Posted on by rjonakait

Bill Barr, Michael Flynn Meet James Brogan

          “A conservative is a liberal who got mugged.” I heard that bon mot many times decades ago when crime was higher in the country.

          Today we have conservatives who are newly-minted civil libertarians because law enforcement techniques, tactics, and procedures employed against many others have been used on those around Trump.

Many of us have been critics of these law enforcement practices for decades and generations. We weren’t joined by conservatives, but rather were attacked as menaces to law and order. When, however, federal agents used these techniques and tactics on conservatives, a cadre of conservatives now denounce these elements of law enforcement. You might say that it is like a liberal who gets mugged; when Trump people are investigated, conservatives become civil libertarians. However, I suggest that you take that conversion with a grain of salt at least until this concern is shown for people other than Trumpistas.

          The most recent conservative outcry concerns Michael Flynn, and their collective cry has been heard. The Department of Justice, not a court or jury, has dismissed the charges against Flynn.

Making knowingly false statements to investigating federal officers is a crime under 18 U.S.C. §1001. Flynn pled guilty to lying to FBI agents about his conversations with the Russian ambassador. That Flynn, represented by expensive, experienced attorneys, admitted his guilt is an inconvenient truth for the newly outraged. (As is the fact that Trump fired Flynn for lying to vice-president Pence.) All they can do is to latch on to Flynn’s present attorneys’ allegation that he pled guilty only because the government threatened prosecution of Flynn’s son if Flynn did not plead guilty.

          We do not know whether this threat was made; we only have Flynn’s attorneys’ word for it. But if it happened, it was not a tactic created for Flynn. I, along with other defense attorneys, have heard that threat from prosecutors more than once. Clients I represented were told many times that unless they pleaded guilt a spouse, a parent, a child, a brother, or sister would face criminal charges. I and my defense brethren often argued that this was coercive and reprehensible, but courts have long accepted the practice. And never once did I hear conservatives speak against this coercive tactic when used against ordinary folk.

          Mostly, however, the conservative commentators maintain that Flynn was treated unjustly because he was placed in a “perjury trap.” Flynn was asked about conversations with the Russian ambassador concerning sanctions that had been placed on Russia. He denied the conversation. He was questioned, as a writer for “American Spectator” said, “without the FBI warning him that it was an investigatory interview.” (Otherwise, it is ok to lie to the FBI?) The FBI apparently had a tape of the conversation in question, and they already knew the content of the conversation. A “National Review” editorial points out that they did not play the tape for Flynn but commenced “instead grilling him.” (Flynn, supposedly experienced in intelligence work, should have known that the ambassador was routinely tapped. Why, then, did he lie?) The “National Review” editors conclude that “it’s not clear what the FBI was doing besides hoping he’d lie.” A writer on foxnews.com said something similar: “In short, there was no law enforcement purpose for the Flynn interview. The purpose of the interview was to have Flynn lie and get him fired. . . . A perjury trap occurs when the facts are known to prosecutors and investigators and the only purpose of the interview is to catch the subject in a lie. This was a false statement trap since Flynn was not under oath, but the principle is the same.”

          The Justice Department under Attorney General William Barr heard the cries and dismissed Flynn’s case because his lie was not material, a requirement of the crime. (18 U.S.C. §1001(a)(3) requires that a statement (1) is false, (2) is material, (3) is knowingly and willfully made, and (4) concerns a matter within the jurisdiction of a federal department.) Courts have interpreted that materiality requirement broadly. The false statement does not have to actually influence the government’s actions; the lie, as one court put it, only has to have “a natural tendency to affect,” the federal agent’s decisions. If Flynn admitted to talking with the ambassador about the sanctions, there would have been follow-up questions: Were you acting on your own or were you following the advice or directions of others? Who knew about your conversation? When did you first discuss sanctions with a Russian official? Before the election? Did you make any promises to the Russians? Did they make any to you? Depending on the answers, agents would have reasonably taken further actions such as interviewing others. This did not happen because the falsehood ended those possibilities. In short, the lie had a “natural tendency to affect” the investigators.

          Why, then, was Flynn’s lie considered not material?  Attorney General William Barr was not entirely clear on this point when he gave an interview to CBS, but he seemed to say that the lie was immaterial because the interview was a perjury trap. He said the questioning was not a “bona fide counterintelligence investigation,” He maintained that the ongoing counterintelligence investigation was being shut down but continued: “And that when they heard about the phone call, which is—the FBI had the transcripts too—there’s no question as to what was discussed. The FBI knew exactly what was discussed. And General Flynn, being the former director of the [Defense Intelligence Agency] said to them, ‘You listen, you listen to everything. You know, you know what was said.’”

          If Flynn had told the FBI agents what Barr said he had, of course he should not have been prosecuted. He would not have been lying, but in fact he denied having the conversations and pleaded guilty, twice, to telling that willful, material, lie.

          But Barr went on to say: “There was no mystery about the call. . . . They kept [the investigation] open for the express purpose of trying to catch, lay a perjury trap for General Flynn. They didn’t warn him, the way we usually would be required by the Department. . . . [It] was not a legitimate counterintelligence investigation going on.”

          I, too, am concerned if the FBI’s goal was to get Flynn to lie. If so, the federal agents were seeking to create a crime, and law enforcement should not do that. But Barr and the Flynn commentators never mention that this is hardly the first time such a trap has been set. Bill Barr and Michael Flynn meet James Brogan.

          James Brogan was a union official in 1987 and 1988 when he accepted cash from a company whose employees were represented by Brogan’s union. The last transaction was in December 1988. Federal agents visited Brogan’s home on October 4, 1993, and asked for his cooperation in an investigation of the company. The agents told him that if he wished to cooperate, he should have his attorney contact the U.S. Attorney.

