Category Archives: Politics

Why Are Pruitt’s Basketball Tickets Not a Bribe?

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On June 3, the New York Times reported that Scott Pruitt was given access, allegedly at market value, to University of Kentucky basketball tickets in a section that is reserved for ticketholders who donated at least $1 million to the university. Other perks were attached to the tickets, including watching from the players’ entrance as the team entered the playing court. The “market value” apparently was $130 per ticket, paid in cash and there is no receipt. An email from the ill-named EPA Ethics Office approved the purchase in advance in the belief that it would be paid by check.

The seats belonged to Joseph W. Craft III, a coal executive who gave more than $2 million to the Trump presidential campaign. According to the NYT report, Craft met with Pruitt seven times or more during Pruitt’s first 14 months as head of the Environmental Protection Agency. The “or more” results from the fact that the NYT has documents showing that Pruitt and Craft were scheduled to meet on two other occasions but, curiously, “officials would not confirm them.” The known and scheduled contacts occurred at meetings and speeches in Washington, Florida, Kentucky and Georgia.

As discussed at length in the NYT article, Craft has been aggressively pursuing the rollback of environmental restrictions on the coal industry. Pruitt, with the overt support of Donald Trump, has been happy to oblige, including, for example, repealing the Obama instituted Clean Power Plan to reduce greenhouse gas emissions from power plants and stopping enforcement of a rule prohibiting coal-powered plans from dumping toxic metals into rivers. The latter move was sought by a coal industry group on whose board Craft sits.

So, as you and your progeny experience worse air and water pollution and possible cancers and other adverse health consequences down the road, you have Scott Pruitt and Donald Trump to thank.

Returning to the main point of this post, I understand the notion that paying someone market value for an item can be seen as “not a gift” but a mere purchase like any other purchase. Clearly, when you buy something on Amazon, even at a discount from other available prices, no one would rationally argue that Amazon made a gift to you.

However, if you are exploiting a personal relationship with Jeff Bezos, the head of Amazon, who is selling you an item at a market price but it is an item that cannot be bought anywhere else unless you are a person of similar economic standing and advantage as Bezos, that, in my view, is quite another matter. To put the obvious meat on that bone, if Bezos has tickets behind home plate for the World Series, and if Bezos wants something you have or you have the power to deliver or even materially influence on his behalf, it is clear, I suggest, that Bezos would have effectively bribed you by “selling” his World Series tickets to you, even if you paid full price. You could not have bought those tickets in the open market and, even if you could get them on, say, StubHub, it would be most efficient, not to mention friendly, to accept the offer from your pal, Jeff.

Here are the relevant elements of the basic federal bribery statute:

18 U.S. Code § 201 – Bribery of public officials and witnesses

(a) For the purpose of this section—

(1) the term “public official” means … an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof ….;

(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

(b)Whoever—

(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official… or offers or promises any public official to give anything of value to any other person or entity, with intent— [bold face emphasis added]

(A) to influence any official act; or

(B) to influence such public official… to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official … to do or omit to do any act in violation of the lawful duty of such official or person;

(2) being a public official … directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: [bold face emphasis added]

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person;

(3) ….

(4) ….

shall be fined under this title or not more than three times the monetary equivalent of the thing of value whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

(c)Whoever—

(1) otherwise than as provided by law for the proper discharge of official duty—

(A) directly or indirectly gives, offers, or promises anything of value to any public official … for or because of any official act performed or to be performed by such public official … [bold face emphasis added] or

(B) being a public official … otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;

….

 (3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any such trial, hearing, or other proceeding, or for or because of such person’s absence therefrom; [bold face emphasis added]

shall be fined under this title or imprisoned for not more than two years, or both.

In case you’re wondering, 18 U.S, Code § 641 defines “value” as “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.” The Department of Justice describes the two core sections of 18 U.S. Code § 201 as “bribes” versus “gratuities.” The critical difference is the lesser, but still significant, penalty for a “gratuity.”  https://bit.ly/2p2S0nU

I cannot claim expertise in the field of bribery of federal officials, but on the face of it, I do not understand how the sale, at any price, of restricted access tickets to a sports event is not the offer and acceptance of a thing of value and, in the obvious circumstances of this case and the relationship between Pruitt and Craft, therefore a bribe under 18 U.S. Code § 201. Add this to the long list of questionable actions by Pruitt, which have led to at least a dozen investigations into his conduct. I invite anyone with expertise in the area to enlighten me regarding how the sale of highly restricted sports tickets to the head of an agency that is being solicited to undertake acts in favor of the seller’s interests is not a bribe.

 

United Airlines Does Something Right

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People familiar with my professional history of conflict with the airlines may find it surprising that I would come to the defense of the CEO of United Airlines in its latest dustup. But here I go.

