Kushner's Back-Channel Multiple Tragedies

Whether you think President Trump has taken unfair advantage of National Security Adviser, General H.R. McMaster, and Secretary of Homeland Security, John Kelly, or you blame them from going along with his inappropriate demands, either way it's a tragedy.

Much has been written about Jared Kushner's collusion with Russian officials, while a private citizen, to make use of Russian networks to set up a secret back-channel for communication between the Trump Team and the Kremlin that would be unknown to, and incapable of surveillance by, U.S. security agencies. Ellen Nakashima, Adam Entous and Greg Miller, "Russian Ambassador Told Moscow that Kushner Wanted Secret Communications Channel with Kremlin," Washington Post, May 26, 2017; Maggie Haberman, Glenn Thrush and Julie Hirschfeld Davis, "Trump Returns to Crisis over Kushner as White House Tries to Contain It," New Yiork Times, May 28, 2017, p. A1; Abby Phillip and Max Ehrenfreund, "As White House Defends Jared Kushner, Experts Question His Back-Channel Move," Washington Post, May 29, 2017. And see, "Trump's 'Just Politics' Defense," May 28, 2017.

The reaction of former CIA and NSA Director, Michael Hayden, was typical of many experienced with such matters: “What manner of ignorance, chaos, hubris, suspicion, contempt, would you have to have to think that doing this with the Russian ambassador was a good or appropriate idea? . . . This is off the map. I know of no other experience like this in our history, certainly within my life experience.” Adam Kelsey, Riley Beggin and John Santucci, "Kushner Asked Russian Ambassador for Back Channel on Syria and Other Policy Matters," ABC News, May 27, 2017.

What Kushner was proposing was not, after all, what is normally understood by a "back-channel." Back-channels are created by, and certainly known to, U.S. intelligence services. Most often, in my understanding, they would involve the use of individuals' face-to-face communication, not the use of an adversary's secure communications network. They would not be created by private citizens for the purpose of secret communications to and from our nation's adversaries, communications that were being deliberately kept from our own government.

It's understandable that the Trump Team would want to defend itself from this additional blow to the credibility of their insistence that there was no collusion with the Russians. In doing so they could draw upon a number of the Crisis Communications 101 arrows in their quiver. That's the way a White House under siege responds. We're used to that.

What I find tragic about the way they've gone about it is their dragging federal officials with otherwise strong reputations for integrity into the spotlight, and into guest slots on the Sunday TV shows, to be the Trump Team's spokesperson-defenders of the indefensible. These performances have not helped Trump all that much, but have done probably irredeemable harm to the reputations and effectiveness of those officials.

They have used talking points (presumably provided them) that, while not outright lies, are clearly designed to be duplicitous and misleading. When Trump provided code-name intelligence to the Russians, while visiting in the White House Oval Office, there were a number of things wrong with what he did. For one, the intelligence had come from another country with the understanding it would not be shared with others. For another, the nature of the revelation, including where it had been gathered, would make it easy for the Russians to figure out the "sources and methods" that had been used.

Trump's National Security Adviser, General H.R. McMaster, was called upon to handle that one, and said that the stories about what happened were false because Trump had not revealed "sources and methods." But the stories he was saying were false had not said that Trump did reveal sources and methods. The stories had dealt with all the other things wrong with what Trump had done. Nonetheless, McMaster's statements were designed to, and did, leave the impression that Trump did nothing wrong.

The same approach was more recently used with regard to Kushner's back-channel proposal to the Russians. This time both McMaster, and Secretary of Homeland Security, General John Kelly (on ABC's Sunday morning show), were sent out to say not only that what he did was "no big deal," but that back-channel communications are common and actually beneficial when dealing with our adversaries.

Once again, to say that back-channel communications are common and beneficial is true. But that statement is not even relevant, let alone a defense or justification for what Kushner did, and may well have been a violation of the Logan Act among other things.

Trump had earlier asked other officials to give statements to the media defending his actions. Those officials refused. This time they agreed.

There is much wrong with this approach.

For one, it is grossly unfair. It's kind of like asking your best friend to appear in court as a witness on your behalf and commit perjury to save you from prison. It's not a decent way to treat members of your Administration. There is a better alternative when the President has done something wrong or questionable: that's what Press Secretary Sean Spicer is for.

Moreover, it weakens the ability of those officials to help the Administration by doing well the jobs they have been appointed to do. It means the public, legislators and judges, our allies and adversaries, and the media will be less likely to believe anything they say in the future. There's some question as to whether the sitting National Security Adviser should be going public with statements about anything. That is not a position for a "personality." It is a serious, more than full time, largely classified responsibility.