          The agents then asked if they could ask Brogan some questions, and he agreed. They asked if he had received any cash or gifts from the company. He said, “No.” Only after this response did the agents tell him that a search of the company had uncovered records showing the payments. He was then told that lying to federal agents in the course of an investigation was a crime, but Brogan, without his counsel being present, stuck to his answer.

          Brogan was convicted under 18 U.S.C. §1001, and the case made its way to the Supreme Court.

While lower courts had held that a simple false denial of guilt did not violate the statute—what is known as the “exculpatory no” doctrine–the Supreme Court, in a 1998 opinion by Justice Antonin Scalia joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Thomas, affirmed the conviction.

The Court first held that an “exculpatory no” was a false statement that fell within the literal terms of the statute. Brogan argued, however, that the “exculpatory no” doctrine was inspired by the Fifth Amendment, which says that people cannot be required to incriminate themselves. Brogan contended that the literal reading of §1001 violates the spirit of the Fifth Amendment since it presents the “cornered suspect” with the “‘cruel trilemma’ of admitting guilt, remaining silent, or falsely denying guilt.” Scalia scoffed: “This ‘trilemma’ is wholly of the guilty suspect’s own making, of course. An innocent person will not find himself in a similar quandary. . . And even the honest (sic)and contrite guilty person will not regard the third prong of the ‘trilemma’ (the blatant lie) as an available option.”

          Scalia went on to dismiss the contention that silence in an investigation is an “illusory” option because silence might be used against the person or because the interviewees might not know that they can remain silent: “In the modern age of frequent dramatized ‘Miranda’ warnings, that is implausible.”

Scalia finally considered the argument that §1001 can be an instrument of prosecutorial abuse but concluded that the remedy for that potentiality lies with Congress to redraft the statute. (Section 1001 was amended after Brogan’s conviction, but the amendments did not address the “exculpatory no” issue.)

          Justice Ginsburg, along with Justice Souter, voted to affirm the conviction because Brogan’s false denial clearly fell within the terms of the statute. They wrote separately to point out “the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes.” She also noted that if Brogan had counsel at the interview, the lawyer would have advised Brogan to amend his answer when the federal agents told him that they had evidence that he had received money from the company.

The Brogan case shows that the Flynn situation that has provoked conservative outrage and an extraordinary Justice Department action is hardly unique. That courts before Brogan case had carved out an “exculpatory no” exception to §1001 indicates that similar law enforcement techniques had been used many times before Flynn was interviewed. Indeed, it has been a common law enforcement tactic: Ask the person about what is already known. If the person admits to the deeds, he might be turned into a cooperating witness. If he denies it, prosecute him under §1001.

If the Flynn situation was egregious, Brogan’s encounter was even more so. Flynn was not told that the agents were conducting an investigatory questioning of him or, as Barr notes, was not given any warning. Barr indicates that such a prelude is standard policy, but Brogan was not told them either. Indeed, the agents were actively misleading Brogan when they only told him they were investigating the company. They seemed to want his guard to fall.

          Flynn was not played the tape of his conversation with the ambassador, but assuming Flynn has even a modicum of sophistication about intelligence activities (surely the president would not appoint someone who was incompetent), he should have known the possibility that such a tape existed, and Barr indicates that he did. (If so, why did Flynn blatantly lie?) Similarly, the agents did not tell Brogan before the questioning that they had documentary evidence of the payments, but this was even worse than the Flynn situation because Brogan could not have reasonably known about the documents.

          The Barr and the conservative commentators maintain that the point to the FBI’s actions was to get Flynn to lie, and, therefore, the questioning was not a bona fide investigation. (Have they asked the agents what their motives were?) The Brogan Court did not speculate on the motives of the federal agents, but those government officials had good reasons to want Brogan to lie. The usual statute of limitations for federal crimes is five years, which means that a person must be charged within five years from the time of a crime’s commission or he cannot be prosecuted. That period had run out on the earlier bribes the company paid Brogan and was fast elapsing on the last payment. However, when Brogan lied, a new crime was committed that would not only permit its prosecution but also allow evidence at his trial of all the payments, something that the agents undoubtedly knew. Surely, they had reasons to get him to lie.

          The Supreme Court in 1998 recognized that the statute was susceptible to abuse and, as Ginsburg said, could be used by law enforcement to manufacture crimes. But, as Scalia noted, lying is not the answer. If the falsehood was not appropriate for Brogan, how could the sophisticated Flynn think that he had a right to lie? If silence was the right answer for Brogan, as Scalia indicated, surely it was for Flynn, too.

The Justices of the Supreme Court said that any remedy had to come from Congress by amending §1001. That was over twenty years ago. I know of no conservative civil libertarians who rose up protesting about Brogan’s conviction and jail sentence. I know of no conservative civil libertarians who have proposed changes to the statute to prevent possible abuses. Where have all those conservative civil libertarians been all this time? I guess they were quietly waiting for the right moment, waiting for Michael Flynn to come along.

Bill Barr also told CBS: “I was concerned that people were feeling there were two standards of justice in this country. . . . There’s only one standard of justice. . . . It doesn’t matter what political party you’re in, or you know, whether you are rich or poor. We will follow the same standard for everyone.” If this is not just empty rhetoric, and if the Flynn decision was not based on politics, and if he truly wants one justice for all, we should expect that he will undertake a review of all §1001 prosecutions. And, although I have no idea of where James Brogan is or whether is even alive, Barr should be considering advocating a pardon for him.

          Oh yes, about liberals being transformed into conservatives when mugged. I have been robbed twice at knifepoint. And I am strongly anti-conservative. Perhaps more so now than I have ever been.

          And, really, why did Flynn lie?

