Bad Faith

Just prior to Election Day a friend observed that we’re going to need new laws and new structures to prevent the corruption, self-dealing, and looting of the public treasury that have been the hallmarks of the Trump administration. “We can’t have ‘acting this’ and ‘acting that,’” my friend said. “We need to ensure accountability.” I told him that the laws already exist, and have for some time: but that enforcement is up to the Congress and the courts. With the Senate operating as a wholly-owned subsidiary of Trump, Inc.; and with a significant fraction of the Federal bench occupied by Trump appointees, the likelihood of anything actually being done is vanishingly small.

The problem isn’t that laws and structures don’t exist. The guardrails haven’t done much guarding these last four years, proving to be not such solid railings or firm barriers; rather, it turns out they are just suggestions, only as strong as public outrage and the other branches’ willingness and ability to enforce standards of behavior that have served the Republic well for two-hundred and forty-four years. I mention both “willingness” and “ability” because — as it turns out — the current administration has decided that the rules that have applied to every predecessor do not apply here. They have defied both congressional demands and court orders with alacrity, zealously undermining the institutions of democratic self-government while loudly claiming to speak “for the people.”

Well, the people have spoken and Donald Trump has been fired. He claims — falsely, as always — to have won with a “record” number of votes; and yes, his tally was indeed record-setting: more than ever for a second-place candidate. And let’s be absolutely clear: Biden’s victory was decisive, a margin of six million votes — nearly four percent. In an age when many elections are won and lost on razor-thin fractions, four percent is a landslide.

But the presidential falsehoods and GOP bad faith continue unabated: Dozens of failed lawsuits in multiple jurisdictions and attempts to strong-arm state elections boards and legislatures in Republican-led states will not change the outcome but they will undermine public confidence in elections, to the point where — as comedian Sarah Cooper tweeted recently — voters are asking courts to ignore the will of the voters. Reduced to its starkest terms: elections are legitimate if “we” win, but fraudulent if “they” win.

Of course it’s a bad faith argument. The essence of democracy — of voting — is that the outcome isn’t going to please everyone, all the time. Sometimes you win; sometimes you lose. That’s how the system works (when it works). Or as Christopher Krebs — fired last week for bucking Trump’s message that the election was fraught with fraud — noted last year, the purpose of elections is to convince the loser that he lost. This isn’t how we normally think about voting, but it’s dead on. Trump knows he lost; the people around him know he lost; Republican officials at all levels know that he lost. That they continue to sow doubt and stir up mistrust; that they say either nothing at all, or demur quaintly about “rights” to pursue false claims in court, says far more about them than it does about the actual results. They would cling to power by any means possible, the people be damned.

In 1982 the Republican candidate for New York’s 20th Congressional District (Upper West Side) lost overwhelmingly, 85%-15%. Of his defeat he remarked: “The people have spoken. The bastards.” If only today’s GOP could accept electoral outcomes with as much grace and dignity.

Cognitive Dissonance (GOP Edition)

Donald Trump refuses to concede defeat and continues to contest the election results. Apparently the same ballots that kept his Republican enablers in control of the Senate — for now — and gained them (so far) six seats in the House — these same ballots were somehow fraudulent, but only on the top line, for the Presidential race. As Scooby Doo would say: Huh? If you are alleging ballot irregularities, fine. But a few things you should keep in mind:

  1. The burden of proof (and the bill for any recount) is on you.
  2. “Upon information and belief” in your complaint won’t cut it: you need actual evidence.
  3. Invalidating any individual vote means invalidating the entire ballot, including down-ballot races (yours).
  4. Hundreds of thousands of spoiled ballots, across multiple states, just aren’t there.  Ever.

The idea of “stealing” or “rigging” an election in this way is beyond risible. It defies both common sense and the entirety of human experience. Trump and his allies are pinning their hopes on proving a conspiracy — a concerted, coordinated effort — among many thousands of people. As this On the Media segment demonstrates, it’s an impossibility.