And those are just some of "Kushner's Back-Channel Multiple Tragedies."

Here are some comments of others along similar lines: Anders Corr, "On Russia-Kushner Backchannel, Trump's H.R. McMaster and John Kelly Show Lack of Judgment," Forbes, May 28, 2017; Thomas Ricks, "General McMaster, Step Down -- and Let Trump be Trump; Save Your Reputation While You Still Can, the Country Will be Fine," Politico Magazine, May 28, 2017.

# # #

Trump's 'Just Politics' Defense

And see, "Resources for Trump Watchers"

What's the relationship between the Alt-Right, Russia, and Trump? When historians look back on the Trump Phenomenon decades from now, with its damage to American democracy and government, and democratic movements around the world, the answer to that question may well be seen as far more significant than the answer to "who on the Trump Team talked to whom in the Russian government, when, and about what?".

How could you believe me when I said I love you
When you know I've been a liar all my life
I've had that reputation since I was a youth
You must have been insane to think I'd tell you the truth
How could you believe me when I said we'd marry
When you know I'd rather hang than have a wife
I know I said I'd make you mine
But who would know that you would go for that old line
How could you believe me when I said I love you
When you know I've been a liar
Nothing but a liar, all my doggone cheatin' life

-- Alan Jay Lerner and Burton Lane, "How Could You Believe Me (When I Told You That I Loved You When You Know I've Been a Liar All My Life)" [said to be one of the longest popular song titles ever]

It was put to music and dance by Fred Astaire and Jane Powell in the movie, "Royal Wedding" (1951):


Contents (1) Russian Interference

(2) Collusion

(3) Russian Business

(4) The Alt-Right International

(5) Trump's Defense

It's neither that I feel sorry for Donald Trump, nor that I'm thinking of supporting him for reelection in 2020 -- if he makes it that far. But as the revelations continue to flow it's intriguing to think about what defenses he might have to wherever the evidence finally leads his investigators.

Let's walk through this together.

(1) Russian interference. By now there seems to be general agreement that Russians, probably with Vladimir Putin's personal participation or orders, intended to, and succeeded in, interfering with the 2016 U.S. presidential campaign, with the intentiion of preventing the election of Hillary Clinton and aiding the election of Donald Trump. It also seems to be widely believed (though there is no way of proving) that (a) there was no direct interference by Russians with voting machines or vote counting, or that (b) this interference was the factor in swinging enough votes to Trump to produce his Electoral College victory.

However serious these charges may be, however criminal those Russians' actions may have been, however much the U.S. must escalate its anti-cyberwar defenses for future elections, taken alone they do not support charges that Trump, or members of his team, did anything wrong.

(2) Collusion. Certainly, the most serious possible charge is that Trump, or members of his campaign staff, with or without Trump's knowledge and/or participation, "colluded" with the Russians and their efforts.

"Collusion" is variously defined as "a secret understanding between two or more persons to gain something illegally," "a secret agreement, especially for fraudulent or treacherous purposes; conspiracy."

There seems to be an increasing quantity of circumstantial evidence to support an inference of "collusion." There were a disproportionate number of contacts between members of the Trump campaign and Russian officials (compared with their contacts with other nations' officials). So the opportunity would have been there. Even if all those contacts were totally innocent, efforts by those involved, and then the Trump Administration, to deny or otherwise cover up or falsify the full extent of their existence raises additional suspicions. Philip Bump, "The Web of Relatilonships Between Team Trump and Russia," The Washington Post, March 3, 2017 (involving possibly Michael Flynn, Jared Kushner, Paul Manafort, Carter Page, Jeff Sessions, Roger Stone, and others yet unknown).

And it doesn't help that Trump's son-in-law and all-portfolios presidential adviser, Jared Kushner, offered collusion to Russia's U.S. Ambassador Sergey I. Kislyak. But (a) this was a proposal for a secret, general-purpose communications back-channel between the Trump Team and the Kremlin (using Russian communications channels) that could not be tracked by the U.S. government, not so far as I know, collusion with regard to electing Trump, and (b) it was rejected by the stunned Russian Ambassador. Maggie Haberman, Glenn Thrush and Julie Hirschfeld Davis, "Trump Returns to Crisis Over Kushner as White House Tries to Contain It," New York Times, May 28, 2017, p. A1; and Maggie Haberman, Mark Mazzetti and Matt Apuzzo, "Kushner Is Said to Have Discussed a Secret Channel to Talk to Russia," New York Times, May 27, 2017, p. A1.