Oscar Munoz, the UAL CEO, was verbally challenged by a person described as an “activist investor” at its recent annual shareholders meeting because the airline, following the Parkland Florida high school massacre, ended its discount program for members of the National Rifle Association. The “investor’s” objections were reported by, among others, inc.com at https://bit.ly/2s4fQ1h and Bloomberg at https://bloom.bg/2s8mnaw.  the story line being that some/many UAL employees were equally unhappy with Munoz’ statement that the NRA decision was made for “personal” reasons, namely, that a child of a United pilot had been killed in the Parkland shooting.

That decision was latched onto by the objector who was in fact not just a “lawyer with” the National Center for Public Policy Research but was in fact NCPPR’s General Counsel. His employer is a “conservative think tank” in Washington parlance, a tax-free organization, contributions to which are tax-deductible, despite its mission statement of

communications and research foundation supportive of a strong national defense and dedicated to providing free market solutions to today’s public policy problems. We believe that the principles of a free market, individual liberty and personal responsibility provide the greatest hope for meeting the challenges facing America in the 21st century.

 The NCPPR was set up in 1982:

to provide the conservative movement with a versatile and energetic organization capable of responding quickly and decisively to fast-breaking issues. Today, we continue to fill this critical niche through a top-flight research and communications operation driven by results and the bottom line. In the 1980s, The National Center helped change public opinion through vocal national campaigns aimed at supporting Reagan administration initiatives concerning the USSR, arms control, Central America and human rights. [emphasis added]

https://nationalcenter.org/about/

Before going further, I note for the record that I am one of those very liberal people that recognizes that the true and authentic conservative point of view regarding economics, the role of government and similar things is a responsible, if usually erroneous, alternative to the views of liberals who think like I do. Many intelligent and thoughtful people share some or all of the conservative philosophy and make rational arguments in support of that viewpoint. The sitting president and most of his enablers in the White House and Congress do not satisfy that definition, but that is for another day.

Now that my bona fides are declared, I return to the matter at hand. I understand the point of view that the primary job of a private business is to produce profits from its activities as a reward to risk-taking shareholders that have provided it with capital through stock purchases. But producing profits for shareholders is not, I suggest, the only function of private businesses which, broadly speaking, enjoy the benefits of public services, the protections of laws designed to prevent larger firms from conspiring against them, etc. They are permitted, sometimes subject to regulation, to consume vast amounts of public space, to exploit resources belonging to the entire nation and generally benefit from government support of their franchise. While there is tension about the amount and nature of regulation, there is, in short, a public dimension to the business of private enterprise that must be accounted for in any rational view of the role of corporations in American life.

So, what was the beef with United’s making a policy decision regarding how it would manage the discount component of its business? According to the reports, the NCPPR attorney said:

“I suppose you are ignoring the fact that the NRA had nothing to do with what happened in Parkland …. But, hey, congratulations on your virtue signaling. What exactly did investors get out of that?”

At least two observations are warranted.

First, the asserted “fact” that the NRA had “nothing to do with what happened at Parkland” assumes away the issue of responsibility for Parkland as if the truth of the matter were handed down on stone tablets. In reality, of course, a good case exists, and has been made repeatedly, that the gun culture promoted by the NRA and NRA’s success in preventing even the study of gun impact issues are elements in a direct line to the events at Parkland and the other mass shootings before and since. The NCPPR should save its smug presumptuousness for something else. The known facts about gun violence do not support their protestations of innocence.

Second, there is, of course, a potentially legitimate debate about whether private business corporations should ever do or say anything related to “political” issues. At least two points are relevant here.

One is that there is an inherent inconsistency between “keep businesses out of politics” and the “the free market rules and corporations should be able to do whatever they want, including risking the ire of customers and stockholders when they believe the public or their private interest warrants it.” Those positions are inconsistent.

Second, there is another fundamental structural inconsistency and incoherence in the “conservative” position that private business should stay out of politics. Many private businesses are perfectly fine being in politics as long as no one knows what they are doing, as in their role in funding SuperPacs under the aegis of the Supreme Court’s opinion in the Citizen’s United case. And when “conservative values” are at stake, as they allegedly are when NFL players kneel during the National Anthem, the Grand Ole Party is right there to tell those businesses to actively support the “conservative” position by punishing those players. Or else. So much for keeping businesses out of politics.

The inc.com article says that, based on emails received, the employees are against the NRA discount decision by 4 to 1, one retiree is quoted as saying that the “[A]irlines are very leftist.” That will come as a great shock to the airline managements that spend so much time and treasure in Washington railing against any form of regulation designed to protect consumers from deceptive price advertising. That is a subject for another day also, but the notion that the airlines are part of a left-wing political cabal is laughable. I will now laugh.  Then I’ll cry at the staggering ignorance that pervades our political life and public discourse.