(The next post will by Friday, May 15.)

Posted on by rjonakait

Birthday Snippets

          My birthday is this weekend. Is a celebration due because I have survived, in this case, another 366 days? I understand celebrating a high school or college graduation, a new job, a wedding, a retirement, or other events when a person has actually accomplished something. All I have done to have this birthday is to stay alive. Perhaps today that alone is noteworthy, but that does not separate me out from all I see around me.

          “In each of us there is a little of all of us.” Lichtenberg, Aphorisms, 1764-99.

          My birthday celebrations have generally been quiet affairs—no more than immediate family members with modest or no gifts but birthday cards, some sarcastic and some soppy. Several times the spouse, whose birthday is five days after mine, and I have been on a trip when my birthday occurred. On one of them, the guide gave me a small stuffed donkey. He said, with a smile, that it represented the burdens a man and husband must carry. I did not ask about his marriage.

“Life is one long process of getting tired.” Samuel Butler, Notebooks.

I don’t think about my age much, but I do know I can’t do many things as easily as I once did. When I was young, I did not ever think that it would be hard to cut my toenails or to get up off the floor. Sometimes a name or inconsequential fact seems stuck between my brain and my tongue. But I believe that I think as well as I ever did and that I laugh as much and make others laugh as often as I did when I was younger.

“Of all days, the day on which one has not laughed is surely the most wasted.” Nicolas Chamfort.

I know that I can’t do all the things I once did. I can’t run or play basketball or tennis for hours as in the past, but I can read and write as I always have.

Old joke: “Doctor, do you think sex over 70 can be dangerous?” “Absolutely! Pull over to the side of the road first.”

          For a long time, I believed that I was born on Mother’s Day. I think that I was told that by the mother, and my birthday does periodically fall, as it does this year, on that holiday. But in fact I was born on a Thursday. I was disappointed when I learned that.

          “If evolution really works, how come mothers only have two hands? Milton Berle.

          I am the youngest of three children. I have an older brother and sister. I was told by my mother that if abortion had been legal back then that I would not have been born. Even so, the siblings maintain that I was the favorite child. I agree with that. And I believe that a woman should have the right to choose.

“If men could get pregnant, abortion would be a sacrament.” Florence Kennedy.

I will worry about my age when I no longer want to learn; when I no longer want to see what each day will bring; when I no longer enjoy a full moon or marvel at a star-studded sky or a beautiful sunset. Or a beautiful woman.

Old joke: “Doc, do I really have to give up wine, women, and song?” “Not at all. Sing as much as you like.”

          There has been one constant at every stage of my life: I have always been a terrible singer.

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The Hanging in the Museum

I hope that the Newseum opens again. The interactive museum dedicated to the history of news gathering and communications closed its building, which has since been sold, in Washington, D.C. and says it is looking for a new site. The Washington facility had many theaters and galleries, but it had one major flaw for a museum in D.C.

Many Washington museums and institutions are owned by the federal government and have free admission. For someone like me who likes museums but has a limited attention span in them, this is great because I can pop into the National Gallery or the National Portrait Museum for a half hour, get something out of my visit, and move onto something else in Washington.

New York, too, has many museums. A couple of them are federally supported and are free, but most are not and charge admission fees, often steep ones. If I have to pay $20 to walk in, I feel as though I should spend several hours inside, which is often longer than I can concentrate. As a result, I don’t go to New York museums as often as I ought.

 The Newseum is private and understandably charged adults an admission fee. I guess this was not sufficient or the competition with other Washington’s museums was too much. The Newseum ran a deficit, and apparently concluded it had to move out of D.C.

At least on my only visit a few years ago, however, the Newseum held my attention for quite a while. It had many permanent exhibits. I saw lots of television clips of famous news events that I remembered although few of the many visiting school kids seemed to have an inkling of much of this history.

When I was there, the Newseum also had a fascinating special exhibit on the news of Lincoln’s assassination. A New York Herald reporter in Washington almost immediately learned of the shooting and started sending reports back to New York by telegraph, and the museum had copies of the special editions that the Herald immediately published. I may have thought that news moved relatively slowly in 1865, but the Herald turned out seven special editions starting with that fatal night and through the afternoon of the next day. Readers in New York could read about the Washington events in New York only a few hours after they had happened, including the confirmation of Lincoln’s death.

          However, I did get a little testy at this exhibit. A man, presumably a teacher or chaperone, was with four teenage boys. He pointed out to them a picture of a group of hooded people hanging by their necks from a scaffold, a photograph taken in July 1865, showing the execution of John Wilkes Booth and others involved in the conspiracy. With a smirk, the man told the kids, “That that is how we ought to do executions now.” He paused and continued, “Now it is all antiseptic with needles. We should see the executions.”

I don’t usually intercede in other people’s conversation, but I did in this one. I told the boys, “That might be so, but it is widely thought that one of those executed was innocent.” I knew I was overstating the case. The trial, held before a military tribunal of nine men, was not a model of fairness and decorum, but a fairer statement would have been that many people have significant doubts about the guilt of Mary Surratt who was one of those hanged and the first woman executed by the United States. While Surratt ran a boardinghouse where some of the conspirators met, the evidence that she was part of the conspiracy was not nearly as strong as it was against the others. She, however, was a Confederate supporter, and the Union army court easily — perhaps too easily — found her to be a member of the plot. Even so, five of the nine judges petitioned President Johnson for clemency for her. As the picture graphically showed, it was not granted. And historians since have debated the justness of her hanging.Even though I knew that I was ignoring historic subtleties, I still spoke about her possible innocence. I thought that those schoolkids should hear something besides the bloodthirstiness of the man trying to be cool. And perhaps at least one of them might try to find out more about Mary Surratt.But as I walked away, I realized that more than just the fate of Surratt bothered me. Whenever I see a picture of an American hanging, I always think of all the many photographs I have seen documenting America’s shameful history of public lynchings.

