Monday, October 31, 2016

Hillary's New Emails: A Solution for FBI Director Comey

Related: Richard W. Painter, "On Clinton Emails, Did the F.B.I. Director Abuse His Power?" New York Times, October 30, 2016 (possible violation of Hatch Act; author: University of Minnesota law professor, and former chief White House ethics lawyer, 2005 to 2007); Matt Apuzzo, Michael S. Schmidt and Adam Goldman, "Justice Department Obtains Warrant to Review Clinton Aide's Emails," New York Times, October 31, 2016, p. A1 (background); Editorial, "Can Anyone Control the FBI?" The Washington Post, November 5, 2016 ("In the days since [FBI Director Comey's announcement of the 'discovery of additional emails in the investigation of Hillary Clinton’s private server'], the FBI’s behavior has grown even more questionable. FBI sources have fanned new doubts about Ms. Clinton’s candidacy with inaccurate leaks about an investigation of the Clinton Foundation."); Ben Brody and Chris Strohm, "FBI Surprises With Files on Clinton ’01 Pardon of Marc Rich," Bloomberg, November 1, 2016 ("The FBI unexpectedly released 129 pages of documents related to an investigation closed without charges in 2005 into President Bill Clinton’s pardon of Marc Rich, who had been married to a wealthy Democratic donor. The file was posted online Monday but received little attention until the FBI noted it in a tweet on Tuesday afternoon. It comes as Director James Comey faces fire from Democrats and even some Republicans for releasing information about his renewed investigation into Hillary Clinton’s use of e-mail."); Matt Apuzzo, Michael S. Schmidt and Adam Goldman, "Emails Warrant No New Action Against Hillary Clinton, F.B.I. Director Says," New York Times, November 7, 2016, p. A1.

F.B.I. agents are all but certain that it [their review of newly-found Huma Abedin-Hillary Clinton emails] will not be completed by Election Day, and believe it will take at least several weeks."

Michael S. Schmidt and Matt Apuzzo, "10 Questions (and Answers) About New Email Trove," The New York Times, October 31, 2016, p. A15.
FBI Director James B. Comey has created a bit of a mess.

Here's how he might get out of it.

The FBI's investigation of Hillary Clinton's treatment of classified emails as Secretary of State was wrapped up in July. Comey announced that while her procedures were "extremely careless," she had neither the requisite criminal intention, nor was there any other reason, to proceed with her prosecution.

One of Hillary's closest aides, Huma Abedin, was married to Congressman Anthony Weiner. Weiner, formerly infamous for sending women lewd pictures of himself, is now being investigated by the FBI for doing so with a 15 year old girl. As a product of that investigation, it appears that in addition to whatever else he may have had on his computer, there were some of Huma Abedin's emails -- possibly including email exchanges between her and Hillary Clinton.

Department of Justice practice is to not reveal details of ongoing criminal investigations, and not to make announcements that might affect the outcome of a political campaign within 60 days of Election Day. Comey, having made a commitment to members of Congress to keep them informed of developments regarding Clinton's classified emails, informed them -- 11 days before the presidential Election Day -- of the possibility there might be more emails as a result of the Weiner investigation. Apparently Weiner's computer, containing some 600,000 emails, had been sometimes shared with his wife.

At the time, Comey's FBI didn't even have a search warrant authorizing their access to Huma Abedin's emails. (Now they have one.) Apparently he had not even seen any of the relevant emails, let alone made a judgment about what problems they did, or did not, raise.

Given the role throughout the 2015-16 presidential campaign of what Senator Bernie Sanders once famously described as "Hillary's damned emails," it could have been predicted that Comey's rekindling this fire, raising suspicions without a soup├žon of facts, would have the impact on the election's outcome that is already showing up. Talk about an "October surprise!"

What's worse, as the opening quote reports, the FBI is saying it's unlikely there will be any facts prior to Election Day.

So what's to be done? Don't insist, for now, that the excellent must be permitted to be the enemy of the good.

1. Do a quick search of the emails. Microsoft Outlook, and most other email programs, have a search feature. It's something I often use, and it's incredibly fast. If Google can search through billions of documents in less than a second, there's no reason why searching through 600,000 emails should take "several weeks."

2. How do Hillary and Abedin refer to each other in emails -- first name, full name, initials, title, code names? Do they always do so? Pull out every email that contains those identifiers -- whether in the text, to, from, or subject fields.

3. Then search those emails for words that might identify a classified email -- secret, top secret, confidential, C, eyes only, classified. Compare those with the classified emails of Secretary Clinton that the FBI has already investigated and remove the duplicates.

