Natural Law in an Age of Nihilism (pt. 4)

June 11, 2019

In a curious way, this nihilism offers a possible justification for an attempt to reestablish the notion of “human rights” on a firmer foundation.[i] The moral theory of human rights, as outlined in such documents as The Geneva Conventions and The International Bill of Rights, is an attempt to establish a universal moral framework for international statements and action on behalf of the rights of all persons. This theory holds that all people are essentially equal, and have equal rights to such things as freedom of conscience and expression, freedom to live without persecution due to religion, ethnicity or other relevantly similar condition, and so on. As a universal ethic, it is not dependant on any religious or philosophical creed, but simply on a set of moral principles or axioms that are, to coin a phrase, held to be self-evident. However, writer Michael Perry (and some other philosophers) question whether this ethic is in fact as purely secular as it claims. Nietzsche proclaimed the “death of God,” the demise of a universally-accepted morality and foundation of value; but Perry argues that we have by and large simply ignored his critique and proceeded as if in fact we all were on the same page. In this view, “human rights” is founded on a concept of human equality drawn from religion, or perhaps from several religions, and includes such ideas as “we are all equal before God,” “we are all children of God,” the Golden Rule, and other moral principles that seem to be (or at least are taken to be) found in all major religions. But what if this equality is, despite the generations of secular usage, still implicitly a religious notion, with no rational secular foundation? In that case, human rights morality itself has no foundation. This does not mean we have to stop using it; we could simply declare that human equality is an axiom like “straight lines do not intersect,” and go from there. But at least one possible response to the death of God is to deny the claims of self-evidence, and to insist that human equality and human rights be established on other, more rational grounds. The creation of a panel of ethicists to find such grounds, with the idea of basing national policy on human rights upon their conclusions regarding the rational grounding and nature of those rights, would seem to be a reasonable action.

However, Perry’s questions about the ethics of human rights rest on a premise which most American social conservatives would find unacceptable: the death of God. If God is not dead, then there is no reason to believe human rights are dead, either. Nor, in fact, is there any great need to rethink the notion of human rights morality. If our conception of human rights is in fact rooted in beliefs about God, human nature and the relationship between them (that God created all people as essentially good and equal, that God loves everyone and wants us to love our neighbors as ourselves, etc.) then we don’t need to fundamentally redefine human rights at all. We might run into problems with those who simply reject the entire religious framework and with it reject human equality, in which case we might run into the problem Wittgenstein is said to have faced when asked how you can rationally argue that a Nazi is morally wrong. He supposedly responded, “You don’t argue with Nazis. You shoot them.”[ii] But with anyone who is willing to accept the moral axioms of equality, dignity and such, we can viably carry out moral conversations.   We could even say that human rights ethics IS a form of natural law morality, and natural law legal theory: a moral system deriving moral principles and guidance from human nature and nature in general, and a legal theory that our national and international law should be based on such moral principles.

It seems that by saying that we need to rethink and reestablish the entire conception of human rights, the Trump administration is saying that God is dead, therefore belief in human equality is dead, and thus we need to establish our notion of human rights on some other grounds. More traditional American conservatives (like Paul Ryan or Rand Paul) might have chosen to start with Ayn Rand, and the Objectivist definition of humans as innately selfish and rational, so that the richest people are the most rational and since to be rational is also to be just and not to seek unfair advantage for oneself we should just let the rich and powerful do what they want with no government interference. The failure of such ethics when attempted proves, or at least strongly suggests that this view is based on a faulty anthropology; so we can be grateful if Trump relies on Robert George, who seems more inclined than Rand to listen to Kant and other reasonable philosophers.[iii] It seems more likely, for reasons I shall argue later, that Objectivism was passed over not because it was a flawed philosophy, but because it was too consistent. Rand in fact rejected religion, and the Christian ethic of love; she denied the personhood of the fetus and therefore allowed abortion; she was doubtful about the death penalty; and in short, while she opposed “socialism” and consistently conflated democratic socialism with Stalinism, she also stuck to her principles and in doing so took a knife to many conservative sacred cows. If you want to make sure your “independent panel of moral experts” comes out in favor of Republican ideology, you need to stock it with people other than honest Objectivists.

(It may seem strange that Ayn Rand has for decades been such a darling with conservatives, given her expressed contempt for Christianity, Ronald Reagan, and other idols of American conservatism.  After examining comments from politicians and others who express deep love both for Jesus and for Rand, I have concluded that in fact many who love Ayn Rand have never really read her, or at least have selectively read snippets out of her fiction without regard either for the overall message of her novels, or the explicit statements in her philosophical essays.  This has led to absurd statements such as the one from the congressman who required all his staff to read Atlas Shrugged but who was surprised to learn that Rand was an atheist.)

To be continued….

[i] Michael J. Perry, “Morality and Normativity;” in Morality and Moral Controversies, ninth edition, ed. by John Arthur and Steven Scalet (Upper Saddle River, NJ: Pearson Education, Inc. 2014) pp. 56-64. Originally published in Legal Theory 13(3-4) 2007; pp. 211-55;

[ii] I can’t find the source for this story. I was told it was a BBC interview with Wittgenstein. But it makes sense to me; on Wittgenstein’s terms, his game theory of language would imply that there is no way to communicate with someone like a Nazi who simply refuses to join in any shared project or values with you; furthermore, you are making a conceptual mistake to try. The proper language-game to play with Nazis is not “Rational Debate,” but “War for Survival.”