Posted on by rjonakait

Snippets

          How come I never hear of low-fructose corn syrup?

          I saw someone described with an office job as “a freelance poet.” Are there salaried poets? Who employs them? How much do they make?

“No one who likes Yeats is capable of human intimacy.” Sally Rooney, Conversations with Friends.

          Double your pleasure. Try starting mystery novels in the middle. That way you can wonder not only how the story ends but how it began.

          Sodom gives us the word “sodomy.” What does Gomorrah give us? Gomorrhea?  

          I miss baseball and was wondering recently where some of its locutions come from. A batter makes out but gets a hit. (Sometimes a character in a movie or book says that a batter made a hit, but that is supposed to be funny. Usually it indicates that the speaker has not mastered English or baseball.)

And where does the phrase “make out” in the amorous sense come from? Surely it is not derived from baseball. Though one does get to first base…..

I know that “battology” does not refer to baseball, but it should. “Ted Williams really understood battology” makes immediate sense.

Just so you shouldn’t have to ask again,

He was the kind of guy that if he said

Something and you were the kind of guy that said

You can say that again, he’d say it again.

                    Howard Nemerov.

President Trump’s “good friend” North Korean dictator Kim Jong Un had not been seen for a while. Near the beginning of that period, Trump told the South Korean president that he had just received a “nice” letter from the North Korean leader. North Korea almost immediately retorted that it had sent no such letter. Remember when you would have automatically taken the word of the American president over the word of a North Korean dictatorship?

Supposedly in order to battle Covid-19, Trump suspended some travel to the United States for sixty days. I was reminded of the 1965 blackout in New York City when Johnny Carson the next day reported that “Mayor Wagner leapt into action and suspended alternate side of the street parking.”

It has been a cold spring, which taught me, yet again, that you should check the damper before you light the fire.

On my shelf is a copy of the National Book Award winning A Frolic of His Own by William Gaddis. Except on the spine the title is given as “A Frolic of His of His (sic) Own.” Does this make my volume valuable? I am willing to part with it.

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Post-Pandemic Dispositions (concluded

In addition to all the possible institutional changes that the pandemic might bring, I have also been wondering whether the pandemic crisis will alter collective attitudes. For example, we are learning how dependent we are on those who fill what are now called “essential” jobs, work that often pays little above the poverty level. Will these workers gain more lasting respect from the rest of us? Many of these essential workers—not just the clerks and delivery people or those who work in food processing plants and agricultural fields, but also doctors, nurses, and other healthcare professionals—are immigrants. Will this change attitudes about immigration and immigration reform?

With schools closed and children at home consigned to online learning and home schooling, will we appreciate teachers more?

On the other hand, will mass unemployment and concerns about a recovery make us think that we have overvalued education? More education will not aid a swift recovery or get the unemployed quickly back to work. For decades America has had faith in the educational system to create opportunities. Even in non-crisis times, this has not produced schools and colleges that work for everyone, and it takes years for the opportunities to emerge even for those for whom the educational system works. Economic recovery needs a faster timeline. Nicholas Lemann in The Big Test: The Secret History of the American Meritocracy maintains that America did well when it committed massive central-government resources to large enterprises such as the Panama Canal, the space program, highways, other transportation initiatives, and water projects.  But this kind of spending is out of fashion and has been opposed by many. Will we see a change in that entrenched attitude?

On that front, it is striking that Congress quickly and overwhelmingly passed and the president signed not one but two recovery bills. Republicans and Democrats may continue to dicker over further recovery legislation, but all agree that the federal government needs to aid in a recovery and perhaps in stimulating the economy. This is a major change from the financial meltdown of a dozen years ago. Only a minority of Republicans voted for bailouts of financial institutions even though Republican George W. Bush was President and proposed them. A few years later with the country in a deep recession, not one Republican voted for the stimulus package of the American Recovery and Reinvestment Act, even though it was festooned with tax cuts. Of course, Barack Obama was then President, and partisanship was more important than country for many Republicans. As Adam Tooze in Crashed: How a Decade of Financial Crises Changed the World reports, because Obama needed all the Democrats for passage, the stimulus got whittled down to satisfy conservative Democrats, and it was less than the U.S. economy needed.

The coronavirus pandemic has produced a different reaction–overwhelming support for federal recovery actions now. Because these initial steps are unlikely to be sufficient, will Republicans continue to support federal efforts, or will they revert to opposing governing?

Adam Tooze maintains that while it was not sufficiently large, that Obama stimulus still had a substantial positive effect on the economy, but Tooze also notes that it did not have the good public relations of the New Deal programs. Consequently, Obama did not build Democrats-for-life that the New Deal did. Will the pandemic bring what the Great Recession did not—new members-for-life for one of the parties?

At least right now, we do seem to have a changed attitude about the government’s role in ameliorating the economic effects of the pandemic, but might other attitudes about governing also alter? In some circles, the government has been uniformly bashed in the last decades, but the pandemic demonstrates that we need strong government, at least in some areas, staffed with knowledgeable, effective people upon whom we can rely. Will we remember that lesson?

The pandemic shows that free market forces alone should not be relied upon for the manufacture and distribution of essential drugs, medical devices, and protective equipment. Will attitudes about the balance between government and the free market shift?

Since World War II, health insurance for most Americans has been tied to employment, but when there is massive unemployment, this link becomes broken. Will we rethink this aspect of health insurance?

Will our attitudes change about those who do not have jobs and how to aid them?

Will our attitudes shift about retail shopping, and if so, what might that mean for the economy?

