Friday, May 4, 2018

Everybody's Favorite Bagman

Sorry that I've been silent lately—I've been busy hunting for programming gigs and picking up some new skills in service of that.  I promise I'll get back to the guns series I started, and soon.

But I thought I might break my silence to explain the significance of Rudy Giuliani's revelation the other night, confirmed by a Stable Genius tweet the following morning, that Donald Trump reimbursed Michael Cohen for the $130,000 payment to Stormy Daniels by paying him a retainer.

Let's leave aside all the lying that Trump has done around this event. I mean, we all knew he was lying, and he's almost certainly continuing to lie. (I rate the chances that he didn't sleep with the porn star at somewhere between nil and zilch.)

Let's focus instead on the arrangement that Trump has now admitted that he had with Cohen:  Cohen was Trump's "bagman."

For the uninitiated, a bagman is a paymaster for illicit conduct.  Let's say you're in the "waste disposal business" in New Jersey. That business leaves you with some free time, so you go down to, say, your local sporting goods store or restaurant or whatever, and you inform the owner that there are some bad things that might happen to his establishment.  Since you're very good at protecting your own business from these kinds of bad things, you offer to protect the owner—for a small fee, of course.  Every week, a gentleman comes around to the businesses you're "protecting" and collects that fee, in cash, on your behalf.  He then uses that money to pay obligations that you might have, like the salaries of the people you hired to do bad things to businesses that don't pay you for protection.

That guy is a bagman.*

* - Fans of Law & Order might recognize that the title of this entry shares a name with the pilot episode of the original series. "Everybody's Favorite Bagman" was produced for CBS in 1988, but they didn't pick L&O up to series.  After NBC picked it up instead, two years later, this episode was aired as the sixth episode of season 1, and it featured a different district attorney (Steven Hill was the "original" D.A. with whom people are most familiar).  The plot involved an assault and robbery of a city councilman, which led to the discovery that the politician had once been a bagman for bribes related to parking fines.  The episode was inspired by a real scandal in the New York parking enforcement bureau in the early 1970s, and was an early example of the "ripped from the headlines" storytelling that the series became famous for.  Law & Order ran for 20 seasons on NBC and spawned several major spin-offs, including Law & Order:SVU, which will likely be renewed for its own 20th season soon.

Of course, what I'm describing is a criminal protection racket, which is the sort of thing that the Racketeering Influenced & Corrupt Organizations (RICO) Act was developed to combat.**  In fact, the reason why you don't collect the money yourself, but hire a bagman to do it, is precisely to provide yourself with some cover in the event the FBI happens to surveil you.  And if this sounds like it came from an episode of the Sopranos, that's because it sort of did.  That's how the Mafia does business.

** - Side note:  I once had the privilege of working on a case with G. Robert Blakey, now a law professor emeritus at the University of Notre Dame, who authored the original RICO Act in 1968 while acting as an adviser to the Senate Governmental Operations Committee under the supervision of Sen. John McClellan, D-Ark, the chair of the committee at the time. Just to close the loop, McClellan was born in my hometown, Sheridan, Ark.

Now, where does Trump come in to this? Well, I'm not saying that Trump is a mafioso. (I'm also not saying he's not, in his own way.) But in his hugely unsuccessful business as a real estate developer, he has occasionally had the need to make sure that certain people get paid while needing not to make the payments himself.

See, one of Trump's frequent brags is about his ability to "cut through red tape" to get real estate deals done where others can't.  What he doesn't say, but what is almost certainly true, is that he pays bribes to accomplish that.  Bribing a public official to gain some favorable treatment is a crime--a serious felony, in fact--so Trump can't possibly do that himself.  So here's how he does it:

1. He pays his "lawyer" a "retainer," ostensibly for legal services.
2. The lawyer pays the bribe to the public official, using the proceeds from the "retainer," which is large enough to cover the bribe, a fee for the lawyer's services, and whatever the lawyer might have to pay in income taxes on the bribe (since bribes aren't tax-deductible).

That makes the lawyer the bagman.

And here's why you use a lawyer for that purpose:  The money you pay your lawyer is a business deduction, as long as it was an "ordinary and necessary" business expense.  If you get audited, the IRS won't look at the details of the lawyer's bills, since that's ordinarily a privileged communication. Under normal operating conditions, the use of a lawyer provides an "air gap" between yourself and the bribes you want to pay.

The key phrase there is "under normal operating conditions."  Most people understand that communications between attorney and client are normally privileged from disclosure.  That is, the attorney can't disclose them to others except with the client's permission, and authorities and litigants are forbidden to inquire into them.

But what many people don't understand is that this general rule has many exceptions.  For example, in cases where the client is using the attorney in furtherance of an ongoing or planned crime or fraud, the privilege does not apply.  Moreover, secrecy is required.  Disclosures by the client of the content of the communications defeats the privilege.

So even using an attorney as a bagman carries its risks, because working as a bagman generally involves criminal activities and almost always involves fraud of some sort.  (If it didn't involve crimes or fraud, there would be no point.)  If your bagman attorney's activities are discovered, the privilege won't save you.

What makes Rudy 9/11's disclosure particularly troubling for Trump is that it gives investigators a pattern to follow.  Cohen was operating as Trump's bagman in the effort to silence Stormy Daniels just before the election.  Trump needed someone to be paid off, so Cohen took care of it and paid the bribe out of the money Trump pays him to be an attorney.  Does that sound familiar?

Now, ordinarily that wouldn't be enough to roll up the client. After all, insofar as I am aware, paying someone not to disclose information of this nature is just distasteful, not criminal or fraudulent.  But it points to a method of resolving problems that is very much in the nature of using a bagman.

And here's where it gets interesting.  A few weeks ago, Cohen's home, office, and hotel room were raided with a no-knock warrant.  Yesterday we learned that the FBI had a warrant for a "pen register" on Cohen's phones.***  And we know from various other sources that the FBI has accumulated a vast amount of information about Cohen's activities. 