[iii] Denise Cummins, “This is What Happens When You Take Ayn Rand Seriously;” PBS Newshour Feb. 16, 2016 (https://www.pbs.org/newshour/economy/column-this-is-what-happens-when-you-take-ayn-rand-seriously)

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Natural Law in an Age of Nihilism (pt. 3)

June 11, 2019

We may seek to anticipate the likely conclusions of Pompeo’s human rights panel by looking at the experts who will be on it. One prominent name that has been mentioned is Robert George. As mentioned above, he has in the past used Kantian logic to explain himself; however, he is a conservative Catholic who has used the term “natural law” in a more Thomistic way to attack homosexuality and abortion, for examples.[i] But I think it is likely misleading to look to the commission itself for predictions as to how our nation’s international policies will develop. In general, President Trump and his supporters, including Administration and Republican leadership, have expressed contempt for “experts” and have pointed to their policy of bringing in people “who were not ‘qualified’ in the conventional sense.”[ii] And when their own experts, hired by them to determine the truth of some matter, have presented facts that were distasteful to them, they simply reject those findings.[iii] The real question therefore does not seem to be what “natural law” means or how it is defined, but how the term is used in an environment where facts, words and values are not fixed realities.

The true philosophy of the Trump Administration, and functionally of the Republican Party as a whole, is not “natural law” of any sort; it is empirical relativism leading to moral nihilism (or perhaps they would prefer the term “realism”). Even this may be too imprecise. In the last two years, the “leader of the free world” has denied mocking a disabled reporter, when literally thousands witnessed the act and millions saw the recording; he has claimed that more people attended his inauguration than attended Obama’s despite clear photographic evidence to the contrary; he has denied calling Tim Cook “Tim Apple” when in a room full of people who heard him do it and wondered why on Earth anyone would lie about something so obvious and so petty; he has asserted that protesters were in fact cheering for him while they gathered around a giant statue of him sitting on a golden toilet; and so on. He has called for the death penalty for five black kids even after they were proven innocent of the crime of which he accused them, and another person was proven guilty. The birtherism, conspiracy theories and so on aren’t just ignorance or racism; they are proven real-time denials of common reality. The Republican party has become the party of “alternative facts:” the denial of objective reality and its replacement with truth-claims that are more convenient. As Harry Frankfurt has argued, this isn’t really even lying. The liar is concerned about truth; he or she wants to avoid a particular truth, to deceive for some purpose. The liar depends on other people accepting that what they see and hear is generally true, just as the counterfeiter depends on the existence of real money in order to pass the fake money he’s made as real. Republicans today operate without any regard for the concept of “truth.” The standard form of verbal communication for this administration is neither honesty nor lying; it is “bullshit.”[iv]  The bullshitter is not engaged in conveying information or communication; it is some other sort of verbal activity, oblivious to the existence of truth. That seems to be the most accurate description of what we see today coming from the highest levels of government and those of the press who serve as its promoters: verbal activity that does not bother to worry whether or not what is said is true, because the point is not to speak truth but to promote the president, to belittle some person, or to attain some other goal. As Frankfurt says, bullshit is more dangerous to truth than lying, because bullshit attacks the entire concept of communication. The liar is still committed to the notion that we communicate with one another to convey information; it’s just that the liar hopes to slip some false information into the mix. The bullshitter denies the relevance or significance of communication, and asserts instead that we talk or shout or tweet or write for other purposes: to emote, to self-promote, to roar, to whine, whatever will best forward the bullshitter’s will-to-power.

In this view, there simply is no such thing as “objective truth” or “reality.” Literally everything you think you know is up for debate, and what will count as “fact” is resolved as nothing more than a contest of wills. From an epistemological perspective, you could call this “relativism;” as Protagoras said, man is the measure of all things, of that which is that it is, and of that which is not that it is not. If I say the Mueller report totally exonerates Donald Trump, and refuse to read it or listen to you tell me what it says, I can hold onto my belief like a Japanese soldier guarding his jungle hideout even as the Americans raise their flag over the island; and as long as I do this, I haven’t surrendered. For many people, it is more important to “stand up for what I believe,” i.e. to assert his or her own version of reality, than to be “lose the argument,” to be defeated and forced to accept objective reality. This view, which is increasingly common among self-proclaimed conservatives, seems to resemble Nietzschean pragmatism more than any other epistemological stance I can think of. What will count as “real” is what promotes my goals, serves my ends, or makes me feel more powerful and more comfortable.

The fact that this sort of aggressive pragmatic relativism, this construal of reality as a battleground for wills, has become the operating epistemology of the Republican party has profound ethical implications. If I can simply declare that I never said someone was “nasty” despite eyewitnesses and recorded evidence, if I can simply create new realities, then I can also create new moral realities. What is “true” is what I want to be true, and my saying it is my attempt to create a new truth; therefore, what is “good” is what I like, and my moral claims are merely my own will-to-power, my attempt to bend others to accept me as the moral center of the universe. If there is no truth, there is no moral truth, and all morality collapses into nihilism.

 

To be continued….

[i] Conor Finnegan, “State Department to Redefine Human Rights Based on ‘Natural Law’ and ‘Natural Rights’”; ABC News 5/31/2019 (https://abcnews.go.com/Politics/state-dept-panel-redefine-human-rights-based-natural/story?id=63400485)

[ii] Chris Cilizza, “The 29 Most Eyebrow-Raising Lines from Jared Kushner’s Axios Interview;” CNN 6/3/2019 (https://www.cnn.com/2019/06/03/politics/jared-kushner-axios/index.html)

[iii] Coral Davenport, “Trump Administration’s Strategy on Climate: Try to Bury Its Own Scientific Report;” New York Times 11/25/2018 (https://www.nytimes.com/2018/11/25/climate/trump-climate-report.html) As another example, the Republican response to the Special Counsel’s report on Russian interference in U.S. elections has been to reject, bury and ignore the conclusions of all the legal and forensic experts hired to uncover the facts.

