Mueller's Comments: Some Personal Reactions

Robert Mueller's comments yesterday did not say anything that was not already said in his report. I thought everyone except Trump supporters[1] knew that, but that was mistaken. Regardless, those redundant comments seem to have made some difference. Or at least the media reacted that way.

The first lesson, months of exposure to the written word (the Mueller report) is far less impressive or persuasive than about 10 minutes of an author standing in front of a camera and simply repeating what he wrote and made crystal clear right from the get go. That reinforces a belief that Trump's 2016 win was heavily dependent on the massive amount of uncritical but entertaining free airtime the mainstream gave him during the election.

What exploded in the mainstream cable news world, but probably not including Fox, was a raging debate over whether to impeach or not to impeach. The not to impeach argument is, more or less, that impeaching (1) would cost democrats votes in the 2020 elections, and (2) would be futile because Senate republicans would not vote to convict Trump of almost any crime and certainly not obstruction of justice. The argument to impeach is, more or less, that the constitution requires impeachment proceedings when there is sufficient evidence and failure to impeach severely damages the constitutional order by (1) letting impeachable behavior go unpunished, and (2) setting the precedent that a sitting president really is above the law.

Lesson two is sobering and frightening: That this debate is even happening still (or again) months after the written report was released shows how fragile a constitutional democracy is and how ill-defined the rule of law is. Mueller's comments strongly implied that were it not for an idiotic, legally indefensible DoJ guideline (my assessment of the guideline, not Mueller's), the DoJ cannot indict a sitting president, Mueller would have indicted Trump for obstruction of justice.

The evidence of obstruction is about as clear as it can get, as pointed out in an earlier discussion here. The evidence included this:



The original report made that crystal clear. It just didn't lay the evidence out in a nice little chart. Despite the original unambiguous clarity, Mueller's comments seem to have made that very clear point even more clear. That leads to lesson three which is, see lesson one.

In his comments, Mueller asserted something to the effect that the rule of law must be vindicated. In the sense of constitutional law, that makes sense. The constitution says that if a DoJ guideline, dumb as it is, says a sitting president can't be indicted, then all that is left is impeachment. But by definition, impeachment is a political process, not a legal process like indictment. And given the bitterly partisan and tribal state of affairs in congress, there is very little or no chance that the rule of law will be vindicated. By now if not all along, Mueller understands this perfectly.

That leads to lesson four, a variant of lesson two, which is that the rule of law is not just tenuous, but it is also is amazingly subjective. Scholars have noted this subjectivity before and raised the question of whether the rule of law itself is so subjective or meaningless as to constitute an essentially contested concept, as discussed before.

Will the democrats start impeachment proceedings? Who knows? The political calculation might outweigh the constitutional imperative. Would the democrats lose votes in 2020 if they do impeach and the Senate then acquits Trump? Who knows? One thing that seems fairly certain, democrats aren't getting any Trump supporter votes no matter what they say or do, including saying they love Trump more than anything and support him. What votes are out there to be lost?

Footnote:
1. If Trump online supporters are basically like all Trump supporters, they were mostly or completely unaware of the evidence in Mueller's report showing (1) Trump's obstruction of justice, and (2) the seriousness of Russian interference in the 2016 elections. The first thing they heard was William Barr come out with his non-summary summary of the Mueller report and say no collusion, no obstruction and no Russian interference. The 2nd thing they heard was Trump Tweeting, TOTAL EXONERATION!, NO COLLUSION!! WITCH HUNT!!!!, REVENGE!!!!! That is another example of the awesome power of lesson one reinforced by some lies packed into emotion-provoking Tweets. Lies-based beliefs that support what a person wants to believe can be almost impossible to change. Facts and logic alone won't do the trick.

Finland's Defense Against the Dark Arts

CNN reports that Finland, a country under relentless Russian propaganda dark free speech attacks,[1] is learning to defend itself. The dark arts self-defense program the Finnish government has developed is being taught to school children and adults.