It all would be the basis for a good laugh if it weren’t so serious. Ballot fraud is extremely rare, impossible to carry off successfully (see above), and almost always detected. Nearly every such failed attempt has been the work of Republicans, most notoriously in North Carolina’s 9th Congressional District. (One wonders if they allege fraud because that’s what they’d do?) The accusations in this cycle are particularly galling when senior Republicans at every level speak piously of Trump’s precious rights to contest an election and demand a recount without a peep about the malign intent to undermine faith in the very system that sent them to office. If the integrity of our elections is in question, doesn’t that also undermine the legitimacy of every elected GOP official? In the latest twist, a postal worker in Pennsylvania has recanted his claim that ballots were backdated, a claim that has been relied upon by Lindsay Graham and the Trump campaign as evidence of fraud. Republican donors have raised over $130,000 on behalf of the USPS employee — $130,000 being, apparently, the going rate (see: Daniels, Stormy). According to the Erie postmaster this is not this postman’s first job-related offense.

Small-d democrats ignore this doublespeak at their peril. Sure, any candidate has a legal right to challenge election results; but that right — like all rights — also carries certain obligations: challenges are to be made in good faith and must be supported by actual facts. The claims here have been dismissed by every court that has heard them, because no actual facts are even alleged. Per The Washington Post:

By now, it’s well-established that most of the arguments put forward by President Trump’s reelection campaign in its challenge of the results of the 2020 election are baseless and highly speculative. Even Trump allies, as The Washington Post reported late Tuesday, acknowledge the apparent futility of the effort. Others have reasoned that there’s no harm in going through the motions, with one anonymous GOP official asking, “What’s the downside for humoring him” for a little while?

But as scenes in courtrooms nationwide in recent days have shown, there is indeed a downside for those tasked with pursuing these claims. Repeatedly now, they have been rebuked by judges for how thin their arguments have been.

The most famous scene came in Pennsylvania, where a Trump lawyer strained to avoid acknowledging that their people were, in fact, allowed to observe the vote-counting process in Philadelphia:

At the city’s federal courthouse on Thursday evening, attorneys for Trump asked a judge to issue an emergency order to stop the count, alleging that all Republican observers had been barred.

Under sharp questioning from Judge Paul S. Diamond, however, they conceded that Trump in fact had “a nonzero number of people in the room,” leaving Diamond audibly exasperated.

“I’m sorry, then what’s your problem?” asked Diamond, who was appointed to the federal bench by President George W. Bush.

The downside of humoring him should be self-evident: further public humiliation of the United States, if the last four years were not enough. It even more nakedly exposes Trump for what he is, a spoiled and unpredictable man-baby with his hands on the nuclear codes. Moreover it exposes the gaping flaws in our vaunted system of checks and balances, which are more fragile than anyone supposed. It turns out they are utterly dependent on all actors behaving in good faith.

Attorneys have an obligation to serve the law and the court, not just their clients. Federal Rule of Civil Procedure 11(b) states:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Trump and GOP attorneys find safe harbor in subsection (4) — “information and belief” — and ignore the more pertinent subsections (1) and (2). These cases are warrantless and frivolous, in violation of (2); and they are being brought — or so it appears — merely to delay the timely certification of votes and undermine public confidence in the electoral process. By any fair reading such motivation violates (1).

Under Rule 11(c) a court may sanction the attorney. law firm, or party that violates Rule 11(b). Perhaps it’s time more attorneys defending these frivolous and capricious suits filed more Rule 11(c) motions. It wouldn’t be pretty; but it might put a stop to the wasteful abuse of process. Republicans are forever running on platforms to reel in what they see as abuses of the courts; but when elections don’t go their way they are the snowflakes at the courthouse door. Another term for cognitive dissonance might be rank hypocrisy.