[iv] Harry Frankfurt, On Bullshit (Princeton NJ: Princeton University Press, 2005) pp. 19-24, 29-34

Natural Law in an Age of Nihilism (pt. 2)

June 11, 2019

What Pompeo seems to be saying, therefore, is that the Republican government wants to redefine this notion of “human rights” in terms of a particular definition of “human nature.” Is this necessarily “misogynistic” or “homophobic”? I will mention the sophistic argument that if it is based on “human nature” and “natural law” then of course it can’t be, since by definition it can’t be an “irrational” hatred of women or fear of gay people if it is “natural.” This is circular and unlikely to quell any concerns by people who are not already convinced that the particular “nature” on which this “natural law” is based is the true one. The real question, after all, is whether this proposed alteration is likely to be harmful to the interests and desires of women, gays or anyone else. Aristotle’s philosophy stated that all non-Greeks (whether Asiatics, less civilized Europeans or whatever) were inherently “irrational” and thus natural slaves, most fulfilled living lives in slavery to the wiser Greeks. Likewise, he believed women were inherently less intelligent and less rational than men, and would only be truly happy living in households controlled by Greek men. In essence, he looked at his own Athenian culture and judged all others in comparison to it; those that gave greater rights to women or to non-Greeks were said by him to be disordered in some way, and those that were a completely different culture he deemed “barbarian,” a term that literally meant “non-Greek speakers,” fit only for domination. Clearly, a society based on that sort of “natural law” would be bad for women, since women would only fulfill their “nature” by running the household for men who were active in the political and economic life of the society, having and raising children, and managing their slaves. Whether it would be bad for gays is another question; the Greeks accepted and expected male-male sexuality, particularly between older men and teenage boys. But in the Catholic understanding, the fact that there are two genders suggests that sexuality is intended for reproduction, and any expression of sexuality that cannot possibly lead to pregnancy is unnatural and disordered: not only abortion, but homosexuality, contraception, and masturbation.

But the Thomistic view of natural law is not the only possible one. Utilitarians in the 19th Century had a very different view of human nature, one that emphasized pleasure as the motivation for all actions, and thus defined a “good” act as one that brought the most pleasure possible to the most people possible, or aimed to reduce suffering to the least amount to the fewest people possible. Based on this understanding of human nature, and of nature in general, they were politically active supporting laws against animal cruelty (since animals too can suffer), in support of workers and poor people (such as opposing debtors’ prisons), supporting the rights of women, and so on. Kantians by contrast argue that “human nature” is to be guided by pure practical reason, apart from concerns about sensation; therefore, what is moral is what is done out of a sense of duty towards the universal moral law. A prominent example of this sort of moral law reasoning is the philosopher Robert George, who in an interview argued against Peter Singer’s extreme utilitarianism by asserting that we must base our legal understanding of human rights on the principle of always treating others as ends in themselves, never as means towards another end (Kant’s second version of his Categorical Imperative). By this understanding, any law that seems to treat another person as less than infinity valuable would be immoral and unnatural, even if the person wished to be so treated. For example, from a Kantian perspective voluntary suicide to escape a painful terminal illness would be wrong since it would be treating the other in terms of sensation rather than as a rational being whose every moment of existence is valuable regardless of whether it is pleasant. So taking the legal definition of “natural law theory,” we can wind up at radically different legislation based on different moral theories. A full commitment to natural law as both a philosophical and legal principle would most likely argue that moral people reasoning together will be able to discern the moral principles inherent in human nature and base legislation on those principles. Whether this idea should cause alarm to any group would depend entirely on how they expect this administration, and the panel it has created, to define “human nature.”

To be continued…

Natural Law in an Age of Nihilism (pt. 1)

June 11, 2019

“You’re saying it’s a falsehood. And they’re giving — Sean Spicer, our press secretary, gave alternative facts to that.”

—–Kellyanne Conway

 

 

 

Secretary of State Pompeo of the Trump administration recently announced its intention to offer “fresh thinking” on the nation’s commitment to human rights by launching a new panel to investigate how to base our conception of human rights on “natural law.”[i] This has raised concerns with many in the LGBTQ community in particular, who have interpreted it as a weakening of the commitment of the United States to gay and lesbian rights (and possibly others). Are these concerns justified? Just what does these terms mean, anyway? Is this, as its proponents contend, a desirable effort to put the concept of “human rights” on a solid foundation? In this paper, I shall attempt to explore the public claims on behalf of this attempt to redefine our national policy in terms of natural law, “natural law” has historically meant and what it more generally means, and what a claim to commitment to natural law means in an era of alternative facts.

For any non-philosophers who may stumble across this, let’s start with the basics: what is “natural law”? In philosophy, it refers to the idea that morality should be deduced from facts of nature, and specifically human nature. In its most common form, Catholic moral teaching, it has its roots in Aristotle’s ethical thought. Aristotle argued that a human is a rational social animal. That is, the human soul, or Form, or essence has a vegetative part, which is to say it is alive like any plant or animal. Humans are also sensitive, like any other animal; they feel and sense their surroundings, and react to it to gain food or whatever else they desire, and to escape what is harmful. They are social; a single human cannot gain everything he or she wants alone, but needs to live in a community with others. And what makes humans unique is that they are rational; they can guide their actions by reason, and can enjoy simply thinking and understanding philosophy, history, science and other general areas of knowledge. Therefore, a fulfilled human life is one that includes not only the essential bodily needs and some comforts, but also includes a life guided by reason and in community with other likewise rational people. As St. Thomas Aquinas took over Aristotle’s philosophy and sought to reconcile it with Christian theology, he argued that this understanding of human nature revealed a natural law, alongside the divine law revealed by God through Moses and the other prophets, and finally through Jesus. While revealed law is of course only knowable to those to whom it has been revealed, natural law is understood through immanent knowledge, through understanding nature, which is something any rational and observant person can do. Part of the point of distinguishing “natural law” from “divine law” is to say that natural law is accessible to, and thus also binding on all human beings.