4. Print out and divide the remainder, if any, among however many FBI agents are necessary to get those emails read and evaluated within 24 hours (preferably agents formerly involved in the investigation of the Secretary's emails).

5. If nothing is discovered that significantly adds or subtracts from what was known in July, have Director Comey issue a statement something like the following:
I apologize to the American public, the Congress, and the presidential campaigns for any confusion that I may have created by my recent report to Congressional leaders regarding what we thought might be additional emails relevant to our previous investigation of former Secretary of State Clinton. My prior commitments to Congress required that I make some report as soon as I became aware of this development. It was certainly not my intention, nor that of the Bureau, to affect the election in any way.

In that spirit, I wish to announce that our preliminary evaluation of the newly discovered emails, some of which were duplicates, indicates that they will add nothing new to what we knew in July.

While we will continue to evaluate them more closely, I wanted to make clear that at this time it does not appear that we will be altering the advice we provided the Department of Justice at that time.
Of course, from the Clinton campaign's perspective this risks that disclosing what the initial search reveals might be much more damaging than what's now in the media -- and Trump's speeches.

And then there's always Comey's option to simply resign -- either explaining, or not, whatever pressures may have been applied to him that caused him to do this.

# # #

This essay was published by OpEdNews on November 1, 2016. It stimulated the following exchange of comments on that site:

Comment by Rob Kall: Good ideas, all of them, including Comey resigning.

Submitted on Tuesday, Nov 1, 2016 at 12:33:53 AM

Reply to Rob Kall: Email Reply from Nicholas Johnson: Thanks, Rob; appreciate it.

There's an old saying: "Get a reputation as an early riser and you can sleep all day."

I think that may have played a role in what I wrote: his reputation for courage in standing up to the surveillance community (his rush to Ashcroft's hospital bedside; although he also asked Apple for a back door), his quality education and law school teaching, his range of experience -- up to and including essentially running the Department of Justice as Deputy Attorney General. I, like so many others, was willing to give him the benefit of the doubt regarding his decision to violate two policies of the Justice Department (don't talk about ongoing investigations; don't do anything that might impact an election within 60 days of Election Day) -- "there must have been a good reason for him to do that."

Now I'm not so sure. I don't have enough facts at this point to come to a final judgment about any of this. But sadly, this "morning after the night before," I at least have to hold in suspension the possibility that, whether pushed into it by others or coming to it all on his own, at least a part of his motivation was to contribute to a diminishing of Clinton's margin of victory, or her defeat.

Meanwhile, and however that comes out, I do still think the earlier the FBI can follow the quick steps I outlined in the op ed the better.

Submitted on Tuesday, Nov 1, 2016 at 7:40:04 AM

Comment by Nicholas Johnson: With regard to Director Comey's possible resignation: this is, of course, a wholly separate issue. The more urgent matter is what can be done to minimize the harm he may have done to a presidential election. His departure would do virtually nothing to address that concern.

However, here are some brief notes on this "separate issue." FBI Directors are now appointed for ten-year terms. Appointed in 2003, Comey's term won't expire until 2023. He can, of course, resign at any time. And the ten-year terms are not, in effect, "ten years of a life appointment." FBI Directors can be, and have been, fired by presidents. President Obama has, so far, continued to express confidence in Director Comey.

Submitted on Tuesday, Nov 1, 2016 at 10:14:17 AM

Shad Williams Reply to Nicholas Johnson: Did not know that about the 10 year term. I will need to look up what is the term limit of the CIA director?

Submitted on Tuesday, Nov 1, 2016 at 12:10:16 PM

Reply to Shad Williams Email Reply from Nicholas Johnson: Shad: Thanks for the comment. To the best of my recollection the CIA Director is, like most other presidential appointees, someone who serves, as we say, "at the pleasure of the president." Otherwise put, she or he can be fired at any time. Indeed, some administrations have had the practice of getting a "resignation" from everyone they appoint -- that is, an undated letter of resignation to the president that can be dated and then used at any time.

Submitted on Tuesday, Nov 1, 2016 at 3:20:14 PM

Comment by BFalcon: Correct me if I am wrong.

Comey did not disclose anything about the investigation to public.

He wrote the letter to Congressional Committee as addendum to his testimony which, I presume, was his obligation.

Do you believe, if the search that you suggested finds something that could be relevant and incriminating, that they should, two or three days before elections, state that to public?

Submitted on Tuesday, Nov 1, 2016 at 11:57:35 PM

Reply to BFalcon Email Reply from Nicholas Johnson: Correct me if I am wrong.

Response: Thank you, BFalcon, for this provocative comment.

Comey did not disclose anything about the investigation to public.