A trend now clearly exists toward corporate responsibility and, whether the NRA and its enablers approve or not, the practice is likely to have staying power over the long term. See, for example, “8 Corporate Social Responsibility (CSR) Trends To Look For In 2018,” by Susan McPherson in Forbes, https://bit.ly/2GKeFJ7. Even some Republican businessmen who supported Trump in the past are now threatening to pull donations if the DACA program is not extended. https://politi.co/2klgIui

The NRA is, once again, on the wrong side of history on the issue of businesses in politics. UAL’s CEO Munoz has some good company and should … dare I end with this … stick to his guns.

Most important Book You’re Not Going to Read This Year

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I have just finished reading Can It Happen Here? Authoritarianism in America, edited by Cass Sunstein. Sunstein is the Robert Walmsley University Professor at Harvard University where he founded its Program on Behavioral Economics. He is the author of, among many others, Impeachment, A Citizen’s Guide, which you are also not going to read, but should.

The contributors of the essays in this stunning book are mostly distinguished law professors from Harvard, Yale, Chicago, Columbia, NYU and Duke. These people know whereof they speak.

And speak they do, sometimes a bit turgidly as law professors are wont to do, but also brilliantly and incisively addressing the sources of risk that the United States could lose its hold on democracy. It’s important to understand that this is not an anti-Trump screed, although, as you might expect, Trump’s conduct as president figures prominently in many of the essays. The reason is that his behavior is in the classical line of actions taken by political strong men who have undermined democracy in their countries. It’s also important to remember the United States has some blood on its own hands from past episodes of authoritarian behavior induced by crises such as the attack on Pearl Harbor and the 9/11 attacks on the World Trade Center.

The threats to American democratic institutions, free press, elections and other features of a free and open society in which we have grown up are real and immediate. While some of the essays are guardedly optimistic about the resiliency of our Constitution and institutions to resist the imposition of an authoritarian regime, you will find cold comfort in most of the essays. They are, along with other recent works like Elaine May’s Fortress America – How We Embraced Fear & Abandoned Democracy, compelling, history- and fact-based accounts of how democracy can fail, and may actually be failing, under the relentless pressures of an autocratic president supported by a single-party Congress. These are conditions not contemplated by the Founding Fathers whose Constitution, as brilliant as it is, may lack sufficient safeguards against one-party rule that does not respect the values on which that document was based.

If you are serious about understanding what is happening in American politics today, this book is a must-read.

To give you a taste, the chapter entitled “Constitutional Rot” observes that “These four horsemen — polarization, loss of trust, economic inequality, and policy disaster — mutually reinforce each other.” Further, “In an oligarchical system, regardless of its formal legal characteristics, a relative small number of backers effective decide who stays in power.”

In the chapter entitled “Beyond Elections: Foreign Interference with American Democracy,” Samantha Power discusses how non-mediated social media opened the door to Russian influence in U.S. elections. The chapter “Paradoxes of the Deep State” addresses little-known history of the so-called “Deep State” with surprising observations about the “leaks” in the Trump administration. Then, the chapter “How We Lost Constitutional Democracy” sets out grave and chilling warnings about the erosion of democratic norms and the limits of the Constitution as an obstacle to the destruction of democracy as we know it.

As I said earlier, this book is serious stuff and not an easy read. Yet the issues analyzed in it are critical to a deep understanding of what is happening and the extent to which we can “count on the Constitution” as a defense against loss of freedom and democratic process.

When you are finished being frightened to death, I continue to urge everyone to read On Tyranny-Twenty Lessons from the Twentieth Century, by Timothy Snyder, a measly 126 pages. Finally, if you want to dig deeply into some of the mysteries of the behaviors of voters whose conduct you consider self-defeating and borderline insane. I commend to you two tomes that I guarantee will open your eyes to ideas you never dreamed of: Thinking, Fast & Slow, by Nobel Prize winner Daniel Kahneman, and Behave – the Biology of Humans at Our Best and Worst, by Robert Sapolsky [skip the details on endocrinology, unless you really dig that sort of stuff].

To conclude, for now, I believe the following to be more likely true than not:

1. Trump’s election was unlawfully procured through interference by, and his collusion with one or more foreign powers; the more he fumes and fulminates against this idea, the more likely it seems to be true;

2. Trump has violated Article II, Section 3 of the Constitution by failing to “take care that the laws be faithfully executed;”

3. Trump has violated the emoluments clause of the Constitution, Article I, Section 9;

4. Trump is guilty of obstruction of justice, which qualifies as a “high crime” or “misdemeanor” under the Constitution, Article 2, Section 4, and, in the specific circumstances, is guilty of treason as well;

5. Trump and members of his family and officials appointed by him, along with Republican members of Congress, have engaged in a conspiracy to conceal evidence of crimes by them and others and to prevent the full investigation and prosecution of such crimes by appropriate government authorities.

