Archives for posts with tag: Trump

I am Goya

Of the bare field, by the enemy’s beak gouged

Till the craters of my eyes gape,

I am grief,

I am the tongue

Of war, the embers of cities

On the snows of the year 1941

I am hunger

Andrei Vaznesensky[1]

 [Phil, I was in the DC area last week, and stopped by to see our friend Rosemary Covey.[2] She has a brilliant, and as usual disturbing, new line of work; it’s topical, a “sign of the times,” you might say; and one piece in particular left me gob smacked. So much so, I might add, that I remembered an idea we had a while ago, but later discarded: i.e., to nominate annually some work of art that best exemplifies some of the worst characteristics of the human race.  

I know you think that’s too negative; that we should focus instead on the positive things in life; but I disagree. If you want flowers and ponies, or visions of the afterlife, go to the church of your choice.  Artists who spotlight the evil out there do us a valuable service. I’m thinking of a series of prints called Los desastres de la guerra[3] that Francisco Goya[4] produced in the early 19th Century. I understand they’re well thought of, even today. Certainly the Russian poet Andrei Vaznesensky knew about them. So one shouldn’t kill [or ignore] messengers simply because they bring unpleasant news.

I know we’re supposed to look for consensus before branching out, and art criticism definitely is new to our blog; so please run my idea by the others. If you [and they] agree the project is worth doing, then please do it. With a little research I’m sure the team will find a way to say something sensible. For my part, it’s hot and I’m heading to the beach. Ta, ta! See you in August!

Oh, and I’m emailing you the image that caught my attention. Rosemary says we can use it in the blog. I’m interpreting that as, “for one blog post only.” G. Sallust[5]]

Well, our illustrious founder has struck again. He’s come up with a project, delegated the work, and left town. Normally I don’t agree when he does things like that but he asked nicely this time and the picture he nominated is, well, extraordinary. Perhaps “arresting” is the better term. Anyway, I’ve never seen anything quite like it. Just looking at it warps most of my ideas about what art should do; it’s brutal, graphic [of course it’s graphic; it’s a picture], and detailed, but not overly so. Much more detail and it would be pornographic, at least to someone of a certain mindset. This picture says its piece about the human condition, but stays on the right side of mental illness. Thank God for that. Now if our media would just do the same.

What picture am I talking about? We have a very good image of it, provided by the artist, that we’re posting separately, but at the same time as this commentary. The title of that post is The 2017 EZ2 Picture of the Year. As of now the picture itself doesn’t seem to have a name.

Let’s start with an admission. Unlike G. Sallust, I like “pretty” pictures. I’m in good company there; for centuries intelligent people treated art as something that lasts forever, at least in theory. “All passes,” said Henry Dobson. “Art alone [e]nduring stays to us, [t]he best outlasts the Throne …”[6] Or, more simply put: “Art is long and life is short.”[7] Of course that doesn’t apply to art materials. Ask any conservator what she [or he] has to do to keep things looking fresh in the museum.

Pretty pictures can be a refuge for the weary. Gustav Flaubert, a French author most of us read in college, thought art was something “to conjure away the burden and bitterness” of life.[8] Oscar Wilde, the English writer, agreed. He said: “It is through Art … and through Art only, that we can shield ourselves from the sordid perils of actual existence.”[9] That man could certainly turn a phrase, couldn’t he? And finally Saul Bellow, a modern novelist I like, put it best. “Art has something to do with the achievement of stillness in the midst of chaos. A stillness which characterizes prayer … in the midst of destruction.”[10]

I like it: To meditate or pray by looking at art. For sure you would need quality pictures for that. But that’s not the only view out there. Marshall McLuhan, for example, said that advertising was the greatest art form of the last century.[11] Fancy you or I meditating over some advert in Rolling Stone! If your significant other caught you staring at something like that, she [or he] might think you were up to nothing good! Then there’s our President, Donald Trump, who back in the 1980s said that deals and deal-making are his art form.[12] I’m not mentioning this simply to be facetious. My point is that there’s a whole range of opinions about art and how or why we make it.

We first met Rosemary Covey back in the early 1980s, when she had a very small studio in the old Torpedo Factory Art Center. By “old” I mean the building that existed before the renovation; the one that was far larger and, I think, full of asbestos. Anyway in those days she specialized in wood engraving, a wood cut technique that involved gouging fine lines in super-hard wood blocks. Those she would ink and print from by hand; and “by hand” I mean by laying paper on the inked block, then rubbing the paper with a wood spoon until the ink transferred. The whole process was laborious and accident-prone.

Eventually she went to a professional to print the larger things, but that was laborious as well, because she’s a perfectionist. So she moved on, bought a hand press, and did most of the print work herself.  Since then she’s worked with a variety of techniques, and today specializes in a kind of collage that utilizes her own images, rather than found objects, and painstakingly assembles, modifies and adapts them into a wholly different thing. The final products can be quite beautiful, or brutal, depending on her intent. But always they involve an enormous amount of effort and each, in my view, is its own thing. These originals are not reproductions although from time to time she has reproductions made from them.