Response: He disclosed a great deal about the investigation -- which has had an effect, whether intended or not, on voters' preferences. You are of course correct that he did not disclose anything about the results of the investigation, because according to him it not only had not ended it had not even begun until they got the necessary search warrant. He did not need to reveal the results of a yet-to-be-begun investigation. All he needed to do to impact Hillary's chances was to say that there was one, that in effect the investigation closed in July was reopened 11 days before the election.

He wrote the letter to Congressional Committee as addendum to his testimony which, I presume, was his obligation.

Response: He tried to suggest that he, as well as you, presumed that was his obligation. Obviously, since I am not privy to his communications with the Republican Congressional leadership, I cannot know what his "obligation" was. Some have said it is inappropriate to include members of Congress in the details of an ongoing investigation. Be that as it may, it would seem sufficient to me to both satisfy any obligation he might have while also complying with both Department of Justice procedures: no comments about ongoing investigations, and no comments within 60 days of an election that might affect its outcome. Any yet-to-be-discovered revelations that might or might not come out of Weiner's computer would not need to be reported until there is something to report; certainly, the fact the FBI was going to look there to see if there was anything worth pursuing is not of sufficient importance to warrant violating Department of Justice standards. The only thing the early statement accomplished was to raise suspicions and innuendo regarding a presidential candidate.

Do you believe, if the search that you suggested finds something that could be relevant and incriminating, that they should, two or three days before elections, state that to public?

Response: That is the result of what I am proposing. Comey should never have made the statement he did. Having done so he can't take it back. The damage has been done. Both campaigns and other leaders of both parties have urged that more facts be revealed. Hillary's insistence this be done suggests to me that she thinks there's little to nothing there. If it turns out there is a smoking gun, or arsenal, there then -- having gone this far -- the members of Congress he wrote, and the public, are probably entitled to know that before the election, rather than having to go into the voting booth with nothing but suspicions.

Submitted on Wednesday, Nov 2, 2016 at 2:20:02 PM

BFalcon Reply to Nicholas Johnson: Again, I am not sure from what you say that Comey disclosed anything to the public, did he?

If somebody is charged with investigation of a bunch of mail and testifies under oath that all the mail was investigated, it is my opinion that the person, when he learns that there is some more mail to be completed, should amend the testimony simply disclosing this fact.

I disagree with you that revealing e.g. that "there is possibly incriminating information" just before the elections would be right. The voters should make their choice without further "information" (necessarily incomplete and not final).

Submitted on Wednesday, Nov 2, 2016 at 8:50:07 PM

Reply to BFalcon Email Reply from Nicholas Johnson: BFalcon: Thanks for the follow-up. I disagree with you only in the sense that I have come to different conclusions -- as expressed in an earlier comment.

I do not disagree in the sense that I think you are "wrong." I think yours are rational, easily supported -- and, indeed, widely shared (including by Comey and Republican congressional leaders) -- conclusions (regarding both what Comey was "obliged" to do in the past, and in the future with pre-Election Day discoveries). -- Nick

Submitted on Thursday, Nov 3, 2016 at 10:20:02 AM

Comment by Nicholas Johnson: I am finding it increasingly difficult to suspend judgment regarding FBI Director Comey's and some agents' deliberate efforts to adversely affect Clinton's chances in next Tuesday's election. See this morning's Washington Post: Editorial, "Can Anyone Control the FBI?" The Washington Post, November 5, 2016 ("In the days since [FBI Director Comey's announcement of the 'discovery of additional emails in the investigation of Hillary Clinton's private server'], the FBI's behavior has grown even more questionable. FBI sources have fanned new doubts about Ms. Clinton's candidacy with inaccurate leaks about an investigation of the Clinton Foundation."), and Ben Brody and Chris Strohm, "FBI Surprises With Files on Clinton '01 Pardon of Marc Rich," Bloomberg, November 1, 2016 ("The FBI unexpectedly released 129 pages of documents related to an investigation closed without charges in 2005 into President Bill Clinton's pardon of Marc Rich, who had been married to a wealthy Democratic donor. The file was posted online Monday but received little attention until the FBI noted it in a tweet on Tuesday afternoon. It comes as Director James Comey faces fire from Democrats and even some Republicans for releasing information about his renewed investigation into Hillary Clinton's use of e-mail.")

Submitted on Saturday, Nov 5, 2016 at 11:07:57 AM

Comment by Nicholas Johnson: I suffer no illusions that there is anyone in Washington, let alone the Director of the FBI, who would know or care what I am thinking and writing about, or would be influenced by it if they did know. But it's always somewhat satisfying, after writing a proposed course of action, that others -- with more knowledge of the situation than I possess -- subsequently come to the same, or similar conclusions. So it is with my OpEdNews piece, above. In this case, what I proposed (Comey shouldn't have opened the issue, but having done so should now put all the agents necessary to going through the additional emails before election day, and then announce the results) is apparently what was done. (It is, however, not clear whether or not they used the specific steps I suggested for speeding the process, though it's reasonable to assume they did.) See Matt Apuzzo, Michael S. Schmidt and Adam Goldman, "Emails Warrant No New Action Against Hillary Clinton, F.B.I. Director Says," New York Times, November 7, 2016, p. A1.

