The MEWBI; An Investment Vehicle for Congress

Members of Congress are incredibly smart investors. That was sarcasm. What I mean to say is that historically, the portfolios of members of Congress outperform the market by 20%, with senior Republicans outperforming the market by 35%. In early 2020, former senators Kelly Loeffler and David Perdue, among others, were criticized for extremely opportune stock trades not long after a classified briefing on the COVID-19 pandemic. Occasionally a member of Congress gets too blatant and actually gets prosecuted for insider trading.

This is a problem of appearance and outcomes. Congress has low enough popularity without insider trading scandals, and confidence in government is essential to a democracy. More importantly, having members with half an eye on their portfolios is going to nudge the legislative steering wheel in a direction that favors one industry over another, wealth over work, and Wall Street over all.

There has been a proposal out there for a while that simply prohibits members of Congress from owning individual stocks. They would have to invest in broad based mutual funds or index funds. They might have to hand over their investments to a blind trust to be managed secretly for the duration of their time in office.

Fair enough, but not enough. Even if they have their investments in a blind trust, they know that their money is in the stock market and that they will get that money back. They will have an interest in a rising market rather than a rising standard of living for ordinary Americans. About 60% of Americans own no stock at all, and the richest 1% own about 50% of the stock market. In theory, stock value is based on the expectation of future earnings. Many of the ways that corporations achieve higher earnings aren’t beneficial to your average person. That is, they can make more money by paying us less, charging us more, outsourcing, union busting, skirting health and safety regulations, and polluting the environment.

What we need is an investment vehicle for members of Congress that aligns their financial interests with the financial interests of the average American. To that end, I have come up with an index called the MEWBI, or Median Economic Well Being Index.

To start with, it’s based on the U.S. median wage. Note: median, not average. This avoids the “Bill Gates walks into a bar” effect. (When Bill walks into a bar, on average everyone in there is now a millionaire.) Median wage is the annual income halfway between the highest and lowest wage earners in the country. In 2019 the U.S. median household income was $68,703, according to the Census Bureau.

However, median wage isn’t enough. If median wage goes up but the cost of living goes up more, life hasn’t improved. What I’d like to get at is discretionary income. That is, the money people have left over after they pay for housing, food, healthcare, basic transportation, and other necessary expenses. There is a useful number for this called living wage or livable wage. That is a calculated number that estimates the most basic living expenses depending on where people live. It’s calculated on the county level for each state and for various situations: single, single parent with one to three children, couple with one or both parents working and one to three children. (To find the living wage for your area, click HERE.)

I don’t want a separate index for every county and situation in the U.S., so I need to simplify. The Census Bureau finds that the average household size in the U.S. right now is 3.23 people. I’ve looked around at livable wage for various places and noted that the wage for one parent with two children is close to that of two parents with one child, and both those numbers are close to a chart of state livable wage averages. In between Kentucky at $43,000 and Hawaii at $61,000 I find an average for all 50 states of $50,460.

Subtract $50,460 from $68,703 and I get a rough and ready $18,243 in discretionary income. An important note: livable wage is bare bones. Food, shelter, healthcare, plus soap and toothpaste is about it. A lot of what we would consider moderately necessary is not included. Still, it’s supposed to be a directional indicator, not a perfect snapshot. Knock off the dollar sign and it’s just 18,243.

This is still not good enough. There’s the question of inequality. A particular median wage doesn’t tell us about the balance of billionaires to unemployed homeless people. How can we tell that? There’s what is called the Gini coefficient or Gini index. It’s a number between zero and one. A nation with everyone earning the exact same income would have a Gini of zero. A nation with one multibillionaire and everyone else earning nothing has a Gini of one. The U.S. has a Gini Index of 0.48. A lower Gini index is a sign of more equality and by inference a more solid middle class. Since lower is better in this case, I’m using 1 minus the Gini to invert it, giving the U.S. an inverse Gini of 0.52.

Multiply 18,243 by the inverse Gini and we have 9486.36.

What about unemployment and underemployment? There are two numbers I’ll use for that. One is the labor force participation number, the percentage of people of working age who have jobs. It’s around 61.5% lately. The other is the so-called U-6 unemployment rate. In the news you generally see the U-3 rate, but that doesn’t account for people who have given up and aren’t filing for unemployment anymore. It also fails to account for people who want to work full time but are only working part time. The U-6 covers these people. Because lower unemployment is better, I’ll invert that as well. The U-6 is at 11.7% as I write this, so the inverted U-6 is 82.3%. Multiply those two factors in and we get a MEWBI of 4,801.47.

