Monthly Archives: October 2017

Twitch Your Eyes So They Think You’re Crazy

Imagine, if you will, that Donald Trump and family/hangers-on are in a bar planning further destruction of the poor and middle classes. Some immigrant waiters have accused the group of cheating on their taxes and undermining the Constitution. Trump’s gang doesn’t take kindly to being told the truth. The two groups are about to tangle.

The bar doors swing open and in walks Sheriff Mueller, dressed in black and sporting double holsters marked “subpoenas” and “indictments.” The Sheriff counts off his steps as he approaches the group and says softly, “it about time you boys got out of town.” They laugh. The National Marshall is on Trump’s payroll and Trump and team are sure they are above the law.

This is, of course, fiction, except for the part about Trump and team being sure they are above the law. And, further, I didn’t make this up by myself.

In case you haven’t seen it, GEICO this year produced a great ad called the “Cowboy Showdown.” You can see it at  https://www.youtube.com/watch?v=MOG8AFPQcM4.  The basic idea is that in a typical Western bar scene, the sheriff confronts a scruffy trio of cowboys who have just been accused of card cheating. The sheriff tells the thugs that it’s time they got out of town, a demand met with hostile mirth by the cowboys. The sheriff then speaks his “left foot, right foot” steps as he moves in closer and then, in a close-up, says “Twitch your eyes so they think you’re crazy.” He does, as uncertainty spreads on the faces of the cowboys. And so on.

The ad’s humor resonates because almost everyone has seen variants of the scene in old western movies performed straight and serious.

The announcement of the indictment of Paul Manafort and Rick Gates reminded me of the ad, which in my view ranks right up there with the camel ad demanding that office employees acknowledge that it is “hump day” (see https://www.youtube.com/watch?v=7LtjzQaFZ3k).  The charges follow close behind Trump’s recent tweets chastising the Secretary of State for trying to negotiate a peaceful solution to the North Korean nuclear threat. In case you missed them, Trump tweeted: “I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man…,” followed by “Save your energy Rex, we’ll do what has to be done!”

This follows other tweets in which Trump has threatened the total annihilation of North Korea, amidst name-calling reminiscent of school-yard behavior of grammar school boys.

The connection between the GEICO ad and Trump’s Tillerson take-down is that this is how Trump negotiates. The sheriff is outnumbered three-to-one and is trying to intimidate the cowboys into giving up their advantage by indicating he is nuts and may do something irrational and unexpected. This spooks them into a state of uncertainty and weakness. However, the sheriff, at the end of the ad, is still outnumbered and in a precarious situation.

This how Trump negotiates – make the other side think you’re irrational and capable of anything, in this case undermining the credibility of your official representative, and thus may at any moment unleash the full fury of American military power against a sitting-duck North Korea.

The “I may be crazy so you better be careful” strategy is not uncommon in business and other negotiations, as you know if you have experience with negotiating in high-stress situations. But the strategy rarely leads to good outcomes against experienced negotiators who are familiar with the approach and know now to deal with it. The outcome can only be positive if the other side responds rationally. If the other side is genuinely bonkers too, the outcome can quickly lead to mutually catastrophic results.

In the case of North Korea, it seems highly likely that Kim Jong-un has, at best, a severely distorted view of the United States and the political system that produced Donald Trump as president. Many people in the West see this confrontation as the worst-case scenario in which a demented, angry and generally ineffectual Trump acts out his fantasies and gets the world into a nuclear confrontation that could be avoided by adult behavior. If both Trump and Kim Jong-un are indeed crazy, as much evidence suggests, we are in a boatload of trouble as a civilization.

The case establishing that Trump may be insane is growing with every passing day. He has now threatened to abort the Iran nuclear deal, dumping it into the lap of Congress, because, most likely, he has no real idea what to do. He has threatened to cut off assistance to Puerto Rico which, according to multiple credible accounts, is in a humanitarian crisis unlike anything ever experienced in modern times. Trump seems unaware that Puerto Ricans are American citizens. Or maybe he just doesn’t give a damn. They are, after all, not like the people who elected him.

And now, frustrated that the Republican-dominated Congress cannot fulfill his promise to end the Affordable Care Act, Trump also is ending the billions in federal subsidies that make it possible for the health insurance marketplaces to offer meaningful insurance for the millions of people most in need of it.