So what did Rosemary Covey make with the Picture of the Year? Not a pretty one, that’s for sure. But there’s a view out there that art is anything you do to create order out of the chaos that surrounds. “Art is the imposing of a pattern on experience, and our aesthetic enjoyment is recognition of the pattern.”[13] I think that’s close to the truth of her enterprise and this work.  She’s showing us an underlying reality of today’s world, and this time it’s bad.[14] Nobody should kill the helpless. That seems obvious, I guess, but judging from the headlines it’s not so to a lot of people. Hopefully they’re not all psychopaths and some can be made to listen.

But is this really Art?[15] Yes. “Fine art is that in which the hand, the head and the heart of man [or woman] go together.”[16] She’s done that with this work. And by the way, she ought to think about naming it. Francisco Goya has already taken No se paede mirar[17], but something more contemporary along that line might do.

There, that’s enough from me. Award confirmed.

 

[1] See ODQ at Andrei Vaznesensky, p.817, n. 1. He was a Russian poet, quite popular here in the 1960s. For more information check out the Wikipedia entry at https://en.wikipedia.org/wiki/Andrei_Voznesensky . I don’t believe he was an art critic, but he did seem to know the artist Goya’s work pretty well. Goya’s famous for a lot of things, one of them being a series of prints on war. See note 3.

[2] She has a web site at http://www.rosemaryfeitcovey.com/ . There’s also an out-of-date write up on Wikipedia at https://en.wikipedia.org/wiki/Rosemary_Feit_Covey . Go to the website.

[3]The Disasters of War”.

[4] That’s Francisco José de Goya y Lucientes, who is not to be confused with the food company. There’s a pretty good write-up about him in Wikipedia, at https://en.wikipedia.org/wiki/Francisco_Goya .

[5] G. Sallust is our distinguished founder.

[6] See ODQ at Henry Austin Dobson, p.278, n 15. The full quote is: “All passes. Art alone, Enduring stays to us, The Best outlasts the Throne, The Coins, Tiberius.” Actually I don’t really think of Roman coins as works of art but, on the other hand, I don’t collect them. Dobson lived in the 19th and early 20th Centuries. You can read the essentials about him at Wikipediahttps://en.wikipedia.org/wiki/Henry_Austin_Dobson .

[7] See ODQ at Proverbs, p. 614, n. 32.

[8] See ODQ at Gustav Flaubert, p. 325, n. 16. The full quote is: “Human life is a sad show, undoubtedly; ugly, heavy and complex. Art has no other end, for people of feeling, than to conjure away the burden and bitterness.” It’s a translation, of course. Everybody knows about Flaubert but if you don’t, check out the Encyclopedia Britannica at https://www.britannica.com/biography/Gustave-Flaubert .

[9] See ODQ at Oscar Wilde, p. 835, n. 28, and p. 836.

[10] See ODQ at Saul Bellow, p. 66, n. 2. Most of Saul Bellow’s major works remain in print courtesy of the Library of America.

[11] See ODQ at Marshall McLuhan, p. 503, n. 17. The actual quote is: “Advertising is the greatest art form of the twentieth century.” Everybody in my generation knows about him, but probably no one else. If you’re interested check out his official site at https://www.marshallmcluhan.com/films/ .

[12] That’s from the 1988 book, Art of the Deal. You can also find the relevant quote in the ODQ at Donald Trump, p. 801, n. 16. “Deals are my art form. Other people paint beautifully or write wonderful poetry, I like making deals, preferably big deals. That’s how I get my kicks.”

[13] That’s from Alfred North Whitehead, a philosopher of the early 20th Century. See ODQ at Alfred North Whitehead, p. 892, n. 14. If you want to know more about Whitehead the philosopher, start with the Stanford Encyclopedia of Philosophy, at https://plato.stanford.edu/entries/whitehead/

[14] “Art does not reproduce the visible; rather it makes visible.” See ODQ at Paul Klee, p. 407, n. 16.He was an artist.

[15] “The Devil whoops, as he whooped of old: It’s clever, but is it Art?” See ODQ at Rudyard Kipling, p. 453, n.19.

[16] See ODQ at John Ruskin, p. 660, n.3.

[17] That’s “one cannot look at this.” See ODQ at Francisco jose’ de Goya y Lucientes, p. 357, n. 15.

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Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his [defense]. 

Article 11, Universal Declaration of Human Rights[1]

The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law….”

Coffin v. United States[2]

[Phil, I read your last blog on witch hunts and enjoyed it quite a bit. It was colorful and incisive as usual. I think what you said was that in the old days a witch hunt could be started by any person who denounced a neighbor by filing charges with a local court, with supporting evidence. If the evidence made the case, then the accused [witch] was in trouble. If the evidence wasn’t good enough, then the accuser might be in trouble unless he had acted simply to protect the Faith or for the common good. In that case he wouldn’t be penalized “even if he fail[ed] in his proof.”[3] Or, if there were rumors of witchcraft all over the place, but no one was willing to denounce individuals, a local tribunal might simply open an inquiry [an “inquisition”] on its own motion and start dragging people in to question them.