*** - It was originally reported that the FBI had wiretapped Cohen's phones, but this was later corrected by NBC News, the outlet that broke the story.  A pen register used to be a device that recorded the numbers that the target phone called and, in some cases, the numbers that called it.  I believe that these days it's all done electronically at the carrier level. A pen register only identifies the number called, not the content of the call, which makes it somewhat less intrusive than a wiretap.

Now that we know that Trump used Cohen as a bagman for the Stormy Daniels affair, it's not difficult to follow Cohen's records to find other, perhaps criminal, offenses in which Trump was a participant.

I have known a few FBI agents over the years. They are almost always very conscientious, very methodical, and very busy. They know that they can bring to bear an enormous amount of scrutiny.  Before they do so, they generally need to have some indication that there is something to learn by it.  And the Stormy Daniels pattern provides that indication.

That's a big part of the reason why Team Trump has ramped up its efforts to discredit the FBI's investigation, including by rolling out Rudy 9/11.

Cohen's in trouble. And if I were Trump, I'd be very, very nervous right now.

Wednesday, March 28, 2018

It's not the guns, it's the...well, actually, it IS the guns: Part I

I have been watching with interest as a great number of remarkably articulate teenagers have taken us further than we have ever gone down the road of dealing with the problem of mass murder in schools. It seems that we are now finally going to have the national dialogue on guns that we desperately need to have.

I thought I would share my thoughts on the gun issue, and the violence issue more generally.

It might surprise you to learn that I support the Second Amendment. That is, for reasons that I will hopefully be able to make clear below, I do not support any effort to repeal the Second Amendment (despite my great respect for retired Justice John Paul Stevens, I think he is wrong on that point). 

I don't presently own any guns at all. I simply don't need one. I don't hunt. I live in a neighborhood that's very safe--in fact, the only crime-like incident I'm aware of in the three years I've lived here, apart from some teenage graffiti, was a recent police standoff that was precipitated by a gun nut who answered his doorbell by brandishing a weapon.

I've shot handguns and shotguns and rifles. I'm not a very good shot, but I've hit some targets when I've shot at them. 

I'm not afraid of guns. When I encounter them, I treat them with the respect they deserve; I always treat them as if they are loaded; I practice gun safety religiously.  I'm not fearful of, for example, the AR-15. I don't find that gun even to be scary-looking. I view guns primarily as tools.

I was recently involved in a discussion with some NRA-type folks*, friends of acquaintances, who appear to believe that any regulation of "arms" is unconstitutional.  When I brought up that no one seriously questions that the government can prohibit the ownership of explosives, they sought to exclude those from the definition of "arms."  I suppose that some people think that the term "arms" is congruent with "guns."

* I have no idea whether they are members of the NRA or not, but they were more than happy to defend the NRA's positions.

The problem with their contention, aside from the fact that it's ahistorical, fatuous, and driven by a purpose of stopping all meaningful regulation, is that "arms" is most definitely broader than "guns."  The term "firearm" was coined in the mid-17th century to distinguish weapons that made use of gunpowder from arms like bows-and-arrows, slings, and swords. A hundred years before the Constitution went into effect, the English Bill of Rights provided, among numerous other provisions, that Protestants had the right to "have Arms for their Defence suitable to their Conditions and as allowed by Law," and that document makes clear that "arms" refers to the military weapons of the day. The 1755 Dictionary of the English Language, written by Dr. Samuel Johnson, defined "arms" as "weapons of offence, as well as armour of defence." And, in modern times, we have commonly referred to the "nuclear arms race," and there have been treaties and negotiations over the reduction of nuclear weapons that referred to them as "arms."

Most Americans agree that the government can legitimately, Constitutionally regulate (and even prohibit) the ownership of some kinds of weapons, as long as not all weapons are outlawed. The ban on manufacturing and possessing automatic weapons manufactured after 1986, and the regulations on ownership of such weapons made before the ban, has been upheld as Constitutional. Likewise, the ownership and possession of explosives is heavily regulated.  You may not legally own a cluster bomb or a grenade or a stick of dynamite without a license, and such licenses require significant background investigations.

I do not think there is any legitimate space for someone reasonably to argue that private citizens should be able to own any type of weapon they choose to own. So the question is not whether we can draw a line between permitted and prohibited arms, but where that line should be drawn.

In order to answer that question, let's look at the range of potential uses of guns:

  • To defend your home against an intruder;
  • To defend your person against a violent attack;
  • To defend livestock or crops against wild animals;
  • To hunt wild game for food;
  • To shoot at targets for sport/recreation;
  • To hunt wild game for trophies;
  • To defend yourself against arrest by the authorities;
  • To defend your property against seizure by the authorities;
  • To defend the nation against an invasion (Wolverines!);
  • To compel the government to act in a certain way;
  • To fight against a tyrannical government;
  • To commit property crimes;
  • To commit crimes of violence against others;
  • To commit murder;
  • To commit mass murder.
I'm sure that we could think of other potential uses for guns. If you think of some, just put them wherever in the list you think they fit best. I've tried to arrange these from "most acceptable" to "least acceptable." You may have a different view.

In fact, we can certainly expand this list to include other kinds of weapons, without departing from the scope of the discussion.

When I think about the acceptable uses of guns, I would tend to draw the line either after the fifth use or after the sixth. The precise point is more of a value judgment than anything. I don't especially like the idea of trophy hunting, but that doesn't mean that I think we should prohibit it.  But I would definitely draw the line no later than just after the sixth use.  The reason is simple:  With the exception of "to defend the nation against an invasion," these are simply not legitimate activities of private individuals. As to the exception, it's simply not necessary. Our nation is well protected by the large standing military we have in place. There is no threat against us that would be well defended by private individuals bearing arms.

To put all of this into a summary, I think that guns are useful and legitimate as tools of defense and hunting and sport, and not as weapons of offense in the hands of private citizens.

So, what does that mean for regulation? In my view, guns that are well adapted to defense and hunting and sport should generally be allowed, and weapons that are well adapted as offensive weapons should generally be prohibited.

