The Mueller Report: I read it for you, but you should read it yourself. pt. 3(a)

June 18, 2019
  1. The Firing of FBI Director James Comey

Often in stories there’s a point where things go from maybe bad to major crisis in an instant. If we read the Mueller Report as a political novel, the turning point is the firing of James Comey. Prior to this, many of the characters seemed to think that while the President of the United States was breaking the law, maybe he was just such a novice, so insecure and so used to instant gratification that he just didn’t understand the significance of his actions. He seems to have approached the Flynn investigation like the town millionaire in an old TV show saying to the local sheriff, “I know my boy shouldn’t have been driving so fast and maybe he’d had a few beers, but how about I pay the hospital costs for the old lady and you let it slide. After all, he’s basically a good boy. Say, how’s your reelection campaign coming?” Yes, it’s sleazy; but it’s the sort of corruption of and by the rich that we all always sort of knew went on anyway. The boss wanted to get his favorite Yes Man out of trouble. Is that the end of the world? The White House efforts to get the FBI, CIA or anyone to say publicly that Mr. Trump was definitely totally not being investigated also seem like heavy-handed elitism in action, like someone who is getting carried away with his image and an army of sycophants and fixers trying to satisfy him; but again, while the report indicates they likely broke the law, it’s not like they broke the legal system itself. In fact, if the Flynn incident reminds me of the bullying millionaire in Perry Mason episode trying to bend the town to his will, the reaction to the public confirmation of the existence of an FBI investigation seems more like an old-timey Hollywood diva in some drama, or maybe real life, who’s terrified of being linked to scandal rightly or wrongly, and goes so far to try to squelch the story that she or he ends up actually making things worse. Again, not good, but nothing we haven’t survived before.

The Comey firing changed everything. It is impossible to overstate this, from a political or literary perspective. Politically, we need only look at the reaction at the time. People with decades of experience in national security and law enforcement, who had served both Republican and Democratic administrations with dedication and distinction, were so shocked by the unprecedented audacity and destructive nature of Trump’s actions that they seriously believed, and still do believe that the president of the United States might be an agent of a foreign government, or at least a complete dupe and puppet. It has been credibly reported that there was serious examination of the Constitutional options for removing him from power before he could do irreparable harm to the nation or possibly end it.[1] People who know more than you do, more than I do, who have spent their lives looking at these sorts of matters and who have the training and personality to be far less partisan than you or I, looked at President Donald Trump and how he acted in his firing of the director of the FBI and thought it more likely than not that he is either a mole or a dupe, a willing or unwitting Russian intelligence asset, and considered whether it would be possible to legally and Constitutionally remove him and replace him with Vice President Pence, lest he should betray the nation to its enemies and possibly destroy it. People who compare Trump to Nixon are unfair to Nixon; even in the midst of the Watergate investigation, no one really thought Nixon was working for the Russians. Nixon could go to China because even people who thought he was neurotic, paranoid, racist and a lawbreaker conceded that he was an American who truly put “America first” in the good sense, in the sense that he would not knowingly weaken the nation for his own profit or put another nation’s interests over our own. People who know more than we do about what’s going on in our government today do wonder, seriously worry that the occupant of 1600 Pennsylvania Avenue is either being bribed, blackmailed, or simply so disloyal to the nation that he is willing to sacrifice us at the behest of Russia, and possibly other authoritarian governments. If this were a horror movie, this is the point where the hillbillies go from vaguely threatening talk to firing up the chainsaws. This is the point in the story where we go from “The president broke the law” to “the president is breaking America.”

 

To be continued….

[1] Maureen Groppe, “What to Know about the 25th Amendment: It

s never been used, but ex-FBI head says officials thought about it;USA Today updated Feb 14, 2019 (https://www.usatoday.com/story/news/politics/2018/09/05/could-25th-amendment-used-remove-trump-office/1012979001/

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Natural Law in an Age of Nihilism (pt. 6, conclusion)