Legally, the idea of “natural law” is that legal regulations should not be based on some more or less arbitrary social convention or social contract, but on philosophically and (at least generally understood as) universally knowable moral principles. Laws should not discourage actions that are morally fulfilling for humans to pursue, and should discourage those that are unnatural or harmful in some way. If we want to say, for example, that people should be punished for driving faster than 45 miles on this particular road, it is not enough that a majority of people think it’s a good idea; we need to show that driving faster than that is somehow good for people (such as preserving life) and that it does not unduly restrict their natural freedom (as banning all cars might, since people have a right to own and use property within reason, including cars). Thus this sort of thinking is radically opposed to Hobbesian social contract thought, which says that all laws are ultimately “good” simply because the government says they are good and the rest of society obeys them because living according to the social contract is better than living as an outlaw or solitary exile.

To be continued…

[i] Nahal Toosi, “State Department to Launch New Human Rights Panel Stressing ‘Natural Law;” Politico 5/30/2019 (https://www.politico.com/story/2019/05/30/human-rights-state-department-1348014)

The Mueller Report: I read it for you, but you should read it yourself. pt. 2(c)

May 29, 2019
  1. The President’s Reaction to Public Confirmation of the FBI’s Russia Investigation

The second area of concern for the Mueller Report is Trump’s reaction to the FBI investigation of Russia’s efforts to disrupt and control the U.S. elections, including connections between the Trump presidential campaign and Russian intelligence. As discussed in Volume One of the report, there were extensive connections between the Kremlin and Trump Tower, but ultimately the Special Counsel decided he could not establish that there was a conspiracy. There was extensive indirect coordination, and both sides definitely acted in ways that benefitted the other and expected to benefit from the other; but given the apparent lack of concrete payoff for Russia, Mueller decided that there was not a full-blown conspiracy, at least not one he could prove with the evidence he had. But even if there is no “crime,” there can still be an obstruction of attempts to investigate. Mueller discusses efforts by Donald Trump to take control of the investigation, and the reasons he sought to do so. In early March, Trump learned that Sessions was intending to recuse himself from the Russia investigation. Sessions considered this a no-brainer; he was part of the Trump campaign and thus a potential subject of investigation, so for the investigation to have a shred of credibility he had to step away. Furthermore, there were those two meetings he had with the Russian ambassador which he had not disclosed to Congress. Again, Mueller did not find anything nefarious in those meetings, but they had to be investigated and so Sessions had to recuse. This was also the advice he received from the ethics officers at DOJ. Trump by contrast expressed his concern that if Sessions recused himself he’d be unable to protect Trump from investigation, which Trump considered more important than whether the investigation would have any credibility. After the recusal, White House ethics officers stated that the White House should have no further contact with Sessions about this topic; nevertheless, Trump personally continued to press Sessions to unrecuse himself.

By March 20th, FBI Director Comey was authorized to publicly confirm that there was an active investigation of Russia’s interference in our election, but to refuse to comment about any particular persons who might or might not be under investigation. Comey followed these instructions, refusing to tell Congress whether or not Mr. Trump was being investigated. This is said by the report to have made the President’s frustration “worse,” and that’s after previous testimony had described the White House as “in chaos.” Trump is described as being “beside himself,” and began considering by the 21st whether he could fire Comey without a specific cause. The evidence presented is that White House and DOJ officials advised that firing Comey would make things worse, not better, as it would not shorten the investigation and would look suspicious.

Mr. Trump also repeatedly asked other intelligence community officials, such as then CIA Director Pompeo and Director of National Intelligence Dan Coats if they could make public statements that he, Donald Trump, was not under investigation. Both of these men gave testimony that differed substantially from that given by their staff and other witnesses. In particular, the report says that Pompeo was asked to stay behind after a meeting to talk privately with Trump, but he said he had no such recollection. This is significant because, as Mueller stated earlier, a desire to discuss things privately suggests that Trump may have realized that he was suggesting something irregular that had to be concealed from other aides and officials. More significant are the discrepancies in Dan Coats’ testimony; his staff confirmed that he said he’d been asked to contact Comey about the FBI investigation and felt it was an improper order, while he testified Mr. Trump never asked him to speak to Comey. As well as repeatedly complaining to Coats about the investigation, Trump also contacted the NSA Director, Admiral Michael Rogers, and asked him if he could publicly refute the notion that Trump himself was under investigation. This request, witnessed by the Deputy Director as well, was said to be “the most unusual thing” the Deputy Director had experienced in 40 years of government service, and struck both of them as so strange and improper that they immediately drew up a memorandum, signed it together, and put it in a safe. However, Director Rogers said he did not interpret it as an “order” so he did not do anything about it.

On March 30 the President directly contacted Comey and asked him to “lift the cloud” over him concerning the Russia investigation. Comey contacted his immediate supervisor at DOJ, Mr. Boente, about the conversation, asked for guidance, and said he was uncomfortable with the fact that the President was directly contacting him about this. At this time, Trump was not in fact under direct investigation, and his concern was to get that word out. Trump said it was fine to investigate his “satellites” but he wanted the world to know that he himself was not being investigated. So he was not asking anyone to lie, but he was interfering with the investigation by pushing to have information publicly released before the investigation was concluded. Also, a public statement that he was not being investigated could have hindered a future investigation if one became necessary.