Will our attitudes shift about the methods we use to vote?

We are hoping and waiting for a vaccine. If it comes, will it change attitudes within and about the anti-vaccine crowd? Will it change attitudes about preventive healthcare in general?

But one thing is not being changed. Different segments of the country still latch onto different sets of “facts” and accept conspiracies that suit their preconceptions. Michiko Kakutani states that in the nineteenth century P.T. Barnum learned that not only was it easy to deceive the American public, but the public enjoyed being deceived as long as it was being entertained. Many have now learned that it is easy to deceive many people as long as the deceptions rile them up. That does not seem to be changing.

But I will make one prediction about the pandemic of which I am reasonably confident: Fewer of us will take toilet paper for granted.

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Post-Pandemic Dispositions (continued)

 Our politics, of course, have always brought divisions. We did, after all, have a civil war, and we had adamant opposition to FDR, Kennedy, Reagan, and many other political leaders. Even so, it feels as if our politics are more divided than ever. In one sense it is because the dividing lines are more partisan than ever. For a long stretch, the two major parties were more ideologically diverse within their own ranks than they are now. When each party encompassed conservatives, moderates, and liberals, party discipline was impossible, and coalitions were common across party lines. For example, the landmark Civil Rights Act of 1964 was passed with both Democratic and Republican votes. Robert G. Kaiser in Act of Congress: How America’s Essential Institution Works, and How It Doesn’t, a fascinating study of the passage of the Dodd-Frank Act in the wake of the financial crisis, states that this cooperating dynamic changed when Newt Gingrich and his team in 1995 put a premium on party discipline.

 This bipartisan divide can be seen starkly in the demise of the conference committee.  Almost always when one House of Congress passes a bill and then the other does, there are differences between the two bills. For a hundred years or more, a conference committee then sought to reconcile the varying provisions which would then become the law. That committee consisted of representatives from each chamber and would include members from each party roughly in proportion to each party’s membership in each House. Gingrich did not support this traditional conference committee because it gave a role to minority Democrats, whom he had demonized to get a Republican majority. He insisted instead that the Senate negotiate differences in passed bills with him and the rest of House leadership. When the Democrats regained the House in 2006, they followed Gingrich’s methods. In 2007-08, only 2% of bills that became law went through a conference committee.

Gerrymandering has also intensified the partisan divide. Gerrymandering has been with us since the opening days of the Republic. For example, Patrick Henry disdained James Madison and had Virginia gerrymandered seeking to deprive Madison a seat in the first Congress. (Madison still won.)

Originally gerrymandering was about individuals. Legislative districts were manipulated in order to have a particular person elected or defeated, but that changed over time to ensure that the member of a particular party, no matter who the individual candidate was, would win the seat. Kaiser sees that change starting in California in 1982. By 2000, 300 of 435 House seats were safe for one party or the other. In a safe district, a candidate does not have to appeal to the other side or even to the center to get elected. The candidate merely must win the party’s primary. When elected, members can indulge their ideology without political retribution. Partisan divides increase.

The political divide has hardened not only because of increased partisanship and gerrymandering but also because of the philosophy of modern Republicans. As Kaiser states, since President Reagan, the Republican party has not believed in governance and has sought to diminish the role of government as an end in itself. Conservatism no longer means seeking legislation based on conservative principles; it means diminishing government. Period. Obamacare is an example. Trump and other conservatives ran on repealing Obamacare and replacing it with something “better.” Obamacare certainly has flaws, and health insurance certainly could use improvements, but the Republicans never dug into conservative principles to propose a better system. The Republicans just wanted to end Obamacare seeing it simply as more government.

We can also see the Republican modern principles in the cry against regulations. Republicans do not propose regulations, which after all have the goal of protecting the general welfare, based on conservative principles. The goal is just to wipe out regulations and to get rid of government oversight of…well, just about anything. The recent Republican party has primarily stood for lower taxes, a strategy aimed at “starving the beast,” and the appointment of “conservative” judges with a goal that the courts will strike down various regulations and legislation to lessen government involvement.

When one party has the primary goal of not governing, the two parties are simply not involved in the same governing game. Filibusters illustrate. The filibuster is a device to prevent government from operating. It has long existed, but until recently it was rarely employed. There were fifteen Senate cloture motions, or a filibuster, in 1970, and in the1980s, for a two-year Congress, there were no more than eighty. But after the Democrats regained the Senate, cloture motions leapt to 139 in 2007-08 and to 137 in 2009-10. As Kaiser states, Mitch McConnell, the Republican leader of the Senate, “adopted the threat of a filibuster as a basic tactic.” “Let’s not govern” really should have been the motto.

          Might the pandemic, however, change or break some of our political, social, and cultural divides? The coronavirus outbreak is a communal event in that it affects nearly all Americans in their regular behavior and will for a significant period. Yes, the pandemic’s epicenter is now New York. Yes, it has affected black and poor communities harder than others. Yes, the rich have more opportunities to mitigate the effects. Yes, there are orchestrated demonstrations against stay-at-home directives. But the attempts to control the spread of Covid-19 has affected and will continue to affect a vast majority of the country. Although the effects may vary, it touches the rich and the poor; the highly and less educated; the young and old; the Catholic, the Baptist, and the areligious; the immigrant and the native born; those with children and those without; the conservative, the liberal, and the apolitical.

The effects have not been a mere minor disruption of lives. Businesses, schools, and churches are closed. Unemployment has skyrocketed; education has had to take new forms; travel for many has ceased; social distancing and lockdowns prevent gatherings of families and friends and the suspension of movies, concerts, and sports. While we can hope that conditions will improve so that some restrictions can be eased, the pandemic will continue to affect us until a vaccine is developed and the vast majority of Americans are vaccinated, which seems likely to be more than a year away.