CNN writes:

The initiative is just one layer of a multi-pronged, cross-sector approach the country is taking to prepare citizens of all ages for the complex digital landscape of today – and tomorrow. The Nordic country, which shares an 832-mile border with Russia, is acutely aware of what’s at stake if it doesn’t.

Finland has faced down Kremlin-backed propaganda campaigns ever since it declared independence from Russia 101 years ago. But in 2014, after Moscow annexed Crimea and backed rebels in eastern Ukraine, it became obvious that the battlefield had shifted: information warfare was moving online.

As the trolling ramped up in 2015, President Sauli Niinisto called on every Finn to take responsibility for the fight against false information. A year later, Finland brought in American experts to advise officials on how to recognize fake news, understand why it goes viral and develop strategies to fight it. The education system was also reformed to emphasize critical thinking.

This ain't Finland: Not surprisingly, America is a completely different kettle of multicultural fish. Americans generally do not believe they are susceptible to dark free speech. Political partisans generally do believe the political opposition definitely is susceptible. Most on each side firmly believe the other is deluded, deceived and/or just plain lying.

In commenting on the CNN report, Steven Novella at Neurologica makes this sobering point:

In 2012 the Texas GOP had this in their platform:

Knowledge-Based Education – We oppose the teaching of Higher Order Thinking Skills (HOTS) (values clarification), critical thinking skills and similar programs that are simply a relabeling of Outcome-Based Education (OBE) (mastery learning) which focus on behavior modification and have the purpose of challenging the student’s fixed beliefs and undermining parental authority.

They literally opposed teaching critical thinking because it might challenge fixed beliefs and authority figures. This attitude is likely not uncommon, just rarely so explicitly stated. What I fear is that any move to teach media literacy in the public schools will be fraught with political manipulation and pushback. It can easily be presented as an attempt to promote one political view over another. The challenge is essentially to teach politics in a politically neutral way. It can be done, but it is tricky. It’s a perilous path that seems to have a high likelihood of failure. But we need to try – we need, in fact, to make it a priority.

What Novella describes is an attitude that is common on America's political right. It accords with a belief by some social scientists, e.g., Johnathan Haidt, that most conservatives very highly value respect authority. Apparently, that conservative moral foundation or core value is so powerful that it can and does lead some people to believe that critical thinking skills are subversive.

If nothing else, the human mind with its moral-emotional functioning is a strange, fascination beast, to say the least. The question is whether the beast can control itself enough to maintain modern civilization and long-term human well-being. That is an open question. If past performance is an indicator of future returns, prospects don't look so good at the moment. What could change that bad prognosis is getting serious about building defenses against the dark arts, even if the risk of failure is high.

Footnote:
1. Dark free speech: Constitutionally protected (1) lies and deceit to distract, confuse and demoralize, (2) unwarranted opacity to hide corruption, and inconvenient truths and facts, and (3) unwarranted emotional manipulation (i) to obscure the truth and blind the mind to lies and deceit, and (ii) to provoke irrational, reason-killing emotions and feelings, including fear, hate, anger, disgust, distrust, intolerance, cynicism, pessimism and all kinds of bigotry including racism.

B&B orig: 5/31/19

A Constitutional Crisis Is Near

Constitutional crisis: constitutional crises arise mainly when: (1) politicians and/or military officials announce they will not obey the constitution, for example by defying a court order, or (2) when many people refuse to obey the constitution, and there can are street riots or the military mobilizes, or, states or regions try to secede from the nation, which involves situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests and brute force is used or threatened.

Constitutional rot: constitutional rot occurs when norms that held power in check fall, partisans play constitutional hardball, e.g., the Senate refusing to consider a valid Supreme Court nomination, fair political competition comes under attack and state power becomes less accountable and responsive to the public.

A few days ago a B&B discussion focused on the difference between a constitutional crisis and constitutional rot. It is clear that America has been in constitutional rot at least since the mid-1990s. As of the close of business yesterday, American politics appears to have crossed the line from constitutional rot to a true constitutional crisis.