  1. Obstructive Act: There is some question in the report whether there was an obstructive act at all. The principle persons involved, Pompeo, Coats, Rogers and apparently even Comey, did not feel that Mr. Trump’s repeated pleas for public statements of his innocence were “directives to improperly interfere with the investigation,” and in fact they often did not carry out those requests because they saw them as foolish or improper requests but not direct orders. But other witnesses testified that at the time Coats at least did feel that he had received just such a directive to improperly interfere, i.e. obstruct the investigation.
  2. Nexus: Since all these actions by the President came as a result of the investigation of Russian interference in our elections, there is a nexus to an official proceeding even though it had not reached the grand jury at that time.
  3. Intent: At this time Trump was not trying to shut down the investigation; he agreed that if “some satellite” of his had been working with Russia “it would be good to find that out.” But it is clear that he had personal reasons for involving himself in the investigation; it was interfering with his desire to develop closer ties to Russia, and he felt that the implication that Russia had helped elect him undermined the greatness of his electoral victory.

Overall, then, this is less clearly a case of obstruction of justice than the Flynn episode seems to be. The nexus to an investigation is clearly established. The intent to intervene for personal and political reasons, rather than simply for the good of the nation and the integrity of the investigation, is a bit less clear but Mueller seems to feel this too is established. In fact, Trump’s repeated efforts to clear his name troubled those he contacted as possibly improper and definitely irregular, and in fact he was advised against these repeated outreaches to Comey and Sessions by his own advisors and legal counsel partly because it would tend to undermine the integrity and credibility of the investigation. The real question is whether there was in fact a real obstructive act. Was Mr. Trump ordering people to interfere in the investigation, or was he merely venting? Was he trying to clear his name because he knew or believed he had done nothing wrong, or was he trying to drag others into a cover-up? Mueller gives more weight to the testimony of Coats and the other officials than to other witnesses, partly because only they were at these private meetings with the President while other witnesses mostly recalled what their bosses said or did immediately afterwards. This might have been ruled mere hearsay in court, though an impeachment hearing might give this testimony a different weight. While a later investigation, either an impeachment or a criminal trial after Mr. Trump leaves office, might wish to look harder at this evidence and try to resolve the discrepancies, the Mueller Report simply presents the sometimes conflicting testimony and leaves it there for the reader’s consideration.

If you like visual aids, here’s a quick summary of the Mueller report

May 29, 2019

Here’s a chart summarizing the Mueller report.

I haven’t finished my analysis so maybe I’ll quibble with some of these later.  What it shows, and what your own reading of the Special Counsel’s report will show, is that the claims of “no collusion” and “total exoneration” are #FakeNews, to turn a phrase.  In fact, the report is closer to #ImpeachTrumpNow than it is to #WitchHunt.  The short version is “The Special Counsel can’t indict a sitting president; presidents have to be impeached first, and then indicted, so it’s up to Congress to take it from here.”

The Mueller Report: I read it for you, but you should read it yourself. pt. 2(b)

May 23, 2019

In Volume II of the Special Counsel’s report, Mueller describes ten areas that could represent obstruction of justice. In each case, he presents all the evidence he was able to gather, including facts as testified by eyewitnesses or by intelligence sources, as well as areas where he was not able to ascertain the facts because witnesses, including the President* lied, refused to answer or claimed not to remember.   After presenting the history of the events and all the evidence he had available, he offers an analysis as to whether each of the three essential elements for an obstruction of justice case were present: the obstructive act, the nexus to an official investigative proceeding, and the intent. Some of these, on close consideration, he does not seem to consider obstruction. In no case does he come out and say that any is obstruction; as we’ve seen, he had already ruled out any possibility of making that determination himself, since he sees this as the job of Congress. But in some cases, he states that the three essential elements definitely appear to be present, thus leaving the reader with the only logical conclusion that the White House was in fact obstructing justice and continues to do so.

  1. The President’s Conduct Related to the Flynn Investigation

Before Michael Flynn began his work as Trump’s National Security Advisor, he had two phone conferences with the Russian ambassador. Since there is only one President at a time and until January 20th that was Obama, it was improper for him to discuss foreign policy matters. Nevertheless, Flynn discussed the sanctions Obama had imposed on Russia in retaliation for its interference in our election. While lying to the press is not a crime, Flynn lied under oath to the FBI about these calls, which is a crime. These lies occurred while Mr. Trump was President. And because he had committed a crime and Russia knew about it, he was vulnerable to being blackmailed by Russia. This was a serious matter. The President had a private dinner with James Comey, the director of the FBI, and asked for him to swear loyalty to Mr. Trump personally, and shortly thereafter asked him to go easy on Flynn. He also fired Sally Yates, then Acting Attorney General, who initially brought concerns about these lies to White House attention. Despite having been briefed before becoming President about the Russian efforts to subvert our nation’s electoral process, and advice from his own advisors that Flynn had possibly violated U.S. law, it was not until Feb. 13 that Flynn was finally forced to resign, and even then White House efforts continued to cover for him.