I also believe the following truths are now indisputable:

1. Democratic norms are under active siege by a president who neither understands nor cares about such norms;

2. While the prospect of indictment of the president as a result of Special Prosecutor Mueller’s investigation is highly appealing, there is little chance that such a move is going to occur soon and it will, in any case, provoke a lengthy constitutional crisis that will end up in the Supreme Court and therefore not afford a near-term solution to the governance crisis that confronts the nation;

3. The most immediate and most important defense against the oligarchical theocracy, or the theocratic oligarchy, if you prefer, that the president, vice president and Republican Congress want to establish, and to some degree have already established, is for the Democratic Party to take control of Congress in the 2018 elections;

4. Democratic control of both houses of Congress would immediately create an insurmountable bulwark against further destruction of democracy by the administration and lay the framework for removal and prosecution of the Trump gang and its enablers;

5. Trump’s sycophantic supporters are preparing to defend him with aggressive voter turnout and contributions of huge amounts of money. Nonetheless, Democrats must overwhelm them at the polls if we are to turn the tide against the fascist practices of this administration. If we fail, we will face two more years of entrenchment, destruction of the independence of the judiciary and undermining of the free press. The loss of those two elements of the Constitution’s system of checks and balances will make it very difficult, perhaps impossible, to turn back the tide. It’s 2018 or nothing.

6. Every American should view this situation as a grave threat to their well-being and the well-being of their families present and future. It is time for the Democratic Party leadership to start leading politically and for the personal ambitions and agendas of the old guard to yield the floor to the generations that will have the most to lose if the foundations of democracy are not restored. Remember that those who fail to heed the lessons of history are doomed to repeat it.

7. It is time for a game plan that does not repeat the same mistakes that led to the disastrous defeat in 2016. The Republicans know the same things we know about what happened. They have a keen understanding of their political base and how to stimulate it to action on behalf of their agenda. Trump’s base is uninterested in the truth about him or his policies; they have created their own truths in which they choose to believe and nothing is going to change most of them. It is therefore absolutely essential that every potential Democratic vote be cast in every district. There have been a few interim wins in replacement contests, but these are no laurels on which to rest. Democrats cannot afford to give up any seat that is potentially winnable. It’s now or never.

If There Were No TSA — Addendum

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Since posting the TSA data on gun recoveries at airports, I continued to look for evidence that TSA systematically and aggressively addresses the guns-in-carryon-bags issue with prosecutions of offenders. I could find no such evidence on TSA’s website or in news stories about various incidents at airports, including those involving loaded and chambered weapons. TSA’s approach appears to be to accept the excuse that “I forgot the gun was in my bag” or “my husband must have put it in there without telling me.” They do confiscate weapons, though not in all cases, but do not seem interested in actually imposing legally authorized punishments. TSA instead continues, thorough its blog posts and media releases to remind travelers about the rules governing transport of guns on aircraft. See, for example, https://bit.ly/2qUYVNw. Meanwhile, finding such weapons at the checkpoints leads to delays of other passengers while the incident is resolved.

This is a curious policy, at best, given that the Customs agents at airports appear to have a much less lenient approach to people “forgetting to declare” things like food items. Indeed, in one recent case, a woman has been fined $500 for failing to declare an apple provided by Delta Air Lines and contained in a plastic package bearing Delta’s logo. She placed the apple in her carryon while on the aircraft, planning to eat it on the next domestic leg of her flight home. Views may and do differ about whether this type of incident warrants a huge fine and possible loss of Global Entry status, but the real issue, in my view, is the disparity in practice between TSA and Customs & Border Patrol, in light of the potential risks.

Moreover, it is apparently the case that enforcement of the carryon restrictions ultimately depends on state or local law governing the possession of firearms. See, for example, https://bit.ly/2HV4Da7 and https://on-ajc.com/2FavsUZ. I don’t understand why this would be true given that the offenses occur in federally controlled airport zones and violate federal regulations, which, under the Supremacy Clause of the U.S. Constitution, control over conflicting state/local laws. There are apparently some exceptions, like New York, but, of course, the pro-gun crowd are pretty unhappy about anything that they think smacks of restricting their “rights.” See https://fxn.ws/2usKvZI.