Trump’s presidency is the work of an incompetent and likely irrational madman. If not crazy in the clinical sense, he is unhinged from reality a substantial part of the time. He does not understand government, has failed to staff multiple critical leadership positions throughout the government and spends a huge amount of time golfing. He still lies constantly and is unnaturally obsessed with Hillary Clinton and with undoing everything President Obama accomplished. He is in constant conflict many of his “advisors” in the White House. Most importantly, he is set upon undermining the free press which is protected by the very same Constitution he swore to uphold on January 20.

Trump’s “eye-twitching” is the real deal, not make-believe or only for effect. He is the only president in history who took the oath of office knowing that his real intent was to undermine the federal government. His uber-entitled cabinet members, when they’re not undermining environmental protections, are flying around on private jets. His coterie of family members and true believers are enriching themselves at the expense of everyone else.

As one commentator has accurately observed,

It’s become standard for reports coming from the inside of the White House to acknowledge, slyly at first but now overtly, that Trump is in constant need of managing. He believes false reports and refuses to read truthful ones. He lashes out at anyone who hasn’t lied for him adequately. There are now entire reports devoted to his rage, his anger, his madness and his inability to accept responsibility. [http://slate.me/2ggY2xy, bold in original]

This is the situation for which the 25th Amendment to the Constitution, ratified in 1967, was designed. Whether or not he is a moron, as the Secretary of State recently labelled him, and even if not “crazy” in the clinical sense, he is certainly mentally unstable and incapable of responsibly executing the duties of the high office he occupies. Recall that he has access to the nuclear firing codes and is the Commander-in-Chief of the armed forces.

Unfortunately, the 25th Amendment, drafted by a senior senator from Indiana with the counsel of a constitutional law professor at Fordham, contains much vague language that makes invocation even more fraught than it would, in all events, be. It has also led to some sloppy analysis and commentary about what the amendment means. There are, for example, two alternative means for removing the president due to inability to perform. Sometimes, they are conflated by well-intentioned commenters on this most serious of constitutional questions.

One method is that the “Vice President and a majority of either the principal officers of the executive departments” (i.e., the Cabinet) may declare in writing that “the President is unable to discharge the powers and duties of his office.” In that case, the “Vice President shall immediately assume the powers and duties of the office as Acting President.”

The amendment then states that the President can make a written declaration that he no longer has an “inability,” at which point he resumes his office, unless the Vice President and a majority of the Cabinet declare in writing that the President continues to be “unable” to do his job. In the case of such conflicting declarations, Congress must decide. That decision requires a two-thirds vote (known as a super-majority) of both the House and the Senate. If Congress concurs with the Vice President-Cabinet majority, the Vice President remains Acting President; if not, the President resumes his office.

It seems pretty clear that the crafters of the amendment did not want to make it easy to remove a president. That was probably wise, but now the unthinkable has happened. A president with the emotional makeup of a ten-year-old has been elected and the Republican Party is prepared to support him no matter what he does.

This brings us to the second method of removal under the 25th Amendment. To understand it, you simply substitute “a majority of … the principal officers of … such other body as Congress may by law provide” for the ‘a majority of the Cabinet.’ Everything else in the written declarations process remains the same, including the role of Congress to resolve conflicts between the President and either the Vice President-Cabinet majority or the “Vice President and other-body” majority.

This appears to be a dead letter because Congress has never created that “other body” with a group of “principal officers” who could vote on the President’s “inability” to do his job.

It may occur to you that there is a potential circularity in the alternative method. This appears so because the Congressional creation of the alternative body must be provided “by law” enacted by Congress. Since Congress cannot by itself enact a law, it could be argued that the alternative body can only be created with the cooperation of the sitting president who must sign the legislation. No one would expect a sitting president expecting a political attack by his own Cabinet would ever sign such legislation to make it easier to remove him. The answer, I believe, is the second method probably would have to be set up by a responsible and rational president who was not expecting a removal effort against him. Once the president has become irrational, he simply won’t cooperate with the Congress on any alternative removal mechanism and, thus, the alternative removal mechanism could not be used.