  1. Obstructive Act: Comey claimed that Trump privately asked him to “let Flynn go.” Trump disputed Comey’s account, but Mueller points out that there is good evidence that Mr. Trump lied; not only did Comey testify under oath (something Trump has refused to do) but there were independent witnesses that Trump did indeed hustle everyone else out of the room so he could talk privately, which he denied. Was this really an “obstructive act,” or merely Trump expressing the wish that Flynn be spared further humiliation? Mueller argues that it was obstruction. First, Trump arranged to make the statement privately, suggesting that it was intended as a request that he did not want others to overhear. Second, he was Comey’s boss, and when your boss says “I hope you’ll do this,” that is generally a request. His thrice-repeated “let this go” reinforces the view that this was an order.
  2. Nexus to a proceeding: At the time of this clandestine meeting, there were no grand jury subpoenas out as part of the FBI investigation. However, everyone in the White House knew that Flynn had lied, that this was a violation of U.S. law, and that the FBI at least might prosecute. Thus there was a nexus to a possible proceeding, and attempting to head off such a possibility qualifies as obstruction of justice.
  3. Intent: While there was an attempt to get McFarland to falsely claim that she knew President Trump had not directed Flynn to discuss sanctions, there is no evidence that at that moment he actually had directed Flynn to do so. There is therefore no evidence that Trump was trying to cover up any criminal activity of his own. That is significant, since it goes to the question of intent: did Trump intend a cover-up? Did he have a personal stake in Flynn’s fate?

What Mueller did find is that while Trump may not have had a personal legal stake in the Flynn investigation, he did have a personal emotional stake. He considered and still considers any mention of Russian interference to be a challenge to his legitimacy and to the greatness of his achievement. There is evidence that Flynn was fired to try to end the Russia inquiries, that Trump reacted with “annoyance and anger” when the Flynn story broke because he thought it made him look bad, and that when told that firing Flynn would not end things he tried to pressure Comey to wrap things up. Also, while Trump has been publicly supportive of Flynn, privately he has been disappointed and angry and has mostly been motivated to keep Flynn from saying negative things about him. Overall, Mueller shows that Trump’s concerns were personal, rather than motivated by sympathy for Flynn or concern for justice: he didn’t want to look bad and thought that Flynn’s actions cast doubt on Trump himself.

Thus, the Special Counsel finds that all three elements of an obstruction of justice seem to be present:  the obstructive act itself, the official investigation which is being obstructed, and the motive to do so.  To confirm whether this is in fact obstruction of justice, and to punish the violation of law if it is, requires that Congress investigate and hold impeachment hearings; no other remedy is permitted under DOJ guidelines, while impeachment and possible removal is.  After removal from office, the DOJ guidelines forbidding prosecution of a sitting POTUS would no longer apply, and a criminal investigation could proceed.

To be continued….

The Mueller Report: I read it for you, but you should read it yourself. pt. 2(a)

May 22, 2019

Redacted Reactions to the Redacted Mueller Report: I read it so you don’t have to, but you really should; pt. 2(a)

 

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution but we determined not to make a traditional prosecutorial judgment.”

——Special Counsel Robert S Mueller III, Report on the Investigation into Russian Interference in the 2016 Presidential Election

 

Volume Two of the Mueller Report deals with the question of obstruction of justice. There are three points that I consider most important to understanding this part of the report. The first is that the Special Counsel began with a decision not to recommend prosecution no matter what. This decision is explained as being based on the Office of Legal Counsel’s standing policy that a sitting President cannot be indicted, because it would undermine his effectiveness. A sitting President can be impeached, which is much harder since it takes 2/3 of the Senate to convict and removed an impeached official. A substantial majority of Senators could believe the person guilty and even a danger to the nation, but so long as 34 vote in favor of the impeached official (whether it be a president, judge or whatever) he or she remains in office. A president can be indicted and tried upon leaving office under OLC guidelines, but not until then; so the president must either be first removed via impeachment or 25th Amendment procedures, or indicted after finishing his elected term of office. So while the Attorney General expressed surprise that Mueller made no recommendation to prosecute, the fact is that Mueller felt he had no choice; his only job was to gather and preserve evidence for possible later prosecution.

Furthermore, Mueller expressed the opinion that even creating a sealed indictment, to be automatically served upon the President’s leaving office, would be unjust. The accused must have the right to clear his (or her) name. Usually that is done through a trial, when the defendant is declared “Not Guilty.” If a President can’t be tried, then the President can’t clear his name; the accusation will hang over him (or her, if we ever get that far) like the Sword of Damocles. The only just way to resolve this situation is through impeachment. With an impeachment hearing, the evidence against the impeached official is presented; and more important for the defendant, the accused can present his/her evidence in defense. Thus an impeached President would have the opportunity to clear his name, by offering a defense at the impeachment hearing and trial.

The refusal to recommend indictment is not, therefore, remotely like claiming that there is nothing indictable. Rather, it is a recognition that, given the laws and rules that authorized the investigation in the first place, a sitting President can’t be indicted as any other person would who did the same things. Impeachment, and/or prosecution after leaving office, are the only options.

In fact, the Special Counsel’s report states several things quite clearly: first, that even if no “collusion” was established, that does not mean there was no evidence that it existed or that such evidence might come to light if certain witnesses cease refusing to testify candidly and truthfully; second, that if the investigation had exonerated the President they would say so, but they are not saying so, so you can draw your own conclusions (or have an impeachment trial to examine the evidence); and third, that there is in fact substantial evidence for obstruction of justice charges against the President.

To be continued….

The Mueller Report: I read it for you, but you should read it yourself. pt. 1

May 16, 2019

Redacted Reactions to the Redacted Mueller Report: I read it so you don’t have to, but you really should. Part One

 

“While this report does not conclude that the President committed a crime, it also does not exonerate him.”