The reaction of former CIA and NSA Director, Michael Hayden? “What manner of ignorance, chaos, hubris, suspicion, contempt, would you have to have to think that doing this with the Russian ambassador was a good or appropriate idea? . . . This is off the map. I know of no other experience like this in our history, certainly within my life experience.” Adam Kelsey, Riley Beggin and John Santucci, "Kushner Asked Russian Ambassador for Back Channel on Syria and Other Policy Matters," ABC News, May 27, 2017.

Certainly there is no proof that there was not collusion. But as we all know, proving a negative is difficult, and so the burden of proof (often "proof beyond a reasonable doubt") falls upon those alleging wrongdoing, not those who are charged.

Of course, there was Trump's "suggestion" during the campaign: "'Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing,' Mr. Trump said . . . in an apparent reference to Mrs. Clinton's deleted emails. 'I think you will probably be rewarded mightily by our press.'" Ashley Parker and David E. Sanger, "Donald Trump Calls on Russia to Find Hillary Clinton's Missing Emails," New York Times, July 28, 2016, p. A1. But that, alone, doesn't prove an "understanding" or "secret agreement" -- and could be trivialized by Trump as nothing more than an unsuccessful attempt at humor.

Based only on statements by public officials and media revelations (I no longer have top secret clearance or access to more) my guesses at this time, and that's all they can be, are that (a) while there had been what could fairly be called "collusion" in promoting the election of Trump, (b) at the end of the day investigators will not have enough evidence to prove it.

(3) Russian business. There is significant evidence of Trump's numerous efforts, and success, in financial transactions with Russians. Tom Hamburger, Rosalind S. Helderman and Michael Birnbaum, "Inside Trump's Financial Ties to Russia and His Unusual Flattery of Vladimir Putin," The Washington Post, June 17, 2016 ("Since the 1980s, Trump and his family members have made numerous trips to Moscow in search of business opportunities, and they have relied on Russian investors to buy their properties around the world. . . . 'Russians make up a pretty disproportionate cross-section of a lot of our assets,' Trump’s son, Donald Jr., told a real estate conference in 2008, . . .. 'We see a lot of money pouring in from Russia.'").

"[Donald Trump purchased the Palm Beach, Florida] house . . . 'Maison de l'Amitie,' or the House of Friendship . . . in 2004 . . . paying $41 million . . .. He intended to flip it for a quick -- and huge -- profit. . . . The property sat on the market for about two years . . . . It wasn’t at all clear who might pay Trump three times his buying price . . . amid a looming recession. In the summer of 2008, Trump found a solution . . . one of the world’s hundred richest men . . . Russian billionaire named Dmitry Rybolovlev. . . . Rybolovlev had made his fortune in the wild west of 1990s post-Soviet Russia. . . . He would pay Trump $95 million for Maison L’Amitie . . . the most expensive U.S. residential property sale ever." Michael Crowley, "Trump and the Oligarch," Politico, July 28, 2016.

4.The Alt-Right International. Any label we put on an individual (e.g., "athlete," "Catholic," "Republican"), including ourselves, is a futile effort. We are each a complex array of characteristics -- and those characteristics are always changing. To categorize people with a single label communicates both too much, and far too little, about the person labeled. And if you can't do it for a single individual, you certainly can't do it for a group.

So it is with Trump voters -- or Trump himself -- indeed, "members" of almost any social-political movement.

Nonetheless, the role of the Alt-Right in the 2016 presidential election, and Trump's identification with many of its goals, has been a proportionately under-reported part of Trump's Russian connections.

Trump is a hero to the Alt-Right. Through a series of semi-organized campaigns, Alt-Right activists applied [a] slur to every major Republican primary candidate except Trump, who regularly rails against “political correctness,” Muslims, immigrants, Mexicans, Chinese and others. They have also worked hard to affix the Alt Right brand to Trump through the use of hashtags and memes.

"Alternative Right," Southern Poverty Law Center

Few of us know much about the Alt-Right: 54% know nothing at all, and 28% know only "a little." John Gramlich, "Most Americans Haven't Heard of the 'Alt-Right,'" FacTank, Pew Research Center, December 12, 2016. Here's some more description from the Southern Poverty Law Center:

"[The Alt-Right] is a set of far-right ideologies, groups and individuals whose core belief is that 'white identity' is under attack by multicultural forces [trying] to undermine white people and 'their' civilization . . . that favors experimentation with the ideas of the French New Right; libertarian thought . . . [and] anarcho-capitalism, which advocates individual sovereignty and open markets in place of an organized state . . .. [T]he movement in 2015 and 2016 concentrated on opposing immigration and the resettlement of Syrian refugees in America. . . . [It] is . . . a version of an ideology popular in Europe that emphasizes cultural and racial homogeneity within different countries. . . . [T]he movements on both continents are similar in accusing older conservatives for selling out their countries to foreigners. . . . While some Alt-Right leaders are unquestionably anti-Semitic, others [see] Jews simply as white people. . . . Social media have been instrumental to the growth of the Alt-Right['s] legions of anonymous Twitter users . . .."