Submitted on Monday, Nov 7, 2016 at 4:16:54 PM

# # #

Saturday, October 29, 2016

An Outrageous Merger

It’s outrageous that AT&T and Time Warner may be permitted to merge.

Of course, there are antitrust issues.

If it’s approved, some competitors will go out of business, others won’t get started, and consumers will pay more and get less.


Antitrust law is not designed to regulate anti-competitive behavior; it is designed to prevent anti-competitive behavior.

Permitting AT&T to acquire Time Warner would be like (with credit to Mason Williams) giving a small boy a ball and then saying, “Now don’t bounce it” – or hiring someone to watch him.

Regulation doesn’t work. What’s called “agency capture” is widespread and well documented. In the BP oil spill case, it involved the regulators literally sleeping with the regulated. Even if an agency isn’t captured it probably doesn’t have enough personnel to do meaningful regulation. The FCC of my day had three employees to respond to 85,000 complaints, and they travelled in pairs.

The only way to prevent anti-competitive corporate behavior is to forbid the mergers that make it possible.

But antitrust law and lawyers often have ways of finding adequate competition when no one else can see it. Moreover, the serious antitrust issues and economic impact of this proposed merger are the least of our concerns.

Mergers of media firms, unlike those in other industries, raise issues involving our democracy, analogous to those associated with the First Amendment.

Some involve politics and governing. Major media owners are more politically powerful than major donors. When a single owner has dominant control of newspapers, radio, television and cable systems within a state or region it can affect elections. When a weapons manufacturer also owns a network, it creates an appearance of possible conflict in its war coverage.

Other issues involve the creative community. Suppose a single corporation owns movie studios, theaters, a TV network, book publishers, newspapers, and other forms of media. It can favor its movies in its theaters, make its authors guests on its TV shows, and advertise all its products in its newspapers.

Both AT&T and Time Warner are among the world’s largest corporations. Time Warner’s HBO and Cinemax programming is sold in 150 countries, its Turner programs in 200. AT&T is the largest telecommunications company in the world, also in 200 countries. Both are holding companies, conglomerates, that together own dozens of corporations. Many are known to you, like CNN, HBO, or DirectTV. Check their corporate Web pages for more.

Worst of all, and what ought to absolutely preclude this merger, they will represent a gigantic combination of programming and delivery (“content and conduit”) -– the ultimate choke-hold on the distribution of a diversity of content.

The AT&T of old only provided distribution, the conduit. Everyone was entitled to a phone. And once you got one, you could send any ideas you wanted into that phone and through AT&T’s lines. Other institutions might come after you for disclosing national security secrets, fraudulent marketing, or defamation, but not AT&T.

There was a legal “right of entry” into the old AT&T network. No longer. There will be no legal rights for America’s creators of content. Nor will there be a financial incentive for AT&T to carry their content.

From any perspective, it would be outrageous for regulators to approve this merger.
_______________
Nicholas Johnson, a former FCC commissioner (1966-73), played a significant role in frustrating ITT’s efforts to acquire ABC. Blog: FromDC2Iowa.blogspot.com Contact: mailbox@nicholasjohnson.com

Note: This blog essay was published online by OpEdNews, October 26, 2016.


# # #

Thursday, October 20, 2016

Republicans Need To Get Their Party Back From Trump

Republicans Need to Get Their Party Back From Trump

Nicholas Johnson

Iowa City Press-Citizen, October 20, 2016, p. 7A

Iowa’s statewide and congressional elected officials — Gov. Terry Branstad, U.S. Sens. Chuck Grassley and Joni Ernst, and U.S. Reps. Rod Blum, David Young, and Steve King — are doing great harm to Iowa, themselves and a future Republican Party by continuing their endorsements of Donald Trump.

This is not a partisan, pro-Hillary Clinton judgment. I supported Sen. Bernie Sanders.

As a Democrat, I want to “make the Republican Party great again.” The evolution of a democracy's wise public policy requires the thorough consideration of alternatives that can only emerge from civil, cooperative — and yes, compromising — conversation between those whose differing opinions are grounded in agreed-upon facts.

I’m old enough to remember that Republican Party, and to long for its return. That day is only delayed by Republican officials who say, in effect, that Donald Trump’s actions and words represent their values.