I conclude more or less where these posts began. The other day a passenger who had allegedly touched a female passenger inappropriately refused to deplane peacefully when ordered to do so and the police had to use a stun gun on him multiple times to subdue him. https://bit.ly/2HrJUcQ. Imagine how this might have gone down if this passenger had possessed a loaded pistol in his carryon bag.

If There Were No TSA …

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Everyone seems to have a “security checkpoint story,” either something they experienced or an incident they observed. This has led to calls for the abolition of

the Transportation Security Administration (TSA), privitization of the airport security process and other “solutions” to preventing the use of an aircraft as a terrorist weapon, all of which approaches are intended to reduce the inconvenience and, occasionally, humiliation that occurs, especially when one is running late for a flight.

The problem may be getting worse. TSA announced a few weeks ago that it had finished rolling out enhanced screening of carry-on bags at airports across the country. https://bit.ly/2H3HMvR. The new process, according to TSA, requires travelers to:

place all personal electronics larger than a cell phone in bins for X-ray screening in standard lanes. In addition … TSA officers may instruct travelers to separate other items from carry-on bags such as foods, powders, and any materials that can clutter bags and obstruct clear images on the X-ray machine. Travelers are encouraged to organize their carry-on bags and keep them uncluttered to ease the screening process and keep the lines moving.

Somewhat curiously, I haven’t heard much about the new system causing problems, despite its having been started last summer. Perhaps, contrary to the teachings of experience, air travelers are indeed “organiz[ing] their carry-on bags and keep[ing] them uncluttered to ease the screening process and keep the lines moving,” as TSA has asked.

The TSA Administrator said that “these enhanced screening measures enable TSA officers to better screen for threats to passengers and aircrew while maintaining efficiency at checkpoints throughout the U.S….Our security efforts remain focused on always staying ahead of those trying to do us harm and ensuring travelers get to their destination safely.”

Well, they better had, because, as a result of the bizarre gun culture that pervades  American society, the greatest danger appears to come, not from terrorists, but from ordinary air travelers packing heat, ready to defend themselves and others from any threat, real or imagined. I say this because it is reliably reported that in just the first week of April, TSA discovered 64 firearms in carry-on bags at airports around the United States. Of those weapons, 52, or 81 percent, were loaded and 13, or 20 percent, had a round in the firing chamber.

This, despite the fact that TSA may assess civil penalties of up to $13,066 per violation per person for carrying prohibited items on an aircraft. https://americansecuritytoday.com/tsa-finds-63-firearms-carry-bags-last-week-learn-videos/ This, despite the fact that incidents of “out of control” passengers seem to be on the increase.

Were it not for the vigilant screening efforts carried out by TSA, and assuming the first week of April was typical, there is a chance that someone on your flight will be armed with a pistol with live rounds in the chamber, ready to shoot at … what? A provocation by another passenger? A rude flight attendant? At altitude, in a pressurized cabin.

Think this is  overstatement? In fact, the year 2017 set a record for weapons discoveries; according to TSA records:

  • 5 million (771,556,886) passengers traveled through 440 federalized airports in 2017, a rate of more than 2 million a day;
  • A record setting 3,957, firearms were discovered in carry-on bags, an average rate of 76.1 firearms per week, or . 10.8 firearms per day;
  • 3,324 (84 percent) of the total firearms discovered were loaded; and 1,378 (34.8 percent) of the total had a round chambered;
  • The most firearms discovered in one-month – 31 – were in August at the Hartsfield–Jackson Atlanta International Airport (ATL), but in total, firearms were intercepted at 239 airports.
  • The 2017 total represents a 16.7 percent increase in firearm discoveries over2016’s totalof 3,391.

https://www.tsa.gov/blog/2018/01/29/tsa-year-review-record-amount-firearms-discovered-2017

There’s more. The 2017 cache of intercepted weapons went well beyond mere pistols. A sample of other items includes:

  • A checked bag with an ammunition box with three live ground burst simulators, two live M83 smoke grenades, and one inert practice grenade — Palm Springs International Airport (PSP).
  • A live flashbang grenade in a carry-on bag — San Diego International Airport (SAN).
  • A live smoke grenade — Raleigh–Durham International Airport (RDU).
  • A one-pound bottle of gun powder in a checked bag at the Ketchikan International Airport (KTN).
  • Five one-pound bottles of gun powder in a checked bag — Boise Airport (BOI).
  • A ten-ounce container of gun powder in a checked bag — Salt Lake City International Airport (SLC).

This, my fellow Americans, is one small part of the regime we have allowed to develop in our country. So, next time you are tempted to complain about the security process at the airport, try to remember what you have read here. I don’t like going through security any more than anyone else, but without it, we’d all probably be killed by some “patriot” with a Glock 9mm in his briefcase.

How Long Does It Take to Figure Out Equal Treatment?