So that brings me to the next question. Presumably even 500 years ago people accused of a crime were thought innocent until proved guilty. So how did the witch hunters prove someone was a witch? How could they do that when, as we know today, it’s simply not possible to affect weather, crops or livestock with a curse, or make people sick with a dirty look, or have sex with a demon? [4]]

That last is another very good question from our leader, G. Sallust. Perhaps one day I’ll ask the questions and he’ll answer them. But not today; the answer to his question – how to prove witchcraft – lies deep in the Malleus Maleficarum[5], a book I’ve read and he hasn’t. Not that I’m glad to have read it. It gives me nightmares, sometimes. But apparently people study it in our Journalism schools and treat it as a good example, if not a paradigm of how to report on politics. So, too bad for us, the Hammer may be as relevant to current events as today’s newspaper. Do any of you read newspapers?

The ancient witch hunters needed three things to try a witch: (i) the accused’s reputation; it had to be bad; (ii) ‘indications’ of sorcerous deeds; and (iii) adverse witness statements.[6] That sounds clear enough, I suppose, but the devil was in the details, especially where sorcery was involved. Also witch hunters wouldn’t have brought someone to trial unless they thought she [or he] was guilty. Anyway, that’s what I’m told.

Reputation as Evidence

If the accused had a bad reputation, the witch hunters assumed it was because she [or he] had committed sorcery at some place and time. “[S]orceresses are immediately branded with a bad reputation because of crimes in some village or city.”[7] A bad reputation was, in fact, evidence of sorcery. Where there’s smoke there’s fire! Or was it, “probably a liar?” I forget.

Indications of the Deed

This was the easy part. The investigators looked for sick children, diseased farm animals, barren fields, and so forth.[8] Such events were plentiful [it was the 15th Century] and easy to verify. The trick was to connect them to the accused. For this investigators needed either a confession or statements from witnesses.

Witnesses

Three witnesses were required.[9] However, they didn’t have to be witnesses to the same event. One could have said, ‘she looked at my child, and he fell sick’’ another that ‘she looked at my farm animals, and they died, and the third that ‘she waved at my fields, and they became barren.’[10] It was enough that they all agreed about the ‘essence of the deed’ – i.e., that there was sorcery.

Of course that was their opinion, unsupported by today’s science. Illness and crop failures are common when people have poor sanitation, over cultivate their land, starve periodically, and basically don’t understand how disease works. But witnesses didn’t know such things in the 15th Century, and it didn’t matter. The only important thing, apparently, was that they believed sorcery was at work and said so. How did they know that? Don’t worry; they just knew it when they saw it.

Guilty or Innocent?

So there you have it. If the witch hunters did their job properly, there was no real need for a trial. All that had to be proved would have been proved.” A trial would only validate the accused’s guilt, preferably with a confession.[11] I’m not a lawyer, but frankly I don’t see a “presumption of innocence” working anywhere in this business.

Guilt was established by the investigation. If the witch confessed as well, she would be turned over to the civil authorities and burned. If she didn’t confess, it would be just for the civil authorities to imprison her until she was ‘worn down by the misery of prison’[12] and confessed. Then she could be executed. In either case, the whole thing would be ‘summary, straightforward, and informal,’ which the hunters thought was a good thing.[13]

And, by the way, it didn’t really matter if she denied all guilt. The witch hunters thought witches successfully resisted confessing only because the devil helped them. That’s why, once a witch was arrested, the authorities were told to: search her house for ‘devices of sorcery’; lock up her ‘maids and companions,’ because undoubtedly they knew secrets; and keep her out of the house, because otherwise she might pick up magical devices that would help her keep silent.[14] Nobody wanted her to find her magical confession-repeller, because that might complicate the investigation!

Witch Hunts Today

So let’s summarize for a bit. In the 15th Century if a woman didn’t get along with the neighbors, normal illnesses, etc. attacked some of the local children, farm animals or fields, and three people blamed the woman, that was enough to prove witchcraft. You know, I used to think that it would be wonderful to live in a small town, but I’m beginning to understand the drawbacks, especially if the locals are superstitious. But that’s not our current issue, is it? What G. Sallust asked was: “Do our peerless media behave exactly the same way when they report on politics?” I’m thinking the answer is “yes,” at least where President Trump is concerned.

 

Have the media relentlessly focused on his private life, and allegations about it? Yes. Do they talk and talk and talk about what they think of him, his business practices and how he may or may not treat others? Yes. Do they routinely portray him as unstable and not to be trusted? Yes. Do they routinely ignore his popularity in troublesome places like the Middle East, and his ability to turn out its leadership when he goes there? Oh, yes! So quite obviously his reputation is a prime target.