Fatigue (III)

It was a few months ago that Keegan-Michael Key, appearing on “A Late Show with Stephen Colbert,” said he was exhausted. It was early June, immediately after the death of George Floyd at the hands of Minneapolis police officers, and he was expressing frustration with the racial imbalances — what we have come to understand, since then, as systemic racism — and seemingly never-ending inequality in this, the Land of the Free, where it is self-evident that all men are created equal. Aren’t they?

We are all exhausted: By the unrest and inequality; by the ineptitude and incompetence; by the needlessly high death count; by the lies; by the scandals; by the grift and self-dealing. We are exhausted, simply exhausted, to the point where we are too fatigued to lift a finger let alone raise our voices in anger and cry out together, as one, “Enough!” But the truth is that fatigue is not simply a by-product of the never-ending insults to our national integrity; nor are we exhausted only because we lack the energy, at the end of each long day, to push back against a government and executive appointees who will help themselves but not the people they work for and serve. Corrupt officialdom gives “self service” a whole new meaning.)

As we have seen with the child-separation policy, where the cruelty is the point: The exhaustion and fatigue are the point. Benumb us with your outrages, your corruption, your inhumanity, your incompetence, your sheer stupidity, and we will lack the energy to rise up and strike back. We simply don’t know where to begin: With emoluments? Children deliberately orphaned? Corrupt cabinet secretaries? Incompetent senior advisers? The executive branch of our government has become a criminal enterprise, eagerly aided and abetted by a senate majority that clings to power for its own sake and not for what it can do to improve constituents’ lives. The entire theory and purpose of our representative government has been turned upside down and inside out.

Despite best efforts to convince us otherwise, we are not powerless. We are not voiceless. We are not insignificant. E pluribus unum isn’t just a fancy phrase on our coins. Out of many, one; in unity there is strength. A single vote is an inaudible  whisper, but 250 million together is a category 5 hurricane that cannot be ignored. We don’t have to agree on everything — and we shouldn’t. We won’t always agree on the meaning of the First Amendment, nor of the Second, nor of the Fifth; we won’t always agree about gun policy, welfare policy, education policy, or foreign policy, but we must be able and willing to discuss them, honestly and openly, without resort to name-calling and demonization. We all want a stronger, better, more equal United States. Our ideas about how to achieve those goals differ. We have to re-learn how to talk to each other, and how to compromise.

But despite our differences we should, at a minimum, be able to agree that deliberate cruelty is wrong; that foreign interference in an election is an affront to voters of every political persuasion; that bribery is a crime no matter what the circumstances or who the actors. We should be able to agree that health care and education are rights, not privileges, and that they should be guaranteed by a government for the people. And we should be able to agree that if government of the people ceases to be both by the people and, most of all, for the people, then it is no longer legitimate and must be replaced.

This Tuesday, vote. Vote like your life and your liberty depend on it — because they do. Vote to restore government by and for the people. Vote for humanity and basic decency. Vote to end the madness.

Fatigue (II)

Fatigue comes in many forms, and from multiple causes. The jingoists who have appropriated the flag and other national symbols as their own are fatigued, to be sure; but they misdiagnose the source. The rest of us — by which I mean the great majority of the American people — are also numb. Doubly-numb, in fact: for outrage fatigue settled in many months ago, probably early in 2018. As E.J. Dionne of the Washington Post observes:

Trump has, for the past four years, used the sheer breadth of the scandals that surround him to numb the public. No one focused long enough on any single outrage for it to do the damage even one comparable disgrace would inflict on any other politician.

It’s something we’re all familiar with and yet have been too fatigued to analyze or articulate. With so many outrages weekly, and often daily, we have neither the time nor the patience nor the sheer force of will to do more than commiserate: offenses against custom and institutional practice; offenses against families; offenses against ordinary decency. Offenses, most often, against our laws and the rule of law. We have been watching a slow-motion train wreck and have felt powerless to stop it: the people in power, in coequal branches of government, are content to do nothing so long as they get their judges and their tax cuts.

The price to this nation, Senators, was far too high. And you have sold your souls far too cheaply.