June 17, 2019

Personally, I do not completely agree with MacIntyre’s communitarian ethics. I do think that his critique of Enlightenment and Modern thought offers the best argument for the conservative project. The political rhetoric of today’s Republicans, whether it is named “emotivism,” “nihilism,” or “bullshit,” reflects a loss of faith in the existence of an objective reality or truth. Nietzsche seems to have described this stance pretty well: God is dead, and they killed him, but they don’t quite recognize themselves that he is dead so they continue to make universal pronouncements about how right they are and how foolish and wrong their enemies are while rejecting the validity of logic, objective facts or expertise, all things once prized by conservatives. My own preference is for an epistemology resting on receptivity coupled with a humility regarding our ability to attain complete truth, the whole truth and nothing but: an epistemology and an ethics more rooted in Hamann, Kierkegaard and Diogenes Allen.[i] Humility was the cardinal virtue, and pride the original sin, according to St. Augustine of Hippo; and there is too much pride in the reliance on “alternative facts” and spin and will-to-power and bullshit and threats and actual violence coming from the Republican Party today.

It is that which causes so much concern in the LGBTQ community, the African American community, the immigrant community, all religious groups outside of the Christian Religious Right (especially non-Christians but also those non-“Evangelicals”) and virtually all others who are not white, conservative Fundamentalist males. Almost everyone outside the Trump base suspects that the supposedly necessary and neutral fact-finding panel is merely cover for narrowing the human rights of everyone who does not fit a very narrow and ideological vision of “human nature.” Perhaps more troubling, the very language of the announcement of this new panel suggests a fundamental abandonment of the whole concept of “human rights” in favor of a conception “American rights.” Instead of looking at humans as a class and declaring that they are valuable in and of themselves, entitled to certain rights, the announcement of this committee’s inauguration said it would found its notion of rights on specifically American history and values. This is abdicating the defense of “human rights” versus attacks by China, Saudi Arabia and other nations that have insisted that in fact there are no “human rights” and that Western nations have simply been attempting to impose their own values on everyone else. Instead, those nations have wanted to say that some people don’t matter, because they are the wrong religion, or wrong gender, or wrong ethnicity, or have the wrong politics. With this declaration, the Trump administration has thrown its lot in with other nations that seek to impose a government-mandated, government-allowed standard of “human” on others, suiting some for exaltation and others for persecution and humiliation, rather than accepting all people as they are, as people, and treating them first as people.

[i] For more on this, see my blog under the category “Humility” https://philosophicalscraps.wordpress.com/category/philosophy/humility/

Natural Law in an Age of Nihilism (pt. 5)

June 16, 2019

Interestingly (to me at least) the very nihilism at the heart of the Republican administration which is putting together this panel actually suggests an argument that something like this is actually necessary.[i] According to Alasdair MacIntyre, it was inevitable that Western culture would collapse into Nietzschean nihilism once it ceased to base morality in the values of a particular culture. The Enlightenment dream of a universal ethics valid for all persons qua persons was a fantasy from the start. All morality has to be rooted in and derived from some vision of human flourishing. The virtues recommended by that ethics are the character traits that aid in living the sort of “good life” embraced by that particular culture. Outside of any social context, those virtues are arbitrary and unsustainable. Unless you embrace the sort of eudaimonia prized by Athenian gentlemen, the Aristotelian virtues such as bravery, self-control and pride won’t make any sense. An Augustinian Christian’s virtues such as humility and universal love would seem absurd to Aristotle, just as some of his virtues would seem to be nothing more than “glittering vices.” In MacIntyre’s understanding of the history of Western thought, the Enlightenment project of basing ethics on universal reason alone apart from all religious, national or other communal standards was doomed from the start, and in fact cut the foundation out from under human moral thought. The result was emotivism, where moral language simply collapsed into a contest of wills, each individual attempting to get everyone else to feel the way he or she felt about whatever point was being debated. From this point of view (sometimes called “communitarian ethics”), the moral nihilism of Donald Trump and the Republican Party is simply an open acknowledgment of the fact that God is dead and has been for a long time, and all the lofty claims by liberalism to seek universal ethical standards has simply been a fraudulent attempt to impose the standards of their group on everyone else through trickery and persuasion. The notion of “human rights,” from MacIntyre’s perspective, would be rights as defined by a certain group using a certain understanding of human nature, but using language that asserts their view to be the only legitimate one. Conservatives, in this view, are simply more honest in relying on political and physical force rather than sophistical argument.