Does Mr. Trump have a lot of accusers? Oh yes, and many of them – seemingly the most authoritative – are anonymous. They pretty much act like 15th Century witnesses who are afraid of the person they denounce, and ask the inquisitor for protection; only in this case it’s the media that shields the witness, not some judge. So there are witnesses against Trump out there, timid ones, but quite likely more than three.

But the ancient witch hunters demanded some independent, physical evidence of witchcraft before they would prosecute. You know, the ‘indications’ of the deed – sick children, barren fields, bad weather, that kind of thing. Most of these events are now known to have natural explanations. So do we have a disaster right now; one bordering on the supernatural[15]; that these many secret witnesses might connect to Trump?

So far there doesn’t seem to be anything like that. The stock market is up; employment is rising; there aren’t any new wars or plagues; and ISIS, although still active and deadly, is in retreat. And that, I would say, is the fatal flaw.  The media are hunting witches when times are good, or at least improving.

Conclusion

So, not to put too fine a point on it, if we brought in auditors from the 15th Century to look at the campaign against Trump, most likely they wouldn’t like it. There’s an essential element missing in the proof: i.e., no current disaster of near supernatural proportions to fire up the populace. Also, there’s a fussy legality that might disturb the process. Today an accused person is presumed innocent until proved guilty.

And, as we discussed last time, there are other disturbing factors in play. These days lawyers are available to an accused, for example, and the courts aren’t permitted to torture him [or her]. Given all that no doubt the inquisitors of the 15th Century would withhold their seal of approval. What else could responsible and moral hunters do?

So for now to the media: Good try, and better luck next time!

[1] The text of Article 11 of the Universal Declaration of Human Rights is available as a pdf download directly from the United Nations, at http://www.un.org/en/universal-declaration-human-rights/index.html Want to know more about the Universal Declaration? Check out the Wikipedia entry at https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights

[2] See Coffin v. United States, 156 U.S. 432, 453 (1895), available from Justia at https://supreme.justia.com/cases/federal/us/156/432/case.html. For you non-lawyers, the Justia version of a Supreme Court case is not “official,” and can’t be cited as such in a legal brief, etc. But it works just fine for a blog. Also the Court is talking about a presumption of innocence, not an absolute rule. “This presumption is in the nature of evidence in his favor [i.e. in favor of the accused], and a knowledge of it should be communicated to the jury. Accordingly, it is the duty of the judge in all jurisdictions, when requested, and in some when not requested, to explain it to the jury in his charge. The usual formula in which this doctrine is expressed is that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. The accused is entitled, if he so requests it … to have this rule of law expounded to the jury in this or in some equivalent form of expression.” See id.at p. 459, citing an article in Criminal Law Magazine from January, 1888.

[3] See Christopher S. Mackay (translator], The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) (hereafter cited as Hammer at p. __). See Hammer at p. 504. As noted last time, the book was written by two [apparently crazed] Dominican friars, Jacobus Sprenger and Henricus Institoris. See Hammer at Introduction, p.2 – 3.

[4] G. Sallust, by phone, June 22, 2017. Again, this was what was on my voicemail, sanitized a bit for language. You’ll have to take my word for it. I still don’t save voicemails.

[5] See n. 3.

[6] See Hammer, Part III at p. 202A, 202B (p. 521 of the text.)

[7] Id.

[8] See Hammer, Part III at p. 202A, 202B (p. 521 of the text.)

[9] See Hammer, Part III at p. 197A (p. 508 of the text.) The authors thought that two ought to be enough, but chose the larger number in the name of ‘legal fairness.’

[10] See generally See Hammer, Part III at p. 202B, 202C (p. 521, 522 of the text.)

[11] Once in jail, an accused might never get out. Some commentators argued that so long as the accused had an impaired reputation, there were indications of witchcraft, and three witnesses against her, she was ‘manifestly caught’ and should go to prison.  (See Hammer, Part III at p. 203A (p. 524 of the text)) The Malleus took a more liberal position. It let the judge decide to imprison or not to imprison based on the strength of the case and ‘on the basis of local procedure and upholding custom.’ But, and this is important, if released the accused witch had to produce sureties to guarantee that she would appear again in court if summoned.” (See Hammer, Part III at p. 203B (p. 524 of the text))

[12] See Hammer, Part III at p. 202C, 202D (p. 522. 523 of the text.)

[13] See Hammer, Part III at p. 202D, (p. 523 of the text.)

[14] See Hammer, Part III at p. 203C (p. 525 of the text.)

[15] Perhaps an economic disaster? Recessions always seem kind of supernatural to me.

 

I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director. Witch Hunt!

Trump Tweet, circa June 16, 2017[1]

The President claims he’s the victim of a witch hunt. We know something about those things, don’t we? At least that’s what you’ve said, from time to time. So dig back in your files, and find out what people actually did when they hunted witches. You don’t need to cover the whole process. I know it’s arduous and violent. Just tell me what’s needed to start one. And stay away from the dictionary! I don’t want to hear what some modern lexicographer thinks. I want to know what the old guys really did. We have a book about that, don’t we?