A few weeks ago, the federal judge handling the Michael Flynn case, Emmet Sullivan, ordered public release of some withheld materials in the Flynn prosecution. That included the transcript of a phone call by Trump lawyer John Dowd to one of Flynn's attorneys. That call showed witness tampering by Dowd, a felony, in an attempt to keep Flynn from cooperating with witnesses. That transcript was released yesterday as ordered.

However, the Washington Post and other sources report that the Justice Department did not publicly file the transcripts of Flynn’s calls with Russian officials, including then-Russian ambassador Sergey Kislyak. The DoJ also refused to make public redacted portions of the Mueller report that pertains to Flynn. It is reasonable to believe that those transcripts and portions of the Mueller report contain evidence of Flynn illegally conspiring with Russia to advance Russian policy goals, lying under oath or committing other felonies.

The WaPo writes: "Prosecutors provided one item that Sullivan ordered be released: a transcript of a voice mail left by an attorney for Trump, much of which had already appeared in Mueller’s report. It is unclear how the judge will react to the government’s noncompliance with other elements of his order. Late last year, Sullivan postponed Flynn’s sentencing after angrily lambasting the former national security adviser for his actions, saying, 'Arguably, you sold your country out.'"

Refusal to release those materials is an obvious refusal to obey a valid court order. That constitutes a constitutional crisis or something very close to it. How Judge Sullivan reacts to this will probably be known soon and that could dictate what the constitutional situation actually is. The judge could hold prosecutors and maybe also Attorney General William Barr in contempt and have them jailed until they comply.

Suppressed evidence that is coming to light continues to show claims of innocence and exoneration are lies by Trump, Barr and other people with knowledge of the facts who make the same false claims. Trump and everyone involved is lying. One can only hope that Sullivan orders Barr and the involved prosecutors to go to jail. They deserve no less.

Looking back, this day had to come. Trump's contempt for the rule of law and for norms that make our democracy work has been clear from before the 2016 elections. Trump is truly making his run at building some sort of a kleptocratic tyranny-Christian theocracy and suppressing democracy, the rule of law and civil liberties. People who support and enable this evil can not in good faith deny this is happening or that it is evil. There is no excuse to support Trump except if one wants to eliminate liberal democracy and install a corrupt, anti-democratic tyrant.

Orig B&B: 6/1/19

An Explanation: Constitutional Crisis vs. Constitutional Rot

Uncle Fester: Dementia, what a beautiful name. 
 Dementia: It means "insanity." 
 Uncle Fester: My name is Fester. It means "to rot."

Constitutional scholar Jack Balkin (Professor, Yale Law School) wrote a short chapter for the 2018 book Constitutional Democracy in Crisis?, edited by Mark A, Graber et al. Balkin's chapter 2, Constitutional Crisis and Constitutional Rot, explains the difference between the two concepts. The topic is timely because many people are concerned that the US is in or near a constitutional crisis in view of President Trump's divisive rhetoric and actions. Constitutional rot is a concept that most people are not aware of, while constitutional crisis is mostly misunderstood. Knowing the difference helps put America's political situation in much better context.

Constitutional crisis defined: Balkin and another scholar Sanford Levinson, have described what a constitutional crisis (CC) is and is not in a constitutional democracy. That is summarized in Balkin's chapter 2. There are three different kinds of CC. The Type One CC occurs when politicians and/or military officials announce they will not obey the constitution any more. That can happen when politicians and/or military officials refuse to obey a court order. Once refusal to adhere to constitutional rules has occurred, the constitution has failed.

The Type Two CC occurs when the constitution prevents political actors from trying to prevent an impending disaster. This is rare because the courts tend to find ways to allow political actors to avoid disasters. The Type Three CC occurs when many people refuse to obey the constitution. In these scenarios, there can be street riots, or, states or regions try to secede from the nation. This involves "situations where publicly articulated disagreements about the constitution lead political actors to engage in extraordinary forms of protest beyond mere legal disagreements and political protests: people take to the streets, armies mobilize, and brute force is used or threatened in order to prevail."