I have a problem with semi-automatic weapons. In case you're not well-versed in terminology, semi-automatic weapons are guns that use a part of the firing energy as one round is fired to position the next round for firing. For example, a rifle or pistol may include a magazine that is filled with cartridges, all in a line. To fire, a cartridge is moved from the magazine to the firing chamber. In a lever-action or bolt-action rifle or a double-action-only pistol, the user must manually move a lever, bolt, or other system through a sequence of motions that loads a cartridge into the chamber. In a semi-automatic rifle or pistol, the gun is designed to capture some of the energy released when a round is fired to move the next cartridge into the chamber.  This means that pulling the trigger not only fires a round but also readies the gun to be fired again.

Semi-automatic guns are, for obvious reasons, much easier to use than guns that require a manual loading action. Even though semi-automatics fire only one round per trigger pull, even novice users can use them efficiently to spray a lot of bullets at the intended target.  (Skilled marksmen can fire well-lubricated bolt-action rifles almost as quickly as a semi-automatic will allow, but we'll deal with that later.)  When you combine them with large-capacity, detachable magazines, some of which may hold as many as 300 rounds, it is possible for even a novice user to cause a huge amount of damage.

Although some people prefer semi-automatics for hunting, primarily because of the ease of use, most of the responsible hunters I have ever known will readily admit that repeat fire is not a feature that's of much use in hunting. That is, if semi-automatics were outlawed or subjected to heavy regulation, it is unlikely that hunters would be unable to hunt.

Likewise, repeat fire is not especially helpful for personal defense.  The reason for this is simple: Your goal in personal defense is to stop the attacker. "Pray and spray" is the only technique in which rapid repeat fire is helpful. It's also the least effective use of a firearm for personal defense.

If your goal is hunting, a bolt-action rifle with a limited-capacity (say, 5 rounds) internal magazine is more than sufficient to accomplish your goal. If your goal is home defense, a 12-gauge shotgun, either a break-action or a limited-capacity pump-action style, is a much better choice. For close quarters defense, you might prefer a large-caliber handgun, such as a 6-shot .38 or .45 revolver.

From a regulatory standpoint, outlawing semi-automatic guns entirely, and limiting magazine capacity and type, will leave the legitimate uses of firearms alone while making it much more difficult to accomplish the kinds of offensive attacks that are the subject of the recent protests.

In Part II, I'll discuss how we implement these proposed regulations, and in Part III, I'll discuss and answer some of the challenges that the gun lobby has put forward against them. I'll link those when they're written and posted.

Friday, January 12, 2018

On Shitholes, or It's not the vulgarity, it's the racism

NOTE: I don't often use curse words on this blog or on social media, but you can't really comment on the subject without using the word, so my usual rule is suspended.  If you don't want to read it (looking at you, Mom), best move on to some other site.


By one person's unofficial count, anchors, analysts, and other media personalities on CNN used the word "shithole" on-air some 200 times yesterday.  It was included in the top headline on, too, which was somewhat surprising to me.

I grew up at a time when "shit," and its various other forms, were unwelcome on television (other than HBO, of course).  I remember the first time I heard it on broadcast television--it was the episode of ER where Anthony Edwards's character, dying of cancer, screams the word in frustration at the pain.  And it has only rarely been heard since.

To my ear, it's still jarring in some contexts, despite what I will confess is the rather casual and frequent way in which I use it, and many other such words, myself.  I was often told, as a child, that using profanity was a sign of a poor vocabulary or low intelligence.  With all due respect to my teachers of yore, that's a bit of bullshit on their part. I'm not sure anyone has ever accused me of having a poor vocabulary or low intelligence.  Ma'boy* Eli is one of the smartest people I know--not just kids (he's 14) but people--and when we're together, just the two of us, we turn the air comically blue.

* For those who are not already aware, Eli is my honorary nephew. He's the son of one of my very best friends, and we see each other pretty much every day. One of the great honors of my life has been to be involved in his life as I am. The problem is that there is just not a good word to describe our relationship. So I'm testing out "ma'boy" as one possibility.  

So it was surprising, even titillating, to hear so many people pretending to be erudite while reporting and commentating on Buffoon's use of "shithole" to describe Haiti, El Salvador, and a number of African countries.  I will admit that I was a bit disappointed that the word did not make a complete appearance on CBS This Morning today.  It hid, variously, as s***hole, sh*thole, and s-hole, the last of which sounds quite a lot like another curse word that doesn't often appear on the networks.

There has been an awful lot of pearl-clutching at Buffoon's vulgarity--almost as much as when Joe Biden's congratulatory comment to Barack Obama that the Affordable Care Act was "a big fuckin' deal" was caught on a hot mic.

But that misses the point.  Calling those countries "shitholes" is not especially worse than calling them "terrible places to live." It's just a more exciting, visceral, surprising way to put it.

And while calling those countries "shitholes" might be terribly rude and undiplomatic, the truth is that the countries specified are in fact terrible places to live.  Poverty is rampant in Haiti, which has still not recovered from the devastating earthquake that struck it eight years ago today.  El Salvador is in the middle of a terrible crime wave (which we may have indirectly caused by deporting thousands of members of the Mara Salvatrucha gang, or MS-13, back to El Salvador).  And there are many countries in Africa in which poverty, famine, war, extremism, and disease threaten the survival of the residents.

None of that matters.  As usual, context does.

It's worth noting first that Buffoon ran on an explicitly racist anti-immigration platform. He cobbled together much of his support by convincing lower-middle-class and poor whites that the chief reason why they aren't doing well economically is because of (dark-skinned) immigrants who come to the U.S. and take jobs away from (white) American workers. He's taken steps to end the Deferred Action for Childhood Arrivals program that allows people who were brought to this country illegally as children to stay, work, and go to school, without a clear replacement program.  And he's railed against something he calls "chain migration"--a program that permits U.S. citizens and lawful permanent residents to sponsor the immediate family members for green cards.