G. Sallust, by phone, June 16, 2017[2]

This is Phil, erstwhile blog philosopher and today’s lecturer. G. Sallust called me the other day, and said what I quote at the top of this piece. And he’s right. We do have a book. It’s from the 15th Century and is called the Malleus Maleficarum, or, in English, The Hammer of Witches.[3] [Actually it’s a modern and complete translation of the old Latin.] We spent a lot of time in 2011 reading and writing about it to see how the jurisprudence worked, and how ancient wisdom might be adapted to today. Not surprisingly, we found parallels between the ‘enhanced interrogation” used on suspected terrorists after 9/11 and the tactics of the witch hunters.

This was important, at least in my view, because the old witch hunters were really good at getting confessions. By one account many thousands of witches were burned in Europe, and around four thousand were hanged in England.[4] Why? Because they confessed to flying; striking livestock and fields barren with a curse; having sex with the devil; causing a man’s penis to disappear with magic; or other improbable things. The hunt didn’t seem to yield truth; only fabricated stories. So why did the accused ‘fess up’ to things that were, basically, impossible?

Why, indeed? I would say it was the torture that did it, coupled with the brainwashing, but that’s not our topic for today. G Sallust has asked a more preliminary question. What really was necessary to get that juggernaut of madness rolling? What legal process was involved? The answer: Not much.

You see, according to the old hunters there were three ways to start a witch hunt. One person could denounce another by filing a paper with some court specifying what the other had done, and offering to testify as to the specifics; or one could simply denounce another without offering to testify, apparently on the ground that everybody knew so-and-so was a witch; or the authorities could open a general investigation [an ‘inquisition’] of witchcraft in an area, because there were rumors of it all over the place. In that last situation it would be up to the authorities to bring the accusations.[5]

The witch-hunters really didn’t like option 1, by the way. The problem with laying charges is that the charging party has to justify them. There could be penalties if the facts didn’t hold up, and who knew what might happen once the lawyers got involved?[6] Instead they vastly preferred an approach where the accuser didn’t have to prove anything, or an independent party took on the burden of making the case. If a person denounced someone else to protect the Faith or the common good, the witch hunters thought he should not “become subject to penalty even if he fails in his proof.”[7] And, of course, if someone is tried by inquisition, then no individual is responsible for that. The judge [or whoever] instituted those proceedings “not at the insistence of some party, but by virtue of his office.”

Speaking of lawyers, in the 15th Century defendants in witchcraft trials didn’t get to choose their own advocates. The judge did that. And in doing it he was instructed to avoid “litigious, evil spirited persons” who might be “fussy about legal niceties.”[8] So the defendant got a limp lawyer to protect him [or her] from the torture chamber.

Does any of this sound familiar? Well, let’s see:

  • So far no one has sued Donald Trump for being “too close to” the Russians, or for firing the FBI Director, or for anything like that. At least I don’t know of any such litigation, civil or criminal. So, so far nobody has proved anything in court.
  • The 15th Century Witch Hunters would have approved. They felt that people who denounced others for the “public good” should be able to do so without repercussions. The witnesses especially needed to be protected from the accused. They were scary people, the accused – probably witches – and were dangerous to cross. So obviously if a witness didn’t want to be known, he [or she] wouldn’t be.
  • And how do today’s hunters protect accusers? Well, one way is by allowing them to anonymously leak information, or allegations really, to the media, with a pledge that their identity won’t be revealed. You may have noticed that there’s a lot of that going on, especially in the Washington Post and the New York Times.
  • And is there an inquisition out there? Well, if by that you mean an official inquiry prompted by rumor, innuendo and anonymous sources, there might be several. We have, of course, numerous Congressional committees looking into this or that, plus now a special counsel building a fiefdom over in the Department of Justice.

So in my opinion – and it’s only an opinion – President Trump is correct in part. What we have here is the start of a traditional witch hunt, an auspicious beginning that even the hunters of the 15th Century would have appreciated. We have rumor and innuendo, anonymous sources insulated by their anonymity, vague allegations that come and go, and now official inquiries [including one by a special counsel] that can go on until somebody or something breaks. For a witch hunter those are good things.

But it’s not perfect. This is America and a big part of the political class has taken on some wealthy people, so everybody has lawyers. The 15th Century witch hunters really didn’t like lawyers. Lawyers could be evil spirited and overly fussy about legal niceties. And that’s the way they are today for sure. Also law enforcement here is limited in the way it treats prisoners. Currently no torture is allowed.

So I guess we don’t have a full-blown witch hunt, yet; defendants are better protected than in the 15th Century, and nobody has confessed to improbable things; but it’s a good start, and the future is bright … for the media.

[1] This is currently reported by Twitter at https://twitter.com/realDonaldTrump/status/875701471999864833 .