Fatigue (I)

A graph published this week in The New York Times documents the unacceptable reality: in the United States, today, the number of new infections daily is double what it was at the end of March — not long after Trump declared that cases would “soon be down to zero.”

Graph from NY Times 10/19/2020 with link to article.
Click the image to open the article.

We — the public — are seven months into this pandemic. The White House, with its intelligence briefings as far back as late December, has had ten months: more than the full gestation of an infant human or a calf, and nearly enough time to birth a horse, a llama, an elk, a seal. Given where we are today I believe its fair to say we will be lucky to return to something like a pre-pandemic normal some time before an elephant conceived in January 2020 is born, which would be next September or October.

And yet: Movie theaters are reopening, restaurants are back to serving indoors, and there is no shortage of people who still believe that their rights are trampled if they are obliged to wear a mask to protect the health of others. Of course this begs the question: Why is your right to be a jackass superior to everyone else’s right to avoid infection? The selfishness (not to mention the ignorance) is astonishing. Let’s be clear: the fact that our lives are slowly, even cautiously, returning to normal is hardly good news. It is a sign, rather, that after seven or eight months people are becoming desperate for some reassurance that it will all soon be over. It will not — and the fatigue currently driving people into the streets, into stores and restaurants, into the cinemas and health clubs, is almost certain to prolong, not curtail, our national suffering. A second wave is coming.

And yet: The people evidently most chafed by stay-at-home orders and mask protocols (“Don’t tell me what to do!”) evidently take their marching orders from a would-be autocrat. These are the people who plotted to kidnap the governors of at least two states to “protest” public health initiatives. Put another way: the self-styled patriots who object loudly to state authorities protecting the public health (by issuing mask mandates and requiring social-distancing protocols) have no objection to their “strong” leader deciding, on his own, who is worthy of state protection, who can stay, who must go, and who should go to prison. The human capacity for cognitive dissonance is without limit.

Trump himself called out the fatigue problem — as always, without a trace of irony or self-awareness — in a conference call with campaign staff: “People are tired of COVID. Yup, there’s going to be spikes, there’s going to be no spikes, there’s going to be vaccines. With or without vaccines, people are tired of COVID. I have the biggest rallies I have ever had and we have COVID. People are saying whatever, just leave us alone. They’re tired of it.” Of course people are tired of it: not the hearing, but the living. It has gone on for seven unnecessarily long months. Most other countries — including developing and third-world nations — have returned to a semblance of “normal” without the threat of spikes or the cloud of super spreader events. “But it came from China!” Aside from being factually suspect (the virus spread to the US from Europe, not China) it isn’t a reason for inaction. Blame-shifting might be effective to avoid responsibility among the more credulous; it never yet actually solved a problem.

Trust (III)

“Trust is what makes the world work.” Right now, the world is not working for too many people in America. There is widespread distrust of government. Only the ruling class benefits when political gamesmanship takes the place of statesmanship: people busy with their lives, people trying to make ends meet, have neither time nor inclination to analyze the reasons; they know only that their needs are not being met, they tune out the politicians, and they don’t show up at the polls. The ultimate consequence of this systemic voter suppression is to make nearly every seat a safe seat; and so the pols respond not to the real needs of their constituents but to the loudest voices: those who exercise their voting rights. And though it might serve the elected officials well, by keeping them in office — lifetime sinecures, really — it amounts to the death-spiral of democracy by discouraging ever larger numbers from bothering to vote.

Trust makes the world work: in education, in commerce, in finance, in government. If we can’t trust our institutions to do their jobs, they fail us and all future generations. Cronyism and baksheesh are the ways of desert tribes and banana republics, not the beacon of the free world. In the United States today we see that virtually no one trusts government institutions: if it isn’t a deep distrust born of police excesses, systemic injustices, and income disparities that affect every aspect of life; then it is wild conspiracy theories about vaccines, school curricula, voting rights, and climate science. The market for tinfoil hats has never been stronger.