Is Donald Trump really someone they hold up to their children as a model? Do they really think he has the knowledge of domestic needs and world affairs, experience in government, mature judgment, people skills, respect for others and the values to be one of America’s best presidents? Is he even a conservative?

Numerous Republican officials share my view.

The party’s highest ranked official (Speaker Paul Ryan), most recent presidents (George H.W. Bush and George W. Bush), and presidential candidates (Sen. John McCain and former Massachusetts Gov. Mitt Romney) have refused to support Trump.

Now, they’ve been joined by over 50 leading Republicans — governors, U.S. senators and representatives — who either never did, or do not now, support him. Some think Trump should drop out. Some say they’ll vote for Hillary Clinton. Others merely say they can’t endorse or vote for him.

By early October, no major U.S. newspaper had endorsed Trump. Some conservative papers that have never endorsed a Democrat are supporting Hillary Clinton; others merely advise readers not to vote for Trump.

One can sympathize with Iowa’s Republican leaders. It’s not easy to reject one’s presidential nominee. But the cost of their supporting Trump far exceeds any benefit.
• That they supported Trump will forever be a large blot on their personal political legacy.

• It will make it more difficult to rebuild a new, improved, responsible Republican Party in Iowa and the U.S., especially while Trump attacks Republican leaders.

• Trump’s stirring up even more divisiveness and polarization is a disservice. It brings out the worst in us, rather than our best. Iowa’s leaders are encouraging emulation of someone who deals in ridicule and mean-spirited disparagement of women, entire races, religions and ethnicities; war heroes, people with disabilities and Gold Star mothers.

• Iowans are proud of their reputation for “Iowa nice,” their welcoming of immigrant populations from around the world, their ethical and religious values — a culture diametrically opposed to what Trump represents.

• Iowans, like all Americans, want our state to be well thought of by others — especially those with ill-informed biases who think we’re just backwater, flyover country. Our leaders’ support for Trump only reinforces our critics' worst prejudices.

• We are trying to attract the best and the brightest to our state — faculty and students, leaders of large and small businesses, skilled workers and the creative class. We want to retain our first-in-the-nation presidential caucuses. Other states have lost business for being far less offensive than Trump.
Iowa’s Republican officials don’t need to drop their membership in the Republican Party, or announce they are voting for Hillary Clinton. They don’t need to publicly itemize the daily lengthening list of reasons why Trump is unsuited to be president.

What they do need to do, for their own sake and that of their constituents, is to join the impressive ranks of responsible Republicans who have announced they are neither endorsing nor voting for Donald Trump.
_______________
Nicholas Johnson is a former Iowa Democratic congressional primary candidate and Washington official. He blogs at FromDC2Iowa.blogspot.com.

Comments on Press-Citizen Site

[Oct. 21, 2016, approx. 8:30 p.m.]
Lynn Griebahn Jr.

you might want to read your own letter for some very obvious clues. The fact that so many republican leaders are not "endorsing or voting for Trump" is a clue. Many of these "republicans" are in essence Demoncrats. You want the Republican Party back that is liberal and leftist and that ain't gonna happen. All these leftists republicans can join the demoncratic party. I typed this real slow and in the dark so I would not disturb your sleep

[Oct. 22, 2:26 p.m.]
Lynn: Thank you for reading the column and posting a comment.

You say that I "want the Republican Party back that is liberal and leftist."

Here's a list of the Republican presidents since 1900: Presidents Theodore Roosevelt, William H. Taft (or his son, Robert A. Taft, Senator, Majority Leader, and presidential candidate), Warren G. Harding, Calvin Coolidge, Iowa's own Herbert Hoover, Dwight D. Eisenhower, Richard M. Nixon, Gerald R. Ford, Ronald W. Reagan, George H.W. Bush, George W. Bush.

I rather suspect that most, if not all, of them would be quite shocked that you consider them "liberal and leftist." And I also suspect that if they were still available for comment most to all of them would reject Donald Trump as an appropriate candidate for the Republican Party.

I am suggesting that we DO need a conservative voice in the fashioning of our laws and public policies -- but that we first need to agree on "facts" (as distinguished from opinions and ideology), and on the need for compromise.

What disturbs my sleep is not your rapid or slow typing in the dark, it is the prospect of Donald Trump (whom I do not consider either a conservative or a Republican) keeping the rest of us in the dark from the Oval Office in the White House.

-- Nick

# # #

Thursday, October 13, 2016

Iowa's Top Republicans' Major Mistake

Iowa’s statewide and congressional elected officials -- Governor Terry Branstad, U.S. Senators Chuck Grassley and Joni Ernst, and Members of Congress Rod Blum, David Young, and Steve King – are doing great harm to Iowa, themselves, and a future Republican Party, by continuing their endorsements of Donald Trump.