So, what do we do with this number? We use it as the basis of a long term investment vehicle.

Any investment requires a counter party. When you buy a bond, the counter party is the institution that is willing to pay you interest on your money; a city, state, or national government, or a business. When you buy a share of stock, there has to be someone willing to sell. That means someone who believes that there is a better place for their money than that stock. It’s a vote of no confidence. So where do we find a counter party who is willing to invest in the future increased poverty of average Americans?

I consulted with my friend The Broker.

(He must remain anonymous because of his work, but he is an experienced investment advisor specializing in ethical/sustainable investment. You can imagine him as a Batman villain; a middle aged man in a charcoal gray pinstripe suit covered in little green dollar signs, wearing a dollar-green burglar’s mask. “Well, Robin, the only clue is a stock certificate from a defunct Canadian mining company.” “Holy margin call, Batman! It’s The Broker!” But I digress.)

He made a counterintuitive but ingenious suggestion. The structure would be a bond with a variable return depending upon the performance of the MEWBI. The counterparty would be the U.S. Treasury Department. But wait, you say, isn’t the Treasury Department interested in general prosperity? Yes, exactly, but remember that we are only talking about 538 elected officials; The House, the Senate, the President, and the Vice President. The total net worth of the House and Senate together is about $8 billion. A few percentage points of return on that would be a rounding error for the Treasury. In fact, if Congress manages to dramatically improve the lot of lower and middle class Americans, then that percentage will be swamped by added tax receipts.

Here’s how it would work. As soon as a candidate is elected, that congress member-elect must transfer all assets into the MEWBI fund at the Treasury. This should be done tax-free to avoid penalizing them for a forced sale. The MEWBI funds would pay an inflation adjusted interest rate that would be added to or subtracted from depending on the performance of the MEWBI. Essentially, it would be a five year treasury note with a bonus, or a penalty.

The money would stay in the MEWBI fund for the duration of their service. When they retire or get voted out, the assets would reverse vest. That is, on departure they get 50% of their MEWBI assets back to invest how they please. After five years they get another 50% of what’s left, and so on. The reverse vesting is to prevent them from jumping immediately from Congress into corporate lobbying or serving on the board of some malevolent business or think tank. Their alignment of interests with the ordinary American will have a long tail.

Some might say, “But won’t this discourage people with a lot of wealth from serving in government?” Wow, why didn’t I think of that? If your main focus in life is making piles of money through stock investments, public service is not for you.

This would be a tough sell to Congress. About half are millionaires. The fifty wealthiest of them each have a net worth from the tens to hundreds of millions of dollars. It would take a huge, concerted effort to pressure them into relinquishing their suspiciously high returns. Like campaign finance reform, it would have a high return on investment for the median (not average) American.

A Double Barreled Counter-Reformation

I’d like to dedicate this post to the late, beloved, Katherine Smith. Kay and her husband Dutton were like family to me, as her extended family are still. Kay was a constant reader of this blog and quite often emailed me about my writing, offering comments and encouragement. When you die, if you find yourself in an afterlife and Kay isn’t there, you are not in heaven.

 First, I’d like you to imagine yourself as an average peasant in Western Europe in 1516, the year before Martin Luther nailed his 95 theses on the door of Wittenberg Cathedral. The Protestant Reformation is not yet even an idea. There is no “Catholic Church.” There is just “The Church.” It permeates personal, family, economic, and political life. For someone living in Koln, or Naples or Lyon in 1516 there is nothing else. Sure, there are a few Jews about, and you’ve heard, perhaps, of Muslims and Hindus, but these are oddities. Tuck this idea away for later; there was a time when, for the people of Western Europe, there was only one spiritual option, and no concept of any other.

Then, after 1517, there were other versions of Christianity. Lutheranism, of course, and Calvinism. John Knox took Luther’s ideas to Scotland and founded the Presbyterian Church. Suddenly, there were options. The Catholic Church did not tolerate this loss of power and preeminence.