Buffoon's comments were made during a meeting with members of Congress about immigration reforms. To their credit, Congressional Democrats appear to be willing to work with Buffoon to try to get something positive done on this issue.  I don't think I could spend more than a couple of minutes in the same room with the man.  But when Sen. Dick Durbin (D-Ill.), the only Democratic attendee of the meeting, asked Buffoon for assurances that the reforms would protect people from Haiti, El Salvador, and a number of African countries, for whom deportation would likely be a death sentence, Buffoon said questioned why we want people from "shithole countries" to be here instead of places like Norway.

Norway is almost completely composed of white people of Northern Germanic ethnicity.  Not for nothing, Hitler's Germany invaded Norway in 1940 in part because its people are Aryan (to use the Nazi term) or Nordic (to use the non-Nazi term) and were believed by Hitler's racial theorists to conform to their ideal "master race."

It does not take much of a stretch to understand the principle at work in Buffoon's mind.  If you're a white person from Norway, we want you here, even if you're a rapist or a murderer; even if you have AIDS (yes, there are people who have AIDS in Norway); even if you are poor and have little education and no marketable skills.  But if you're a brown person from one of those "shithole" countries, no matter what your situation, the shit attaches to you.

It is, expressly and apologetically, a racial standard.  White equals great; brown equals shit.

Buffoon has given us nearly five decades of proof that he is a white supremacist.  In the 1970s, he was sued by the federal government for discrimination in housing for refusing to rent to blacks.  In the 1980s, he famously took out full-page ads in the four major newspapers serving New York City, imploring the return of the death penalty in New York so that it could be applied to the Central Park Five, five young men of color who were falsely accused, tried, and convicted of raping a woman who was jogging in Central Park.  In 2002, they were exonerated by DNA evidence, but 14 years later, while campaigning for president, Buffoon continued to assert their guilt.  In that same campaign, he called Mexican immigrants "rapists" and "criminals."  Buffoon spent years arguing and attempting fruitlessly to prove that Barack Obama, our nation's first black president, was not born here, despite conclusive evidence that he was.  And last year, after the clash between white supremacists and protestors in Charlottesville, Virginia, Buffoon claimed that there were good people on both sides.

Let's be clear:  You cannot be a white supremacist and be a good person.

Let's be clear again: Donald J. Buffoon is a white supremacist.

Let's be clear a third time:  When Buffoon decried immigration from "shithole countries," he wasn't complaining about living conditions in those countries. He was claiming that the people who live there and want to come here are shit that should not be allowed in because they are brown.

I know that he does and says so many outrageous things that it's hard to be outraged by this guy anymore.  But he has reached a new level with these comments.

We have not always lived up to our promise as a nation.  Each wave of immigration we've experienced has brought out the hatred of the ignorant.  We once imprisoned Americans of Japanese descent because people who looked like them attacked us.  But there has always been in us an undercurrent of appreciation for those who wanted to come here to build a better life.  This was never better expressed than by Emma Lazarus, whose sonnet "The New Colossus" is inscribed on a plaque in the pedestal of the Statue of Liberty:

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame 
Is the imprisoned lightning, and her name 
MOTHER OF EXILES. From her beacon-hand 
Glows world-wide welcome; her mild eyes command 
The air-bridged harbor that twin cities frame."

Keep, ancient lands, your storied pomp!" cries she 
With silent lips. "Give me your tired, your poor, 
Your huddled masses yearning to breathe free, 
The wretched refuse of your teeming shore. 
Send these, the homeless, tempest-tost to me, 
I lift my lamp beside the golden door!"

So, for the fourth time, let's be clear:  America did not become great because we accepted only the best-qualified immigrants.  We became great because our system of equality of opportunity, of general liberty, of the rule of law and not of men is a fertile soil in which greatness grows when people of good will and hope, rather than power and privilege, are planted in it.

Tuesday, December 12, 2017

A genuinely terrible human being

Today, voters in Alabama will go to the polls to elect the Senator who will replace Jefferson Beauregard Sessions III, who resigned earlier this year to become the Attorney General.  The candidates are Democrat Doug Jones and Republican Roy Moore.

Jones is a former U.S. Attorney who is most famous for having prosecuted two of the four Ku Klux Klan members who, on September 15, 1963, bombed the 16th Street Baptist Church in Birmingham, killing four young girls and injuring 22 other people.  (A third was convicted in 1977, and the fourth died in 1994.)  Jones is a standard-issue moderate Alabama Democrat.

Moore is a twice-former Alabama Supreme Court justice.  For more than two decades, Moore has been a darling of the radical Right, primarily because of his positions on abortion, the Ten Commandments, and other dog-whistle issues that have made him a politically popular public figure in Alabama.  He became the Republican nominee in a recent primary, besting the incumbent appointee, Luther Strange, in a runoff despite Strange's receiving the endorsement of President Buffoon* for the nomination.

* - As a reminder, I do not use the name of the current occupant of 1600 Pennsylvania Avenue in this blog or elsewhere.

This race has attracted a great deal of attention because nine women have publicly accused Moore of having pursued sexual relationships with them when they were teenagers and he was in his early 30s, in the 1970s and early 1980s.  One woman, Leigh Corfman, accused Moore of having sexually assaulted her when she was just 14 years old.  As those claims were investigated, it became known that Moore was banned from the Gadsden Mall in his hometown, Gadsden, Ala., in the early 1980s because he was repeatedly hitting on teenage girls there.

Now, you might expect that an election in which one of the candidates was credibly accused of being an aggressive pedophile would not be a close one.  But this is Alabama.  Recent polls show that most conservative Alabamans don't believe the allegations against Moore, despite his essentially having acknowledged that he liked to date very young girls at that time.  Those who do believe them have, in some cases, suggested that there was nothing particularly inappropriate about the practice.  (The age of consent in Alabama is 16.)  One man who participated in a focus group run by Republican pollster Frank Luntz bragged that his grandmother was married at 13 and "had two kids and a job at 15."  Many conservative Alabamans believe that Moore's accusers are being paid to make up stories about him.

