Archives for posts with tag: Trump

[This is G. Sallust, and today I’m only doing the introduction, so relax. There will be no long sermons from me. I see in the news that our current President is auditioning lawyers and law firms to see which of them will represent him in the multitudinous investigations now sprouting inside the Beltway. Really, we need a scorecard to keep track of things.

  • Our loose-lipped and always indignant Congress wants to know whether our President is “too close” to the Russians[1]; their evidence of that is that he’s been seen talking to their emissaries in the White House, and even the Oval Office[2]; that he’s said it would be nice to “get along’ with them, if possible[3]; and that prior to the last election the Russians, allegedly, gave documents to WikiLeaks that were authentic, but embarrassing to Democrats.[4] (The Russians deny they were the source of the documents, and WikiLeaks agrees.[5])
  • In the meantime the FBI is interviewing senior members of the Trump entourage, about Russia[6], and DOJ has nominated a Special Prosecutor to do pretty much the same thing.[7]

Given all that, how should the President handle the legal traffic? Is he right to hire outside counsel, or should he rely on internal resources? Of course, DOJ is an investigator in these matters, so they can’t [and shouldn’t] defend the President at the same time. But the President also has an official counsel in the White House, with a staff, so should he use them as his advisers, defense counsel and the rest?

I’ve asked Larry, our resident legal consultant, for his views on the matter. He wants me to say that he’s retired; he’s not advising anybody in the White House, or anywhere else on these matters, or anything related to them. Like any other pundit, he’s merely offering opinions, but unlike most of them he’s basing his views on decided cases and the written record. So with that in mind, let’s hear from Larry!]

Thanks, G. I don’t care what anybody says, it’s good to have you back. How did that romance of yours go? … Oh, strike that! Sorry I asked!

The main advantage of talking to a lawyer is, when the criminal allegations start to fly, you can discuss them frankly with an experienced person, clarify the issues, and decide what to do. These kinds of discussions need to be privileged, i.e., protected from disclosure, otherwise you can’t have them at all. At one time Presidents thought they could shield discussions about sensitive internal matters simply by claiming executive privilege, but they lost that option for criminal matters when Richard Nixon was President. So now Presidents [and other government employees] can talk only to lawyers when the gumshoes call, and not just any lawyer. One who works for the government may be no help at all.

Executive Privilege

The granddaddy of cases about executive privilege and the White House is, of course, United States v. Nixon.[8] There was a special prosecutor in those days, appointed to look into events surrounding an attempted burglary of the DNC Headquarters in Washington, D.C. Various Nixon apparatchiks were indicted in connection with that and, once it became known that the President routinely taped conversations with his staff, including apparatchiks, the relevant tapes were subpoenaed as part of the investigation.

President Nixon resisted the subpoena on the theory that his tapes were protected by “absolute” executive privilege.  This was true, he said, because (i) the doctrine of separation of powers, en-grained in our Constitution, called for it, and (ii) the President needs “complete candor and objectivity from his advisers,” which he would not get if their conversations might be exposed in some investigation.[9]

The Supreme Court rejected both claims. “[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”[10]

The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.[11]

In short, the internal communications of presidents may be subpoenaed in a criminal investigation. [Communications involving “military, diplomatic, or sensitive national security secrets” might be exempted, but it’s not clear from the decision how that would work, because those kinds of documents were not in play in the case]. Once made available the papers, etc. would be reviewed in the usual manner and with appropriate safeguards.[12]

Attorney Client Privilege

So if you are a President, and there is a criminal inquiry going on in your operation, who can you talk to? Better yet, who can you talk to in confidence? How about the White House Counsel or some other government lawyer? Well, of course you can talk to anybody you want to. The question is, when the subpoenas begin to fly, who can [or must] protect your conversations from the other side?

Lawyers and their clients have something called attorney-client privilege which should do the job. Basically in most states the lawyer’s duty to keep secrets is defined very broadly.[13] It applies to all information related to the representation of the client. The lawyer must be discreet with the information regardless of whether the client has revealed it to others. And in most states the same standard applies to government and private sector lawyers.[14]

The District of Columbia seems to be different, at least on that last point. I guess we all remember the lengthy investigation of the Clintons back in the 1980s. A “Special Prosecutor” was appointed to investigate some financial dealings Mr. Clinton had in Arkansas before he became President; collectively they were nicknamed “Whitewater;” [15] but eventually the investigation spread to all manner of things, including Mr. Clinton’s alleged sexual proclivities and stains on a junior staffer’s dress. White House Counsel staff were scheduled for interviews, but the Deputy there, Bruce Lindsey, asserted attorney-client privilege and refused to cooperate. His refusal was taken to court, first to the trial court supervising the investigation and later, to the Court of Appeals for the D.C. Circuit. That particular bit of litigation did not turn out well for the Clintons or for those of us who think that the attorney-client privilege is a good thing.

The case is In re: Bruce Lindsey [Grand Jury Testimony].[16] The basic facts were that a Grand Jury was investigating alleged wrongdoing in the Executive Branch. In that situation, the court said, government lawyers are very different from those in private practice. Members of the Executive Branch, including attorneys, must “take Care that the Laws be faithfully executed.” That’s a Constitutional duty.[17] When crimes are being investigated “and especially offenses committed by those in Government, government attorneys stand in a far different position from members of the private bar.” The government lawyer’s duty “is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure.”[18] A lawyer in private practice has exactly that duty. The loyalties “of a government lawyer cannot and must not lie solely with his or her client agency.”[19] The loyalties of the private practitioner lie solely with the client.

So given that I guess we can conclude (i) when crimes are being investigated at an agency, (ii) government attorneys can’t invoke attorney-client privilege to withhold pertinent information from the investigators. There’s no such privilege available in that situation. However, there are other reasons why information might be withheld. It might be highly classified technical data, and withhold-able on that basis alone; or core information related to military, diplomatic or national security matters, legitimately subject to executive privilege; or who knows what? The holding of the case is simply that government attorneys can’t use attorney-client privilege to do the job.


So what’s a President to do when the investigators come a calling. Who does he talk to and what does he say? Well, the court had some ideas on that. It said:

Moreover, nothing prevents government officials who seek completely confidential communications with attorneys from consulting personal counsel. The President [Mr. Clinton] has retained several private lawyers and he is entitled to engage in the completely confidential communications with those lawyers befitting an attorney and a client in a private relationship.[20]

So there you go. If our current President wants or needs all of the advantages of dealing with a private attorney, and can afford it, he should hire one or teams of them, if necessary.[21] What’s my opinion? In the current environment, it would be irrational for him not to do so.

[1] See, e.g., the screed published by the American Bridge PAC, whatever that is, at Strictly speaking this isn’t a Congressional product but its emblematic of the kinds of things being said on the Hill.

[2] See The Washington Post, Rucker, et al., Inside the Oval Office with Trump and the Russians: Broad smiles and loose lips (May 16, 2017) at

[3] See The New York Times, Burns, Donald Trump Reaffirms Support for Warmer Relations With Putin (Aug. 1, 2016), at

[4] See, e.g., The Observer, Schindler, Wikileaks [sic, WikiLeaks] Dismantling of DNC Is Clear Attack by Putin On Clinton (07/25/16)  at

[5] See CNN, McKirdy, WikiLeaks’ Assange: Russia didn’t give us emails (January 4, 2017) at

[6] See CBS Los Angeles (video) Trump Son-In-Law under FBI Scrutiny (26 May 2017) at

[7] Robert Mueller is the Special Prosecutor. He now has an official spokesperson.  See Politico, Gerstein, Trump-Russia special prosecutor Mueller taps spokesman, (May 26, 2017) at

[8] See United States v. Nixon, 418 U.S. 683 (1974).

[9] Id. at 706.

[10] Id.

[11] Id.

[12] At that time, it would have been under Rule 17 of the Federal Rules of Criminal Procedure. Note that the Court did not address the question of what rules might apply to civil proceedings involving one or more private parties. That wasn’t an issue in the case.

[13] This is a paraphrase of the findings of someone who’s actually done the research. See Clark, Government Lawyers and Confidentiality Norms, 85 Wash. Univ. L. Rev. 1033. 1035 (2008): “In most states, a lawyer’s duty of confidentiality is defined very broadly and applies to all information relating to the representation of the client. The lawyer is required to be discreet with such information whether or not it could harm or embarrass a client, and whether or not the client has revealed the information to others. In most states, the professional confidentiality rule does not distinguish between government and private sector lawyers.”