So, what's the relationship between the Alt-Right, Russia, and Trump? When historians look back on the Trump Phenomenon decades from now, with its damage to American democracy and government, and democratic movements around the world, the answer to that question may well be seen as far more significant than the answer to "who on the Trump Team talked to whom in the Russian government, when, and about what?".

A major factor in Trump's connection to the Alt-Right is the fact that his former Campaign CEO, and then White Houise Chief Strategist, Steve Bannon, was a prominent promoter of the Alt-Right and Chair of Breitbart News. "Bannon once described Breitbart News in an interview with the Investigative Fund as the 'platform for the alt-right' . . .. It's a brand of far-right conservatism that generally embraces and promotes white nationalism, racism, anti-Semitism, homophobia, transphobia and misogyny." Jessica Roy, "What is the Alt-Right? A Refresher Course on Steve Bannon's Fringe Brand of Conservatism," Los Angeles Times, November 14, 2016.

Here more excerpts from just a couple of the relevant articles.

Russian President Vladimir Putin has emerged as a hero of several prominent alt-right figures, raising new questions about the Kremlin's influence on the far-right, white nationalist movement that has asserted itself as a new force in American politics.

[T]he extent to which the alt-right has found a natural ally in Russia's current zeitgeist — which perceives the US as a globalist, imperialist power working on behalf of liberal elites — is hard to overstate.

Self-described white nationalist Matthew Heimbach, . . . a member of the alt-right, has praised Putin's Russia as "the axis for nationalists."

“I really believe that Russia is the leader of the free world right now. . . . Putin is supporting nationalists around the world and building an anti-globalist alliance, while promoting traditional values and self-determination. . . . This isn’t just a European or a right-wing movement," he said. "We're trying to position ourselves to be a part of this worldwide movement of globalism versus nationalism. It's a new age." . . .

[A]lt-right leader Richard Spencer . . . has argued that the US should dispense with its globalist policies by pulling out of NATO, resetting its relationship with Russia, and courting Syrian President Bashar al-Assad . . .. [H]e has called [Russia] the “sole white power in the world," . . ..

Natasha Bertrand, "'A Model for Civilization': Putin's Russia Has Emerged as 'a Beacon for Nationalists' and the American Alt-Right," Business Insider, December 10, 2016

"In boosting Trump and funding fringe parties in Europe, Russia has helped construct a new kind of 'comintern' —and it's even more effective than the Cold War version." Mike Lofgren, "Trump, Putin, and the Alt-Right International," The Atlantic, October 31, 2016. (If you are unfamiliar with "comintern," it is short for the Communist International (or "Third International"), an international communist organization that advocated world communism (1919-1943).)

The Atlantic article also comments:

We are now witnessing a curious phenomenon: The resurgent far-right parties in numerous Western countries, which harp incessantly on the sovereignty, independence, and world-historical uniqueness of whichever country they happen to live in, have self-organized into a transnational alt-right “comintern” that appears to be more effective than the leftist comintern of the Soviet era. No doubt this development was inevitable in the age of digital communication, but it has undeniably received a boost from the Kremlin. It also bears emphasis not only that Russia is attempting to influence politics in Western nations, but that this influence comes prepackaged with a specific ideological content.

5. Trump's Defense. This is probably one of those "not all Trump supporters are affiliated with the Alt-Right, but all (or nearly all) voters who lean Alt-Right were probably Trump voters."

Just a guess, but there were probably large percentages of both Clinton and Trump voters who had never heard of the Alt-Right, or were at least unaware of its orientation and significance -- including Trump's ties to the movement.

If The Alt-Right International is, in fact, as pro-Russian, pro-authoritarian, anti-government, anti-democracy a threat to nations' democratic and human rights movements as I believe it to be, what could possibly be Trump's defense to his complicity in its rise?

Ironically, his best defense could be his well-documented propensity to lie.

"Donald Trump is in a different category. The sheer frequency, spontaneity and seeming irrelevance of his lies have no precedent. . . . Trump seems to lie for the pure joy of it. A whopping 70 percent of Trump’s statements that PolitiFact checked during the campaign were false, . . . 4 percent were completely true, and 11 percent mostly true. . . . 26 percent of [Hillary Clinton's] statements were deemed false." Maria Konnikova, "Trump's Lies vs. Your Brain," Politico Magazine, January/February 2017.