It is an unfortunate fact of electoral life that white evangelical voters, who make up a substantial portion of the Alabama electorate, care primarily about one issue.  That issue, of course, is abortion.  Doug Jones thinks that the abortion laws ought to stay exactly as they are.  He has been (falsely) accused of supporting the right to choose an abortion up to the moment of birth.  Moore, by contrast, is an anti-abortion extremist.  I have been unable to ascertain whether there are any circumstances under which he would think an abortion should be legal.  (Presumably he believes that if you rape a 14-year-old girl and she gets pregnant, abortion should be an option as long as you can afford to pay for it. But I don't think he would say so publicly.)

So, for that reason, I fully expect the returns on Tuesday night to show Moore winning a close election.

Which is a shame, because—apart from his being a probable pedophile who sexually assaulted a 14-year-old girl he encountered because she was involved in a custody situation—he's a genuinely terrible human being.

We can have political disputes about all manner of issues.  I am unapologetically liberal on most issues, but I believe that you can take conservative positions on issues and not be a terrible human being.  Still, there are some things about which there can be no legitimate debate.  One of those things is the rule of law.  There have been many Supreme Court decisions with which I have disagreed, but if I were responsible for enforcing those decisions, I would do so, because we must all submit to the law as it stands, and the Supreme Court decides where the law stands unless, and until, their opinion is superseded by a Constitutional amendment.  This is how our system works.

But Roy Moore obviously doesn't believe in the rule of law, and that makes him a terrible lawyer, a terrible judge, and a terrible human being—and it will make him a terrible Senator as well.

In 2001, the American Civil Liberties Union sued Moore, then chief justice of the Alabama Supreme Court, seeking the removal of an outsize marble monument to the Ten Commandments that Moore had ordered placed in the rotunda of the Alabama Supreme Court building.  After a 2002 trial, a federal judge ordered Moore to remove the monument.  Moore appealed, and the U.S. Court of Appeals for the Eleventh Circuit affirmed the lower court's decision.  Moore refused to comply.  Only after the district judge threatened the State of Alabama with a $5,000-per-day fine for contempt of court did the other 8 members of the Alabama Supreme Court vote to overrule Moore's order. Moore was removed from the bench by a special court that polices the Alabama judiciary.

Voters returned him to the Alabama Supreme Court in 2013, just as the U.S. Supreme Court was taking up the marriage equality cases.  After Obergefell v. Hodges was decided, making marriage equality the law of the land everywhere in the U.S., Moore issued an order directing all of the state's probate judges to continue to refuse to issue marriage licenses to same-sex couples. 

In response, in May 2016, the Alabama Court of the Judiciary issued an order suspending Moore from hearing cases, the first step toward his removal.  Moore appealed the order, but lost, then resigned earlier this year to campaign for the Senate seat he now seeks.

There is a long history of civil disobedience in Alabama.  Some of the great and courageous acts of civil disobedience happened there.  Dr. Martin Luther King, Jr., wrote one of the great pieces of protest literature, "Letter from Birmingham Jail," from there.  Perhaps his most famous line from that document was "Injustice anywhere is a threat to justice everywhere."

But when a person is an elected official, such as Moore was when he defied a court order to remove the Ten Commandments monument, and such as Moore was again when he defied the Supreme Court's holding that bans on same-sex marriage are unconstitutional, that person owes an obligation to respect the rule of law. An elected official who ignores the law creates injustice on two counts: first, by holding himself and his political views above the law, and second, by creating disrespect for the law among his constituents.  Elected officials are constrained to work for reform within the system; if they cannot do so, they must exit the system.

I cannot imagine that Roy Moore, when he was a judge, would be sympathetic to anyone who displayed contempt for his authority or orders. But he expected sympathy for his contempt of other courts.  That's just garden-variety hypocrisy.

As I said above, I expect that Moore will win this election.  And that's a shame.

Saturday, December 2, 2017

In memoriam

The evening of March 17, 2004, I was working in Raleigh.  I received a call from Michelle to tell me that on her way to pick up dinner she had seen a small dog—a pug—in the road, staring down cars.  On her way back, he stared down her car again, so she stopped.  He ran under the car, and it took about half an hour and the meat from her Big Mac to coax him out.  She took him home and examined him.  He was so thin that you could feel every bone in his back.  His feet were bloody.  She fed him some Puppy Chow and, because it was a warm night, she put him on our screen porch for the night.

The next day, she took him to the vet.  The bloody feet were because of a mite infestation. His facial wrinkles bore signs of infection.  And he had heartworms.  But everything he had, said the vet, was fixable.

Ironically, we had been planning to use that year's tax refund to build a fence so we could get a dog.  Instead, we paid for the treatments.

Jax, early in our relationship
Michelle wanted him to have a strong name, so she settled on Jax.  I said that he needed a proper name, so he became "Jackson Tiberius Harrington."  For about six months, I was cool to him.  I'm sorry to say that I resented him for being expensive to treat, and because he wasn't housetrained, and because he was another mouth to feed at a time when I was growing very weary of big law firm practice and aching to do something different.

In time, he recovered.  As he got his muscle tone back, he was able to climb the stairs and--eventually--to jump, even onto the high bed we had at the time.  And I grew to love him.

I know that everyone thinks their dog is special.  But ours truly was.  He was exceptionally tough, because he had managed to survive alone for God-knows how long before he found us.  He was smart. He seemed to understand English better than most dogs.  He was always--ALWAYS--on security duty, alerting us whenever some threat appeared, real or imagined.

He had a strong antipathy for thin men.  We thought that perhaps in his early life he'd been abused by a thin man, maybe even kicked with a boot.  He had a funny-looking rib that stuck out like it had been broken and had healed funny.

But he loved women. He became Michelle's personal bodyguard.  Once, early on, she was walking him in the next neighborhood over when a black lab came bounding down the street, dragging a broken chain behind him.  The lab, excited to be free and ready to play, put his paws on Michelle's chest.  It was a scary moment, mostly because Jax was ready to fight this dog that was 5 times his size.

And he loved babies.  Whenever he could, he would lick babies' toes.  He was gentle with them and responded to their cries.