This is not a partisan, pro-Hillary Clinton judgment. I supported Senator Bernie Sanders.

As a Democrat, I want to “make the Republican Party great again.” The evolution of a democracy's wise public policy requires the thorough consideration of alternatives that can only emerge from civil, cooperative, and yes, compromising, conversation between those whose differing opinions are grounded in agreed upon facts.

I’m old enough to remember that Republican Party, and to long for its return. That day is only delayed by Republican officials who say, in effect, that Donald Trump’s actions and words represent their values.

Is Donald Trump really someone they hold up to their children as a model? Do they really think he has the knowledge of domestic needs and world affairs, experience in government, mature judgment, people skills, respect for others, and values to be one of America’s best presidents? Is he even a conservative?

Numerous Republican officials share my view.

The party’s highest ranked official (Speaker Paul Ryan), most recent presidents (George H.W. Bush and George W. Bush), and presidential candidates (Senator John McCain and Mitt Romney) have refused to support Trump.

Now they’ve been joined by over 50 leading Republicans – governors, U.S. senators and representatives – who either never did, or do not now, support him. Some think Trump should drop out. Some say they’ll vote for Hillary Clinton. Others merely say they can’t endorse or vote for him.

By early October no major U.S. newspaper had endorsed Trump. Some conservative papers that have never endorsed a Democrat are supporting Hillary Clinton; others merely advise readers not to vote for Trump.

One can sympathize with Iowa’s Republican leaders. It’s not easy to reject one’s presidential nominee. But the cost of their supporting Trump far exceeds any benefit.
(1) That they supported Trump will forever be a large blot on their personal political legacy.

(2) It will make it more difficult to rebuild a new, improved, responsible Republican Party in Iowa and the U.S. – especially while Trump attacks Republican leaders.

(3) Trump’s stirring up even more divisiveness and polarization is a disservice. It brings out the worst in us, rather than our best. Iowa’s leaders are encouraging emulation of someone who deals in ridicule and mean-spirted disparagement of women, entire races, religions and ethnicities; war heroes, people with disabilities, and Gold Star mothers.

(4) Iowans are proud of their reputation for “Iowa nice,” their welcoming of immigrant populations from around the world, their ethical and religious values – a culture diametrically opposed to what Trump represents.

(5) Iowans, like all Americans, want our state to be well thought of by others -– especially those with ill-informed biases who think we’re just backwater, flyover country. Our leaders’ support for Trump only reinforces our critics' worst prejudices.

(6) We are trying to attract the best and the brightest to our state -– faculty and students, leaders of large and small businesses, skilled workers, and the creative class. We want to retain our first-in-the-nation presidential caucuses. Other states have lost business for being far less offensive than Trump.
Iowa’s Republican officials don’t need to drop their membership in the Republican Party, or announce they are voting for Hillary Clinton. They don’t need to publicly itemize the daily lengthening list of reasons why Trump is unsuited to be president.

What they do need to do, for their own sake and that of their constituents, is to join the impressive ranks of responsible Republicans who have announced they are neither endorsing nor voting for Donald Trump.

# # #

Sunday, October 02, 2016

Law, Social Norms and Trump

"That's not nice. Next"

When I was a very young boy, and my mother was making a meal, or otherwise engaged, I'm told she'd turn to anyone handy and say, "Go find Nicky; see what he is doing and tell him to stop it."

That's how more and more traditional Republicans -- and Americans generally -- are coming to feel about Donald Trump.

The week of September 25 was a good example, from his ignoring advice on how to minimize self-inflicted harm during the Monday night debate with Hillary Clinton to his pre-dawn Twitter tirade Friday attacking Alicia Machado (the former Miss Universe).

"There ought to be a law," you say. But there's not.

Abraham Maslow may not have realized it, but he said something relevant to first-year law students when he observed, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." Many of those law students are too quickly tempted to start thinking of all human behavior as a product of legal rights and responsibilities.

There are a number of Trump's controversies that may have legal significance. David A. Graham has listed 19 in a recent Atlantic article: The Beauty Pageant Scandals, Racial Housing Discrimination, Mafia Ties, Trump University, Tenant Intimidation, The Four Bankruptcies, The Undocumented Polish Workers, Alleged Marital Rape, Breaking Casino Rules, Antitrust Violations, Condo Hotel Shenanigans, Corey Lewandowski [former campaign manager], Suing Journalist Tim O'Brien for Libel, Refusing to Pay Workers and Contractors, Trump Institute, Buying Up His Own Books, Undocumented Models, The Trump Foundation, and The Cuban Embargo. (For each he provides "where and when," "the dirt," "the upshot," and "read more.") David A. Graham, "The Many Scandals of Donald Trump: A Cheat Sheet," The Atlantic, September 30, 2016.