And for a catalog of examples see, Alan Yuhas, "How Does Donald Trump Lie? A Fact Checker's Final Guide," The Guardian, November 07, 2016 (a catalog of examples)

As this blog post begins, "How could you believe me . . . when you know I've been a liar all my life?" Having shown a gymnast's ability to leap from one side of an argument to the other, he may be able to pull it off with this "just politics" defense.

"Hey, folks, I was only kidding. You know how it is about politics," he might say. "I don't believe in that Alt-Right stuff. Steve Bannon told me it could help us rack up more votes, bring some folks to the polls who would not otherwise have voted. Turned out he was right."

# # #

How to Start a Governorship

With President Trump's appointment of Iowa Governor Terry Branstad as Ambassador to China, his duties and powers devolved to Lieutenant Governor Kim Reynolds. On her first day as Governor she wanted to appoint a replacement Lieutenant Governor. It was unclear whether she had that power. One option would be to ignore her state's Constitution and stiff its Attorney General. Fortunately, she chose the other option -- "a little sidestep" reminiscent of a Texas Governor of years gone by.


[This is a one-minute, "fair use" clip of a wonderful scene from the feature film, "Best Little Whorehouse in Texas," loosely based on an establishment outside of Austin, Texas, many years ago called "The Chicken Ranch." The Texas Governor is under great political pressure from both sides, as you might imagine. Is he going to do anything about it? As one reporter sizes up the Governor's statement: "It's a possible 'maybe.'"]

Don't get me wrong. I think it's about time that Iowa have a woman as governor -- and United States senator -- even though I have, and probably will continue to, differ with these two on most issues. I believe that women's rights are among the top priority human rights issues of our age (globally as well as in the U.S.), and that the cause is greatly advanced with women in government. With 6 women of 50 Iowa state senators (12%) and 27 women among 100 House members (27%) Iowa still has a long way to go. I support Emily's List of women candidates for office, prefer that my Kiva loans in third world countries go to the women who have over the years, so far, paid back 100 cents of every dollar loaned, and I cheer women's victories from Iowa Women's Basketball to 100 Grannies. And see, "The Natural Superiority of Women; And Why Men Fail," September 11, 2012.

Indeed, it is for those reasons it's essential Governor Kim Reynolds not get off on the wrong foot.

What has she done -- or failed to do -- that is problematical? She has made one of her first acts the "appointment" of a Lieutenant Governor (Adam Gregg). Jason Noble, "Reynolds Taps Adam Gregg as Lieutenant Governor, but There's a Catch," Des Moines Register online edition, May 25, 2017.

There's little to object to about the person she chose. Gregg has a spectacular paper record in and out of government.

So what's the problem?

The problem is that the Iowa Constitution, its language, the context of that language, its courts' interpretations, and the interpretations of other states' constitutions with similar language, forbids a Lieutenant Governor, who takes over the responsibilities of a Governor, to appoint a new Lieutenant Governor. And in this instance, that conclusion is driven home by the legal opinion of Iowa's Attorney General, Tom Miller.

And this was no ordinary two-page legal opinion. The research, citations, organization, analysis, and quality of writing in the 23-page document are of law review article quality. If you would like to read it, you'll find a link to it HERE.

That opinion is the best source (indeed the only source so far as I know) for the contested issues, but some general examples (not necessarily applicable in this case) may help. However, know that the following paragraphs are not "the analysis" or "the answer" to the legal issues raised by the Iowa Constitution. They are only designed to warm up your brain to receive that analysis and answer from Attorney General Tom Miller's opinion.

For starters, it's necessary to understand the distinctions between "being" and "doing." I sometimes ask law school colleagues departing for deanships elsewhere, "Is it that you really want to do what deans do, or is it that you just want to be a dean?" It's not unusual for them to return to the classroom once they come to realize what they signed up to do.

Clearly, when the office of Governor is vacated, someone needs to do the constitutional tasks the Governor was doing -- as when there is a vacancy in the office of the president of a corporation or university. In the case of a Governor, that person is the Lieutenant Governor. Does that mean the Lieutenant Governor becomes the Governor, with the title of Governor, or that a state still has a Lieutenant Governor who is merely authorized to do what the Governor was doing?

Under these circumstances, if the Lieutenant Governor remains the Lieutenant Governor there is simply no vacancy to be filled. Or, if a state's constitution provides that the Lieutenant Governor is an elected position, no one can "appoint" a Lieutenant Governor. Or if a state's constitution provides an order of succession -- in Iowa it is Governor, to Lieutenant Governor, to Senate President, to House Speaker -- it would be inconsistent with that constitutional process to have, in effect, two Lieutenant Governors (one formerly elected, the second appointed by the first), thereby preventing (in Iowa) the Senate President from assuming the position of Governor.