Already there is much speculation about the lasting changes this will bring, and which businesses, nonprofits, and colleges will not survive and which will come out stronger and whether the work-at-home phenomenon and online learning will transform future work and education patterns.

(concluded May 1)

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Post-Pandemic Dispositions (continued)

          Mass culture no longer gives us the communal events or the common references we once had. For me, The Big Bang Theory has been a case in point. The recently concluded network comedy series aired from 2007 to 2019, and its finale drew 18 million viewers. Through many of those seasons it was the most popular comedy and sometimes the most popular scripted show on television, and it continues in syndication with high ratings. Even so, a Big Bang reference escapes many, perhaps a majority, of the country. If two generations ago I had worn a shirt with a depiction of Lucille Ball or Bob Newhart or the characters of Bonanza, I believe almost all would have recognized the images. I do own a shirt depicting a Big Bang Theory character (Bazinga). My friends and many others are puzzled by the reference.

          With all the offerings we have, entertainment is more fragmented, and no longer the unifying force in the country that it once was, and in some ways has become divisive. When I say I have never seen Gomorrah the conversation ends. I might reply, “But have you seen Fleabag?” We are primarily talking past each other. And, of course, popular music is similar. We had more in common when Wolfman Jack, Cousin Brucie, and Larry Lujack on top forty radio stations that dominated the airwaves played the same limited selection of songs over and over.

          That our popular culture has become more fragmented over the last generation might be a trivial thing, but our sources of information have also fractured the country. Fewer people read the newspapers that carry news from the wire services, which, having to satisfy many papers and readers, strive for neutrality. Network news, while still important, no longer dominates. We have seen the rise of cable news that aims to please not a broad demographic and ideological audience but a specific segment of the populace. Many of my young friends, however, do not even get their information from newspapers, network TV, or cable news. They turn to social media and the internet and too often follow the normal human impulse of finding stories that confirm what they already believe. I understand that.

A brief example. On a recent trip to Sicily, I visited salt pans near Trapani where I saw pink flamingoes. Someone mentioned that flamingoes become pink when they eat tiny shrimp. This sounded quirky enough that some skeptics did not buy it, but I had heard this crustacean explanation before on the Discovery or National Geographic Channel, and therefore felt it must be true. Even so, that evening I googled why flamingoes were pink; the shrimp explanation was given. That was the end of my exploration. Like many others I tend to believe something on the internet when it confirms what I already thought. I know that when my search is about something important, I should seek diverse sources, but I also know that it is all too easy not to do that. And, unfortunately, many in this land have never learned that it is important to look for relevant disconfirming information as well as confirmations.

When I search on the internet, however, I think that those responsive screens offering links to sources are somehow neutral—that we all see the same things on our devices when we enter “causes of pink flamingoes.” Not so, or at least not so for many searches. Those search engines want to please; they make more money if I continue to use them. And it pleases me to get confirming information not stuff that might cause the discomfort of challenging my beliefs. From my previous searches and clicks they have learned a lot about me. I look for information about Machu Picchu and ads for trips to Peru appear for days when I go to my computer. I may find that useful or annoying but not nefarious. However, as Michiko Kakutani points out, when I search for “stem cell,” I will get different results from those who support or those who oppose such research. The same is true for “proof of climate change” and many other fraught topics. We get different information from the same searches, and the country becomes a little more divided each time as a result. And, of course, something similar happens with the information we get through social media. Increasingly, we become more divided because we operate from different sets of “facts.”

          This trend is exacerbated with the cries of “fake news.” Of course, no information source is always right, but the fake-news label is not about ferreting out good information. It is just a dismissive rejoinder. If it were more than that, it would be accompanied by careful explanations of why a piece of information was wrong and something else is right. How often have you seen that? “Fake news” just means that you may ignore something and continue to believe what you already do. It is not meant to bring about a serious exploration of the information but to continue divisions that already exist.

(continued April 29)

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Post-Pandemic Dispositions

While America has always had regional and political differences, for much of American history technology and infrastructure projects knit the country closer together. Steamboats transformed river traffic. Both goods and people could move more quickly and efficiently than had been imaginable, and cities on the same river, and later lakes, became, in essence, closer and more involved with each other. 

          Canals were built that tied sections of the country together that were not previously connected by rivers or coasts. The most famous, the Erie Canal, made it possible for goods to flow from the Midwest to the East and back making these areas interdependent in ways that they were not before. The extensive networks of other canals helped amalgamate what had been separate localities into regions.

          Railroads made almost every part of the country closer to each other. The West Coast and the East Coast for the first time were truly part of the same nation. With railroads and their kid brother, streetcars, city neighborhoods, outlying areas, and downtowns became part of a single metropolis.

          Air traffic and the interstate highways furthered the process. Although many differences remained, regions were bonded into one country because of transportation improvements, almost all of which were government funded or subsidized.

          Communication advances also knit the country tighter. With the telegraph, interregional business became more efficient. The telegraph allowed the same national news to be read throughout the country on the same day. Speedy communications between friends, acquaintances, and relatives in distant parts of the land became possible. And, of course, all this was immeasurably furthered with the telephone.

          Technological advances allowed people throughout the country to experience the same culture. With the phonograph masses could hear Enrico Caruso, Gene Austin, and Bessie Smith far beyond the limited audience of a performing space. Movies made Lillian Gish, Mary Pickford, Rudolph Valentino, and many since then into nationwide stars. With the national distribution of movies, fashion and other trends now quickly spread throughout the country as masses saw Veronica Lake’s hairdo and that Clark Gable was not wearing an undershirt. Newsreels allowed Americans throughout the country to experience Hitler rallies, the invasion of Ethiopia, and World Series highlights in ways that were not possible before.