About 9 or 10 years ago, he was sitting on the couch, and he didn't seem like himself.  I reached over to pet him and he yelped.  We took him to the vet, who took x-rays and diagnosed a probable herniated disc.  It was then that we learned there are such things as veterinary neurologists.  We took him to one, who said that it was a serious problem but that it could be fixed with an expensive surgery.  It didn't cross our minds that it would be the end, so we got out the checkbook.  A few weeks later, he was fully recovered, and even though the neurologist had warned us not to let him jump, Jax was unpersuaded.

After all, he was the dog who, the day after he was neutered, found a two-pound dumbbell and was carrying it around in his mouth, like a bone.  This is the canine equivalent, I think, of jogging home from your vasectomy.

He was gregarious.  One day, we were in the living room.  Michelle asked me to toss her a Hershey's milk chocolate nugget.  My throw was errant, and Jax pounced.  He snapped up the chocolate, then, when we started yelling, ran up the stairs with it.  As we begged him to drop it, he look a look at us, smiled, then furiously chewed it up, wrapper and all, before we could get to him.

He was a pizza thief, too.

The best incident, however, was when we had laid out a five-pound roast to thaw while we ran some errands.  When we returned, it looked like a crime scene.  Evidently, one of the cats had pulled the roast off the counter.  Jax was having none of that; he dragged the roast, by now dripping blood, across the kitchen, to the dining room, and under the table, where he fiercely defended the meat from the cats' advances.  He was so proud of what he'd done that we couldn't even be mad.

Jax was a survivor of heartworms, a herniated disc, a perforated cornea that required surgery by a veterinary ophthalmologist, degenerative myelopathy (essentially ALS for dogs), and a popped-out eyeball (not the bad one, unfortunately) that eventually had to be removed, too.  Even with half an eye, however, he still had great vision.  It barely slowed him down.

He was our constant companion, always wanting to be near us.  I work from home most days, and Jax was usually next to me when I was at my desk.  When one of us was in the bathroom, he took up a security position with his back to the bathroom door, ready to protect us at our most vulnerable.

A few weeks ago, we began to notice him breathing hard, often without any apparent cause.  After one particularly bad night, I took him to the vet.  A chest x-ray revealed the probable cause of his trouble:  His heart was twice the size it should've been, so big that it was crowding out his lungs.  The vet gave him a steroid shot and antibiotics, hoping that it would give him some relief, but it didn't get any better.

Last night, he coughed and coughed and couldn't catch his breath.  About 6 a.m. he asked to go out, so Michelle took him out.  When they came back, Michelle said, "I think it's time."  And it was.  He was clearly in pain, scared, and unable to function as the dog we'd known for so long.  When the vet opened, I called for an appointment.  9:30, they said.  Earlier than I'd expected.  Michelle quickly grilled him a cheeseburger, which he ate hungrily and happily even though we were torn up and crying.  Wracked with grief, we began to second-guess ourselves, but in the end, we drove him to the vet and held him as the vet ended his suffering.

There are many upsides to bringing a dog into your family.  Companionship, unconditional love, the fact that all they want is to be fed and watered and to be loved.  The downside is that you outlive them, and when it's time, all the years of pleasure and happiness get balanced out in one cruel moment.

Jax, this morning, his final picture

Jackson Tiberius Harrington was a part of our family for 13 years, 8 months, and 15 days.  We don't know how old he was when he found us--at least a year, maybe two.  He was the best dog I've ever had. And I don't know if there is any better eulogy for a dog.

Wednesday, September 27, 2017

The last refuge

In Dr. Johnson's famous dictionary patriotism is defined as the last resort of a scoundrel. With all due respect to an enlightened but inferior lexicographer I beg to submit it is the first.
-- Ambrose Bierce 
I know the words and the tune, and I can sing it well.  I always stand, put my hand over my heart, face the flag, and sing along even if no one else around me is.  When I hear it played or sung, it stirs my heart.  I am truly humbled by the circumstances of my life that allowed me to be born here, to be born a citizen, and to enjoy all of the privileges that pertain.

I recite the Pledge of Allegiance when the opportunity arises.  Since I was in junior high school, I have skipped over two words, pronouncing this "one nation indivisible," with no pause or Red Scare-era religious interlopings.  But I recite it, and it has meaning to me.

I do these things because I believe in this country.  I believe in the framework set forth in our Constitution.  I believe that we have been and can continue to be a beacon to the world, not because we are ordained to speciality, but because we chose to be special.

I believe in human beings.  I believe that the moral imperative common to all of the world's great religions and to all great ethical systems—that we should help each other—is the principal reason why we have survived as a species.  I also believe that the best method of implementing that moral imperative is to balance our incentives by rewarding individual initiative, within reason, and common cause, within reason.  And I believe that the United States of America has come the closest of all nations to striking that balance.

Lately, some people are confused about patriotism and about what it means to love your country.  They believe that only those who believe in "my country—right or wrong" are patriots, that patriotism means accepting and applauding everything your country does. 

They are wrong.

"'My country, right or wrong,'" wrote the English writer G.K. Chesterton in 1901, "is a thing that no patriot would think of saying except in a desperate case. It is like saying, 'My mother, drunk or sober.'"

I am not a patriot because I believe that this nation is perfect.  To believe it is would require me to ignore the many ways in which it is imperfect.  Rather, I am a patriot because I believe that we have the will and the structure to become better.  The men who conceived, wrote, advocated for, and established the Constitution lived in a gloriously imperfect society.  Slavery was legal and enshrined in that document.  Slaves were counted as three-fifths of a person.  Women had no say in politics and would not gain the vote anywhere in America for nearly a hundred years.  We were a frontier nation, governed in the small instances as much by force as by law.  But they understood that it was necessary to begin somewhere, and they wrote with the understanding that while absolute perfection is impossible in any human society, if we can set up a few fixed stars of a just society, we can navigate toward greater and greater fulfillment of our promise.

For that reason, I have always believed that our best days as a nation lie ahead of us.  We face enormous challenges.  In many ways, there exist two Americas, one for middle- and upper-class white folks, who don't generally have to worry about things like getting arrested, beaten, or murdered by law enforcement officers; and one for poor whites and all minorities, who suffer thousands of wrongs, some slight, some major.  People of color in particular have yet to experience the same kind of freedom that I, as a relatively well-off white man, can easily take for granted.  