In other words, had Governor Reynolds barged ahead and "appointed" a Lieutenant Governor, the best that could be said on her behalf would be that it was not clear she had that power. More likely, as the State's Attorney General concluded, were she to make such an appointment, it would be litigated up to an Iowa Supreme Court that would most likely find she did not have that power.

Before I knew that she had already appointed Adam Gregg, it seemed to me she had a couple of possibilities. (1) If she didn't wish to show her hand before the 2018 election, she could now appoint anyone she was leaning toward to some staff position -- something she would clearly have authority to do. (2) If she thought it politically advantageous, she could indicate now the person she currently proposes to select at that time as her running mate. (That is, while she can't appoint a Lieutenant Governor, with her Party's acquiescence she can in effect "appoint" a running mate who, if they win the election, becomes an "elected" Lieutenant Governor.)

What she ended up doing today [May 25, 2017] was something of a combination between those two:

Gregg will hold the title of lieutenant governor, but he will not be responsible for its sole constitutional function [succession to the Governorship]. Should Reynolds leave office, the vacancy would be filled not by Gregg but instead by Senate President Jack Whitver, the No. 3 on the gubernatorial depth chart according to the state constitution. . . . Gregg will "operate" the office of lieutenant governor but not actually "hold" that office. That means he'll be tasked with the ceremonial and administrative tasks of the office — and will draw the state salary associated with it — while remaining outside the gubernatorial line of succession.

Jason Noble, "Reynolds Taps Adam Gregg as Lieutenant Governor, but There's a Catch," Des Moines Register online edition, May 25, 2017.

Constitutional crisis averted. Gregg will be, in effect, a staff aide to the Governor, performing Lieutenant Governor-type tasks she might otherwise have to do. Meanwhile, should she change her mind during the next few months, she could designate someone else as her running mate without having to impeach Adam Gregg.

Not too bad a way to start a governorship.

# # #

Why Net Neutrality is Your Friend

[Note: This blog post was later published by The Gazette as Nicholas Johnson, "Why Net Neutrality is Our Friend," "Insight,"The Gazette, June 2, 2017, p. A6]

[Graphic credit: ACLU]
President Donald Trump kept his promise. He said he’d “drain the swamp” in Washington. He has. What he didn’t tell us was that he would then fill his administration with the creatures that crawled out.

The news media and late night shows have reveled in their good fortune. Trump has provided them a daily flow of stories both entertaining and terrifying to move their audiences between tears and laughter.

But as a result, that 99 percent-plus of the federal government that’s not in the White House is mostly ignored by the media.

Farmers worry over the loss of overseas markets from Trump trade agreements. Public schools must deal with the loss of revenue from school vouchers. The oil and gas industry cheers a removal of regulations that rivals the Teapot Dome scandal that sent one of President Warren Harding’s cabinet members to prison.

And my old agency, now Trump’s Federal Communications Commission, is going about repealing the consumer protection called Network Neutrality. You don’t need to know anything about computers or the Internet to understand that one.

You do need to understand monopoly capitalism.

Most cities of any size have an abundant array of restaurants from which to choose – locations, menus, prices, and atmosphere. Aside from health concerns, “marketplace forces” provide adequate consumer protection.

By contrast, with rare exception most neighborhoods in those cities have no choice among monopolist internet service providers, such as Mediacom.

It’s the business of business to maximize profits by increasing prices and cutting costs (quality and services) until both reach optimum levels.

In a conversation with Chicago economist Milton Friedman he used the example of corporate pollution of rivers. “You are appealing to them to be ethical,” he said. “They can’t afford to be ethical. They can afford to comply with a law that’s also applicable to their competitors. Your answer is in Congress and state legislatures, not preaching in the streets.”

If an Internet service provider (ISP) also profits from distributing content it owns, it can make more money by censoring a competitor’s content, charging more for it, or slowing its delivery to your TV. If it doesn’t own content providers, it can bargain with those who are, providing them unfair advantages for the right price. And ISPs will set customers’ charges at the optimum profit maximizing level.

Harm to consumers will be limited only by the ISP’s imagination.

Once cities have as many ISPs as restaurants we can talk about “marketplace regulation.” Meanwhile, common decency requires that the FCC retain the consumer protection of Network Neutrality.

# # #

Mediacom's 1000% Interest Late Payment Fee

It takes a lot of money to survive in this economy if you're an unemployed single mother, trying to raise a couple of kids -- or working multiple jobs at the minimum wage or less. Millions of American men and women of all ages confront similar challenges.