[14] See Leong, Note, Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys, 20 Geo. J. Legal Ethics 163 (2007), at

[15] Rather than “Watergate.” We pundits really need our labels, don’t we?

[16] See In re: Bruce Lindsey [Grand Jury Testimony], 158 F.3d 1263 [D.C. Cir.], cert. denied, 525 U.S. 996 (1998). Here I need to apologize.  We have the correct citation for this case, but not the official report of the opinion. Also there doesn’t seem to be a way to get the official opinion without paying West Publishing or somebody like that for it. As you know, if possible we try to point our readers to free sources for the things we cite. So for the moment we’re going to rely on unofficial sources, i.e., the Washington Post for the original, redacted version, and the Justicia website for the later, more complete version. You can find the version published by the Post in 1998 at . We’ll call it the WAPO version. Page citations will be to that version unless otherwise noted. We’ll make appropriate changes once we access the official version. You can find the more complete, un-redacted version maintained by Justia at . That one doesn’t have page numbers, so it’s more difficult to cite.

[17] Citing Article II, §3 of the Constitution. The President takes an oath to do that, and so does every federal employee. See Article II, §1, clause 8; Article VI, clause 8.

[18] See WAPO version at p. 9 of 24

[19] See WAPO version at p. 10 of 24

[20] See WAPO version at p. 14 of 24.

[21] The following paragraph falls at the end of the un-redacted version of the majority [per curiam] opinion published by Justicia. There are no page numbers in this version!! The paragraph quoted appears just before commencement of the dissent: “If the President wishes to discuss matters jointly between his private counsel and his official counsel , he must do so cognizant of the differing responsibilities of the two counsel and tailor his communications appropriately; undoubtedly his counsel are alert to this need as well. Although his personal counsel remain fully protected by the absolute attorney-client privilege, a Deputy White House Counsel … may not assert an absolute privilege in the face of a grand jury subpoena, but only the more limited protection of executive privilege. Consequently, although the President in his personal capacity has at least some areas of common interest with the Office of the Presidency, and although there may thus be reason for official and personal counsel to confer, the overarching duties of Lindsay in his role as a government attorney prevent him from withholding information about possible criminal misconduct from the grand jury.”


The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $14,294,000,000,000, outstanding at one time, subject to changes periodically made in that amount as provided by law through the congressional budget process described in Rule XLIX [1] of the Rules of the House of Representatives or as provided by section 3101A or otherwise.

31 U.S.C. § 3101(b)[1]

[OK, this is Larry and I’m back again to discuss yet another way our government might fall apart. You’re familiar, no doubt with what happens when Congress fails to appropriate money to fund one or more government activities. People have to go home. It was decided way back in the Carter Administration[2] that government employees who went to work when there were no appropriations, but weren’t “essential” to protect life or property, quite likely were committing a criminal act. What’s the crime? Why, violating the “Anti-Deficiency Act,[3]” i.e., the statute that prohibits federal employees from obligating the government to spend money when they don’t have the authority to do so. That’s what “appropriations” are: the authority to financially obligate the government.

You see, when federal employees go to work they’re automatically entitled to be paid for their time. So just by showing up they obligate the government to pay them, even when the government has no authority – no appropriations -to do so. Well, couldn’t an employee offer to work for free for a day or two, just to keep things running? No, says our government; federal employees have no authority to waive their right to be paid.[4] So they have to stay home, unless they protect life or property.

So when was that last a problem? No doubt you remember: It was 4 years ago, back when we faced a “fiscal cliff.” The “cliff” was that there were no appropriations for a time to support some government operations, and some government folks had to stay home. You’ll be happy to know that we don’t have the same situation this month. Appropriations are in place, for the most part[5]; but now we have a different problem. The problem is, when the bills come due, we [the United States] may not have the cash to pay them.]

Burgeoning Debt

How could that be? Well, because the U.S. runs a deficit every year; while it collects lots of taxes and has other revenues, it doesn’t collect enough to pay all the bills. The U.S. funds its yearly deficit by borrowing on the Treasury market. Unfortunately Congress has limited the total amount the U.S. can borrow; you can find that in the quote that begins this piece; and, once again, we’re approaching the ceiling.[6] By the way, the current ceiling isn’t $14.3 trillion; it’s higher, due to subsequent adjustments. The Treasury keeps track of these sorts of things.[7]

So what is Congress to do? Raise it again? And if so, will there ever be a point at which we can stop doing that?[8] What happens if eventually there’s just too much debt out there? When will we know that’s the case?

That’s what the argument is about. The issue was kicked over to the “Government Accountability Office” back in 2010 which, of course, duly issued a report. The GAO’s basic opinion was that the debt limit doesn’t restrict Congress’ ability to authorize spending at any level. Instead, it restricts the Treasury’s ability to pay the inevitable bills.[9] That is, it creates a series of crises followed by successive increases in the ceiling. “Meanwhile,” GAO said, its “long-term simulations show that absent policy changes, federal debt will increase continually over the next several decades.”[10]

Debt Default

So here we are, approaching the ceiling again. Perhaps it’s time to start thinking about the unthinkable. What happens if the U.S. simply doesn’t pay all of its bills? Well, that’s not a new idea. The Treasury is adamantly opposed to that kind of thing. It says: “Failing to increase the debt limit would have catastrophic economic consequences. It would cause the government to default on its legal obligations – an unprecedented event in American history. That would precipitate another financial crisis and threaten the jobs and savings of everyday Americans – putting the United States right back in a deep economic hole, just as the country is recovering from the 2008 recession.”[11]

That’s the current position of the Trump Administration, but it’s not very much different from that of its predecessors. Why do all these people reach the same conclusion? Well, at bottom it’s because they’re convinced that, if the U.S. defaults an any debt payments, of any type, that ultimately would reflect on our national credit rating – which currently is very good – causing it to be downgraded, and thereby raise the interest rate we might have to pay for future borrowings.

That wouldn’t be a problem, I suppose, if we ran a budget surplus; but we don’t; we need to borrow lots every year; and rising interest rates will simply add to the amount we borrow. I don’t know if that would lead to “another financial crisis;” it’s said that we’ve never defaulted before, so who really knows? But rising interest rates can’t be a good thing for any debtor who has to go back to his [or her] lenders.

Prioritize Payments?

So are there other options? Well, Congress thought of some. There’s the notion, for example, that perhaps we ought to stick with the current debt limit, and simply prioritize our payments according to what’s important to us. Like the middle-class person strapped for cash, we might skip the electric bill for a month and pay the car loan, or vice versa. In truth a proposal sort of like this passed the House a couple of years ago[12]. [As near as I can tell, it never made it through the Senate.] It basically exempted from the debt ceiling all principle and interest payments due on bonds (a) held by the public, or by (b) the Social Security Trust Funds. All other payments would be curtailed.[13]

The bill is interesting – especially to someone on Social Security – but all such attempts to prioritize debt payments were [and apparently are] opposed by the Treasury. In May of 2011 it said: “Adopting a policy that payments to investors should take precedence over other U.S. legal obligations would merely be default by another name, since the world would recognize it as a failure by the United States to stand behind its commitments.”[14] No doubt the same could be said about an attempt to give preference to payments under Social Security.

Coin More Money

Or perhaps Congress already has resolved the problem a different way. Four years ago we pointed out that, in addition to appropriating funds and incurring debt, Congress has the power to coin money. And, according to The Washington Post, Congress may have given one bureaucrat the power to solve our problem with the debt limit.[15]

It seems that the Treasury Secretary has authority “notwithstanding any other provision of law,” to “mint and issue platinum coins in such quantity and of such variety as the Secretary determines to be appropriate.”[16] So, problem solved: All the Treasury has to do is mint up a few such coins in the $ 1 trillion denomination, deposit them wherever it keeps valuables (perhaps in Fort Knox[17]), and offset that amount from our outstanding debt. Presto! Federal net debt lowered well below the statutory ceiling.

We’ve said this before, by the way, but not seriously. Other countries have tried to print money to get out of a fix, but haven’t had very good results.[18] No doubt we’d have the same experience if we did the same thing.