For example, I have never had a negative interaction with a police officer.  I've been pulled over a couple of times, once because I was speeding (71 in a 60, for which I received a ticket), and once because my tag was expired (I was on my way to the repair shop to get an inspection, and the officer simply told me to keep going).  When I go somewhere, nobody questions my right to be there.  When I walk in a bank, I can open an account without much fuss, and I can feel confident that my loan application will be judged on the merits rather than on my skin color.

These are things that people of color cannot take for granted, no matter how well off they might be.

We have a serious, abiding, and embarrassing problem, in that law enforcement officers in many jurisdictions can mistreat people of color, up to and including cold-bloodedly murdering them, and 24 out of 25 of the few who are charged escape any conviction at all.  This is not the mark of a society that values "liberty and justice for all."

So, what is the patriot's imperative?  What do those words mean, "one nation indivisible, with liberty and justice for all"?  To what do we pledge allegiance:  Blind acceptance of injustice, or a demand that our nation actually be just?

Because I love my country, I desperately and earnestly want for it to be better.  It cannot get better without protest, without criticism, without Americans standing up against injustice and racism and white supremacism.

When I sing the Anthem, or pledge my allegiance to our beautiful flag, it means that I am, as an American, dedicating my energies and efforts to making this a place worthy of the world's respect.

When Colin Kaepernick knelt respectfully during the playing of the Anthem, he did so not to protest our nation, to seek the violent overthrow of the government, nor to urge that we abandon our high principles. He did so to remind those of us who cared to understand that we have not yet met the standard to which we committed ourselves long ago.  He did so because he loves this country even as he hates some of the things we allow this country to do.

After all, if he didn't care about this country, he could easily go elsewhere.  He is a man of means.  He could settle elsewhere and live out his days in comfort.  He is more a patriot than any of the pretenders who bang away on their keyboards or shout on the neverending parade of political talk shows, condemning him and the many other NFL players who joined his protest on Sunday.

Those pretenders claim to love America, but they hate Americans.

They claim to respect the flag, but many of them glorify the Confederacy.

They claim to love the troops, but they don't care about the damage that endless war causes them--the PTSD, the traumatic brain injuries, the lost limbs, the deaths--and they are more than happy to politicize the military in service of their views.

Most of all, they can't see beyond the narrow range of their own zone of comfort.  They see a black man, wearing an Afro, making politically divisive clothing choices, and refusing to go along with their displays of empty patriotism, and suddenly that black man is "disrespecting the flag and the nation and the troops."  They don't realize—or maybe they do—that by opposing that protest, they are siding with the white supremacists who believe that a proper role of law enforcement is to beat down minorities.

I have known many people who served in the military.  I don't know anyone who joined, fought, or died for the right to force people to stand for the national anthem.  Most of the ones I've spoken to about this issue echo the sentiment expressed by Gen. Michael Hayden, a four-star general and former CIA and NSA director, who in an op-ed yesterday wrote:
As a 39-year military veteran, I think I know something about the flag, the anthem, patriotism, and I think I know why we fight. It’s not to allow the president to divide us by wrapping himself in the national banner. I never imagined myself saying this before Friday, but if now forced to choose in this dispute, put me down with Kaepernick.
The lines here are ever more sharply drawn, and I know which side I'm on.  I'm on the side of the real patriots.  Put me down with Kaepernick, too.

Monday, July 3, 2017

30 days to a new life

Taking a break from politics to mark a personal milestone.

If I were to tell you how much I used to weigh, you would probably be shocked.

If I were to tell you how much I weigh now, which is officially 80 pounds lighter than my highest point, you would also probably be shocked.

It's not information I'm ready to share.  Maybe someday.  But you don't need that information to understand my post today.

I have always been heavy.  There isn't a time I can remember where I wasn't the biggest person in my cohort.  Despite that, I was in relatively good health and decent shape through the middle part of my 30s, when things began to break down.

My life has consisted mostly of long periods of gradual weight gain, punctuated by the occasional drop of 30-50 pounds or more, precipitated by a diet commitment that eventually wears off.  I have been rather consistently disappointed in myself for that reason.  I've never quite been able to get over the hump by transforming a short-term effort to lose weight into a long-term pattern.

Over the years, aside from the obvious issue of weight, I've developed bad knees.  With the intervention of Synvisc (an injection of fluid into my "bad" knee every six months), cortisone, NSAIDs, gabapentin, physical therapy, and ice, I've been able to deal with those knees.  But I have seen my ability to move around diminish significantly.

About 7 or 8 months ago, however, something changed.  I started spending time with the 13-year-old son of a good friend.  Eli and I hit it off sort of immediately.  We have similar interests, like sports and science and politics.  He's really smart, and observant when he wants to be.  He's got an amazing memory—better than mine, and my memory is semi-photographic even though it's not quite what it used to be.  We get along like old friends, even though he's not old enough to be anyone's old friend.

Unlike me, however, he's in tremendous shape, and he likes to move around.  So he would cajole me into playing football with him.  We started by throwing the ball to each other, and that's progressed to more physically demanding play, like running actual plays.  We have a game where he runs a route, catches a pass from me, then turns around and tries to get around me.  The first time we played this game, it was rough:  My task was to tackle him.  We played this without pads, and I nearly fell on him and crushed him.  So we modified it to something more than touch football, but less than tackle—my task is to wrap him up without tackling him.  It works, and it's very strenuous, at least for me.

Suddenly I have had a motivation I've never had before—the motivation to be in shape enough to move to make my "tackles," for bragging rights.  Lately I've been able to get him about 50% of the time.  I'm not sure if he's taking it easy on me or not, and I don't care.  I know that at 41 I have no business being able to keep up with a fit 13-year-old for a couple of hours of football, but I am perfectly willing to try, and to pretend that I can, and if he is pretending, too, I can live with that.

Mostly I value the time we spend together.  But being able to get up off the couch and do these things, whether it's the heat of the day, or raining, or close to dark—that's what enables me to spend time with him.

