he has no indication thus far that Flynn has passed classified information to Kisylak but he noted "the level of communication was unusual".

My guess is the memo went through several careful drafts before reaching its final version.
I believe its purpose fourfold.

(1) Justify withholding of sensitive information during the last two weeks of the transition.

(2) Creating an "I told you so" if it turned out Flynn was compromising national security (Obama warned Trump against appointing Flynn)

(3) Justifying Comey's continued investigation of Flynn.

(4) Making sure Comey was the fall guy if it all went wrong.

It was no secret the intelligence community and President Obama had no use for General Flynn after  he left the administration in 2014.  He'd had major policy disagreements with the President and been public about his opinion of the quality of the intelligence agencies work product and leadership and having him as NSA meant their shortcomings would become public and the current organizational structure and embedded careerists threatened.

It is evident that from the time he left government service the intelligence community (including friendly foreign intelligence services) were keeping an eye on Flynn and he did himself no favors by miscues such as accepting payment from RT TV to attend a December 2015 dinner in Moscow where he was seated next to Putin.

How widespread the surveillance of Flynn was is still unknown.  According to a story that broke yesterday a whistleblower at the Treasury Dept claims officials there were improperly tracking Flynn's finances as far back as 2015. While we only have the anonymous source at this point it is worth investigating to see if the story can be confirmed.

In addition, in early 2017, just after Flynn's resignation, a story broke, first in the U.K. and then in the U.S., that Flynn was having an affair with a Russian emigre and academic at Cambridge who was allegedly a intelligence operative for the Kremlin. What is of particular significance is that while the story only became public in 2017, I learned from reading the recently released House Intelligence Committee transcripts, that David J Kramer, an associate of Senator McCain, was told in September 2016 by Christopher Steele about the alleged affair (p.57) meaning the story was already in circulation in intelligence circles and part of a planned operation to destroy Flynn's reputation. The Russian in question is Svetlana Lokhova, who quite strongly, with documentation and, I think, convincingly, denied having an affair and being a Russian operative and has had her career destroyed as a result of the story.  It is astonishing to see how the conspirators converted a dinner with several academics into a passionate affair by Flynn with a Russia agent.  Moreover, the Mueller Report does not confirm the story and, as we know well, if it had the tiniest scrap of evidence otherwise it would have played it up.

Flynn was frequently in contact with Kisylak during the transition. In fact, Rice testified to the House Intelligence Committee, that in late November 2016, the head of Trump's National Security Council transition team, Marshall Billingslea, expressed concerned to her and her staff about Flynn's frequent conversations with Kisylak and asked for background on the ambassador, "that he seemed to want to use to persuade General Flynn that perhaps he should scale back the contacts". (p.44) [CORRECTION: Billingslea did not express his concern directly to Rice; Rice was informed of his concern via her chief of staff Susie George.  Billingslea was also removed as head of this transition team at some point during the transition.]

This incident involving Billingslea became public in early May 2017 as part of the avalanche of press reports about the alleged collusion of the Trump campaign and administration with Russia.  Here's a typical example.  All of the stories contain the same note regarding sources;

"based on interviews with 11 current and former U.S. officials, including seven with key roles in the Obama administration."

That implies four of the sources did not have key roles in the Obama Administration.  Whether they were officials in that administration who did not have key roles or served in the Bush administration or were now in the Trump administration cannot be determined.  And they are collectively cited as sources for the article which contains information beyond the Billingslea incident.

Billingslea has never publicly commented on the matter.   He is currently Assistant Secretary for Terrorist Financing at the Treasury Dept. and on May 4 was nominated to be Under Secretary of State for Arms Control and International Security Affairs.  During the Bush administration, Billingslea held a number of senior positions at the Department of Defense.

However, as Rice's memo notes, as of January 5, Comey had no evidence Flynn shared classified information with the Russians. Moreover, the dislike of Flynn had another basis beyond the mutual disdain between he and the intelligence community - there was a basic policy disagreement. Flynn thought China a bigger threat than Russia; the Obama administration thought the opposite.
In her House Intelligence Committee testimony of September 8, 2017 Rice complained:

"We spent a lot more time talking about China in part because General Flynn's focus was on China as our principal overarching adversary. He had many questions and concerns about China. And when I elicited - sought to elicit his perspective on Russia, he was quite, I started to say dismissive, but that may be an overstatement. He downplayed his assessment of Russia as a threat to the United States. He called it overblown. He said they're a declining power, they're demographically challenged, they're not really much of a threat, and then reemphasized the importance of China." (pp.46-47)

Rice's statement is ironic, coming from the administration which ridiculed Mitt Romney in 2012 for his claim that Russia was our #1 adversary (Mitt was wrong, by the way) while at the same time President Obama was caught on mic with Medvedev telling him to pass on a message to Putin that he'd have more flexibility after the election to screw our allies in Eastern Europe.  And it was President Obama who appeased Russia's ambitions in the Middle East in order to get them to help with Putin's Iranian allies.