Sometimes I wonder if, centuries from now, future archeologists, combing through the rubble of the Great American Empire, will stop to wonder what happened, why that Great Thing eventually collapsed. Will they find we had a deadly plague, or a series of them; or a great famine, due to global warming; or a series of violent, destructive wars? Or will it be something much simpler than that. Will they find, perhaps, that we failed because we had an accounting problem, and just couldn’t control our money?

I have no idea. What do you think?




[1] This language appears in Title 31, Money and Finance, Subchapter III, Financial  Management, Chapter 31, Public Debt. The official online version of this part of the U.S. Code is available from the Government Publishing Office at    If you would rather try an unofficial, but reliable version, try the Cornell Law School, at

[2] James Earl Carter was President of these United States from January, 1977 through January, 1981. See the Wikipedia entry at  . That’s also when the Iranians threw out their Shah and went with the theocracy they have today. Some say the current government of Iran doesn’t like us because we supported the Shah, and sold him lots of weapons, and perhaps helped him gain power in the first place.  This blog is not about that.

[3] For a non-technical discussion, see Time, Nicks, The Man Who Invented the Government Shutdown (Oct. 09, 2013), available at

[4] Id. We’re looking for a copy of the old Civiletti opinion. If we find it, we’ll publish it in a later blog.

[5] Actually, that’s what I think, but I haven’t researched the matter, so I’m not offering an opinion as to whether there are appropriations currently in place to cover all government functions, or whether they are adequate for their untended purposes. That’s not what we’re discussing today.

[6] See  GAO 11-203, Debt Limit, Delays Create Debt Management Challenges and Increase Uncertainty in the Treasury Market (February 11, 2011), available at . This will be cited as “GAO -11-203 at __.”

[7] See Treasury, Debt Limit, at ; Treasury, Monthly Statement of The Public Debt of the United States (March 31, 2017), at . Today the authorized debt limit, for publicly held securities and intergovernmental securities, is close to $20 trillion. The limit on publicly held debt remains at around $14.4 trillion.

[8] See GAO -11-203 at What GAO Found:The debt limit does not control or limit the ability of the federal government to run deficits or incur obligations. Rather, it is a limit on the ability to pay obligations already incurred.”

[9] See GAO-11-203 at p. 1: “The debt limit does not restrict Congress’ ability to enact spending and revenue legislation that affect the level of debt or otherwise constrain fiscal policy; it restricts the Department of the Treasury’s … authority to borrow to finance the decisions enacted by the Congress and the President.”

[10] Id.

[11] See U.S. Treasury, Debt Limit, Myth v. Fact, available at

[12] See House Report No. 113-48, Full Faith and Credit Act, available at

[13] Id. at p. 4: “The provision provides that in the event the debt of the United States Government reaches the statutory limit, the Treasury Secretary shall issue debt to the extent necessary to pay principal and interest on certain obligations as defined. Obligations for which debt shall be issued are limited to those obligations held by the public or the Social Security Trust Funds. Obligations issued pursuant to this authority are exempt from the statutory debt limit. Section 2 also requires a weekly report from the Treasury Secretary if authority under subsection 2(a) is exercised that accounts for obligations due and amounts issued.”

[14] See n. 11.

[15]See The Washington Post, Wonkblog, Matthews, Michael Castle: Unsuspecting godfather of the $1 trillion coin solution (2013/01/04), at

[16] Actually, I wasn’t able to verify this precise quote, but I found something similar at 31 U.S.C. §5112(k): “The Secretary may mint and issue platinum bullion coins and proof platinum coins in accordance with such specifications, designs, varieties, quantities, denominations, and inscriptions as the Secretary, in the Secretary’s discretion, may prescribe from time to time.” You can find 31 U.S.C. §5112 at

[17] For more about the Treasury’s bullion depository at Fort Knox, go to Wikipedia and search “United States Bullion Depository,” or simply click here:

[18] See CNN World, Zimbabwe to print first $100 trillion note (January 16, 2009), at   See also the blog of 11/12/2010, The Wages of Hyperinflation, at . That one deals with hyperinflation in Weimar Germany.


In what you see as yet … there may perhaps be no great mischief; but depend upon it, in the quarter from whence these proposed [noxious] arrangements come, there are many behind that are of a very different complexion; of these [noxious] ones are suffered to be carried, others of a noxious character will succeed without end, and will be carried likewise.

Jeremy Bentham[1]

[This is Phil, and I’m here to talk about sociology and the law, or more particularly about some recent court decisions involving President Trump, his executive orders[2] on travel to the U.S., and whether they should be blocked. I’m not a lawyer, and I’m not going to get involved in the legalities, and in any case those issues will be decided through appeals and perhaps ultimately by our Supreme Court. I’ll leave it at that.

But I am very interested in what the politicians have to say, and the pundits, because their reactions are a very different thing. Too often they’re examples of political fallacies in action. And what are political fallacies? Well, they’re what Jeremy Bentham talked about nearly 200 years ago. They are, for the most part, either outright mistakes in logic, or irrelevancies fraught with emotion, or both; but in any case are trotted out to distract us, the voters, from the real issues in play in our lives. [3] They are deceptions, not genuine arguments.

Bentham cataloged political fallacies back in the early 19th century, and he did a good job of it; but the American political animal is dangerous and inventive; and with continuous improvement over generations, the modern one has vastly improved the rhetorical weapons of our forefathers. We can thank the social media and their stogy “mainstream” counterparts for much of that. On the brighter side, some of our academics are paying close attention to this kind of thing, and have launched Bentham-like efforts to identify and catalog the new fallacies in play. One of these initiatives, combining the old with the new, currently lists 130 such techniques. [4] The list is good reading for anyone who’s interested in politics. You don’t have to accept all of it; just think about it.

If you know any sociologists, no doubt you’re aware that many things are more important than the law. There’s also what the people think about the law, how they interpret what’s going on, or in the jargon of the trade, how they socially construct[5] the reality of current events. For some folks the law may be simply irrelevant to their lives, at least until they run afoul of it. They see things differently than, perhaps, a lawyer might. Others may believe that the law permits what they want it to permit, and forbids what they think should be forbidden.[6] Neither group seems to think that it’s important to look at the law, as written, to see what it actually says.

What about politicians? Do they worry about what the law says, or about what people think it says? And how do they influence us?  By discussing the law and the facts? Or by trotting out an array of political fallacies to manipulate public opinion? Or do flexible politicians, interested in the next election, try for a combination of both?]

Again, this isn’t a legal brief. It’s more a philosophical analysis of what politicians and pundits think about the travel issue. I am the blog philosopher, after all.

  • President Trump now says he wants to interrupt the traffic flow from only six countries; that those countries have significant problems with terrorist activities; that while they are Muslim majority countries, the restrictions will apply to all people who come from those areas, not simply to Muslims; and that a more tailored approach will be taken once his administration thoroughly evaluates the actual risk posed by the current situation. Revised guidance will follow.
  • His opponents argue that his restrictions are based on religion – that his targets are Muslims; that a religious test to restrict travel is impermissible under the 1st Amendment; that while the President says that he doesn’t intend a “Muslim ban” they know it’s not true, because he advocated such a thing during the last campaign and surrounds himself with people who think the same way. Those facts “taint” even his current Executive Order. There’s no way a person biased like our President can be right about this. If we let him have his way on this temporary restriction, who knows where we will wind up? Indeed, he’s such a bigot the courts may not let him to regulate Muslim travel in any way, even though they might permit a different President to do so. He can’t be right about anything involving Muslims. Need proof? There are riots every time he gives a speech. Jewish community centers are being attacked. If this goes on we’re all doomed! And he has really strange hair.

Well, perhaps I overreacted a bit near the end. Anyway, let’s pick this stuff apart to see what’s involved.

The First Amendment

Freedom of religion isn’t a political fallacy. It’s a right guaranteed to us by our Constitution. Specifically the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”[7] That seems pretty clear to me. Our lawmakers should remain neutral in religious matters. However, it’s also clear that Government neutrality doesn’t exempt from Government control everything that religious people might do. If cult members decide to murder nonconformists in their church basement, or to torture kittens for fun, I expect that would attract scrutiny from some government entity. I’m no lawyer but I’m also reasonably sure that human sacrifice isn’t permitted here, and we don’t murder people for blasphemy. Non-believers also have rights. As for the rest of it, I’m willing to let the courts decide what other limits on religious people, if any, are fair.