But like the law students, we would be wrong to assume our only means of corralling the wild Trump involves courts, judges and lawyers.

Whether we are conscious of it or not, most of what regulates our behavior, to the extent anything does, is not the law as such, but rather social norms: what we eat and how we eat it; the distance we maintain when standing and talking to another; the clothes we do (or don't) wear for various locations, occasions and situations; the verbal and body language we employ when talking to contemporaries or supervisors. Most social norms are unwritten and evolve over time. Some come from our parents, our friends and neighbors in a small community, a religious organization, or our fellow workers at a university or business.

Just as there are penalties for violating the law, so too are there penalties for violating social norms -- including what the community may consider inappropriate speech. (See, Nicholas Johnson, "Was It Something I Said? General Semantics, the Outspoken Seven, and the Unacceptable Remark," October 30, 2010.) Is this a possible course for those concerned about Trump's hateful outbursts? It just may be.

In the summer of 1969, when the Los Angeles creative community -- actors, writers, directors, producers -- became concerned about what some of them thought of as "censorship" of their work by the networks, the FCC eventually agreed to hold a hearing on the matter. The witnesses who appeared were mostly white, male, network lawyers and lobbyists in suits.

The last one to appear was decidedly not a member of that club. It was my friend, Emmy and Grammy winner Mason Williams, head writer for the "Smothers Brothers Comedy Hour," a highly-rated CBS variety program with social and political content. Given the 1960s, Tom and Dick Smothers had generated both a large, loyal following of fans, and significant levels of network executives' anxiety -- anxiety that took the form of New York executives' close review and removal of some portions of the scripts created in LA.

Mason arrived with open shirt and beads, carrying a guitar, and copies for the FCC commissioners of what he called "The Mason Williams FCC Rapport," July 23, 1969. As he played and sang his way through his testimony he read from his "Rapport" some of the brain-bursts he'd entered in his journals (e.g., "Network television wants to keep you stupid so you'll watch it;" "Winning an Emmy from television is like getting a kiss from someone with bad breath"). [Photo credit: Wikipedia, public domain, Ken Kragen & Friends; Mason Williams, 1969.]

One of those brain-bursts, relevant to Donald Trump's speech, posited that someone had leveled an offensive and possibly erroneous charge against the President. (I won't repeat the offensive speech here. It can be found at page 66 of the "Rapport.") Rather than a network censoring the remark, Williams said:
Someday I hope that someone could appear on television and say [the offensive speech] and the public would individually be able to say, "That's not right. And that's not a nice thing to say. Next."
In other words, rather than have the FCC and networks censor creative content speech that violates social norms could be uttered, because society would have evolved to the point that we would simply reject it -- "that's not a nice thing to say" -- and either change channels, or go on to the next item, with the command, "Next."

Have we reached that point? Hardly. Indeed, many are concerned, as I am, that Trump's approach to political campaigning may be seen as a new normal by both the young and those with sufficient celebrity status to consider running for office themselves with a Trump-like campaign.

But there are hopeful signs that social norms regarding speech are beginning to join the other objections to Trump's candidacy -- his lack of political and governing experience, the character of his staff choices (some of whom had to be replaced), his policy proposals (e.g., building the wall, deporting 11 million, use of nuclear weapons), his untruthful utterances, his refusal to reveal his tax returns, and the 19 items involving his business practices noted above.

One source of those signs is what some solidly Republican newspapers have been writing in the course of not endorsing him:

The Dallas Morning News, which has never endorsed a Democratic Party presidential candidate since 1940, wrote: "We reject the politics of personal destruction. . . . He [Trump] plays on fear — exploiting base instincts of xenophobia, racism and misogyny — to bring out the worst in all of us, rather than the best." Editorial, "We Recommend Hillary Clinton for President," The Dallas Morning News, September 7, 2016.