The century between the mid-1500s and mid-1600s is the era of what is now known as the Counter Reformation. It was fought on an array of battle fronts:  political, legal, military, theological, and organizational. The Vatican engaged in diplomacy, cracked down on dissent, and fomented wars. It also formed new organizations, such as the Jesuits, set scholars to work clarifying its theology, and actually engaged in some internal reforms. I won’t dig too deeply into this, since the Counter Reformation has filled a stack of books. It is enough to say that it got brutally violent, with torture and executions, and was finally ended by a vicious war, now known as the Thirty Years War. The terrorism and starvation partially depopulated northern Germany by its end in 1648. Catholicism didn’t yield power quietly, and the aftershocks of that fight persist to this day.

Now imagine yourself as a heterosexual Christian white man in 1947. Perhaps you are working in a unionized factory job or farming. Perhaps you are going to college on the GI Bill, preparing yourself for the white collar world. Whatever your path, your place is analogous to the peasant of 1516, in terms of your demographic identity. Desegregation is in the future. The heyday of the civil rights movement hasn’t arrived. Women’s rights aren’t a thing. Likewise LGBT rights, or even their existence. Secularism is a fringe idea, and psychotherapy is for rich kooks. Like a fish not understanding water, your preeminence in American society isn’t something you even consider. It’s just the way things are.

Nothing big ever happens for just one reason, but I’ll blame our present situation on the beginning and the end of democracy. To be more nuanced, I’ll say the beginning of the beginning of democracy and the beginning of the end. The dates I’m thinking of are not 1776 or 1787 to start and 2016 or a future date to end. I’m thinking of 1965 and 1976. I’ll start with the beginning of the beginning.

From 1787 to 1920 half the population, that is, women, could not vote. A country where half of its citizens are disenfranchised can’t really call itself a democracy. Until 1965, members of racial minorities were not guaranteed the right to vote. Even after 1965 it was only a right on paper in many places. Voting is not the entirety of democratic rights, but it is foundational, and it was missing before then. Functionally I’d combine the Voting Rights Act of 1965 with the Civil Rights Act of 1964 as the laws that finally allowed all Americans political participation. (At least on paper)

This was, as we know, not universally popular. Put it in the context of a cascade of social revolutions in the United States. None of these revolutions is complete, but they have each become mainstream in their goals and in public understanding. The civil rights revolution gained traction in the 1950s and 1960s. Its successes were a catalyst. Women’s rights became prominent in the 1970s. LGBTQ rights (originally primarily focused on gay men) gained prominence in the 80s and 90s, with a milestone of marriage equality in 2015. In the first years of the 21^st century secular rights, or more generally the rights of non-Christians started getting serious attention. As noted, none of these revolutions is complete, but they all have much more strength and prominence than they did decades ago. Again, this is not universally popular. Layered on top of all of these was what I call the psychological revolution. Americans became more and more comfortable with the idea that people could seek help to analyze their emotional problems and change their behaviors and beliefs, rather than just copying the mistakes of their parents. This has been a huge threat to traditional authority.

I don’t think it is a coincidence that a set of novels from the 1990s popular among Christian conservatives was called the “Left Behind” series. The books chronicle the trials of a group of Christians left behind on earth during the biblical Armageddon. For a straight, white, Christian conservative in the United States it must feel that way these days. All their assumptions of innate righteousness and superiority are being denied. The fact that they are supposed to even think about these subjects in an analytical way seems an insult.

For a large number of white Americans, the Civil Rights Act was a chastisement. It said, “What you learned from your parents and your society was morally wrong. The way you have acted your entire life has been wrong. Many things you believe now, institutions you value, and your instinctive habits of social interaction are morally wrong.” This was true. Still, nobody likes to be told even a fraction of that. Only fictional characters such as Dr. Evil from the Austin Powers movies, or Shakespeare’s Richard the Third actually decide to be evil. Real people, even racists and authoritarians, think that what they do is right and that they are moral actors.

Add up the cascade of revolutions, right and necessary though they were, and you get two things in this demographic; intense resentment and existential anxiety. It is because of this that the Democratic Party hasn’t won a majority of the white vote since 1964.

We are living during a period of counter-reformation. It’s a double barreled counter-reformation. I’m focusing on the social aspect of it, but there is also an economic side. Wealthy people and corporations have been pushing back on limits to their power since the Sherman Anti-Trust Act of 1890. The robber barons of the 1890s hated the reforms of their era as much as the next generation hated the reforms of the New Deal and the rise of unionization. Their children despised the high income tax rates of the 1950s and the clean air and water laws of the 1970s. The reason this matters is that the wealthy have used the discontent of conservative Christian racists to their own ends from the Civil Rights era onward. The resentment against government action to protect marginalized groups was ginned up into a generalized resentment against government regulation, holding back or rolling back restraints on wealth and corporate power.