Trump Keeps Bad Company, Has Bad Motives, Has Made Prior Inconsistent Statements, Is a Bad Person, and a BIGOT!

So I introduced this piece with a quote from Jeremy Bentham which, I think, many of you found unintelligible. No worries, I understand; it takes a while to decode his prose even on a good day. So I’ll give you a translation. Don’t knock down a piece of legislation, or an Executive Order, or anything of that type by attacking the people the author knows. You have to focus on the thing itself; on the proposal, the rule, etc., and what it does; and generally such things are published, for anyone to see. Read it! If it’s a good proposal it would be stupid to knock it down simply because you don’t like the author or his friends. If it’s a bad one, why in the world would you want it to go forward, even if you like the author?

This attack is also called “guilt by association,[8]” and really is just one of the many ad hominem arguments currently in play. An ad hominem is, of course, an attack on the speaker, rather than on what he [or she] has said.  The point is to divert our attention from the arguments, probably because they’re persuasive, to some idiosyncrasy of the person making them. Politicians [or pundits] who do this generally are not very smart, or think their audience is stupid, or both. [9] At least that’s what Bentham thought.

Bentham in his day identified 6 attacks that he found particularly irksome.[10] These were the arguments that if a speaker has a bad character, bad motives, has said different things in the past, has suspicious connections, or is of the wrong religion, his [or her] proposals must be wrong.[11] Such attacks basically raise objections that are irrelevant to what’s being proposed. They’re like saying, for example:

  • “Don’t believe the speaker, because he once said something different. He changed his mind and shouldn’t do that!” Why not? I change mine, when there’s a reason to do so. What do you do? Never change? Never adjust to reality?
  • “Don’t believe the Pope on global warming, because he’s a Catholic; ignore the science he quotes, especially if it supports his position.”[12] Why would you do that, when the underlying question involves science? I’d check the science, not the Pope’s belief system

Then, of course, there’s the extreme form of the ad hominem, which is shouted name-calling. Don’t discuss the merits of expanding health care, just call anyone who wants to do that a Communist, and move on! Sounds like AM Talk Radio to me. Or you can use name-calling as a defense, rather than an attack. Simply say that, because of who you are, a woman, black, Jewish or whatever, “any and all arguments, disagreements or objections against [your] standpoint or actions are automatically racist, sexist, anti-Semitic, bigoted, discriminatory or hateful.”[13] Is that what Trump’s critics are saying about the Trump initiatives? That any action that restricts some travel by some Muslims is automatically hateful? Why is that? Because it makes them feel bad?

The Slippery Slope

What about the notion that, if Trump is allowed to stop travel here for even a short time, that will open the door to even more restrictions later. It’s best to not even get on that slippery slope. The implication here is that once we start down that path, we won’t be able to stop. Bentham says that’s ridiculous. If it’s a good idea to do an initial review, then let’s do it. Don’t refuse to look at problems, if they exist, simply because of what someone further on may propose as a solution. Deal with that issue when and if it arises.[14]

It’s not reasonable to say: “If we close Gitmo one thing will lead to another and before you know it armed terrorists will be strolling through our church doors with suicide belts proud as you please during the Sunday morning service right here in Garfield, Kansas!”[15] None of this is proved; at best it’s no more than a scenario, a speculation, and an unlikely one to boot! Right now the big problem in the U.S is the drug trade, and the leaders of that are not held in our facilities at Guantanamo Bay. If Guantanamo inmates ever posed a problem in the U.S., no doubt we would deal with them in due course.

Trump Causes Riots and Bomb Threats

This is about an old Latin maxim, post hoc, ergo propter hoc. [“After this, therefore because of it.”[16]] Trump gives speeches, and then there are riots, and threats against Jewish community centers. Therefore he caused that trouble, so he shouldn’t speak anymore! The plain truth is that the riddle of cause and effect is not solved so easily. When the rooster crows and the sun rises the rooster did not make it happen. The fact that AIDS first emerged when Disco music was popular, does not prove that Disco caused AIDS.[17] Correlation does not equal causation. If you think otherwise, you may be caught in a “classic paranoiac fallacy of attributing imaginary causality to random coincidences.”[18]

And, by the way, there’s news out there that some of the riots were staged, not spontaneous[19], and recently a crazed hacker was arrested in Israel as the person responsible for a majority of the bomb threats against Jewish community centers.[20]  How could that be? Where was Trump?

The Big Non Sequitur

Oppose Trump because his hair is awful! What’s wrong with that argument? What’s right with it? What’s the connection between the premise [Trump’s bad hair] and the conclusion [don’t vote for him!]. It makes absolutely no sense, but you heard it a lot during last year’s primaries. If you know someone who was persuaded by it, tell her she was trapped by the “deluded fallacy of offering reasons or conclusions that have no logical connection to the argument at hand.”[21] That should make your day.


This turned out to be a bit longer than originally intended. That happens when we get involved with political fallacies. The basic principle is simple; Jeremy Bentham had it right; “Whatever be the measure in hand, [political fallacies] are, with relation to it, irrelevant.”[22] So if you are looking at a project to build a municipal sewer system, and people tell you to vote for it because God wants it; or to vote against it because the chief proponent of it has a mistress, or there’s no scientific evidence that sewers are necessary, or it’s unnecessary because the world will end soon; then you will know, for sure, that none of them are serious. Go home and make up your own mind.

And, by the way, avoid the news coverage of Trump and his Executive Order on travel by foreigners coming here. That coverage is mostly crap!


[1] See Bentham & Bingham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (Hunt, 1824, Nabu Reprint, circa 2010) at Ch. III, Fallacy of Distrust, or, What’s at the bottom?,  p. 154.  Hereafter the book will be cited as Political Fallacies at __. Nabu reprints are basically photocopies of the original, so page citations necessarily will be to the original.

[2] Which Executive Order? He’s issued quit a few. See Fox News, List of Trump’s Executive Orders  (March 06, 2017), available at  We’re talking about  the one of March 6, 2017,  Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States, available from the Whitehouse Press Office at  Some people say this one is about immigration; I say it’s short term, and about travel.

[3] See Political Fallacies at p. 359.

[4] See, e.g., University of Texas at El Paso, Williamson et al., Univ. 1301, Master List of Logical Fallacies (updated 3/17/2017), available at  This list is online and in numbered paragraphs. It’s also clearly a work in progress. We’ll cite it as Master List at ¶ __.

[5] See Berger & Luckman, The Social Construction of Reality, A Treatise on the Sociology of Knowledge (1966, Anchor Books 1967). Many think of this as a classic in its field.

[6] This is a paraphrase of a comment attributed to Hugo Black, a 20th Century Supreme Court Justice. He said, roughly, that most people think the Constitution permits what they want to permit and forbids what they want to forbid. The quote is hard to authenticate, but we succeeded a few years ago. Unfortunately I can’t find the research on that. We’ve been writing these things for 7 years, don’t you know? I’ll get back to you, dear reader, when the research turns up.

[7] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[8] See Master List at ¶ 52.

[9] See Political Fallacies at p. 359, 360: “Upon the whole, the following are … in common to all the several arguments here distinguished by the name of fallacies: (1) Whatsoever be the measure at hand, they are, with relation to it, irrelevant … (7) on the part of those who … give utterance to them, they are indicative either of improbity or intellectual weakness, or of a contempt for the understanding of those on whose minds they are destined to operate.”

[10] See Political Fallacies at Part the Second, Fallacies of Danger, Chapter I, p. 127 – 142.

[11] Id. at 128 – 129. “The argument in its various shapes amounts to this: – In bringing forward or supporting the measure in question, the person in question entertains a bad design; therefore the measure is bad: – he is a person of bad character; therefore the measure is bad: – he is actuated by a bad motive; therefore the measure is bad: – he has fallen into inconsistencies … ; therefore the measure is bad; – he is on a footing of intimacy with this or that person, who is a man of dangerous principles and designs … therefore the measure is bad: – he bears a name [i.e., a religion] that of a former period was borne by a set of men now no more, by whom bad principles were entertained, or bad things done; therefore the measure is bad.”

[12] See also Master List at ¶ 17.

[13] See also Master List at ¶ 74.

[14] See Political Fallacies at Part the Second, Fallacies of Danger, Chapter III, p. 157: “If on this ground it be right that the measure be rejected, so ought every other measure that ever has been or can be proposed: for of no measure can anyone be sure, but that it may be followed by some other measure or measures, of which, when they make their appearance, it may be said that they are bad.”