[2] That’s what was on my voicemail, sanitized a bit for language. You’ll have to take my word for it. I don’t save voicemails.

[3] See Christopher S. Mackay (translator], The Hammer of Witches, A Complete Translation of the Malleus Maleficarum (Cambridge 2006, 2009) (hereafter cited as Hammer at p. __). The book was written by two [apparently crazed] Dominican friars, Jacobus Sprenger and Henricus Institoris. See Hammer at Introduction, p.2 – 3.

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

[5] See Hammer at p. 502 – 503: “The three methods … consist of denunciation and inquisition. The first is when someone accuses someone else before a judge with a charge of heresy or abetting it, offers to prove this and writes himself down for the penalty of retribution if he does not prove it. The second method is when someone denounces someone else without offering to prove it or being  willing to participate, and instead states that he is making a denunciation through his zeal for the Faith or on account of [penalties imposed by religious or secular authorities] . The Third is the method by inquisition, that is, when there is no accuser or denouncer, but the general rumor in a certain city or place about there being sorceresses.  In that case, the judge has to institute proceedings not at the insistence of some party but by virtue of his office. “

[6] See Hammer at p. 503: “It should be noted that the judge really should not allow the first method of proceeding, because this method is not customary in a case involving the Faith … because it is quite dangerous for the accuser on account of the penalty of retribution that is imposed when he fails to make good the proof, and because it is quite subject to legal disputation.”

[7] Id. at p. 504.

[8] See Hammer at p. 530 – 531: “As for the first point, it is noted that an advocate is not assigned according to the pleasure of the denounced person, for instance because he was inclined to have one particular person. What judges should make every provision against is granting a litigious, evil-spirited person, who could easily be corrupted by money as such people often are found to be. Rather he should grant to the accused an upright person who is not suspected of being fussy about legal niceties.”

The easiest, most effective step that the federal and state governments can take to stem the tide of deaths from opioid overdoses is to make naloxone easier to get …”

Megan McLemore of Human Rights Watch, as quoted in The Lancet[1]

 

[This is G. Sallust again. It’s said that more than 90 Americans die every day from opioid overdose.[2] That simple fact makes opioids truly blog-worthy, and worth an update, so I asked for volunteers to do the job.  Unfortunately I didn’t get any. Instead my loyal staff told me to write it myself. This isn’t a democracy; but everybody here is a volunteer, so I have to listen when they yell at me. And this time they made a good case.

It’s true that I’m uniquely qualified to talk about opioids. And no, that’s not because I’m a heroin addict. Actually I don’t take anything unless it’s prescribed by a doctor, and I especially I don’t like pain killers, no matter who wants me to take them, because they make us stupid.  I’m qualified because I (i) live in a rural area that has a horrible problem with opioids and (ii) am morally offended by the situation.

Actually they didn’t say it that way. Fred says I’m loud and abrasive, and an attention-getter, and that’s what’s needed. Phil says I often sound reasonable, even when I’m not, and that might help with some readers, the ones who are not too far gone in politics. And Larry, bless his heart, says that I can be persuasive when I stick to the facts, which isn’t always the case, and if I do that I might do a passable job. All of them had other pressing business, and none of them wanted to get involved. I call that mutiny, thinly disguised.

So I’m writing this myself. And speaking of politics, which I just did, let’s start by saying that in my opinion Donald J. Trump, is not responsible for the opioid epidemic. He’s been President only since January 20, 2017[3];  and the problem predates him by several years. Of course, the same could have been said of Barrack Obama, when he first took office in 2009. The economy had collapsed in the second half of 2008, and threatened to go belly-up. That pretty much gave the election of 2008 to the Democrats. Conservative pundits then argued that Obama, who wasn’t President at the time, was actually responsible for the 2008 crash, because the mere fact that he might be elected had upset the market. A few months later they followed up by complaining that the recovery was taking too long.

Well, that was then and this is now, and today we’re talking about crimes, the criminal law and public health, not about the economy. So far no one has blamed Trump for the opioid problem, but they will. At some point the loyal opposition is going to start asking why President Trump hasn’t done more to solve it. But before we go down that road, it might be best to take a look at where we are, medically speaking, in the battle to restrict opioids. Luckily there are a couple of recent articles, one in The Lancet[4] and the other in the New England Journal of Medicine[5], to help us understand the situation.]

The Lancet Says

Let’s take first things first. Heroin is an opioid, as are morphine, opium, and various synthetics, such as fentanyl and its numerous cousins.[6] One can overdose on any of these, but it’s more likely with street drugs because those are frequently mixed with one variety or another of fentanyl. Some versions of fentanyl (I don’t know how many) are extremely potent, and can kill with very, very small quantities. So if a dealer is an amateur, he can easily kill a lot of people.