With radio, millions could hear at the same time fireside chats and Edgar Bergen in their living rooms. (I still don’t quite understand ventriloquism on the radio.) Television intensified that trend as huge portions of the country simultaneously watched the same entertainment, sports, and news. Conversations around the country the next day would be about the same topics—Lucille Ball’s antics, Alan Ameche plunging for a touchdown as the Colts beat the Giants in overtime, JFK’s funeral, and the moon landing.

For much of our history, technological and infrastructure changes moved Americans more towards being one people. Now, however, we often see a land with many increasing and unyielding divisions. Much of this talk of a new divisiveness is overblown. Even as the United States became more united in some ways, strong factions always existed. However, it is true that some recent trends and technological advances have meant that Americans’ sharing of common experiences has lessened. Cable television may have started this. With the hegemony of three television networks destroyed, we no longer had common TV shows. The goal of reaching a mass audience has now been replaced by targeted audiences. Michiko Kakutani in The Death of Truth maintains, “New Star War movies and the Super Bowl remain some of the few communal events that capture an audience cutting across demographic lines.”

What communal media events do we have now? I had heard and seen many comments about the end of Game of Thrones as its finale approached. A mass cultural event was about to happen, or was it? The initial showing of the last episode was watched by 13.6 million people on HBO and 19.4 million on all platforms within a day or so. That is a lot of people experiencing the same event at almost the same time. But compare that to the finale of M*A*S*H in 1983 when 105.9 million watched without the advantage of immediate replays and with about 100 million fewer people (234 million) in the population compared to 2019 (330 million).

The M*A*S*H audience was indeed extraordinary—77% of TV viewers. Even so, the final episode of Cheers in 1993 and of Seinfeld in 1998 drew 84.4 million and 76.3 million viewers when the country’s population was about 260 million. The viewership of many other final episodes including All in the Family at 40.2 million in 1979 and Gunsmoke at 30.9 million dwarf Game of Thrones in both raw numbers and the percentage of the population. More than a half century ago, in 1967, 78 million people watched the final episode of The Fugitive (72% audience share) when the country had 199 million people.

It is true that the Super Bowl remains an American communal event. The last one drew 102.1 million viewers which made it the tenth most watched Super Bowl and eleventh most watched TV show ever—that M*A*S*H finale again.

A similar change in communal movie watching has also occurred. Movie success is measured in dollars, not audience size. The last Star Wars offering had a box office take of $177 million for its opening weekend in 2019. This was less than for the 2017 Star Wars opening ($220 million) and the 2015 opening ($247 million.) Rough calculations using what I pay for movie tickets—expensive New York but senior-citizen rates—the last Star Wars opening had millions fewer viewers in that weekend communal event than even the Game of Thrones finale. (continued April 27)

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The Beholder

    

A friend awhile back sent me a synopsis of a mystery she was writing. Her heroine was a stunningly beautiful woman. I thought of the various male protagonists in mystery series I had read–Sam Spade, Philip Marlowe, Lew Archer, Hieronymus Bosch, Dave Robicheaux. While women are often attracted to these men, I don’t remember any of them being described as jawdroppingly handsome. Their sexual power comes from something other than, or in addition to, their looks.

I came around to thinking of Dorothy Sayers’s depiction of Harriet Vane in the Lord Peter Wimsey books. There had been several Wimsey books before Vane is introduced (she is a murder defendant), and while Lord Peter falls in love with her, she is not described as stunningly beautiful. Instead she is the kind of woman men might debate about—is she beautiful? A few might find her intensely attractive; most would not. But Lord Peter does. 

At first this seems like a disappointment; how could Lord Peter’s obsession not be absolutely stunning, someone every man desires? But that she is not makes her more intriguing. Harriet is her own mystery to be figured out. Why do some find her beautiful and others do not?  Even if not a beauty to all, she must be physically arresting for so many to notice, but that Lord Peter is attracted to her must mean that she has attributes beyond the mere physical  that makes her breathtaking to him.

Harriet is a more interesting character because she is not mere eye candy. She will not turn every head in the hotel lobby or the crowded barroom, but those who really look at her with knowledge of who she is in all her aspects see that her physical attractions, of which there are many, combine in unforeseen ways with her daring, literateness, intelligence, and wit to have produced a stunningly beautiful woman. But only to the man who can see the whole woman. And after she makes love with the man who has already regarded her as beautiful, the man sees her even as more beautiful than before. 

When one realizes that her beauty is not just dependent on a physicality that will pass but depends on all the aspects of her that will continue to change and grow and deepen, the reader sees that her beauty will be a continuing surprise, and that Lord Peter Wimsey will see her as more beautiful every day. This is a reason to love for a lifetime, and we readers have no doubt that he will.

(I learned an important lesson from one of the Dorothy Sayers’s book. As Wimsey is dressing for the evening, his manservant Bunter tells him never to tie a bowtie perfectly. In response to Lord Peter’s puzzled reply, Bunter tells him that people should realize that wearer tied it and that the bowtie was not a clip on. I have found it easy to comply with this wisdom.)

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Vexing Vaccination Questions

Many questions about the pandemic are being discussed. Most of them are about the immediate future or for the next couple months. Other issues are more distant but so troubling that consideration of them should begin. They concern the vaccinations that we all hope will become available. First and foremost, scientists, doctors, politicians, and commentators all seem to be confident that a vaccine or vaccines for coronavirus will be developed, but if that virus regularly mutates, is that confidence overstated?

Who will pay for vaccinations? I assume, but do not know, that Medicare, Medicaid, and private insurers will cover the costs. What kind of burdens will be placed on these systems? We already hear often that the financing of Medicare and Medicaid is precarious. Are all private insurers sound enough to handle the costs?