[15] See Master List at ¶ 109. The other hypothetical given also is good: “If you two go and drink coffee together one thing will lead to another and next thing you know you’ll be pregnant and end up spending your life on welfare living in the Projects.”

[16] This is my translation. If you don’t like it, pick another. They all say about the same thing.

[17] See Master List at ¶ 94.

[18] Id.

[19] There were lots of riots when Trump was elected. See, e.g.,  USA Today, Eversley, et al., Thousands across the USA protest Trump victory (Nov. 12, 2016), available at . Lots of people think these and other riots were staged, not spontaneous.

[20] See Fox News, Friling, Israeli-American arrested in US Jewish community center bomb threats (March 23, 2017), available at

[21] See Master List at ¶ 78.

[22] See Political Fallacies at p. 359.


False Alternatives: Formulating a problem as a choice between two [or more] alternatives, when there exist other alternatives that aren’t considered.

Sacramento State[1]

[OK, I’m in a debunking kind of mood but I don’t want to work hard, so I’ve decided to take exception to things from the Washington Post; more specifically, to the wordy rejoinders it has put out to four recent tweets from our President. You may have heard about the tweets: the ones he sent a couple of weeks ago when he accused the previous White House of wiretapping Trump Tower during the last election. He called that “Nixonian,” and said “nothing” was found.[2]

The Obama people countered, saying that (i) Trump had offered no evidence that such a thing had happened[3], and (ii) in any case, President Obama hadn’t ordered anything. The issue is out there because some believe that the Trump people are too close to the Russians, that they conspired with the Russians in the last election to undercut Hillary Clinton, and that this is a crime. There are also rumors about a FISA warrant involving the Trump campaign that may or may not have been issued.

Facts are scarce, and there aren’t enough of them to make Trump or Obama look particularly guilty. Yet both argue they’re in the right, and neither will give in. Will there be an investigation, by Congress or the Department of Justice, or by both? If so, how will we, the bemused public, decide who or what’s right? Are there rules to cover wiretaps and if so, how do we know if they were [or are] followed? Will there be riots in the streets?

Actually I don’t know much about riots, except that often they seem to depend on the mood of politicians. Sometimes, perhaps, they occur just to divert our attention from, say, embarrassing facts.  But I’m a peace-maker at heart, and I’ve concluded that both sides to this particular dispute could be correct. Trump Tower may well have crawled with wiretaps last year, but most likely President Obama didn’t order them.

How do I conclude that? Especially when I admit that facts are scarce? Well, because I’ve learned something about the rules our government follows, or should follow when it wiretaps us. They’re set in our Constitution and refined by laws which, believe it or not, are fairly clear.]

By the way I’m Larry, the legal consultant to Elemental Zoo Two. Please, please dear reader; don’t mistake anything I tell you for legal advice about your individual situations. My opinions are not about you, and I’m certainly no expert on bugs and wiretaps. If you need legal advice about that kind of thing, hire a lawyer who specializes in it.

The 4th Amendment

Let’s start with the basics; that is, with the 4th Amendment to our Constitution.[4] That’s the one that [theoretically] bars our government from unreasonably searching or seizing its citizens or their private property. It says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[5]

Note the key provisions here. The government can seize people, houses, papers and effects, but government officials must have “probable cause” to do it, swear that their allegations are true, describe in detail the persons and things to be seized, and apply for a warrant. And who issues warrants? Well, judges in their courts. Not Presidents. So President Obama was right about one thing for sure. He didn’t order a search [or seizure] because legally that’s not his job. Only a judge issues warrants.

Current Practice

So who asks the court for a warrant? The President? His staff? No; that authority is delegated far below the White House. That being the case, why would a President get involved in such matters? Most, no doubt, have left that kind of thing to the specialists down the chain of command.

The basic rules are spelled out in Chapter 119 of Title 18 to the United States Code. [6] It’s fairly long, but I’ll outline the main points:

  • Who asks for a warrant? That would be any “[i]nvestigative or law enforcement officer,” i.e. “any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for [specified offenses], and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”[7] Federal investigators, of course, have to work through the DOJ. State investigators follow their own channels. And who can authorize a wiretap [also known as an “intercept”]? That would be any “judge of competent jurisdiction.” And who are they? Federal judges in the District Courts or the Courts of Appeal; and state judges empowered to do so under state law.[8]
  • All right, no doubt there are lots of “investigative or law enforcement officers” who might want to intercept an evildoer’s messaging, but the law says they can do it only for specific crimes. And what are those crimes? Well, the list appears at 18 U.S.C. § 2516, and it’s very, very long. If I were to summarize, I’d say it includes any felony you or I might think of as serious, plus some we’ve never thought of at all. Read it and see for yourself.
  • OK, suppose I’m a state gumshoe, and I’ve got a warrant to wiretap Trump Tower because I suspect somebody there is selling drugs. [After all, it is a big building, with lots of people in it, and drugs are a problem in cities as well as in the rural areas.] So I’m listening to the tapes and I hear some Russians talking to some American about Syria or Iran. The information isn’t about drugs, but it might be important to some investigation the FBI is doing. Do I call and tell them about it?
  • The answer is: “Yes!” Chapter 119 says “[a]ny investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.”[9] In English that means if a NYC gumshoe with a proper warrant intercepts something juicy that’s off topic for the NY investigation but interesting to the FBI, he [or she] can send it over.
  • So is this proof positive that Trump Tower was probed last year for criminal matters? No, we don’t know that. But if intercepts were authorized for people in the building, and the intercepts turned up something about criminal activity in the Trump campaign, quite likely the news would have been be shared with others in law enforcement.
  • Would it also be shared with the White House? I don’t know.


So what’s my point? Basically it’s that the news coverage of the Trump/ Obama dispute has been way too focused. It has honed in on whether President Obama authorized wiretaps – highly unlikely – and disregarded numerous other possibilities. The real questions are:

  • How many separate investigations of Trump Tower were ongoing during the period in dispute?
  • What did they find that relates to the Trump campaign and/ or Russia?
  • Was the information shared throughout law enforcement?
  • What did White House staff know, and who on the staff knew it?

It’s time for reporters to take off their blinders, look beyond the false alternatives, and do their jobs.






[1] I found this definition in an article entitled Six Common Fallacies at the Sacramento State website. You can find it at .  The whole thing is well worth a read.

[2] I’m paraphrasing the Post’s paraphrase. See The Washington Post, Rucker, et al., Trump, Citing No Evidence, Accuses Obama of ‘Nixon/Watergate’ plot to wiretap Trump Tower (March 4, 2017), available at

[3] See, e.g., The Washington Post, Dionne, Welcome to Fantasyland (Thursday, March 9, 2017) at p. A17.

[4] We prefer to reference the National Archives as our source for The Constitution, the Bill of Rights, etc. If you want to research the Bill of Rights, start with the Archives at

[5] See n. 4.

[6] Chapter 119 is called Wire and Electronic Communications Interception, and Interception of Oral Communications. You can find it at the LII website hosted by Cornell University’s Law School, at . The official version of Chapter 119, the one maintained by the Government Publishing Office [the “GPO”] appears at . Chapter 119 includes 18 U.S.C. §§ 2510 – 2522. Citations to individual code sections will be in the form of 18 U.S.C. § 25__. If you’d like to see Wikipedia’s take on wiretaps, take a  look at

[7] See 18 U.S.C. § 2510 (7).

[8] See 18 U.S.C. § 2510 (9).

[9] See 18 U.S.C. § 2517 (1).


For when all is said and done, we are in the end absolutely dependent on the universe; and into sacrifices and surrenders of some sort, deliberately looked at and accepted, we are drawn and pressed as into our only permanent positions of repose … In the religious life… surrender and sacrifice are positively espoused: even unnecessary giving -up are added in order that the happiness may increase. Religion thus makes easy and felicitous what in any case is necessary; and if it be the only agency that can accomplish this result, its vital importance as a human faculty stands vindicated beyond dispute. It becomes an essential organ of our life, performing a function which no other portion of our nature can so successfully fulfill. From the merely biological point of view, so to call it, this is a conclusion to which … we shall inevitably be led, and led moreover by following the purely empirical method of demonstration …. Of the farther office of religion as a metaphysical revelation I will say nothing now.