——Special Counsel Robert S Mueller III, Report on the Investigation into Russian Interference in the 2016 Presidential Election

 

https://cdn.cnn.com/cnn/2019/images/04/18/mueller-report-searchable.pdf

Reading the redacted Mueller report is a lot like watching an R-rated movie on television when you were a kid and your parents didn’t let you see the original version in the theater. You can still get a lot of the experience. You know the crimes are pretty bad, the villains are villainous, and somebody just got screwed; but you’re pretty sure you’re not getting the whole experience, and whether it’s for titillation or for actual context that would make the rest more comprehensible, you want that whole experience. In that analogy, the Barr summary is your parent saying, “You don’t need to see that filthy version. Trust me, he says “Yippee-ki-yay Mr. Falcon” in the original too. Really, it’s all pretty boring, and you should just forget about it. And who wants to see a bunch of monkey-loving snakes on a monkey-loving plane anyway? It’s just silly. Just watch the movies I recommend; they’re better and I’ve checked them out to make sure there’s nothing that will confuse you at your young age. Trust me.” And somehow the oft-repeated “Trust me,” and the implication that you can’t handle the truth unless it’s been baby-birded for you by your parental authority figure just makes you want to see the original for yourself even more. So it is with the redacted Mueller report: what’s there is already pretty disturbing, but you sense there’s more that would either make the rest more understandable or reveal the true importance/horror what you’re being shown. And with Barr having gotten the job of reading it for you by first publishing a 16 page essay on how, without even seeing the evidence, he knows Mr. Trump didn’t do anything wrong because he’s the President and presidents can’t and don’t do anything wrong, his reassurances are as convincing as your parent telling you that “The Human Centipede” is a boring movie about bugs.

The first thing I learned from the Mueller report is that the early characterizations of it were misleading at best. It does not, for example, “totally exonerate” the Trump campaign even on the issue of conspiracy to defraud the U.S.A. It generally uses less committal phrases, like “did not substantiate” or “were unable to reach a conclusion.” In fact, there were numerous contacts between the Trump campaign and Russian intelligence and other agencies. The report concluded that little short of an explicit quid pro quo would be likely to win a conviction, and much of the coordination between Russia and the GOP was implicit. That is not to say that there were no crimes; it is only to say that DOJ guidelines led Mueller to only recommend charges if he were sure of a conviction, and that nothing short of a recorded statement between two people saying something like, “Hey, I have a great idea for how we could fix the election and then give you Ukraine in exchange; it’s illegal but let’s do it anyway” would hold up. Trump’s campaign chairman and Russian oligarchs did, for example, discuss dividing Ukraine, but other members of the team were too uninterested to follow up. Kushner and Don Jr. among others did hold a secret meeting with Russian representatives and then lie about it, knowing that the meeting was about Russian efforts to help Mr. Trump win the election; but Mueller concluded that most of the Trump Team were too ignorant to definitely know what they were doing was illegal and too arrogant to ask a lawyer or diplomat whether they should be doing this. To them it was no different than negotiating a real estate deal with Yakuza or Russian Mafia members, which they’ve done for years and saw no reason to stop. Without proof that Jared and Donnie were intelligent enough to know that dealing with a foreign government to get help winning an American election is not only immoral and unpatriotic but also illegal, Mueller didn’t feel he could show criminal intent. But “we couldn’t prove it because Manafort and others blatantly lied,” or “we weren’t sure they knew they were breaking the law even though they lied to hide what they’d done,” or “we determined that it wasn’t worth the trouble to prosecute these crimes because we weren’t sure of getting a conviction” is something less than “total exoneration.”

At the same time, things apparently aren’t quite as bad as I and many others had feared. Yes, the Republican Administration is just as petty, venial, greedy, selfish, deceitful and unpatriotic as we thought; but they’re also disorganized and disloyal and often just plain dumb. They stab each other in the back, or work at cross purposes due to lack of communication and different personal agendas. For example, Erik Prince discussed how he worked to set up a covert back channel between the Trump campaign and Russia, only to have Bannon ignore his reported early success due to disinterest. He either failed to understand how significant this opportunity was, or it didn’t fit into his plans for the coming civil war between liberals and white nationalists; in any case, he wasn’t upset because it was illegal or deceitful or upset at all, but merely bored.

The coordination between Putin and the Trump team was something like a tango; the partners don’t verbally communicate, but respond to each other’s movements to stay in sync. One side would give hints and the other would act on the perceived hints, but rarely were words spoken that could come back in court as evidence. If Trump said he hoped something would happen or his people said they needed something, Russia would provide it without explicitly being asked. But much of this was one-way; Russia was working to provide the Trump campaign with whatever it needed, but when they came back hoping to capitalize on the good will they’d earned they found that no one on the Trump team had a plan of how to help them. They couldn’t even find anyone with the authority to answer their questions except for those, like Bannon, who had their own agendas and were too busy to respond.

Furthermore, by the time Putin’s people came along to try to build bridges to the Trump administration, they found that he was so weakened that he was unable to respond. Mueller repeatedly mentions that some representative of Putin would approach some Trump advisor with plans for Ukraine or Syria or lifting sanctions on some oligarch, only to be told that the Trump team was under too much scrutiny due to its perceived pro-Russian attitude and Putin’s pro-Trump attitude. As Spock says in Star Trek: The Undiscovered Country, “Only Nixon could go to China.” Nixon was well-known as a Red-baiter, hostile to Communists whether they were American, Russian or Chinese. Therefore, when he unexpectedly opened negotiations with the People’s Republic of China, no one seriously thought he was betraying his nation for his own ends. Trump is no Nixon, at least in that sense. He and his family boasted for years about how much business they did with Russia and Russian oligarchs, and everyone knew that the Trump-Kushner Syndicate would make a significant profit if U.S. sanctions were lifted. Trump has borrowed heavily from Russian sources, and pursued deals like the Moscow Trump Tower project which he then lied about to the American people. Thus, he is compromised, an easy target for blackmail or more subtle pressure. And therefore, any time Putin made an effort to reap the rewards of his success (in Moscow they said “Putin won” when Trump won), he was told “we’re too weak now, we can’t be seen as being too friendly to you.”