But what about all the uninsured, a group whose size is no doubt going to increase? Many people get health insurance because of employment. When they lose their job, they lose coverage. Many of them won’t be able to afford insurance on the open market or under Obamacare even if Obamacare is not further gutted under the lawsuits the Republicans are pursuing. Does that group go without vaccinations? Will the government pay for them and get further into the health insurance business?

The initial availability of a vaccine will raise other important and difficult ethical, economic, foreign relations, and governmental questions. The pandemic is a worldwide phenomenon—there are outbreaks on every continent—but every person cannot be vaccinated at once. There won’t instantly be eight billion doses or the distribution networks or people to immediately vaccinate the world’s population. As a vaccine is rolled out, some people will get the vaccine before others, and we have little idea about how long it will be before the last in line gets vaccinated. This will be true for the world, but also true in each country.

How will the vaccine be allocated among nations? Every country will want the number of doses that is necessary to protect its population, which means that countries will compete for the vaccine. The severity of that competition will be affected by whether only one vaccine is found or more than one, but also by whether the vaccines are patented. (Of course, they will be patented, you might think, but Jonas Salk did not patent the polio vaccine he along with others developed.) If something is patented, the patent-holder normally can control who will manufacture the patented product. If the vaccine is patented, not everyone who could make the vaccine will be able legally to produce the drug unless the patent-holder agrees, and the patent-holder can also determine to whom the vaccine will be sold. Should this normal regime for inventions be allowed to operate with this pandemic or should there be legislation requiring the automatic licensing of a patented vaccine? In other words, should the government (gasp—dreaded word) regulate (gasp – another dreaded word) the manufacture and distribution of the vaccines or even seize the patent with something like eminent domain?

Patents grant monopolies. Monopolies increase prices. A lot of money can be made from these vaccines. Should there be (gasp yet again) price controls? At least some of the large vaccine makers have already said that none of their profits will go to their shareholders but will be used to subsidize vaccinations in disadvantaged countries and be used for further research and development. In other words, the companies expect profits—probably massive profits—but the companies promise to use all that money humanely (and, of course, the research and development will have the goal of making other profit-making products from which, no doubt, dividends will flow). Should we just trust the largesse and good will of these multi-national corporations?

There will be strong pressures to impose export controls in the nations where the vaccines are manufactured to make sure that the producing countries will have adequate supplies as quickly as possible. Of course, this raises ethical questions about whether some nations can deprive other populations of immediate access to vaccinations, but it will also present foreign policy concerns. Will there be a new kind of most-favored nation status where vaccination exports are allowed to some countries but not others? If so, who decides and on what criteria? In this country, would it be health officials, and if so, who would they be? Or the State Department? The President? Congress? And will all this be complicated by the fact that vaccine companies are part of multi-national corporations? The largest such one is Sanofi Pasteur. If you have been vaccinated against the flu, the odds are your dose came from Sanofi Pasteur. It has five plants in the United States with its American headquarters in a little town in Pennsylvania, but it is a division of a French corporation. Does the French government have any authority to determine where vaccines made in Swiftwater, Pennsylvania, go?

But let’s assume an effective vaccine is rolled out for use in the United States. Doses for 300 million American will not all be available at once. Who will get them first? Who will get them second? Who will make those decisions? What will the criteria be?

The closest analogy I can think of is the mass polio vaccinations in the 1950s when schoolchildren, including me, stood in line to get a shot. My memory is very incomplete here, but I believe it was the forerunner of the March of Dimes who undertook the project, not the government, but I think there was a widespread consensus that children should be the first ones. The coronavirus will not be as simple.

I would hope that there will be a consensus that the first to be vaccinated will be those on the frontlines—healthcare professionals and first responders with a close second being essential workers like those in grocery and drug stores and delivery people. But beyond that what should be the priorities?

Perhaps epidemiologists should control the schedule aiming for the fastest way to achieve something like herd immunity. On the other hand, since people over 65 are most likely to die from Covid-19, perhaps this group should have priority. Someone like me (I am old) might expect to live ten years more if I don’t get the disease. Giving me the vaccine could be said to save ten life-years discounted by the likelihood that I would get the disease and recover without being vaccinated. Giving the vaccine to a forty-year-old could save 45 life-years discounted by those same factors. Looked at this way, it could be more beneficial to inoculate the younger person first, but who should, or will, make those decisions?

On yet another hand, economists might conclude that the country will benefit most by first vaccinating those who contribute most to the economy, but I am sure that economists (and others) will disagree how to calculate that.

It is not clear who will set the priorities. Nothing I have read in the Constitution gives the President the authority to set them. Perhaps the Constitution can be stretched to say that Congress can set them or delegate this power to the executive branch, but public health matters have traditionally been, and perhaps constitutionally are required to be, under the control of the states. If the states do make the decisions, we can expect to see different priorities in different places, just as lockdown orders and the labeling of essential businesses has not been uniform across the country.

Or, of course, we can adopt the conservative philosophy that market forces should set the priorities. Whoever can pay the most should get the vaccine first. Will this basic tenet of modern conservatism be re-thought?

It would be a waste to give the vaccine to those who do not need it, but we need to know whether those who have recovered from the disease have immunity to it, how strong the immunity is, and for how long, questions that have yet to answered. And then we would have to be able to test widely for the antibodies if they do give an effective immunity. So far, our present system has not performed well on giving widespread tests for the disease, which are necessary to control the present spread of Covid-19. Will our system be any better for antibody testing?

Whatever the priorities, some people lower on the priority rungs waiting for a vaccination after a vaccine is available will die before they are vaccinated. Although we will not call them this, whoever sets the priorities will constitute a death panel. It will be a frightening responsibility.