And then we elected a black president. He was charismatic, intelligent, educated, charming, and a talented orator. Heads exploded all over the country. The birther movement came out of the utter incompatibility of the white supremacist worldview with such a man at the top of the world’s social and political pyramid. I personally can’t comprehend the nuclear level of cognitive dissonance that this event must have created.

Two ordinary politicians failed to defeat him. He was followed by his Secretary of State, a woman who had committed the crime of being unapologetically intelligent, experienced, opinionated, ambitious, and not conservative.

Enter the demagogue.

Eric Hoffer, a social philosopher, wrote The True Believer, published in 1951. It was his explanation of how mass movements arise and how demagogues incite their followers to mass violence. He was writing in response to the rise of Hitler, but devised a general theory.

The short version (historians forgive me) goes like this: A group of people feel that they are losing power, status, and economic success. Often these are the “New Poor,” once thriving but recently down on their luck. They feel as if the center of power has shifted away from them. A demagogue tells them that this is not just the way of the world and the path of history. No, they *deserve* to have power, status, and prosperity. That power has been stolen from them by deceptive and criminal means. A well-defined other group is responsible. This other group can be defined by race, politics, religion, nationality, or some combination thereof. The demagogue tells the aggrieved group that it is their destiny to achieve the greatness of their past by defeating the scapegoated group.

The techniques of this movement start with insults and propaganda and work their way up through boycotts and demonstrations to discriminatory laws.  Then comes stochastic violence followed by planned violence. An important point is that it doesn’t start with atrocities. It begins with scapegoating, stigmatizing, and dehumanizing the targeted group(s); political speech. The true believers incrementally escalate their behavior. By the time they reach planned violence, there is no going back. To go back is to admit that they are bad people who have done reprehensible things. To go back is to risk ostracism and violence.

I see the U.S. as being in the beginning of the stochastic violence stage. I’m not saying there hasn’t been state sponsored violence all along. I’m limiting myself to the path of the general public over last few decades.

Earlier, I mentioned the beginning of the beginning of democracy and the beginning of the end, in 1976. I place the beginning of the end in 1976, because that was the year of the Supreme Court case Buckley v. Valeo. The case was about campaign finance laws, and the Supreme Court struck down certain restrictions on campaign spending, notably limits on total expenditures by candidates and outside groups, and narrowed the scope of donor disclosures. It wasn’t the end of the world, but the beginning of ever larger inputs of money into American politics. Incrementally more money went into politics, exploding after 2010, when Citizens United v. Federal Election Commission struck down restrictions on corporations spending money to advocate for or against candidates. That was followed in 2014 by McCutcheon v. FEC, which struck down aggregate limits on individual political contributions. From 1976 on, cash has been king.

I’ve written about it before, but a summary of the USPIRG study, “The Wealth Primary,” is in order. USPIRG investigated the relationship between campaign fundraising and victory. They found that:

The candidate who spends the most money wins, 92% of the time.

High spending candidates outspend 2^nd place candidates by an average of 3:1.

80% of the high spender’s money is donated by multi-millionaires and billionaires.

Being the high spender doesn’t absolutely guarantee a win, but not raising enough money guarantees a loss. Equally important, having opinions that offend rich people dramatically reduces a candidate’s chances. This has played out in legislation. Some researchers polled wealthy people and ordinary people on their policy opinions. Then they compared that to the fate of bills in Congress. They found that the positive opinion of wealthy people almost guaranteed passage and the negative opinion of the rich killed bills. The opinions of ordinary people had no effect.

What does campaign finance have to do with racial counter-reformation? The tsunami of cash hobbled the Democratic Party. Democratic candidates who might have appealed to the economic self-interest of racially disgruntled white people were incrementally replaced by apologists for wealth and corporate dominance. We saw the rise of the corporate Democrat, the Wall Street Democrat, the Third Way triangulating Democrat. The Republican Party had been corporate and wealthy for most of the 20^th century, but they hid that behind the shields of anti-communism, religiosity, and racism.