Balkin goes on to argue that most time when the term CC is used, it is hyperbole. Constitutions rarely break down.

Constitutional rot (CR): By contrast with a CC, CR arises when norms that held power in check fall, partisans play constitutional hardball and fair political competition comes under attack. We are seeing this now. For example, it was constitutional hardball by the Mitch McConnell to ignore President Obama's Supreme Court nomination of Merrick Garland. In CR, politicians favor short-term political gains over long-term damage to the constitutional system. As CR progresses, the political system becomes less democratic. State power becomes less accountable and less responsive to the public, while politicians become more beholden to backers who keep them in power. In essence, the country drifts into oligarchy.

While that is happening, the public loses trust in government and the political system because they have been abandoned: "When constitutional rot becomes advanced, and the public's trust in government is thoroughly undermined, people turn to demagogues who flatter the public and who stoke division, anger and resentment. Demagogues promise they will restore lost glories and make everything right again. They divert the public's attention to enemies and scapegoats within and without the republic. They divide the public in order to conquer it. They play on people's fears of loss of status. They use divisive rhetoric to distract attention, maintain a loyal set of followers, and keep themselves in power. There are always potential demagogues in a republic, but healthy republics restrain their emergence and ascension. When demagogues manage to take power and lead the nation, however, CR has become serious indeed."

Does any of that sound familiar?

The four horsemen of CR: Belkin describes the four horsemen of CR as (1) loss of trust in government and fellow citizens, (2) polarization that leads to people seeing fellow citizens as enemies of the state, (3) increasing economic inequality which foments anger, resentment and a search for scapegoats, and (4) policy disasters such as the Iraq war and the 2008 financial crisis, which undermine public trust in political leadership and constitutional governance. He argues that each one of these tends to feed into the one or more of the other factors. For example, polarization deflects public attention to symbolic and zero-sum conflicts, which allows wealthy interests to entrench their power and foster oligarchy. In turn, that tends to undermine public faith in a government that is drifting away from them and their interests. Rot begets more rot.

Belkin sees hardball politics and attendant destruction of norms of fair politics as leading to "a gradual descent into authoritarian or autocratic politics."

Regarding our current situation, Belkin sees it like this: "The United States is not currently in a period of constitutional crisis. But for some time--at least since the 1990s--it has been in a period of increasing constitutional rot. The election of a demagogue such as Trump is further evidence that our institutions have decayed, and judging by his presidential campaign and his first year in office, Trump promises to accelerate the corruption."

Sounds definitely like we're in for more CR and a descent into authoritarian, autocratic politics. How gradual the process may be is a matter open for debate.

The US Constitution: A Source of Urban-Rural Polarization

Analysis by the New York Times indicates that the US Constitution itself is a significant source of urban-rural polarization. The NYT writes:

But urban-rural polarization has become particularly acute in America: particularly entrenched, particularly hostile, particularly lopsided in its consequences. Urban voters, and the party that has come to represent them, now routinely lose elections and power even when they win more votes.

Democrats have blamed the Senate, the Electoral College and gerrymandering for their disadvantage. But the problem runs deeper, according to Jonathan Rodden, a Stanford political scientist: The American form of government is uniquely structured to exacerbate the urban-rural divide — and to translate it into enduring bias against the Democratic voters, clustered at the left of the accompanying chart.

Yes, the Senate gives rural areas (and small states) disproportionate strength. “That’s an obvious problem for Democrats,” Mr. Rodden said. “This other problem is a lot less obvious.”

In the United States, where a party’s voters live matters immensely. That’s because most representatives are elected from single-member districts where the candidate with the most votes wins, as opposed to a system of proportional representation, as some democracies have.

Democrats tend to be concentrated in cities and Republicans to be more spread out across suburbs and rural areas. The distribution of all of the precincts in the 2016 election shows that while many tilt heavily Democratic, fewer lean as far in the other direction.