William James[1]

[This is Phil, blog philosopher, and I’m here to discuss the spells, curses, etc., worked against President Trump last week and what, if anything, we should do about them. If you want to see spell-casting in action, there are lots of videos available on You Tube. For my current favorite, check out the one at: [2]  Who threw this bag of whatever into the internet? Well, the video is supposed to be from “white witches,” i.e. from Wiccans who reject any connection with dark or evil forces. Other videos come from out-and-out Satanists, totally committed to the left-hand path.[3] The dramaturgy varies but their mutual objectives are pretty much the same. The Wiccans want to “bind” Trump and his people, so they basically can’t do anything, including feed themselves. The Satanists will settle for destroying him. This is not to say that Wiccans and Satanists are unified on all Trump issues. I don’t know many of them, or their issues, so I really can’t say].

But there was a time, before this country was founded, when witchcraft was highly illegal, and punishable by death. Exodus 22:18[4] said, “Thou shalt not suffer a witch to live,” and once upon a time folks took that as gospel; well, maybe not gospel, since it’s Old Testament, but they took it seriously. So seriously that they had teams hunting down witches in Europe, and a procedures manual to boot. That book, in case you haven’t read our earlier blogs, was called The Hammer of Witches.[5]

Witches, or sorcerers were formidable, or so it was thought. They could entice new converts; require a ‘sacrilegious avowal’ of loyalty; move people through the air; subordinate themselves to incubus demons [i.e., have sex with them]; prevent men from having sex with women; impede procreation in humans and animals; take away the male member; change humans into the shape of wild beasts; cause demons to inhabit human bodies; inflict “every kind” of illness on people; kill babies, or offer them to demons with a curse; inflict harm on domestic animals; and stir up hailstorms, rain and lightning.” [6] No wonder ordinary people were afraid!

And apparently the witch hunters were really effective, because they got lots of convictions. By one account many thousands of witches were burned in Europe, and around four thousand were hanged in England.[7] This is extraordinary, because even today we can’t do some of the things the accused back then routinely confessed to. So why were the ancient gumshoes so successful in getting witches to confess to these things? Did the free use of torture have something to do with it? The Hammer authorized and encouraged that. Would tortured people admit to just about anything just to make the torture stop? Or were those ancient witches telling the truth about secret knowledge we no longer possess?

It’s perfectly clear that the early settlers on this side of the Atlantic also took their Bible seriously. The Salem witch trials[8] of 1692 – 1693 pretty much proved that. Twenty people were executed before the trials were over, and five others died in prison.  The intelligentsia in and around Boston were fully on board with the result. Cotton Mather, for one, celebrated it: “If in the midst of the many Dissatisfaction among us, the publication of these Trials may promote such a pious Thankfulness unto God, for Justice being so far executed among us, I shall Rejoyce that God is Glorified…”[9]

But attitudes gradually changed over here, until by the mid-18th Century Benjamin Franklin openly mocked the idea of witch trials[10], and Thomas Jefferson wanted to change the laws of Virginia to prosecute witches for fraud. “All attempts to delude the people,” he proposed, “or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment or sorcery, or by pretended prophecies, [should] be punished by ducking and whipping, at the discretion of a jury, not exceeding fifteen stripes.”[11]

Of course Jefferson’s proposal was made before our nation had a Constitution, or a Bill of Rights. Today people might object to punishing witches [or Satanists] simply because of their beliefs. After all, the First Amendment[12] says our Government must be religion-neutral. It says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

 And that brings us around to William James, the psychologist from the turn of the last century who opened this piece. Professor James was of the opinion that an experience is “religious” only insofar as it draws us into “surrender and sacrifice,” and acceptance of the world as it is, rather than as we want it to be. Of course that was his opinion [or my interpretation of it]; but if he and I are correct, then Wicca and Satanism most definitely are not religions! You can tell that simply from the videos. Those people aren’t resigning themselves to anything. They’re reaching out and trying to manipulate events from a distance, to punish their enemies! They’re trying to work magic, not to pray and meditate on God’s plan.

Of course none of this is important if you agree with Thomas Jefferson that witchcraft, etc. is a fraud. But what if instead the witch hunters of yesterday were right? What if the witches really are powerful? What should the Government do? Think of it this way. Suppose there was a church in your neighborhood whose members were known radicals, and you knew they were storing small arms and other weapons in the church basement. Wouldn’t you want the Government at least to keep an eye on the situation? If witches are accumulating real powers, why exempt them from the same kind of scrutiny.

And what do I think? I’m not losing any sleep over the problem.  Jefferson was right. This witchcraft business is all claptrap. But if you think otherwise[13], you might want to take precautions.





[1] See James, The Varieties of Religious Experience, A Study in Human Nature (Longmans, Greene & C.) (11the Impression, 1905) at p. 51-52, available from Google [for free] at

[2] There’s a related one flacking a new song at

[3] See Knights Templar International, Satanists and witches launch ‘spirit war’ against Trump! So it WASN’T ‘fake news’ about Hillary and the Forces of Darkness! (March 1, 2017)   available at Or perhaps Satanists are just totally committed to science. Sometimes I just don’t understand these things. See LA Weekly, Swan, Is a Trump Presidency the Satanic Temple’s Chance to Go Mainstream? (February 27, 2017), available at .

[4] Want to look it up? There are lots of online sources, among them King James Version Online, Exodus 22.18, available at .

[5] The original book was written in Latin. Our Latin’s not all that good here at Elemental Zoo Two, so we use a modern translation.  See Christopher S. Mackay, The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) [hereafter cited as Hammer at p. __].

[6] See generally, Hammer, Part Two at p. 93A –147A (p. 275 -386 of the text.)

[7] See Sargant, Battle for the Mind (Doubleday, 1957) at p. 198 – 199.

[8] Want to know more about them? It’s not a pretty story. For openers check out the Wikipedia write-up on Salem witch trials at . It’s a well covered subject, so there’s plenty to follow-up, if you want to.

[9] The quote appears in the Wikipedia entry on Cotton Mather, at

[10] See Franklin, Silence Dogood, The Busy-Body and Early Writings (LOA 1987, 2002) at A Witch Trial at Mount Holly, p. 155 – 157.

[11] See Jefferson, Writings (LOA, 1984), at A Bill for Proportioning Crimes and Punishments, p. 362

[12] We use the National Archives as our source for the wording of the Constitution, its Amendments, etc. It’s accurate and free. You can find the 1st Amendment there, at  The full quote is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[13] I’m not one who thinks that the people who disagree with Thomas Jefferson on this are necessarily irrational. For some respectable opinion on the other side, take a look at: the Wikipedia piece on Gabriele Amorth, the [now deceased] Vatican Exorcist, at ; and the 1908 Catholic Encyclopedia entry on Demonology, available at


By the time the scherm[1] was finished the moon peeped up, and our dinners of giraffe steaks and roasted marrow bones were ready. How we enjoyed those marrow bones, though it was rather a job to crack them! I know of no greater luxury than giraffe marrow, unless it is elephant heart, and we had that on the morrow. We ate our simple meal by the light of the moon …

H. Rider Haggard[2]

That’s disgusting!

G. Sallust[3]

 [Sometimes I just don’t understand this place. Here am I, the blog philosopher; as such I’m supposed to be the conscience of this outfit, empathic and sensitive to everyone’s needs. So when I pick a quote that’s offensive, or possibly even revolting, you can be sure I didn’t do it just for the shock value. There’s a higher purpose, usually to educate, and that was my reason for choosing Mr. Haggard as our guest moralist. People back in the 19th Century didn’t necessarily think about things the way many of us do today. Take hunting, for example. Our ancestors knew it was a bloody business, and often they made a virtue out of that. Rider Haggard’s description of eating giraffe marrow and elephant heart in the African bush is almost poetic.

Today, of course, many think meat comes from the super market, wrapped in plastic, rather than from animals, and are offended when someone points out the obvious. Forget the plastic; we still get our meat from things that move and make noise. Perhaps someday test tubes will substitute,[4] but not yet. The people who work in our slaughter houses and meat packing plants already know this. The children of our middle class and other hyper-civilized folks should learn it too.]