As I write this, reality has finally caught up with the reality-show president. After six months of denying the threat, doubting the science, denigrating public health professionals, Trump has tested positive for Covid-19. It is surprising that it has taken this long given his refusal to take the basic precautions recommended by public health officials around the world, as if an acknowledgement of vulnerability to disease (by wearing a mask, for example) is a sign of personal weakness. “I learned a lot about Covid,” he says glibly. “I learned it by really going to school. This is the real school. This isn’t the let’s-read-the-books school. And I get it. And I understand it. And it’s a very interesting thing and I’m going to be letting you know about it.” So ten months after the first warnings from our national security apparatus we are supposed to believe that he “gets it” because he has the disease. Warnings weren’t enough; briefings weren’t sufficient; 210,000 American deaths (and over 1 million worldwide) made no impact. As he has his entire adult life, Trump sees himself at the center of everything. Unless he is sick, a global pandemic has no real meaning.

We have gone from a government that many simply didn’t trust, to government that no one can trust. The reasons for past mistrust of government are many and varied, and help explain (in part) how we came to our present predicament. The reason nobody can trust today’s government is quite simple: when it is impossible to know whether anyone is speaking the truth it is safest to assume that none of them is. Some of the lies are obvious; some are outed as falsehoods soon after they are uttered; and still others might not be known until days later when they are flatly contradicted by the next statement of alternative fact.

The problem, of course, is that this is real life. We find ourselves now living not in the world where “up” and “down” are clear directions; instead we inhabit the conspiracy-driven dystopia of a Thomas Pynchon novel. It’s good entertainment but an abysmal alternative to science and the rule of law.

A National Strategy Requires a National Government

Like so many Americans, I find myself envying nations that have a national government, and all that implies: A national sense of purpose; a national strategy for testing and tracing; a national plan for a public health crisis. There was a time when the United States had purpose, whether it was defeat of the Axis or putting a man on the moon. “We’re going to win!” is neither a goal, nor a strategy for achieving one. And, “We’re going to win so much, you’ll be tired of all the winning!” What does that actually mean? It is tautological, nonsensical, risible. “Winning” in this telling is undefined and lives (if it lives anywhere) beyond the looking glass, where words are just sounds with no actual meaning:

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

 Lewis Carroll, Through the Looking-Glass

It’s a sure bet that Donald Trump hasn’t read the book, nor would he understand the exchange. Irony, as they say, is not his long suit. At least, not intentionally.

Any dream of a national purpose must wait for another day; the pressing need, today, is for a national strategy: the novel coronavirus is among us and is not leaving any time soon. The national response has been botched — because in truth there was no national response. We had, instead, fifty state responses, some more successful than others but all of them at risk: the weak responses in a very real sense threaten the stronger ones. Our constitution guarantees freedom of movement, and while the governor of (for example) New York can require travelers from Texas and Florida to self-isolate for two weeks after arrival, it is only a matter of time before someone decides to make a literal Federal case out of a very real and very practical exercise of the state’s police power. Health and safety be damned, because this is America!

Meanwhile, in the real world: over 30 million people are unemployed; over 5 million have contracted Covid-19; over 160,000 have died from the disease, and 1,000 more die each day. (Our infection rate has been doubling about every six weeks; at that pace, by May or June the entire nation will be Covid-positive, a stunning achievement. If “winning” means, “create a nation of lepers”: mission accomplished.) And the United States Senate, the self-styled “world’s most deliberative body,” can neither deliberate nor negotiate nor even formulate legislation that might help  American citizens survive — pay the rent, buy groceries — until the pandemic subsides and the jobs actually do come back. Bear in mind that formulating legislation is the actual job of senators: it is their primary responsibility, enshrined right there in the job title: “legislator, upper body.”

