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.

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.

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.

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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 washingtonpost.com, 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.