How's that?

Dependent on public transportation, poor folks may end up paying convenience store prices for their groceries, rather than the cheaper prices (for more nutritious food) at Costco or mega-supermarkets. When there's "too much month at the end of the money" they have to borrow, paying interest on the money they use to pay their bills. If the bank won't loan to them, the interest on a "payday loan" to pay off the last payday loan may end up costing hundreds of dollars more than they initially borrow. Annual percentage rates of 400% are not unusual. If they're lucky enough to have a checking account, but unlucky enough to not have enough money in the bank, they may end up owing the bank $30 for each "insufficient funds" check -- plus another $30 to each of the merchants they were trying to pay, depending on merchants' charges for returned checks. [Photo credit: Nick Graham, staff, Dayton Daily News.]

These are expenses with which the wealthy are unfamiliar, because they've never had the experience of dealing with them.

However, there is one more expense analogous to Anatole France's observation that, "La majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain." ("The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.") Le Lys Rouge, ch. 7.

Rich and poor alike are subject to the penalties for late cable bill payments.[fn 1]

Of course, like laws criminalizing the theft of bread, late payment fees fall heavier on some than others. The wealthy don't fail to pay their bills on time because they don't have the money. It's because they were on holiday in Europe when the bill arrived, put it in a pile of paper that they didn't go through in time, someone pays their bills for them, or they just don't care. For their poorer cousins it may mean one more payday loan.

I'm not wealthy. And I didn't major in STEM courses. But I do know enough math to work the numbers.

Here's an example of what I mean. Our City water bill is something less than $60 a month. What would it cost me, I wondered, if I just kept a balance of $60 with the City? These days it's hard to get more than 1% a year return on invested cash. So if I put that $60 in a savings account or CD it would produce 60 cents at the end of the year. That would be my cost, my loss, my "insurance policy" premium, for letting the City hold my $60 for a year. In exchange, I would never have to pay a single late payment fee (5% of the bill, plus unspecified "service fees" plus an additional fee for turning water back on). Such fees would be, in total, for a single offence, multiples of the 60-cent annual cost of avoiding them. And so long as I didn't fail to pay the bill for over two months I wouldn't have to worry about precise due dates.

It worked. No more risk of late payments fees. I started maintaining a balance with others. Except for the cable company, Mediacom. I tried it, but they seemed unable to handle the concept of a positive balance, so I gave up and tried to remember to pay promptly. Until this past month, when their bill got lost in a stack of paper, and they introduced me to their version of a late payments fee.

Now there's a little background you need.

• (1) To the best of my recollection I had a record of prompt cable payments every month for 28 years.

• (2) Very significant in this case, the cable company bills in advance. That is, I was charged a "late payment" fee for not paying in advance promptly enough for service I hadn't yet received (and is of often of unacceptable quality -- a technician is coming this morning to deal with broken signals[fn 2]).

• (3) Not knowing of the late payment fee that had been assessed on April 24, I had paid the amount due when the bill was discovered on April 26, in a check that cleared on April 27.

• (4) Thus, on the assumption that had I paid two or three days earlier the penalty would not have been imposed, what had the company lost? It had lost what it could have earned on $76.19 for (let us be most generous) four days. What would that have been at an annual percentage rate of 1%? Slightly less than one penny.

• (5) And how much was the penalty for this loss of 8/10ths of one cent? $8.50. And what is the annual percentage rate represented by $8.50 for four days use of $76.19? Roughly 1000% per year -- for paying a bill in full, four days late, for services not yet received. Rates like that make the pay-day-loan business look like a public charity.

Thirty years go this year (September 14, 1987), I was asked by an organization of cable company executives (CTAM) to participate in a debate with former FCC Chair Dick Wiley regarding the state of the cable industry. Here is a brief excerpt of my comments on that occasion. Although a bit harsh, they were delivered in good humor and received as such by the executives present. The question today is, just how much better has the industry become during the intervening years? Is it enough that they aren't dragging customers out of their recliners and onto the streets, airline style? Shouldn't we demand a higher standard?



[fn 1] I should make clear that the objection I advance in this post addresses the amount of the penalty for late payment, not the existence of such fees. The value of money, a payment, or a debt, is always a function of time. I would not deny for a moment that creditors are entitled to that value. I would strongly disagree that they are entitled to 400% (payday loan) or 1000% (cable company fee) returns during that time.

[fn 2] In fairness I should report that the two techs who came (and resolved the problems) were excellent in every way. They arrived at 10:00 for a 10:00 appointment, combined a friendly demeanor with a professional, experienced, serious approach to the challenges at hand, diagnosed more difficulties than they anticipated. Stuck with it until the problems were resolved, and left me a happy customer.