If MacIntyre offers a reason to doubt the common notion of “human rights” as a culturally and religiously neutral, universal ethical standard, then MacIntyre also offers a solution that would cast more doubt on the legitimacy of the State Departmet’s human rights panel as presented in the press. In his essay, “Is Patriotism a Virtue?” MacIntyre argues that loyalty to one’s own group is the cardinal virtue, the one essential quality for any further moral life.[ii] The virtues stem from one’s vision of the good, fulfilled, “happy” human life; and that vision of human flourishing is conveyed to one by one’s particular culture. Without a particular culture, one has no human ideal to seek to live out, hence no virtues as habits enabling that good life (or vices to lead away from it), no moral roots, and one’s moral life simply withers away. Each of us are products of our culture, and our vision of the good life comes from that culture. However, MacIntyre says, that does not mean that everyone in the culture agrees on everything. For example, he points to Adam von Trott, who was involved in a plot to kill Hitler.[iii] Trott did not act out of commitment to some abstract universal morality; he acted because he felt the Nazi leadership of Germany had betrayed German values and German culture and had to be stopped. On this view of patriotism, “dissent is patriotic,” if it is rooted in core values of the community itself and aims to perfect the community as a project. To discover those core values in any community, one would have to look not only at its explicit claims but at its overall history and trajectory, what that society valued as shown in its deeds and its aspirations and what it seemed to be striving towards.

By this standard, conservatives today seem to be going astray; they do not discover and live out their country’s values, but try to recreate it in terms of some other, smaller community’s project. For example, conservatives in America today do not study history; they rewrite it. Even in the communitarian view, facts are facts; what value one puts on those facts may be another matter. And the facts are that the leaders of the American Revolution, the “Founding Fathers,” studied and quoted Enlightenment philosophy, particularly social contract thinking inspired by Rousseau and Locke. They distrusted religious extremism, what we would call “fanaticism” and which they called “enthusiasm.” They embraced the scientific, empirical investigation of truth. Many (roughly half) were Freemasons, embracing a religious liberalism that rejected sectarian or what we would call “fundamentalist” spirituality; a good many were not even Christian, but rather Deists. Thomas Jefferson, Benjamin Franklin and John Adams, the three men selected by the Continental Congress to write the nation’s Declaration of Independence, were religious liberals. Jefferson, who is credited with describing the “separation of Church and State” as a “wall” between the two, was the third president of the United States; yet in conservative circles he is treated as an outlier and unimportant fringe thinker compared to Aquinas despite the fact that only two Catholics signed the Declaration of Independence.[iv] In an attempt to undermine “liberal” and “Democratic” importance in American history, the Christian Reconstructionism or Christian Dominionism promoted by such religious conservatives as Rousas Rushdooney and Jerry Falwell has sought to present the American revolution as a conservative revolution against a liberal monarchy. In fact, it is no coincidence that both the British Conservative party and the Americans who supported King George III were called “Tories.” So when Pompeo says the State Department’s new panel on human rights will seek to express “our nation’s founding principles of natural law and natural rights,” this seems disingenuous. The overall thrust of conservative efforts, including those by some people on the panel, has been not to return to the principles of the Founding Fathers, but to rewrite them. A better way for such a committee to establish “our nation’s founding principles” would be to include historians who could review the personal views and public writings of our Founding Fathers, as well as seminal texts such as the Gettysburg Address and Lincoln’s Second Inaugural Address, MLK’s “I Have A Dream” speech and other documents that have contributed to the wider civil religion of the USA.

To be continued….

[i] Alasdair MacIntyre, After Virtue second edition (Notre Dame, IN: University of Notre Dame Press, 1984) pp. 1-78

[ii] Alasdair MacIntyre, “Is Patriotism a Virtue?” in Morality and Moral Controversies, ninth edition, ed. by John Arthur and Steven Scalet (Pearson Education Inc., NY 2014) pp. 405-410; originally presented in The Lindley Lecture, Department of Philosophy, University of Kansas (1984).

[iii] “Patriotism,” p. 408

[iv] For example, Brian Thevenot, “TribBlog: SBOE vs. the Media,” The Texas Tribune March 22, 2010 (https://www.texastribune.org/2010/03/22/sboe-removes-thomas-jefferson-blames-media/). The actions described here are by no means unique to Texas, but are representative of conservative rhetoric for at least the last several decades.

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)

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….