For anyone who might be persuaded by the argument that “the House refuses to negotiate,” please bear in mind that the House actually passed legislation in May. The Senate (and the White House) chose to wait until the expiration of the March bill (July 31) before even beginning negotiations, evidently in the hope that Democrats would be persuaded of the urgency of passing anything and would thus accept whatever weak last-minute tea the Republicans brewed. (The Republicans, for their part, can’t even agree among themselves what to ask for or try to pass. So much for their legendary party unity.) It has taken a generation, but the Democrats — and Speaker Pelosi — have gotten wise to this game and aren’t having it.

Meanwhile, the Senate Judiciary Committee — under Lindsay Graham’s “leadership” — grills Sally Yates about the spooks under the bed. (Ms. Yates wasn’t having it, either, and deftly put the majority in its place.) Writing legislation is the Senate’s primary job, but by all means let’s ask more questions about Hilary’s emails, eight years after the fact. Changing the subject is a time-tested method of distracting attention from your failures, collectively as a legislative body as well as individually.

By most accounts the American people aren’t buying, not this time. There is an actual plague in the land, and the federal government isn’t doing anything to control the spread or mitigate the effects. We’re on our own, until we’re able to put people in government who are actually interested in doing the hard work of governing.

Great and Small

Small men hide their mistakes and admit no error. Great men expect and own theirs. Small men require adulation; great men earn respect. The small man will punch down (but never up), trying to improve his own standing by standing on others. Great men reach down and lift up.

The small man believes that marble and bronze likenesses are proof of greatness. The great man’s monument is his achievement, memorialized by the judgment of history. The small man pounds his chest to make a point; the great man pounds the pavement to win the day. Small men remain small despite their puffery; great men know the worth of words and of ideas.

Great men lead the way into battle; small men say, “The fight is over yonder, come back when you’ve killed something.” Great men will explain a higher purpose and persuade to do the hard things; small men don’t look beyond where their followers are going anyway. Great men know that a chain, or an army, or a nation, is only as strong as its weakest component; small men know only the rhetorical intimidation of projected strength.

Great men learn from their mistakes; small men repeat them.

This Independence Day, as we look towards the nominating conventions and a national election, let us all aspire to greatness. Mistakes are the human condition, but a failure to learn — and a compulsion to repeat — looks like willful stupidity.

Respect

Respect is earned: it is not given. Which is to say, an indivdual must work to gain respect beyond whatever is granted by default, by virtue of his office. A group manager is respected insofar as she is the group manager; but she doesn’t get the respect she wants without earning it, without treating her people well, without having their backs.

What to say, then, to the man who demands respect but gives none; who is too lazy to earn it, let alone understand it. How does one respond to the man who demeans himself, his office, his nation. What rational answer is there to the foolish, aimless, and irrational mental wandering of a man so contemptuous of others, so needy of adulation, as to be utterly and completely beyond redemption.

It’s impossible to respect a man who doesn’t respect the office he holds.

The Last Refuge

Patriotism, Samuel Johnson memorably said, is the last refuge of a scoundrel: Those who would defend the indefensible invariably, inevitably wave the flag. Then they wrap themselves in it. The tactic — too often effective against a credulous public — is designed to distract from their own corrupt and corrosive activities that serve not to strengthen the republic so much as permanently ensconce themselves in power.

So it is with Senate Republicans, particularly (these last weeks, at least) those on the Judiciary Committee: while Trump literally tears us apart and tries to burn down the nation, Lindsay Graham wants to hold hearings. Into Trump? AG Bill Barr’s shameless coddling of convicted felons (and Trump cronies) Roger Stone and Michael Flynn? No! The FBI! Investigate the investigators who investigated Trump! While Trump fires all the independent government watchdogs — the Inspectors General of State, Defense, Transportation, HHS, and Intelligence. And how does Charles Grassley, who built a decades-long reputation as a defender of government accountability, react? A meek letter asking the president, please, if you would be so kind as to indulge me sir, to explain, and forgive the temerity of my question.

In the last four months we have all aged four years, if we were paying attention.