The Democratic Party could have offered more than lip service to working class and middle class Americans, but most of the politicians who would have done that couldn’t make it through the money filter. Sure, we get an AOC or Bernie in hyper-blue districts, but the majority have been carefully selected for their dilute corporate liberalism. Economically indifferent, corporate friendly social policies like marriage equality get through. A decent minimum wage and fair labor laws have no chance. Given the choice between that and policies catering to racism and bigotry, voters either go Republican or go home. We saw this in 2016. The split was 25% Trump, 25.3% Clinton, and almost 50% either staying home or voting for no-hope third party candidates. A candidate getting a slim majority of the disillusioned would have beaten both mainstream candidates.

I don’t have a glib solution to these problems. The money filter has a ratcheting effect on incumbents. None would want to reduce the role of campaign cash because that’s how they succeeded, and to do so would be to admit their true masters. The racial/religious Counter Reformation is a generational battle. We just have to see it with clear eyes and fight it out politically.

Part of seeing it with clear eyes is to see it through the eyes of the reactionaries. To them it is a fight for survival. Normal rules don’t apply. They will lie, cheat, even kill for their cause. Part of seeing it through clear eyes is realizing that facts mean little and emotion means everything. I recommend George Lakoff’s book “Don’t Think of an Elephant” for lessons on the successful emotional framing of political subjects. That framing is for the disengaged middle third of American politics. The reactionaries won’t be convinced. We can’t change them; we can only outlast them.

Here’s the most important tool, expressed as a fantasy. Imagine if I could pick up a bottle on the beach and release the Law Genie. The Law Genie would grant me one law, passed in the House and the Senate, signed by the president and approved by the Supreme Court. It would be this: Limit political contributions to a day’s wages at the federal minimum wage. Right now that’s $58. It would apply to candidates, parties, PACs, 501C this and 401C that. Anything to do with electing lawmakers or making laws. Political entities could raise as much money as they want, but would have to do it $58 at a time. Bill Gates and the guy who mows Bill’s lawn would have the same political clout. Exxon Mobil and a gas station attendant would be equal. Likewise multi-billionaire Jeff Bezos and an Amazon warehouse worker.

Until this or something very close to this happens, wealth will govern America. Take your favorite political cause – fighting climate change, ending police violence, livable wage, healthcare reform, education reform, whatever – write it on a piece of paper, crumple it until it is soft, and wipe your ass with it. Forget about it. You aren’t going to get it in a plutocracy. The people who make laws were carefully selected for their wealth-friendly beliefs. Focus on the single point of attachment that allows the wealthy and big business to steer our country – campaign cash. The wealthy will decide who wins primaries until we level the playing field. It will be the fight of the century.

A Death, a Life, and Justice

My father, Hilton H. Dier Jr., died on April 27. He was 93 years old. He had suffered a severe stroke three days before. Except for those who knew him and loved him, it was unremarkable; one old man among thousands.

The poignant fact that ties him to the present crisis was that from the time he was put in the ambulance to the moment of his death he was separated from his loved ones. The necessary restrictions of the pandemic prevented us from being at his bedside. We had to wait for his COVID19 test to come back before we could visit. I was notified of the negative test on that Monday and was driving to the hospital when I got the call. I sat in my car for a few minutes, in the parking lot of a town garage, and then drove the last half hour.

That’s the double cruelty of our time. People die alone. People grieve alone.

That was his death. What of his life? You can read his obituary here.

Of course, it is the tiniest sliver of the real man. I can’t give you the years I spent in his company. I can tell you that he was generous, but that word doesn’t capture the instinctive quickness of his giving or the unconditional nature of it, or the thousands of particular instances. I can tell you that he was full of stories, but I lack the time, the talent, and the space to give you an account of them. He was made for the term raconteur. He also delighted in delivering outrageously improbable statements to my friends, with a poker face of cast iron. My mother would tell them, “You have to remember not to believe a single word that comes out of his mouth.” He was, of course, honest in all things non-satirical.

He was happiest among guests. He was in his element when cooking, and serving food and drink to his friends. He loved the hubbub of voices. He was renowned for this hospitality from his college days. Even when he could barely walk he would automatically ask me “Can I get you anything?”

But how to get at the core of the man? His career was in law. Really, his career was in justice. A childhood friend of his told me that he was the kid who talked people out of fighting each other. As a teenager during WW2 he stood up against bullies who went after his Japanese-American friend Eddie. He stood up for himself in the Army against a lieutenant who decided to harass him. (essentially, “Court martial me or get off my ass…sir.”) In his work in civil court he saw his task as helping people to resolve conflicts, not in terms of winning and losing. As to his fairness in criminal court, I can say that he sent a number of people to prison multiple times, but none ever held a grudge against him. He was on a first name basis with some of them, if his first name could be construed as “Your Honor.” (“What was it this time, Bucky?” “Well your honor, it was like this….”)