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This has been a rough stretch for Starbucks, what with the arrest in Philadelphia of some black men who hadn’t ordered anything while waiting for a friend to arrive. I have done this more than once myself, back in the day before Starbucks did away with Sumatra in favor of “blonde” coffee, whatever that is.

I had written on Twitter that Starbucks needed to do more than issue the customary “equality is one of our most important values” talking point. I was impressed when the company announced it was closing operations across the country for a day to engage in serious training of its entire staff, including awareness of implicit bias and other factors that can, without one’s conscious awareness, influence how we react to people different from us in some particular.

At the same time, I was aware of the earlier announcement by Starbucks that it had “reached 100 percent pay equity for partners of all genders and races performing similar work across the United States.” https://news.starbucks.com/news/starbucks-pay-equity-for-partners That same announcement stated, however, that the process had taken ten years to finish. Flush with that news, the company Chief Partner Officer said that it would work “with deliberate speed” to close the gender pay gap worldwide.

I am seriously puzzled as to how a company working with “deliberate speed,” a phrase borrowed from the Supreme Court decision in Brown v. Board of Education wherein the Supreme Court unanimously held that “separate but equal” education was unconstitutional. The Court directed the lower federal courts to enforce its decision “to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

The phrase was ultimately understood to mean “slow,” and that was indeed the pace of integration in the face of massive resistance by whites, especially in the South.  A fascinating discussion of the background, internal discussions and aftermath of the Brown decision can be read at https://ampr.gs/2HcERkx, including the etymology of the phrase “with all deliberate speed.”

Desegregating schools was a massive culture change for the entire nation, overturning practices that had persisted from the very origins of the country. Starbucks is just one company. It has records of who does what and what they are paid. Doling out coffee and tea is no doubt more complicated than I imagine, never having been a barista myself, but it is certainly not equivalent in complexity to desegregating the educational system of an entire country. The Starbucks announcement of its achievement goes on at great length to discuss how complicated the process was. Maybe so, but it reads somewhat like a set of excuses for a ten-year process that could and should have been accomplished much faster.

Setting aside my perhaps overly cynical reaction to the pay-gap announcement, Starbucks gets kudos for at least reaching the goal and committing to expand its scope in the near future. Meanwhile, we can only hope that it does not take another decade to convince its employees that treating black people the same as others is absolutely necessary, starting now.

 

 

NRA, Fear Emma Gonzalez

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If you didn’t march with the kids today in the March for Our Lives, the loss is yours. My wife and I participated in New York City, where the turnout exceeded estimates by many multiples. We did not hear the speeches live because the crowd was so large. The starting point was West 72nd Street at Central Park West but we were directed by the police to go to 86th Street before being allowed to turn and join the main group of marchers. If you have not heard Emma Gonzalez speech, witnessed her extraordinary poise and maturity, you owe it to yourself to watch it in its entirety. Here is the link: https://bit.ly/2pBSuz8 Do not turn it off during the long, most extraordinary pause in her address to the assembled marchers.

Emma Gonzalez and her generation are the next great wave of voters. Many are already old enough or will be by the 2018 mid-term elections. They have had all they are going to take of excuses from the likes of Sen. Marco Rubio with his “let’s all get together on a compromise because some people don’t think gun control will be effective.” An overwhelming majority of Americans in poll after poll say that the time for action is now, not some vague point in the distant future. The young people of Emma Gonzalez’s generation and the ones behind them are motivated to compel change through the ballot box and there are many of them. NRA money can’t buy them. They are not afraid of a government takeover or other paranoid delusion spread by the gun lobby. They are afraid of being massacred next week or next month in their schools, like so many of their friends. Yes, NRA, you should fear Emma Gonzalez more than anything else. She sees you for what you are and she, and her friends are going to remove from office the sycophants that have taken NRA money and done its bidding for too long. Time’s up.

Here is a selection of photographs I took during today’s march in New York City. For context, the photos start as the huge group of marchers moves uptown from the 79th Street subway station toward 86th. It is worth noting that the NYPD we encountered were uniformly helpful in answering questions. The “show of force” near the end of the photo set is simply the police trying to move the marchers off of 6th Avenue onto the exit at 44th Street. The pictures close with a chanting session near Times Square where the kids attracted a large crowd of supporters. These amazing young people are not going away.

#MarchforOurLives

Addendum to “Trump’s Lawyers Speak for … Trump, Themselves, Somebody, Nobody”

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It is widely reported that Michael Cohen, who allegedly represents himself in connection with the Non-Disclosure Agreement enter into by Stormy Daniels in exchange for $130,000 paid by Cohen personally (Cohen says), is claiming that he is entitled to damages from Stormy Daniels of $20 million for her multiple violations of the agreement.