Naloxone is an antidote that reverses the effect of overdose. (In my neighborhood it’s also called Narcan.) Many jurisdictions are equipping their first responders with it, so that they can treat an overdose on the spot, rather than cart the victim off to an ER. That’s a good thing, because [apparently] it saves lives. But that doesn’t necessarily reduce the addiction rate. In fact, one can speculate that the more addicts survive overdose, and if new addicts continue to enter the population at the usual rate [whatever that is], the total number of addicts will grow over time. And as the numbers increase, the addiction rate will as well.

So that brings us to the bigger problem: How do we, in the U.S., treat addicts to reduce their numbers? Well, the Administration resolved to study the matter, which sounds like a good idea, and interim recommendations are due the 27th of this month. That sounds like something we ought to read. In the meantime The Lancet reports that a policy is beginning to emerge. So far –

  • The president’s budget for the next fiscal year (FY 2018) calls for a $279.7 million increase in funding for drug control efforts;
  • That includes a $103 million increase to the Department of Justice’s budget to “fight against opioids and other illicit drugs”.
  • Last March, the new Attorney General said “we need to focus on…preventing people from ever taking drugs in the first place”. On May 13 he ordered federal prosecutors to utilize mandatory minimum sentencing for heroin offenses. This would “prescribe that possessing any amount of heroin would be a minimum fine of $1000 and 1 year in prison.”[7]

So far none of those initiatives sound like slam-dunk wins. Do they?

Then, of course, there are the current Congressional efforts to repeal and replace Obamacare. That effort, if successful, might throw many of the addicted into the ranks of the uninsured. “The American Society of Addiction Medicine, a professional society of physicians, warned that [if so] a ‘critical lifeline for people with addiction’ would be severed.”[8] That’s interesting, but speculative. So far Congress hasn’t really done anything. I’m going to wait until there’s actual legislation on the table before I start an argument.

Science from the NEJM

OK, from what little we know of President Trump’s program, he doesn’t seem to be counting on any scientific breakthroughs to solve the opioid problem. How about the scientists? What do they think? Well, the National Institutes of Health say that since April of this year they have been working with pharmaceutical industry in three important areas:

  • Overdose Treatment. Naloxone is good, and has saved lives, but other, more effective overdose treatments are possible. The NIH/ industry objective is to develop “better overdose-reversal and prevention” therapies[9];
  • Curing Addicts. Currently “sustained treatment over years or even a lifetime is often necessary to achieve and maintain long-term recovery.” There are only three medications available for treating Opioid Use Disorder. These are methadone, buprenorphine and extended-release naltrexone. We need more and better medicines in this area.[10]
  • Managing Pain. For many, addiction starts with opioids prescribed by a doctor to relieve chronic pain. If we develop “safe, effective, non-addictive interventions” to deal with pain, we can greatly restrict the use of opioids in medical practice. That should reduce the rate of addiction as well.[11]

The NIH expect “some advances” may occur rapidly, “such as such as improved formulations of existing medications, opioids with abuse-deterrent properties, longer-acting overdose-reversal drugs, and the repurposing of treatments approved for other conditions.[12]” Others may take longer. Nevertheless, the goal “is to cut in half the time typically required to develop new safe and effective therapeutics.”[13]

Conclusion

To date the new Administration seems to have focused primarily on law enforcement to control the opioid crisis. That’s short-sighted. Addiction is a problem for doctors and scientists, as well for the police. I’m not in a position to judge the validity of the initiatives the National Institutes of Health have proposed, but they are our experts; so perhaps we should fund their initiatives, or over-fund them if necessary, to see what they can do for us. The problem with addicts is that they’re, well, addicted. There’s no talking them out of their addiction, and locking them up doesn’t seem to be helpful. Speaking for the public, we need a damned cure!

[1] See The Lancet, Reinl, Trump administration and the opioid epidemic in the USA (June 17, 2017), available at http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(17)31543-X/fulltext?elsca1=etoc (The proper citation for this, I think, is Reinl, Trump & Opioids at 389 World Report 2181 (June 3, 2017). We’ll just call it Trump & Opioids, until someone corrects us. To access this article [apparently] you need to register with The Lancet. Do that [it’s free] and you can download a pdf version.

[2] See New England Journal of Medicine, Volkow & Collins, The Role of Science in Addressing the Opioid Crisis (May 31, 2017), available at http://www.nejm.org/doi/full/10.1056/NEJMsr1706626#t=article There are no page numbers; henceforth we will cite this as Opioid Crisis at __ and reference the § in which the quote appears.

[3] See the President’s inauguration speech at https://www.nytimes.com/video/us/politics/100000004863342/donald-trump-full-inaugural-address-2017.html

[4] See n. 1.

[5] See n. 2.

[6] For a more full discussion of the subject, take a look at the Wikipedia entry at https://en.wikipedia.org/wiki/Opioid .

[7] All quotations are from Trump & Opioids.

[8] Id.

[9] See Opioid Crisis at Overdose-Reversal Interventions.

[10] See Opioid Crisis at Treatments for Opioid Addiction.