Let's not forget the operation to "get" Michael Flynn had two sequentially independent components. The first was to remove Flynn as NSA, a position where he could do damage to the intelligence community bureaucracy and the legacy of the Obama administration. That was accomplished when he resigned in February 2017 and the conspirators had no further interest in pursuing him. After that, Comey and McCabe were relaxed enough to admit in testimony that the interviewing FBI agents had not thought Flynn lied in his interview.

Things changed when the Mueller gang arrived on the scene. They wanted to pursue Flynn in a criminal investigation to pressure him to turn on Donald Trump. When he refused to do so, they pursued an alternative course, bringing a criminal prosecution to provide added fodder for the Russia collusion narrative to be used by the media in order to help the Democratic Party in the 2018 midterms.

My view is that Flynn was correct on the policy issue.  Russia is not our friend and Putin would like to see a hobbled and weakened America (the media and the Democratic Party have helped him in that respect) but the biggest threat to American security and the rest of the free world is China.  The challenge for America today is to develop a strategy, with other countries, to contain China and as part of that to find if there is a path to move Russia away from being China's junior partner.  I also think he was also correct on the need for massive reform and cleaning out of our intelligence agencies.  Flynn's lack of discipline in the RT TV matter, the Turkish government lobbying, and in not minimizing contacts with the Russian ambassador during the transition period, particularly when he knew the security apparatus was gunning for him, contributed to his own downfall.  The criminal prosecution however, is a disgrace, should never have been filed, and should be dismissed.

53 Transcripts: Inventing Stories

I’ve now waded through 34 of the 53 transcripts. Still no evidence of collusion or conspiracy. You can read my prior post on the transcripts, The Forrest Gump of Campaigns.

The media and progressive echo chamber works and has power in the public imagination, primarily based on people repeating the same things to each other over and over again and converting their fantasies into reality. Reading the transcripts provides yet another example. The interview of Evelyn Farkas (June 26, 2017) has already made news, at least in non-progressive circles (it appears to have been blacked out elsewhere). Ms. Farkas is a Democrat, a long-time national security policy person and a staff member of Senate Armed Service Committee and Deputy Asst Secretary of Defense for Russia, Ukraine, and Eurasia during the Obama Administration, and is now running for Congress in New York. Like so many Obama refugees she became a commentator, in her case, on MSNBC. In March 2017, she made headlines by urging all her former colleagues to get out all the information they had, even if classified, on Russian election interference and implied she had evidence of collusion with the Trump campaign.

Conservative commentary has focused on her responses to questions at the Intelligence Committee interview that she actually had no information regarding any collusion or conspiracy by the Trump campaign with Russia (see page 12 of transcript). In other words, she knew nothing of substance despite her claims on MSNBC. She even went further, telling the committee, “Russia has not interfered in our elections in the past” (p.16) despite the Intelligence Community Assessment of January 2017 which stated Russia had interfered in the past.

But what really caught my eye was this back and forth between Rep Trey Gowdy and Farkas (p.27):

Gowdy: You also didn’t know whether or not anybody in the Trump campaign had colluded with Russia, did you?
Farkas: I didn’t.
G: When then, why did you say what you said?
F: Because I had a strong suspicion.
G: Based on what?
F: Based on the media reports –
G: Dr Farkas.
F: – and reporters calling me.
. . .
G: What did you know at the time?
F: I knew what the public knew from reading the newspaper.

That is how it works. Someone is hired with the correct political views and credentials but who does not know anything more than the public. People inside the government leak things about their enemies and friendly media, with no interest in investigating accuracy, act as stenographers, and once one publication prints or airs it everyone else jumps in, and then the “credentialed expert” can act like it is real news. Soon, everyone is just repeating the same story to each other, and because that’s all they hear, it becomes the obvious truth. Economists talk about the multiplier effect of spending but this is the real multiplier effect in action.

The success around these narratives can be seen in the interviews of several witnesses regarding the alleged “softening” of the Republican Party platform on Ukraine, in order to supposedly appease Russia, a story that was an obsession with the minority members of the committee. It’s simply fake news that was planted in the media and became the accepted truth to such an extent the FBI referenced newspaper reporting on it as part of the Carter Page FISA warrant application, a subject I wrote about in January.

Unfortunately, the price of fake news can be heavy. Jeffrey (JD) Gordon, a member of the Trump campaign, and the staffer at the heart of the alleged Ukrainian platform controversy testified on July 26, 2017, “It’s an urban legend that the Trump campaign changed the platform . . . it was false” (p.83) as can be proved by examining the language as I did in my January post. Nonetheless, Gordon went on to say that his life had been destroyed by the allegations. Because of the investigations he had been unable to get a position in the administration, his reputation was damaged, and career prospects limited.

We cannot ignore the power wielded by the media, particularly the New York Times and the Washington Post which set the agenda and tone for much of the rest of the media. If you haven't lived in the Northeast it is easy to underestimate the impact their coverage has on everyone. Even Jared Kushner in his testimony (July 25, 2017), spoke of his father-in-law’s attention to the Times:

“I’d have discussions almost every day with the candidate saying, look: If the New York Times mattered you’d be at 1 percent”. (p.70)