Given the “looseness” of the factual setting in this situation, we have to make some assumptions in order to say anything rational about it. So, let’s go along, hypothetically, with Cohen’s claim that he paid the hush money from his own pocket with no knowledge of, or expectation of reimbursement by, Trump. Let’s also go along for now with the assertion that Ms. Daniels violated the agreement by publicly declaring an affair with Trump.

Now, let’s assume that either through arbitration enforceable by a court order, or by a direct lawsuit, Cohen gets a verdict that Ms. Daniels violated the “hush agreement.”

Who was damaged by the violation of the NDA?  Cohen? He was not the real party in interest. The NDA was designed to protect Donald Trump, not Michael Cohen. Whatever Ms. Daniels may have said about her claimed affair with Trump is about Trump and, if there is an argument to be made, the argument is that Trump sustained the damages, not Cohen.

But, Cohen may argue, the $1 million was “liquidated damages” under the NDA and thus no proof of damages is required. Maybe so, but the law generally does not permit the use of fixed damage amounts in contracts if the damage amounts are considered a “penalty” rather than a substitute for having to go to the expense of proving actual damages in court. If Cohen is claiming he is the real party in interest in the NDA with Daniels and thus is entitled to damages, Most courts would likely invalidate the liquidated damages clause as a prohibited penalty because its provision has no relation to the actual damages Michael Cohen would have sustained from Daniel’s breach.

If, on the other hand, Trump is the real party in interest, the damages would belong to Trump who is not a party to the litigation claiming the NDA was violated. I cannot imagine, even in the Trumpian Universe, that a court is going to award damages to a non-party based on an agreement the non-party did not sign and about which the non-party claims to have had no knowledge.

In the end, the courts may decide. One interesting potential maneuver in the litigation would be a motion by Daniels to add Trump as a party. If that were successful, Trump would be subject to having his deposition taken under oath about the affair, the entering of the NDA and much else. Wouldn’t that be interesting?

 

 

 

 

Trump’s Lawyers Speak for … Trump, Themselves, Somebody, Nobody

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Multiple sources have reported that Donald Trump’s “personal attorney” called for the Justice Department to fire Robert Mueller and terminate his investigation into, among other things, collusion between the Trump presidential campaign and Russian government interests intending to support his candidacy and damage Hillary Clinton’s chances. See, e.g., http://wapo.st/2plSJhp. The demand by John Dowd followed immediately the firing of FBI Deputy Director Andrew McCabe which, according to Dowd, was fatally influenced by political bias. Repeating claims made directly by Trump, Dowd said “I pray” that the investigation is ended.

Dowd’s “prayer” will have the same effect as the “thoughts and prayers” that are the sole national Republican response to the Parkland Florida school massacre.

Curiously, Dowd told the Daily Beast that he was speaking on behalf of the president in his capacity as Trump’s attorney. When the Daily Beast published that statement, Dowd immediately retracted it and said he was not speaking for the president.

If Dowd was truth-telling in his retraction, it means that while serving as Trump’s personal attorney, he has made public statements on his own initiative about a matter of the greatest importance to his client without his client’s knowledge or approval. If indeed Dowd were not speaking for Trump, one would expect Trump, the client whose interests are being affected, to discharge his attorney for acting without permission in a way that could damage the client. On the other hand, if Trump liked what Dowd said, he (Trump) would not fire the attorney and would align himself with the attorney’s statements. That is, in fact, what Trump did via the usual Saturday tweet storm, denying yet again that he colluded with Russians and yet again attacking federal law enforcement agencies and the State Department that he has criticized repeatedly during the campaign and after becoming president.

This dance brings to mind that other Trump attorney who claims to have acted in another matter of vital importance to Trump but without Trump’s knowledge or approval. This, of course, is Michael Cohen who has represented Trump for years and who admits he paid $130,000 to porn star Stormy Daniels to secure her agreement to remain silent about her claimed affair with Trump, an affair that Trump has denied.

So, once again, we have an attorney for Trump claiming to act on behalf of Trump without Trump’s knowledge or consent, using the attorney’s own funds and without expectation of reimbursement.

While the standards of attorney conduct have apparently loosened dramatically over recent decades, it is still considered risky for an attorney to invest in a client’s business. The potential for conflicts of interest to arise when at attorney has a financial stake in a client’s business is serious. One supposes, however, that even when it occurs, the attorney’s investment in the client’s affairs is disclosed to the client. Indeed, I believe it would be a clear ethics violation for an attorney to invest in a client’s business without disclosure to the client.