I was talking with him once about the power of judges, and I can’t quote him exactly, but he said something like this: A judge has immense authority. A judge can put you in prison, and that’s a terrible place. A judge can take away your money, your house, or your business. A judge can even decide whether you can have your own children. That’s why, when someone stands in front of me in the courtroom, it doesn’t matter how they are dressed. Their religion doesn’t matter. Their income doesn’t matter, or their politics. It doesn’t matter if I like them or they like me. I have to rely on fact and law, law and fact.

And there we have an approach to a theory of justice, a corollary to John Rawls’ theory of the “person in the original position.” That is, what rules would you write for the world if you were about to be born, and didn’t know who you would be? Critics noted that none of us can really put ourselves in that state of mind. Nevertheless, we can aspire to it. This brings me to an essay I wrote as a gift to my father. I think it holds up.

What is Justice?

For my father on his 75th birthday, February 16, 2002

First, what is not justice?  Justice is not revenge, or emotional satisfaction for the victim of a crime.  Justice is not a symbolic equality between a crime and its punishment.  Justice is not the imposition of harsh penalties as a deterrent to potential wrongdoers.  Justice is more than the mere administration of law.  Laws are, by necessity, generalities.  No set of words, however long, could cover the particulars of every human situation.  The literal application of law will rarely result in anything recognizable as justice.

Behind every law is an intent, the so-called spirit of the law.  It is only partly available to us through the whereas’s and definitions that sometimes precede the body of legal text.  Some of the meaning of a law’s intent comes from the context of all the other laws that surround it.  Societal laws, like scientific ones, come in bundles.  Some comes from the history of how the law has been interpreted in the past.  Some of a law’s intent comes from the beliefs and customs of the society in which it exists.  A law has no meaning by itself, in the abstract.

So, justice could be defined as the administration of law in such a way that it fulfills the spirit of the law.  This is achieved by interpreting the law in light of its own text, the body of law that surrounds it, case histories, and social norms.

So far, this sounds like an academic exercise, and yet the most important elements are not yet in the definition.

Justice requires impartiality.  The most learned legal practitioner with the most encyclopedic memory for case law and an anthropologist’s understanding of culture cannot dispense justice while harboring prejudice.  A judge must leave on the steps of the courthouse all social prejudice, political belief, religious fervor, and even distaste for a particular style of clothing.  This is an impossible task, so a judge may be judged by how hard he or she strives for that ideal, and how comparatively small a factor it becomes.  Even the appearance of prejudice must be shunned, since the provision of justice requires the cooperation, and therefore the respect, of the populace.

Justice requires humanity.  A judge must have a real compassion for those who enter the courtroom, and an equally clear-eyed understanding of the age-old weaknesses of our species.  Self-righteousness, even in cases of the most despicable actions, is both unbecoming and crippling to a judge.  The spirit of the law can only be served by one who, paradoxically enough, refrains from judging people because of their stupidities, their petty vices, their obstinate ignorance, or their intolerance.

So, an academic exercise has become a mushier proposition.  Impartiality is an ideal, but at least it is rational in aspect.  Humanity is a subjective concept.  How, then, do we get a grip on the concept of justice?

Kurt Schwitters was a member of the Dadaist artistic movement of the early 20th century.  Once, when asked, “What is art?” he responded “Art is what an artist spits.”  His point was that art is too various to be defined by rules about the works themselves.  It is the knowledge, skill, and ultimately, the intent of the artist that defines art.  A case can be made for the same type of definition for justice.

All the written law in the world cannot provide justice.  The cold calculations of a computer cannot provide justice.  Justice cannot come from those who lack human understanding or harbor prejudice, however deep their legal understanding.  Our legal system relies upon the just person; learned in law and history, cognizant of our culture, impartial and humane.  These qualities are rare enough individually, and the individual who possesses and exercises all these faculties should be recognized for both rarity and value.  Justice, that mediates between us, protects us from the power of the state, and restrains us in our less enlightened moments, resides in the souls and intellects of a select few.

Justice is what a just person practices. 

The Mueller Report; Reading Between the Redactions

My understanding sister bought me a paperback copy of the redacted Mueller Report, and I have been poking through it. I’m interested in the substance of it, but I am fascinated by what is missing – the redacted material. I have been playing a game of inference and educated guessing.