The apparent assumption of the drafters of the 25th that the President and the Congress would always act in advance of a crisis and do so responsibly seems naïve in the current context. In any case Congress has never passed a law to create the alternative body to address the “inability” of the President to perform his duties and, in the present political setting, it is unlikely to do so.

Where, then, do we end up? With Sheriff Mueller securing indictments. The Republicans and their news agents at Fox News are, naturally, parroting Trump’s continuous efforts to deflect attention elsewhere, usually to Hillary Clinton. Like some B-grade crime movie, Trump keeps screaming, via Twitter, “look, look, it’s not me/us, she’s getting away! Get her!”

At this point it’s a bit late for Trump and his gang to get out of town, so Sheriff Mueller will just have to finish the job he started. Trump and Fox will continue to try to undermine him. Maybe Trump will try to fire him. That would be a fatal mistake. If Trump is counting on the Sheriff to blink first, that also is a mistake. Manafort is in for a rough spell if he is found guilty, so maybe he will do the smart thing and start telling the truth. Then whose eyes will be twitching?

Show Me Your Papers … Or Spend the Rest of Your Life in Hell

Hell in this case being, where else, a commercial airplane. The story, in case you missed it, is in the Washington Post: “Passengers sue government over immigration authorities’ demand they produce ID before leaving flight.” http://wapo.st/2gzQine The nine plaintiffs are represented by the American Civil Liberties Union.

The government has now gone full-Nazi, a trend apparent since Donald Trump took office and began finding ways to strip Americans of their Constitutional rights. According to the story, way back in February two Customs and Border Protection agents blocked the jet way to an arriving aircraft and demanded identification documents from passengers trying to deplane. The crew had announced that showing government ID was required to deplane. Allegedly (presumption of innocence, or in this case truthfulness), passengers with the temerity to ask ‘why,’ were told it was “routine.” Ha! That’s a good one. Routine.

The routine is to be checked against various no-fly lists when you make a reservation and to be required to show ID at two stops en-route to the plane for its originating flight: once at the airline check-in counter and again at the TSA security checkpoint. If you skip the counter, because, say, you have no luggage and pre-printed your boarding pass, you still must show ID to pass security and board the plane. People who fly even somewhat regularly know this. The assertion that the pre-deplaning demand for ID was “routine” is pure … poppycock.

Not surprisingly, the Justice Department and CBP would not comment about the incident but said that the non-comment “should not be construed as agreement or stipulation with any of the allegations.” Of course not. Everybody knows that when the Trump-led government refuses to admit something is true despite being witnessed by dozens of people, it’s …. Let’s move on.

According to the Post, the suit seeks to bar the government from demanding ID before deplaning without a warrant or some other individualized reason to ask. The government apparently acknowledged later that it was looking for an ”immigrant” who was subject to a deportation order to leave the United States. The flight in question was from San Francisco to New York JFK Airport. As reported, an official with the Department of Homeland Security said after the incident,

“When we’re asked by our law enforcement partners to assist in searching for a person of interest, we are able to, and will, help” …. “This isn’t a new policy or related to any new executive order.”

Of course, the target of all this activity was not actually on the flight.

To be clear, the CBP agents in question were doing the job that management had given them. They cannot be expected to say “hey, this is stupid. We can get the answer another way and without drama.” So, let’s stay focused on the real issue.

The incident raises the question: why couldn’t the federal government, using information already in its systems arising from the original clearance and boarding of the plan, have determined whether the target was on the plane? If the government was unable to do this, a serious concern about the integrity of the security process that controls who may board an aircraft is raised. Perhaps this will be explored during the litigation that has ensued from this ham-handed “intervention.”

Another question also intrigues me, but we’ll never know the answer:  what would have happened if one or more the passengers had said,

OK, I’m not subjecting myself to this process, that I believe violates my rights, so I’ll just return to my seat. I will stay on this plane until I am allowed to leave without having to re-establish my identity. I have enough food and water to hole up here for several days! Where are we flying next?

Would the federal agents have repeated the scene from the recent United flight in which a passenger refused to deplane and give his seat to an airline employee and was then violently dragged off the plane? Or, would they applied common sense and checked the computer records to see if the target was on the plane? Speculation is invited.