[11] See Opioid Crisis at Nonaddictive Treatments for Chronic Pain .

[12] See Opioid Crisis at Public-Private Partnerships.

[13] Id.

[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 Russian 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 it 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 what’s going on. 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 hostile scrutiny by outsiders?

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 1990s. 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 appellate court said, the duties of government lawyers are very different from those of lawyers 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 to them 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 block criminal investigations..

Conclusion

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, perhaps 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 https://americanbridgepac.org/app/uploads/Too-Close-To-Russia.pdf 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 https://www.washingtonpost.com/politics/inside-the-oval-office-with-trump-and-the-russians-broad-smiles-and-loose-lips/2017/05/16/2e8b0d14-3a66-11e7-8854-21f359183e8c_story.html?utm_term=.b335e08c0e39

[3] See The New York Times, Burns, Donald Trump Reaffirms Support for Warmer Relations With Putin (Aug. 1, 2016), at https://www.nytimes.com/2016/08/02/us/politics/donald-trump-vladimir-putin-russia.html?_r=0

[4] See, e.g., The Observer, Schindler, Wikileaks [sic, WikiLeaks] Dismantling of DNC Is Clear Attack by Putin On Clinton (07/25/16)  at http://observer.com/2016/07/wikileaks-dismantling-of-dnc-is-clear-attack-by-putin-on-clinton/

[5] See CNN, McKirdy, WikiLeaks’ Assange: Russia didn’t give us emails (January 4, 2017) at http://www.cnn.com/2017/01/04/politics/assange-wikileaks-hannity-intv/index.html

[6] See CBS Los Angeles (video) Trump Son-In-Law under FBI Scrutiny (26 May 2017) at http://www.msn.com/en-us/foodanddrink/video/trump-son-in-law-under-fbi-scrutiny/vp-BBBxL3C

[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 http://www.politico.com/story/2017/05/26/peter-carr-robert-mueller-spokesman-238860

[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 http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1237&context=facpubs

[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 Justia website for the later, more complete version. You can find the version published by the Post in 1998 at http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/ruling072798.htm . 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 http://law.justia.com/cases/federal/appellate-courts/F3/158/1263/544889/ . 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 Justia. 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.

Conclusion

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 https://www.gpo.gov/fdsys/pkg/USCODE-2010-title31/pdf/USCODE-2010-title31-subtitleIII.pdf    If you would rather try an unofficial, but reliable version, try the Cornell Law School, at https://www.law.cornell.edu/uscode/text/31/3101

[2] James Earl Carter was President of these United States from January, 1977 through January, 1981. See the Wikipedia entry at https://en.wikipedia.org/wiki/Jimmy_Carter  . 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 http://swampland.time.com/2013/10/09/the-man-who-created-the-government-shutdown/

[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 http://www.gao.gov/products/GAO-11-203 . This will be cited as “GAO -11-203 at __.”

[7] See Treasury, Debt Limit, at https://www.treasury.gov/initiatives/Pages/debtlimit.aspx ; Treasury, Monthly Statement of The Public Debt of the United States (March 31, 2017), at https://www.treasurydirect.gov/govt/reports/pd/mspd/2017/opds032017.pdf . 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 https://www.treasury.gov/initiatives/Documents/Debt%20Limit%20Myth%20v%20Fact%20FINAL.pdf

[12] See House Report No. 113-48, Full Faith and Credit Act, available at https://www.congress.gov/congressional-report/113th-congress/house-report/48/1

[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  http://www.washingtonpost.com/blogs/wonkblog/wp/2013/01/04/michael-castle-unsuspecting-godfather-of-the-1-trillion-coin-solution/?wpisrc=nl_showdown

[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 https://www.gpo.gov/fdsys/pkg/USCODE-2011-title31/pdf/USCODE-2011-title31-subtitleIV-chap51-subchapII-sec5112.pdf

[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: http://en.wikipedia.org/wiki/United_States_Bullion_Depository

[18] See CNN World, Zimbabwe to print first $100 trillion note (January 16, 2009), at http://articles.cnn.com/2009-01-16/world/zimbawe.currency_1_zimbabwe-dollar-south-african-rand-dollar-note?_s=PM:WORLD   See also the blog of 11/12/2010, The Wages of Hyperinflation, at http://elementalzoo.typepad.com/elemental-zoo/2010/11/index.html . 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.

Conclusion

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 http://www.foxnews.com/politics/2017/03/06/list-trumps-executive-orders.html  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 https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states  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 http://utminers.utep.edu/omwilliamson/engl1311/fallacies.htm  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 https://www.archives.gov/founding-docs/bill-of-rights-transcript  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 http://www.usatoday.com/story/news/2016/11/09/anti-trump-protests-erupt-new-york-chicago/93570584/ . 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 http://www.foxnews.com/world/2017/03/23/israeli-man-arrested-in-us-jewish-community-center-bomb-threats.html

[21] See Master List at ¶ 78.

[22] See Political Fallacies at p. 359.