There are four types of redactions in the text. One is Personal Privacy. Some people mentioned incidentally in the report are not implicated in any wrongdoing and aren’t really what would be called public persons. Their names are redacted to keep them out of the press. A second is Grand Jury. Proceedings of a grand jury are confidential. The third, and most interesting to me, is Harm to an Ongoing Matter (HOM). This means that an ongoing investigation would be compromised by the release of the information. There are 14 ongoing investigations around the subjects of Russian interference in the 2016 election and obstruction of justice by Trump and his associates. We know about two of them. The fourth, also interesting, is Investigative Technique. The redacted material would reveal some aspect of tradecraft or a source that U.S. law enforcement or intelligence services would rather keep to themselves.

I suppose I should say something about the substance of the report.  Volume 1: The Russians totally hosed us in 2016. They snookered political activists all over the spectrum. They hacked political parties, individuals, and election systems. Internet Research Agency in St Petersburg Russia (IRA) used U.S. based servers to mimick both US conservative groups and groups adversarial to conservatives (Black Lives Matter clones, social justice, LGBTQ, Muslim) Thousands of fake Twitter and Facebook accounts had hundreds of thousands of followers and reached upwards of 129 million U.S. citizens. They were brazen.

The IRA operatives would promote a pro-Trump rally in a U.S. city, get people interested, and then say they had some problem that prevented them from personally dealing with the event. A sucker in the U.S. would volunteer and the rally would happen, with IRA operatives promoting the event, soliciting event photos, obtaining materials from the Trump campaign, and flooding social media with the photos and positive stories afterward.

One event that tells the story is a birthday greeting. On Page19: “In May 2016, IRA employees, claiming to be U.S. social activists and administrators of Facebook groups, recruited U.S. persons to hold signs (including one in front of the White House) that read “Happy 55^th Birthday Dear Boss,” as an homage to Prigozhin (whose 55^th birthday was on June 1, 2016).” That’s Yevgeniy Prigozhin, the financier of the IRA. Consider it an end zone display, a victory lap.

Volume 2: Trump obstructed justice like Heinz products – 57 Varieties.

In order to establish the crime of obstruction of justice, three standards must be met. First, an obstructive act, such as destroying a document or influencing a witness. Second, a nexus to an official proceeding. The act must be connected in a material way to an investigation or prosecution. Third, the person in question must have intent to obstruct. Accidental obstruction doesn’t count. This is the tough part because, aside from a recording of the accused saying “I’m trying to obstruct this investigation,” it’s a matter of indications, circumstances, and reasonable inference.

The Mueller Report lays out the obstructive act, the nexus, and the evidence of intent, over and over and over and over. It starts with Trump’s reaction to reports of Russian interference, goes through his pressure on and firing of James Comey, his attempts at interference with the Mueller investigation, his dealings with Attorney General Sessions, his conduct towards Flynn, Manafort and (I infer) Roger Stone, and his attempts to cover up all the aforementioned behavior.

Forgive my language, but Trump obstructed the living fuck out of everything. At the end of Volume Two the report does some amazing linguistic tap dancing around the fact that Trump is guilty as hell. Essentially, “If he wasn’t president and immune to indictment by our internal rules we would have already cuffed and stuffed him, but we didn’t actually just say that out loud, we inferred it, so Congress should get on this, but we didn’t say that either.”

On to the redactions.

In the Executive Summary, P4, “Prigozhin is widely reported to have ties to Russian President Vladimir Putin. [HOM]”

“In Mid 2014, the IRA sent employees to the US on an intelligence gathering mission with instructions [HOM]”

P5, “Beginning in June 2016, [HOM] forecast to senior Campaign officials that Wikileaks would release information damaging to candidate Clinton.” I believe this person to be Roger Stone, which is kind of an open secret, and I partly infer this from a clumsy redaction in Volume 2.

There is much redaction around IRA activities.

There are many HOM redactions around Wikileaks and GRU (Russian military intelligence) cyber units 26165 and 74455. Those units were responsible for hacking, spearphishing, and delivering malware to compromise U.S. computer networks.

I’d say there is still at least a counterintelligence investigation going on about the IRA, and perhaps indictments in the works. Wikileaks and Julian Assange are in the crosshairs as well.