I don't have kids, of course.  We haven't entirely closed the door on that, but being with Eli has made me realize that there is a part of life that I had been missing.  I'm not his parent and don't pretend to be (except for a couple of times when it was just easier than explaining things), but playing with him has reminded me of when I was his age.  Much of my interaction with my own father was through sports, and I cannot help but think that his commitment to be there for me in that way was one of the most important influences in my life.  If I can pass that on to Eli, that will be a good thing, I think.

*   *   *   *   *

A bit over thirty days ago, I agreed to help Eli train for football this fall.  I'm not sure if he asked outright or just hinted.  For various reasons, he didn't get to play in 7th grade, so I knew he would need a leg up if he wanted to get any playing time as an 8th grader.  On Sunday, June 4, the day before the first Monday of his summer vacation, we played football for a couple of hours in the park and made plans to find a gym to work out in. I wasn't sure of his commitment, so we decided to take advantage of a free 5-day workout at a local health club.

I mark that day, the long day of football, as the first workout of my new regime.  Monday came, and I got us signed up for the free trial.  Eli wanted to learn how to lift weights, so we headed to the free weight area.  We spent a couple of hours there the first day as I showed him the proper form for lifting and began to teach him the principles of building muscle in a balanced, methodical way.  I knew that if he started out by pushing himself, he would get frustrated and probably quit.  He likes science, so I took the scientific approach to our workout, explaining to him how motions plus weight affect the various muscle groups.  I introduced him to the concept of progressive microdamage, through which muscles are repeatedly damaged (slightly) so that the body can repair them and strengthen them in the process. I taught him to listen to his body for pain, soreness, and fatigue, and to respond appropriately.  We have talked about nutrition and the roles that protein, carbohydrate, and water play in an effective bodybuilding regime.  And through all of this I began to remember it for myself.

*   *   *   *   *

That first day, Michelle decided she wanted to train, too, so she and I went a second time.  And we've kept going.  Sometimes it's just Eli and me, sometimes Michelle and me, and sometimes all three of us.  And somewhere along the way I realized that it had become a habit.  I was enjoying myself despite the exercise.  I began to see changes in my body:  I exchanged a good part of my "moobs" for actual pectoral muscles that hadn't been seen since I was a teenager, if at all.  (For a few days, I couldn't do anything but beg people to touch my pecs. It was weird, but I'm not ashamed.)  My biceps grew and puffed out all the way to the crook of my elbow.  My abs became hardened.

For the first time in many tries, I have managed to string together 30 days of consistent workouts.

At first I didn't understand what had changed.  This was by far not the first time I've joined a gym.  I'd been a member of the YMCA in Charlotte; of Planet Fitness in Concord, NC; and of the Jim Dailey Center in Little Rock.  In none of those instances had my commitment to get in shape lasted more than a few days.  Every time I went, I was filled with dread.  I literally hated exercise and would use any excuse not to go.  And now I look forward to going to the gym every day.  How can this be?

It's probably a combination of factors.  Being there to train Eli has helped, but because he gets a hard workout four days a week in football camp, we only train together 2-3 times a week at the gym.  Seeing Michelle enjoy herself on the Nautilus machines or exercising in the pool helps as well, and having her motivate me to get up early to go to the gym has been a major factor, too—in fact, probably more significant than Eli's role.

But the tipping point was something different.  Every time I've joined a gym in the past, I have headed to the treadmill, the elliptical runner, or the stationary bike for cardiovascular exercise.  My theory was that to get in shape, I needed to lose weight.  After all, nobody my size could possibly be an athlete, right?  And cardio is best for weight loss.

And as it turns out, that's just wrong for me.  I hate the mindless activity that cardio represents.  Some people can put on a playlist and lose themselves in the music and put mile after mile behind them.  I just can't do that.  And in the last 30 days, I've spent 10 minutes on a treadmill, none on the elliptical, and maybe 1000 spins on the stationary bike.  I have added pool walking a couple of days a week (I'm up to 1500 yards), which is sort of mindless exercise, but it's tolerable because it's in the water, which I love enough to counteract the drudgery.  (My favorite technique is to imagine myself installing computer software and seeing the progress bar...1/30, 2/30, 3/30, etc.)  If I set a goal for myself in terms of the number of laps or the speed, I can do that.

This time around, most of my exercise--apart from football--has been focused on weightlifting:  bench press, shoulder press, rowing under load, crunches under load, leg press, curls, squats, hip adductor (I can't quite fit in the hip abductor machine, but that's ok).  The variations are endless.  And I can do a light weight and many repetitions, or I can max out, or anything in between.  It's fun, and the results are dramatic.

*   *   *   *   *

No one would call me Adonis.  I don't have a perfect body, or even a good body.  When, on a break during a hot day of football, I take off my shirt in front of him, Eli begs me to put it back on.  Although I don't hear snickers in the locker room, I'm sure there have been side-eye glances from other, more fit guys, wondering what I'm doing in there.

And it's only been 30 days.  Perhaps we should see if this routine sticks more firmly before we rate it 10/10.

But I have confidence that this time it's different.  After all, the hour before a workout isn't filled with dread, or with my inner angel pleading for me to go against the inner devil that tells me to stay in bed. I actually want to go.  And when, at the end of my workout, I've showered and dressed and I'm walking out to my car, and the guy at the front desk wishes me a good day, I'm already thinking about what the next time will be like.

And smiling like never before.

*   *   *   *   *

Am I obsessed?  Maybe.  But it's a positive obsession, I think.

*   *   *   *   *

I'd like to think that I have the heart of a teacher, but most of my qualifications in this sphere come from doing the wrong thing consistently.  If there is a lesson to be learned here, however, I think it's this:  If you are unhappy with your life, you have to change it.  You have to change something about the way you do things.  You can't do the same thing again and again and expect a different result.  I've known that rule for a long time, but it took me far to long to apply it to this situation.

I might yet fail.  I'm in uncharted territory, a stream full of unseen shoals, a place of many perils both visible and invisible.  But I have already gone farther than even I expected, and it has given me confidence that I can keep going for whatever piece of forever I have left.