As a result, Democrats have overwhelming power to elect representatives in a relatively small number of districts — whether for state house seats, the State Senate or Congress — while Republicans have at least enough power to elect representatives in a larger number of districts.

Republicans, in short, are more efficiently distributed in a system that rewards spreading voters across space.

The articles goes on to point out that European elections often allow for proportional representation and the urban-rural divide is softened by making geography less important than it is in the US. Underrepresentation of urban voters is a feature of any democracy that draws winner-take-all districts where the urban voters are concentrated in cities and at odds with rural voters. That is what happened in 2016 when Hillary Clinton won only three of eight congressional districts in Minnesota despite winning the whole state.

US rural areas will oppose constitutional and other changes to reduce the power imbalance. It looks as if American politics will stay unequally tipped in favor of conservative rural areas for quite some time. This is of concern for the US Senate. It is starting to seem unlikely that democrats will be able to retake the Senate in 2020. Given the way the polarization has destroyed normal functioning, it is reasonable to believe that any democratic president will have some or all nominations that require Senate consent blocked for all four years.

Flaws in the Constitution are becoming clear. Those flaws are leading the US from a liberal democracy to an anti-democratic, authoritarian system dominated by a minority conservative ideology. The rejection by President Trump of congressional authority to investigate him and his associates is undeniable evidence of America's slide toward a corrupt authoritarian system. Unless democrats step up their messaging and outreach, we just might be witnessing the beginning of the end for American liberal democracy, civil liberties and the rule of law.

Truth Decay

Over the last couple of years, the RAND Corporation has been doing a deep dive into the political-social phenomenon they call truth decay. The study is part of an effort to "restore the role of facts and analysis in public life."

That sounds much like the anti-biasing anti-ideology, pragmatic rationalism, ideology that is advocated here at B&B. Two of the four core moral values that pragmatic rationalism is built on are (i) fidelity to trying to see objective facts and truths, to the extent they can be objectively based, with less bias and distortion, and (ii) fidelity to trying to apply less biased conscious reason (roughly, logic) to the facts one thinks one sees.

RAND's 326 page 2018 book, Truth Decay, can be downloaded for free here: https://www.rand.org/pubs/research_reports/RR2314.html [1]

In a summary post, RAND comments:

There are four trends that characterize Truth Decay:
1. increasing disagreement about facts and analytical interpretations of facts and data
2. a blurring of the line between opinion and fact
3. the increasing relative volume and resulting influence of opinion and personal experience over fact
4. declining trust in formerly respected sources of facts.

Most of these trends are not unprecedented in American history. But today's level of disagreement over objective facts is a new phenomenon.

RAND's findings so far point to the main drivers of truth decay as being (i) cognitive biases, (ii) the rise of social media and other changes to the information environment, (iii) demands on the educational system that limit its ability to keep up with changes in the information ecosystem, and (iv) political and social polarization. Political and social polarization can reasonably be seen as political and social tribalism that tends to be significantly fact- and logic-destroying or distorting for most people (~95% ?) most of the time.

A prior B&B discussion about a survey of experts of President Trump noted that he was ranked as the most polarizing President in US history, significantly out ranking Abe Lincoln, who came in a fairly distant second. Both RAND's sources of truth decay and its drivers seem be generally in accord with the political reality of at least the last 15 years or so, maybe the last 30 years or so.

An existential threat?: Over at his blog, Neurologica, Steven Novella posited RAND's truth decay observations as possibly constituting an existential threat, presumably at least to modern civilization, and maybe to the human species itself. Novella writes:

What is the greatest threat facing human civilization? This question is obviously meant to be provocative, and is probably inherently unanswerable. But I think there is a reasonable argument to be made that perhaps the greatest threat is the deterioration of fact-based political and social discussion. The argument is that this is a meta-problem that keeps us from effectively addressing all other problems.