Death & Dying

I got to thinking about this the other day when I stumbled across a bunch of odd news reports. Or perhaps they’re not odd, but common, and I just hadn’t noticed their kind before. Anyway, the stories were about animals and what happens to them. As you may know – we’ve talked about it before – the folks in Venezuela are suffering rather badly right now because their economy is on the rocks. I won’t get into why that’s the case – lots of people have opinions and most of them are better grounded than mine – but the signs are that the people are hungry, don’t have enough money for food, and forage to supplement their diets. Local wildlife, such as pink flamingos and giant anteaters, find their way on to local tables, along with dogs, cats and donkeys.[5] That was the same day I learned monkeys were falling out of the trees near Minas Gerais, Brazil, due to an epidemic of yellow fever. The disease also affects local humans.[6] And finally, there was the woman caught on an aircraft recently with 22 pounds of raw animal brains.[7] She was bringing them in from El Salvador.

Granted these are only anecdotes from one day, but they have three things in common: (i) animals died in greater numbers than normal, but (ii) not in the normal way, i.e., not on farms or in meat packing plants; and (iii) humans were responsible, either as hunters or disease carriers. The sample was too small to really tell anything about trends, so I looked further.

And I found a lot.  There was a mass fish die-off in California in 2011.[8] Fish had died and birds were falling in Arkansas.[9] Pesticides may be killing our honey bee population, or it may be something else.[10] Nevertheless, the bees are dying. A White Nose syndrome is striking bats, leaving a fungus on their noses, wings and bodies, and eventually leading to starvation. The syndrome kills millions.[11] One year a virus killed over 6 million baby pigs, and bacon prices rose.[12]  And so on, and so on, and so on.

A Recent Study

It turns out that it’s not unusual for animals to die in quantity, but it’s happening more often.[13] How do we know this? Well, National Geographic reports it,[14] but, more importantly, there’s a study put out in the Proceedings of the National Academy of Sciences that says the same thing,[15] but with greater rigor.

  • The report deals only with “Mass Mortality Events” (MMEs). MMEs are “rapidly occurring, catastrophic events that punctuate background mortality levels.”[16] They stand out because of the sheer size and intensity of the dying. “Individual MMEs are staggering in their observed magnitude: removing more than 90% of a population, resulting in the death of more than a billion individuals, or producing more than 700 million tons of dead biomass.”[17]
  • The authors believe their report is the “first … quantitative analysis of MMEs across the animal kingdom and, as such … [explores] novel trends, patterns and features associated with MME’s.”[18]
  • Reports of MME’s increased during the period studied. The question is whether actual MME events increased, or the reporting of them simply improved. The authors conclude that both are the case. Reporting was spotty in the 19th Century, but has been much more consistent since the 1940s. Nevertheless, “more than half the variation … in changes in the occurrence of MME’s through time was not explained by increases in publication output alone.”[19] So MME’s – inherently catastrophic events – increased over time.
  • The report focuses on MME’s in the animal kingdom. If there’s a horserace – my bad metaphor – one might say that currently fishes are the “largest contributor of reported MME’s;[20]” amphibian and reptile MME’s increased sharply beginning in the 1970s, but recently declined; and the same can be said for birds and mammals.[21]
  • These events also vary in size. “[M]agnitude increases for birds, marine invertebrates and fishes; remains invariant for mammals; and decreases for amphibians and reptiles.”

What to Do

Frankly, I don’t know what to do. It can’t be good that so many things around us are dying before their time, and while the picture is mixed, the overall casualty rate seems to be increasing. My personal preference is to learn more about what’s going on and put a stop to it.

My guess is that nobody powerful in today’s world will want to do that. What’s happening is simply creative destruction, the economists would say; it’s natural, so let it continue. It would be sinful to interfere. And, by the way, we’ll all be better off when that superfluous life disappears. Only then does it stop competing with the rest of us for resources.

Just kidding, Mr. Panda.



[1] “Scherm” is an old word, not much used today. It means “A screen or barrier constructed of brushwood or the like, to serve as a protection for troops, as an ambuscade from which to shoot game, or to prevent cattle from straying.” If you have an old word, we have the old book to define it.  See The Compact Edition of the Oxford English Dictionary, Complete Text Reproduced Micrographically (Oxford 1971), at p. 2664, scherm.

[2] See Haggard, King Solomon’s Mines (1885) (Octopus edition, 1979) at p. 39.

[3] G. Sallust is our disreputable founder, who comments and criticizes even when he’s not here.

[4] See Huffington Post, Gebreyes, How Lab-Grown Meat May Change Our World (11/24/2015), available at

[5] See Fox News, O’Reilly, Venezuelans killing flamingos and anteaters to stave off hunger amid mounting food crisis (February 10, 2017), available at

[6] See The Washington Post, Reuters, Yellow Fever kills 600 monkeys in Brazil’s Atlantic rainforest (February 10. 2017), available at

[7] See Dallas Morning News, Dallas News, Woman smuggling animal brains in luggage detained at DFW airport (Feb. 10, 2017), available at

[8] See CBS Live, CBS/AP, Mass fish die-off in Southern California (March 15, 2011), available at

[9] See CBS News, CBS/AP, First Falling Birds, Now Dead Fish in Arkansas (January 3, 2011), available at

[10] See CBS News, CBS/AP, What’s killing the honey bees? Mystery may be solved (May 14, 2014), available at

[11] See CBS News, CBS/AP, Dying bats called No. 1 mammal crisis in U.S. (July 12, 2011) available at

[12] See CBS News, CBS/AP, U.S. bacon prices rise after virus kills more than 6 million piglets (April 8, 2014), available at

[13] See CBS News, Schupak, Mass animal deaths on the rise worldwide ( January 16, 2015), available at

[14] See National Geographic, Lee, Mass Animal Die-Offs Are on the Rise, Killing Billions and Raising Questions (January 14, 2015), available at

[15] See PNAS, Fey, Siepielski et al., Recent shifts in the occurrence, cause, and magnitude of animal mass mortality events (January 27, 2015), available at

[16] Id. at p. 1083.

[17] Id.

[18] Id. at Significance

[19] Id. at p. 1084, Results and Discussion

[20] Id. At 56% of all reports.

[21] I’m grossly oversimplifying this. Take a look at the bar charts at p. 1084 to get a more accurate picture


The surface of the Earth is where we live. Yet our planet is a restless home, subject to earthquakes, volcanic eruptions, destructive floods, landslides, and other natural hazards. The Earth’s surface is always changing, in response to processes deep in the planet’s interior as well as to a complex suite of interactions among the solid Earth, atmosphere, oceans, hydrosphere, and biosphere. Understanding these changes poses a deep scientific challenge, but meeting that challenge can reap enormous practical benefit.


Here we go with the science again. You had better have a good excuse for this!


[You may have noticed, but probably didn’t, that we took some time off after the last blog because, frankly, we were ahead of schedule and had run out of ideas. Funny how that happens when you write a lot! Not that there weren’t plenty of things to write about. Donald Trump proposed to temporarily restrict immigration from some problem areas in the Middle East, and that, of course, was unthinkable. People overseas might be inconvenienced; our colleges, the ones that take in foreign students, tuition and fees, might suffer; and major companies, the ones that rely on foreign skilled [and inexpensive] labor might have to hire from the U.S. Oh the pain! Oh the horror! Don’t people understand? We haven’t had any foreign sponsored terror incidents this week, so that means we never will! And if we do, so what? How much are a few lives here really worth, compared to the needs of our economy?

I’m not saying that everyone who comes here is a psychopathic murderer. That would be silly. But it’s estimated that, out of every population, if tested, about 4% would emerge as psychopaths. Why is it a bad idea to look for them? And if it’s a good idea, why is it a bad idea to pause for a few months, analyze our current screening procedures, and improve them? Why is it a good idea to just assume everything is fine and blunder on into the future? It’s not as though the U.S. is well-loved in the world. The previous Administration developed an active program to exterminate terrorists, and those worthies continue to threaten grisly retaliation at every turn. We would be foolish not to take precautions. At least that’s what I think.

Of course the Europeans aren’t doing that kind of thing, are they? And they’re not having any terror incidents, are they? Oh, wait! There are terror attacks over there, and other criminal stuff as well, and our friends in Europe do seem to be getting a bit frosty about it. Or so say the recent polls. Are Europeans turning xenophobe? Should we be afraid?