So those of us who thought of Trump as “Putin’s Puppet” were too worried, according to the Mueller report. The Trump team is too chaotic and incompetent to carry out a decent conspiracy. As one of their surrogates puts it, they can’t even collude with each other, so how could they possibly collude with Russia? Mueller backs up Graham on that assessment. And when they might want to collude, they are too afraid of seeming like Russian stooges to risk doing very much. Mueller describes multiple efforts by Putin to follow up on his success in installing Trump, but concludes that they have foundered not because the Republicans were patriotic or even minimally honest, but simply that they were incapable.

Aside from this, there is little surprising in the first half of the Mueller report: depressing, distressing, but not surprising. Most of it has been reported in the mainstream media, the New York Times, Washington Post, CNN, NBC, BBC, public radio and television, even occasionally on FOX News if you avoid the prime-time pundits and the Dawn of the Sycophants and stick to Shepherd Smith and Chris Wallace and the rest of the “News” division. Mueller’s investigation largely supports the reports of what Trump calls “Fake News,” showing time and again that the facts support the actual news media reports and that, when put under oath and confronted with the facts, even Trump’s employees admit this. By contrast, having sorted through a great deal of evidence, including electronic records, sworn statements from multiple witnesses and so on, the Trump/GOP assertions have been show to be false more often than not. Between the flat-out perjury, the public lies that get quietly retracted when under oath, the half-truths that later get corrected again and still turn out to be misleading, and the assertions based on arrogant ignorance, the Mueller report makes clear that you should not believe anything from Team Trump, whether it comes from the Trump Crime Family, the conservative media echo chamber, or the GOP as a whole. So while Mueller has shown that the GOP Congress and White House are failing to protect American sovereignty and democracy, or even actively working against these as far as they are capable, there is still one pillar of American democracy that the report suggests is doing its job fairly well under the circumstances: the free press.

Article on Humility

March 15, 2019

Article on Humility

 

St. Augustine said that pride was the first sin; in his book Whose Justice?  Which Rationality? Alasdair MacIntyre identifies this identification of pride as the deadly sin and humility as the cardinal virtue as distinguishing characteristics of the Augustinian moral tradition.

Much later, Kierkegaard made humility a central concept in his epistemology and ethics also.

Later still, Diogenes Allen identified humility as the cardinal virtue, and again linked its epistemic and ethical aspects.

Sadly, we don’t live in an era where humility is treated with respect.  Instead, as Harry Frankfurt points out, we live in an era of bullshit, where arrogance is admired and the greatest, most respected leaders and pundits are the ones who neither lie nor speak truth, but who simply make noise, without regard or often even knowledge of whether what they say is true or false, simply to get noticed and have influence:  the very apotheosis of arrogance.

In his article, “Vices of the Mind,” Quassim Cassam offers his reaction to the book Fiasco: The American Military Adventure in Iraq.  In this work author Thomas E. Ricks discusses the planning (and lack thereof) of the invasion of Iraq by the George W. Bush administration.  Repeatedly the political leaders were advised by career military officers with experience and expertise that hundreds of thousands of troops would be necessary to establish order once the Ba’athist regime was overthrown; but not only was this advice ignored, the generals who dared speak truth to power were belittled and undermined by Rumsfeld and Wolfowiz in particular. Having had successful political careers, they were self-assured to the point of arrogance; and lacking the relevant military knowledge, they were incapable of raising any questions themselves.  Ricks concludes that Bush, Cheney, Rumsfeld and Wolfowiz were “‘arrogant’, ‘impervious to evidence’, and ‘unable to deal with mistakes’.”

For Cassam, what this points to is the dangerousness of intellectual vices.  These four men in particular combined power with pride. Their career success proved to them that they knew more than the experts, and didn’t need to listen to anyone else.  They were simply so smart in their own eyes that they didn’t feel any need to check their own assumptions.  When the generals who were experts proved right, their political bosses couldn’t process the clear evidence and change course quickly enough.  The vices of these individuals led to the unnecessary deaths of hundreds of thousands of people and the misery of millions, creating two failed nation-states and a terrorist caliphate that makes us long for the days when Ba’athism and al Qaeda were the worst we had to worry about.

This article is a powerful example of why philosophy matters.  The supposedly dusty and obscure writings of Aristotle on vice and epistemology, and the esoteric research of psychologists like Dunning and Kruger, explain one of the greatest foreign policy blunders of our nation and the one that took the promising end of the 20th Century and turned it into the clusterfuck of Republican administrations in the 21st:  an international economic collapse we are still recovering from, increasing environmental disasters that continue to surprise everyone except those who paid attention to “An Inconvenient Truth,” humanitarian nightmares in Yemen, Syria, Myanmar and elsewhere, international terrorism by white nationalists, all while the government of the most powerful nation on the planet fixates on whether late-night comedy and Twitter parody sites should be censored.  The common thread is that in all these cases, expertise and ethics are rejected, while unfounded confidence and will-to-power are allowed to run unchecked, causing chaos and decay while demanding veneration.  Intellectual humility is treated as uncertainty and weakness, because we have long since ceased teaching our children and future leaders to recognize virtue and vice.  We need to learn to embrace the intellectual virtues that will allow us collectively to recognize and value truth, for without it we cannot hope to find successful solutions to the many dangers we face.