# # #

What Trump Needs to Know About Libel

[This commentary is not legal advice, and we do not have a lawyer-client relationship. If you are involved in, or contemplating, suing or being sued for defamation you should consult a lawyer, preferably one with experience in such matters. Lest you wonder, that cannot be me; I've long since turned my bar memberships in Iowa, Texas, and the District of Columbia to "inactive" status. -- N.J.]

I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. . . . So when The New York Times writes a hit piece which is a total disgrace . . . we can sue them and win money instead of having no chance of winning because they're totally protected. . . . we're going to have people sue you like you've never got sued before."

-- Presidential candidate Donald Trump, Rally, Ft. Worth Texas, Friday, February 26, 2016, Hadas Gold, “Donald Trump: We're going to 'open up' libel laws,” Politico, February 26, 2016.

President Donald Trump campaigned, and now governs, with ongoing attacks on the judiciary and the media – two institutions designed by the drafters of our Constitution to provide a check on presidential abuse of power. For those who look to the “original intent,” that was the original intent.

The president’s attack on the media has included the assertion that he is going to “open up our libel laws” so that he can sue newspapers like the New York Times.

Trump can already sue for libel. For starters, he already has the legal right to sue any newspaper or other media outlet for defamation (“libel” if written, “slander” if spoken). Anyone can sue for defamation. That includes the president.

Whether the plaintiff will win involves many elements of a defamation claim, but here’s a summary. There is a statement, about the plaintiff (not always obvious), the meaning of which must be ascertained (not always obvious), as understood by the individuals of relevance (such as customers of the plaintiff, neighbors, or members of the plaintiff’s profession), that was factual in nature (as distinguished from “opinion”), false, and which caused a measurable harm to the plaintiff’s reputation (among those individuals of relevance).

In short, it's simply not true, as Trump has asserted, that the reason he hasn't sued the media is he has "no chance of winning because they're totally protected."

(Many of the president’s tweets and other informal comments attacking and demeaning individuals and institutions would seem to fall within that definition of defamation. But the issues involved when a citizen wishes to sue the president for defamation would require another commentary.)

Different standards for plaintiffs who are public officials. If what Trump meant to say is that, as a public official, he must meet a slightly different standard than you or I to recover a judgment for defamation, he is right. That standard was set in a Supreme Court case.

What was new about Justice Brennan’s analysis for the Supreme Court in the landmark defamation decision, New York Times v. Sullivan, 376 U.S. 967 (1964), was that he approached the language involved from a First Amendment perspective rather than, or in addition to, solely a defamation analysis. [Supreme Court Justice William J. Brennan, Jr., photo credit unknown.]

He wrote,

“[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Sullivan, the plaintiff, was one of three elected commissioners in Montgomery, Alabama –- and therefore a “public official.” As such, the Court held, he had a right to sue for defamation, but to prevail on the elements just itemized he would need to show not just that the Times story had some factual errors.

He would need to show what the Court called “actual malice” – an unfortunate choice of words, since the everyday meaning of “malice” was no part of the standard. “Actual malice” meant that he would need to show “that the statement was made . . . with knowledge that it was false or with reckless disregard of whether it was false or not.”

The standard involving plaintiffs who are ordinary citizens focuses on, recognizes and protects the asset value of individuals’ reputations – with the byproduct of reducing remedies involving violence. Unlike the standard involving ordinary citizens, which only requires a false statement, public officials must show a measure of fault on the part of the media. This is because of the First Amendment value of speech involving public policy and public officials – speech that lies at the heart of what the First Amendment was designed to protect.

Balancing the desire to offer citizens a means for protecting their reputations against the value of First Amendment speech, this is where the Court came out.

Constitutional restraints on congressional and presidential law making. Article I of the Constitution lays out what in high school we call, “how a bill becomes law” (in Article I, Section 7). Clearly the president cannot create “law” all on his own; he cannot “open up our libel laws,” or any other laws for that matter.

Nor can Congress make any laws it pleases. Congress only has the power to legislate regarding what the Constitution grants in the 18 clauses within Article I, Section 8 – none of which come remotely close to libel laws. The “interstate commerce clause” (Article 1, Section 8, clause 3: “The Congress shall have power . . . To regulate Commerce . . . among the several States . . ..”) has been stretched pretty wide by the courts. But defamation? Originating in the English “common law” (judicial decisions) at least in the early 17th Century, if not before, has been considered a matter for the U.S. states.

Hopefully, Mr. President, you’ll find this analysis helpful in your quest to “open up our libel laws.”

# # #