A couple weeks later the Cincinnati Enquirer, which had never endorsed a Democratic Party presidential candidate since 1916, joined the Dallas Morning News with its endorsement of Hillary: "We've condemned his childish insults; offensive remarks to women, Hispanics and African-Americans; and the way he has played on many Americans' fears and prejudices to further himself politically. . . . Trump tears our country and many of its people down with his words so that he can build himself up. Trump has toned down his divisive rhetoric, . . .. But going two weeks without saying something misogynistic, racist or xenophobic is hardly a qualification for the most important job in the world. Why should anyone believe that a Trump presidency would look markedly different from his offensive, erratic, stance-shifting presidential campaign?" Editorial, "It Has to be Hillary Clinton," Cincinnati Enquirer, September 23, 2016

More would come in rapid order. The Arizona Republic, which has never endorsed a Democratic Party presidential candidate since it began publication in 1890 (as The Arizona Republican), wrote: "Trump mocked a reporter’s physical handicap. Picked a fight with a Gold Star family. Insulted POWs. Suggested a Latino judge can’t be fair because of his heritage. Proposed banning Muslim immigration. Each of those comments show a stunning lack of human decency, empathy and respect. Taken together they reveal a candidate who doesn’t grasp our national ideals. . . . She [Hillary Clinton] can move us beyond rancor and incivility." Editorial, "Endorsement: Hillary Clinton is the Only Choice to Move America Ahead," The Arizona Republic, September 27, 2016.

Here's what The Detroit News had to say: "[Donald Trump] rubs hard against the editorial board’s values as conservatives and Americans. [He] is unprincipled, unstable and quite possibly dangerous. .... Trump has attracted support from too many of those who represent the worst of human nature .... Few groups have been spared from his bile. . . . But the most worrisome thing about Trump is that he is willing to stir the populace by stoking their fears of sinister forces at work from within and without to tear down their traditions, values and families .... His sort of populism has led to some of history's great tragedies." The News, which has only endorsed Republican Party presidential candidates since it began publication in 1873, rather than endorsing Hillary Clinton, instead chose to skip Trump for Gary Johnson, the Libertarian Party candidate. Editorial, "Libertarian Gary Johnson for President," The Detroit News, September 29, 2016.

The next day the Chicago Tribune followed the Detroit News' example with its endorsement of Gary Johnson. This was only the third time in the last 169 years that it had endorsed any presidential candidate who was not a Republican (the two prior were both Chicagoan Barack Obama in 2008 and 2012). Its editorial said: "Trump has gone out of his way to anger world leaders, giant swaths of the American public, and people of other lands who aspire to immigrate here legally. He has neither the character nor the prudent disposition for the job." Editorial, "A Principled Option for U.S. President: Endorsing Gary Johnson, Libertarian," Chicago Tribune, September 30, 2016.

Finally, USA Today, one of America's national newspapers, took a different approach -- urging voters to not vote for Trump, while not endorsing any of the other three (Clinton, Johnson, or Stein). (Its editorial board only expresses consensus, and there was no consensus for an alternative.) This is the first time in the paper's 34-year history that it has expressed an editorial opinion for or against a candidate in any presidential election.

The Board wrote: "Trump has demonstrated repeatedly that he lacks the temperament, knowledge, steadiness and honesty that America needs from its presidents. . . . From the very beginning, Trump has built his campaign on appeals to bigotry and xenophobia, whipping up resentment against Mexicans, Muslims and migrants. His proposals for mass deportations and religious tests are unworkable and contrary to America’s ideals. . . . He speaks recklessly. . . . He has coarsened the national dialogue. Did you ever imagine that a presidential candidate would discuss the size of his genitalia during a nationally televised Republican debate? Neither did we. Did you ever imagine a presidential candidate, one who avoided service in the military, would criticize Gold Star parents who lost a son in Iraq? Neither did we. Did you ever imagine you’d see a presidential candidate mock a disabled reporter? Neither did we." Editorial, "Trump is 'Unfit for the Presidency,'"> USA Today, September 30, 2016. And see generally, Tim Dickinson, "5 Conservative Newspapers That Just Went 'Never Trump;' Why Papers That Have Backed Republicans for Decades Broke Ranks With This GOP Nominee," Rolling Stone, September 29, 2016.

(The USA Today editorial is also one of the most thorough in discussing the range of reasons not to vote for Trump, with the following headings: He is erratic; He is ill-equipped to be commander in chief; He traffics in prejudice; His business career is checkered; He isn't leveling with the American people; He speaks recklessly; He has coarsened the national dialogue; He's a serial liar.)

It is significant enough that solid, conservative newspapers that have never lifted a figment of type to help a Democratic presidential candidate, or oppose a Republican, are now opposing Trump -- and sometimes even endorsing Hillary Clinton. And most, like USA Today, have identified and enumerated categories of reasons why he is unacceptable.

But what I find most heartening is the growing formulation of a set of social norms, or political norms, regarding what is, and is not, acceptable speech in presidential campaigns. If this continues, it may just save us from future political candidates assuming Trump-style campaigns are the new normal.

Here's what you and I can do:

Next time you see Trump on TV, listen to what he says, and if you find it unacceptable, say so. Say to whomever is with you -- or out loud even if you are alone -- "That's not right. And that's not a nice thing to say. Next."

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