But of course we don’t want to assume anything, which would ironically be part of the very problem itself. We first need to ask – are these trends actually happening or are they just illusion and confirmation bias? Also, can we put these trends into historical context? RAND recently conducted a study looking at item #3 – the relative volume of opinion vs fact-based reporting in the media over the last 28 years.

They identified several trends, which may contribute to Truth Decay. The first is that prior to 2000 broadcast news tended to be more academic and fact-based. After 2000 the news became more narrative based – presented more as simplistic stories, with less complexity and nuance.

Over this same time there was a shift in viewership from broadcast to cable networks. The cable networks contained much more opinion-based reporting, and far less fact-based reporting. They were more likely to have people discussing the news rather than giving a prepared factual report of the news. So essentially we went from watching Walter Cronkite to The View.

In print they saw a similar pattern. Print newspapers have changed the least, but also have shifted toward a more narrative style (just not as much). Meanwhile there was a shift to digital print news, which is more personal and anecdote-based.

All of these trends verify the concern that the overall volume of information being consumed by Americans has shifted from fact-based reporting to personal stories, narratives, discussions and opinions. We are no longer content to have a talking head give us a prepared digested form of “Just the facts, Ma’am” (which is, ironically, itself a bit of false reporting). We want to be entertained with a story, we want our emotional buttons pressed.

The short chain of moral logic: Cognitive and social science both strongly argue that the human mind is inherently susceptible to truth decay or dark free speech such as lies, deceit, and unwarranted emotional manipulation, especially fomented negative emotions such as fear, anger, hate, distrust, intolerance and bigotry or racism, all of which are usually intentionally associated with a person's tribal identity. Use of truth decay to deceive and manipulate the public is common among people with low or essentially no decent moral values because it works. The purveyors of truth decay either don't care about the morality if it, or they believe the usually immoral proposition that the ends justify the means and is thus moral, at least when they do it (but it's not when the other side does it).

The limited grasp of history I have says that social and international conflicts are usually (≥ ~95% of the time?) seeded by shrewd purveyors of truth decay to whip an up antagonistic us vs. them social mentality. That appears to be so common that one can argues there is a chain of logic with two necessary links in it. The first link is heavy seeding of the social milieu with vast quantities of truth decay or dark free speech. That seeding of the public with lies, deceit and irrational emotion is the necessary prelude to unnecessary violent conflict, at least by aggressors.

If that logic is sound, then from a moral point of view, one can argue that use of truth decay to deceive, mislead and foment the negative emotions needed for social acceptance of violence is the moral equivalent of the actual violence itself. One could even see truth decay as a form of violence because it relies on coerces minds into false and/or irrational beliefs.

When viewed in that way, fidelity to objective facts and truths, to the extent they can be ascertained (and they often cannot be fully ascertained, leaving some degree of ambiguity), can bee seen as one of the highest, most important moral values a human can hold. The same applies to the moral value of trying to be less biased in one's conscious reasoning about the facts and truths one thinks one sees.

So, the question is this: Is using truth decay or dark free speech to deceive and emotionally poison minds as immoral as actual unwarranted violence?

Footnote:
1. The first paragraph and a half of the book says this: "Much has been written about the growing disregard for facts, data, and analysis in political and civil discourse in the United States. Increasingly, it seems that important policy debates, both within the federal government and across the electorate, are as likely to hinge on opinion or anecdote as they are on objective facts or rigorous analysis. However, policy decisions made primarily on the basis of opinion or anecdote can have deleterious effects on American democracy and might impose significant costs on the public.

The current discourse about the diminishing role of, trust in, and respect for facts, data, and analysis is often hamstrung by the use of conflicting language and unclear or undefined terms. Without a common language with which to discuss the problem—which we are calling Truth Decay—the search for solutions becomes more difficult. This report seeks to address this gap by offering a clear definition of Truth Decay and an examination of its drivers and consequences—all with the aim of creating a foundation for more-meaningful discussion of the challenges to U.S. political and civil discourse."