And so it goes, blather, blather. So if everybody’s talking about this – Trump, immigration, foreign criminals, etc. – why should we? Do we have anything to add to the collective wisdom? No, not right now. That’s why last week I pushed the staff to come up with a different topic, and that’s why Fred asked: “What happens when the Earth’s magnetic poles shift? When south becomes north, and vice versa?”

I bet you never thought about that. I certainly didn’t until Fred spoke up. But it turns out that serious people are busy working the problem, some of them in NASA, and others in colleges that actually teach science. Who would have thought?]

Turbulent Earth

Who indeed? Well NASA worries about such things, along with some other geologists and earth scientists, and an assortment of preppers. Let’s leave the preppers out of the discussion for a bit, and talk about NASA. Back about 15 years ago NASA issued a report about our planet’s magnetic personality. It seems planetary magnetism, the magnetic field that surrounds us, is largely a product of unstable geology at the earth’s core. While our planet may seem eternal and unchanging to us, that’s not really the case. Its iron core actually is very hot, and the outer core is fluid.  The fluid is basically melted iron, moving upward to deliver its heat to cooler regions, and then sinking back again.

So ferrous stuff moves around down there, below the surface, and that in turn generates a magnetic field. Professionals call it a “dynamo effect.” [3] The magnetic field interacts with lots of other things, including crustal rocks it has magnetized and radiation from the Sun and beyond. The latter – the radiation part – is also called “space weather.”[4] [“Space weather,” that’s an overly cute name; normally I wouldn’t think of weather in a vacuum; but I guess we’re stuck with it. That’s the way it is with most bad decisions. Other people have to live with them.]

Shifting Poles

The point is that our planet’s magnetic field varies from time to time due to internal and external forces.[5] NASA thought that phenomenon ought to be studied further.[6] That was 15 years ago and apparently the recommendation was a good one. There’s now serious evidence that our planet’s magnetic field has weakened “significantly” in the last 150+ years.  If that continues, it’s said, the field might disappear in time; not permanently; but perhaps for as many as 200 years. Magnetic poles will flip as a part of that process.

The most disturbing views, that pole shifts are imminent, come from the popular press, which in turn attribute them to some NASA researchers .[7] Currently NASA officially confirms only that poles have shifted in the past.[8]

Pole flipping, by the way, also is called “geomagnetic reversal.” Most agree that it’s happened before and no doubt will again.[9]  That’s not to say, however, that there’s a clear and present danger that it will happen right now.  Nothing is certain. This is science, not politics or religion. Scientific theories are really only hypotheses, to be scrutinized, tested, verified or falsified. That’s always a work in progress, and not all scientists believe the same thing at the same time. Don’t panic, but be alert!

The Magnetic Field

If the poles flip, the maximum danger to Earth people will occur when the planet’s magnetic field disappears. No doubt those of you who follow NASA’s space travel initiatives already understand this. High energy Galactic Cosmic rays, from outside our solar system, and bursts of low energy particles from our sun are both dangerous to humans unprotected by magnetic fields. “This issue is known since the time of Werner von Braun: [S]everal studies attempted during the last 40 years to find practical ways to protect … astronauts from the sudden, very intense, low energy, Solar Particle Events and, at the same time, from the dose due to the continuous flux of penetrating, high energy Galactic Cosmic Rays.”[10]

One way to protect space travelers is to develop machines to generate high-strength magnetic fields to shield them from radiation. Unfortunately it’s pretty hard to build something like that to fit on a space ship; the machine has to be small, light and very powerful, and not dangerous to the people it’s supposed to protect. But current efforts do point to a solution for those of us who one day may be trapped on a non-magnetic planet. Space and resources are not so limited on the ground, so why not build dynamos all over the place, until there are enough of them to protect the people who really matter?

Of course we should also protect the less fortunate. They can take advantage of other, less expensive strategies like those being developed to settle the planet Mars.

Mars the Prototype

The planet-bound have other protections even if nothing around them generates a magnetic field. Consider Mars, for example. It has no magnetic field, but settlers there will have the mass of their planet to shield them from the sun’s radiation, at least before sunrise and after sunset. Then there’s the Martian atmosphere. It also can absorb solar radiation, and it’s especially effective doing that in the morning and late afternoon, when the sun is lowest on the horizon. That’s because radiation from a source to the side of your position on a planet travels through more atmosphere than radiation from directly overhead.[11]

So what else might we learn from Mars? Well, one way to further protect folks up there might be to simply bury the places where they live or work. One estimate is, for Mars, about 1.5 meters [about 5 feet] of regolith would do the job.[12] So if Martian settlers stay out of the sun, and stick close to home, they should be all right.

The calculations and examples I recite were done for Mars. Granted our Earth is closer to the Sun than Mars, larger than Mars, and has a thicker atmosphere. That means the numbers might [probably will] change; but the same general principles should hold true for both planets. Why wouldn’t they, if our planet becomes non-magnetic for a while?

Final Thoughts

Perhaps it’s time to start thinking about underground condos. Stories abound that the rich and/ or famous are doing that very thing, although the reasons vary and don’t seem to involve a fear of losing Earth’s magnetic field. The rich are more concerned with possible insurrections, etc., by an angry populace. But pay attention you preppers out there! This might be a project you can start for yourselves. How hard can it be to bury a house? And if you do that, drop us a line and tell us how it worked out.






[1] See NASA, Living on a Restless Planet, Solid Earth Science Working Group (SESWG) Report (2002), at p. 26 -27, available at

[2] G. Sallust is our disreputable founder, who gives orders even when he’s not here.

[3] See NASA, Living on a Restless Planet, Solid Earth Science Working Group (SESWG) Report (2002), at p. 26 -27, available at “The Earth’s magnetic field originates in the fluid outer core, where self-regenerating dynamo action maintains the field against decay.” Henceforth the report will be cited as Restless Planet at ___.

[4] Id. “This field gives rise to both permanent and induced magnetization in crustal rocks and also interacts with current systems in the ionosphere and magnetosphere (space weather).”

[5] Id. “These interactions give rise to fluctuating external electromagnetic fields that in turn induce electric currents in the Earth’s conducting interior. The induced electric currents produce time-variable electromagnetic fields at and above the Earth’s surface, and the field measured at any point represents the vector sum of contributions from the core field, the crustal field, the external field, and the induced electromagnetic field.”

[6] See Restless Planet at 26 – 27. “The induced electric currents produce time-variable electromagnetic fields at and above the Earth’s surface, and the field measured at any point represents the vector sum of contributions from the core field, the crustal field, the external field, and the induced electromagnetic field. The separation of these different signals is the greatest challenge for observational geomagnetism, yet the benefits from doing so will be great.” See also SESWG, What are the Dynamics of Earth’s Magnetic Field and Its Interactions with the Earth System? available at

[7] See Inquisitir, Didymus, NASA Warns Earth’s Magnetic Field Weakening, Poles Shift Imminent, Reversal Could Have Caused Neanderthal Extinction (November 8, 2015), available at According to Monika Korte with the Niemegk Geomagnetic Observatory at GFZ Potsdam, Germany, “It’s not a sudden flip, but a slow process, during which the field strength becomes weak, very probably the field becomes more complex and might show more than two poles for a while, and then builds up in strength and [aligns] in the opposite direction … When the polar shift happens, the Earth will have no magnetic field for about 200 years,” Jakosky said. … “Weakening of the Earth’s magnetic field [will have] serious consequences for life on Earth because the magnetic field acts as a shield that prevents dangerous solar radiation from passing into the atmosphere.” See also Express, no author, NASA: Earth’s magnetic poles are ‘switching’ with catastrophic consequences for humanity, available at

[8] See NASA, 2012: Magnetic Pole Reversal Happens All The (Geologic) Time (November 30, 2011), available at If you have something from  NASA that’s different and more recent, please let us know. We’ll add it to a blog and give you credit for the tip, if you want it.

[9] See the Wikipedia entry on the subject, available at

[10] See ESA, Battiston et al., Active Radiation Shield for Space Exploration Missions,  at Foreword, p. 5 (an archived report available at )

[11] See Selenian Boondocks, Stetter, Mars surface shielding from radiation (September 6, 2015)(hereafter cited as Mars Surface at __) available at  For more information, take a look at “The Looming Problem; Radiation Shielding for Space Travel — Collection of Important Literature”, available at . This is a very interesting archive that, we believe, is authentic. But these days, who knows for sure? We’re citing several things from this source.

[12] See Mars Surface at pp. 4-5 of 10.