So, if I am correct, Dowd either is lying about Trump’s knowledge of the payoff to Daniels and the signing of the Nondisclosure Agreement by Dowd on Trump’s behalf or Dowd acted on Trump’s behalf without disclosing that he was, in effect, investing in Trump’s business (in this case, the business being the presidential campaign) by making the secret payment to Daniels with no expectation of repayment. Trump himself did not sign the NDA, but standing alone, that fact does not prove that he was ignorant of the arrangements. Even if it’s true that Cohen did not expect repayment (he reportedly complained to friends that Trump had stiffed him, but this is not substantiated), the payment still represents an investment that would, if successful in silencing Daniels, help get Trump elected, with longer term rewards to Dowd from his alliance with President Trump.

If there is a middle ground here, I don’t see it. We have two different attorneys acting on behalf of a client they claim was ignorant of their actions on the client’s behalf, in matters of the utmost importance to the client’s future. Perhaps someone more steeped in the nuances of attorney ethics than I can explain how such actions are not ethics violations. And, of course, if Trump did know what was being done on his behalf in either or both cases, then the lying is compounded and becomes further dishonesty and corruption on the part of the president.

Time will tell how all this shakes out. Ms. Daniels is represented by Michael Avenatti who is very measured in his public statements and, by relying on his client to speak about Trump, seems to know what he is about. Her interview with 60 Minutes is scheduled to be broadcast next Sunday and, if it happens, will shed new and dramatic light on the situation. And then there is James Comey’s book which is about to publish. Buckle your seat belts. The ride is about to get wilder.

What It Must It be Like to Fear Your Own Government

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One of the big National Rifle Association arguments in favor of free access to weapons of all kinds is the alleged Second Amendment right to bear arms as a deterrent and/or defense against the government of the United States.  According to the NRA and extreme gun rights advocates, this “right” springs from the fear that the Founding Fathers justifiably had about strong governments taking away the rights of the people. After all, that is essentially why the Revolutionary War was fought — to end the tyranny of the King of England over the colonies.

Fast forwarding to the present, these folks appear genuinely to believe that there is reason to fear that the federal government, which through the President, commands one of the most powerful military forces in the world, may someday during their lifetimes turn on the people, confiscate their weapons under color of some gun control law or the other, and enslave everyone.

Call it paranoia, call it wacko, call it what you will, many of our citizens appear to deeply fear that scenario. Some of them have acquired arsenals of semi-automatic rifles with high-capacity magazines with which to resist forcibly the imagined takeover. Some of them apply camouflage coloring to their faces, like the real military they’ve seen on TV and, deep in the remote woods of (mainly) the south, practice drills, running and shooting at stationary targets and so on. This activity, they believe, will prepare them to defend hearth and home against an invading army of United States Marines, Army soldiers, perhaps aided by the local police and National Guard (who would most certainly be called up during a takeover) equipped with tanks, true tactical training and supported by the most advanced and fearsome combat aircraft on the planet.

Of course, those guys, mostly guys, running around in the woods are shooting at stumps and cardboard figures that don’t shoot back. One must wonder how would perform in the face of a squad or two of U.S. Marines in full battle gear. But, hey, they’ll go down fighting which seems to them like the best alternative to the imagined takeover and the dystopian Hunger Games-like life that would ensue. Living with such fear must be a terrible burden to carry through life.

The more one thinks about this scenario, the more ridiculous it seems, putting aside the idea that the government could or would actually try this. I suppose that if you watch enough conspiracy movies, in which a handful of military people secretly agree to order the U.S. military to attack the citizenry, striking at the TV stations, electric grid and internet server farms to gain instant control over communications, you could come to believe such a thing is possible in the United States. Then again, when you consider the physical scale of the country, the complexity of its physical infrastructure, the ubiquity of the internet, the certain massive resistance by the majority of the population and the awareness that the failure of such an enterprise would be conviction for treason punishable by death, is it even remotely plausible that a federal takeover using the military could occur here?

In my mind, to ask the question of plausibility is to answer it, but I must recognize that no matter how implausible the scenario is, there are many people who apparently live in constant fear that the federal government is about to enslave everyone. Curiously, many of these same people are the most ardent supporters of the current president who, among all modern presidents, is the most likely to attempt to subvert the country into a totalitarian regime. This irony is missed by all of those who live in fear and claim that the Second Amendment somehow gives them the protection they require.

I get the argument that “anything is possible” but when considering that, why can’t these people see that the “possible turned reality” is already here in the form of irregular but recurring slaughters of children in schools, not to mention the thousands of others who die by gunshot every year. American exceptionalism, of which that crowd seems so certain and so proud, has placed us high in the world in gun-related deaths, especially among countries with significant socioeconomic success. http://n.pr/2BrbmUh

You don’t have to imagine any conspiracy to understand this; just open your mind to reality.