There is a fascinating possible reveal on P31: “IRA employees frequently used [Investigative Technique] Twitter, Facebook, and Instagram to contact and recruit U.S. persons who followed the group.”

If we play in inverse version of the old Sesame Street game “One of these things is not like the other” we get insight into a security failure.  Twitter, Facebook, and Instagram are the most popular online public communications platforms. But of course, they are public. It would not reveal an investigative technique to say that the FBI or another intelligence agency used them to gather information. However, consider the phrase “contact and recruit”. Twitter, Facebook, and Instagram, being public, are better for recruiting than contacting. If such a thing is redacted, it must be a private messaging app or program. What is the most popular online/mobile application for contacting people that 1) is supposed to be private, and 2) fits in the popularity set with Twitter, Facebook, and Instagram?

My first guess would be the secure messaging application Whatsapp. It is the most popular encrypted messaging app, and an obvious choice for a Russian operative wanting a commonly used, private, and yet non-suspicious way to contact U.S. citizens. There is also the possibility that the spooks are breaking into Facebook Messenger, the other messaging app that breaks the one billion user mark. Messenger also has the advantage of being integrated with IRA’s favorite propaganda platform. Twitter direct messaging is the next most widespread among U.S. users, at about 330 million. iMessage is ubiquitous on iPhones, of course.

Could it be that U.S. intelligence services have found a back door into Whatsapp or a similar (supposedly) secure messaging application? This is not an investigative technique that they would want to reveal.

In Volume 2 (Obstruction) Section II, J, there is a redaction about “The President’s Conduct Towards Flynn, Manafort, [HOM]. On P 128 of Volume 2 a clumsy redaction reveals that Roger Stone is the third stooge in Section J after Flynn and Manafort. Footnote 888 refers to a CNN story by Murray and Watkins on 11/26/2018 titled “[HOM] says he won’t agree to a plea deal.” A quick search online found the article with the words “Roger Stone associate” in place of the redaction. Not a huge surprise. The next couple of pages are almost completely redacted. Stone is in the crosshairs. But we knew that.

There are a number of HOM redactions around mentions of the June 9 meeting between Donald Trump Jr. and the Russian lawyer Veselnitskaya. Seems as if young Don is still not in the clear.

There’s an interesting fore and aft bracketing in Appendix B, the glossary of terms. The first part is a listing of all the individuals mentioned in the report. Several are redacted with [HOM]. One name comes right after “Mnuchin, Steven” and right before “Muller-Maguhn, Andrew.” So, a name beginning with M and having the second letter N, O, P, Q, R, S, T, or U. Considering that the third letter in Mnuchin is U, if the second is N that limits the third letter in [HOM] to U, V, W, X, Y, or Z. Another Mnuchin? Mny__? More likely Mo__ or Mu__. If Mu__, then the third letter is from the first half of the alphabet.

Roger Stone’s listing has a [HOM] redaction in it.

There’s another [HOM] between Katsyv, Peter and Kaveladze, Irakli. That leaves us Kat__, Kau__, and Kav__. Hmmm.

That’s all I’ve got for now. I’ll keep looking for interesting redactions until it all leaks out anyway.

Men in Robes

 Or, “Exactly what were you expecting?”

The Catholic Church is self-destructing nicely, thank you. The Pope and his partners in clerical clumsiness are flailing about as the charges pile up. More and more nations and U.S. states are initiating investigations into church malfeasance on the issue of sexual abuse. It turns out that an alarming percentage of the priesthood has been either sexually assaulting children or covering up for those pedophiles.

To which I say, “Exactly what were you expecting?” The Catholic Church has celibate clergy, a priest shortage that makes each robed individual vital, a history of insularity, second class status for women, and a doctrine of papal infallibility that sheds its aura on every priest. The thing that both emerges from these factors and binds them together is the idea that the robe never really comes off. The priest is anointed, special, separate, and above. A priest has personal authority and an embodied sanctity. A brief review of history will remind us that human beings generally don’t behave well when handed this kind of social power.

This was driven home to me again when I read about the head of the Shambhala organization, a Tibetan Buddhist group with 165 centers around the world. Sakyong Mipham Rinpoche has stepped away from his leadership position after a number of allegations surfaced about his sexual misbehavior. These ranged from infidelity to rape.

Sakyong, by the way, is a word akin to “king.” Mipham inherited the leadership of the group from his father, Chogyam Trungpa Rinpoche, who founded the organization. Mipham’s photograph is still displayed in a place of honor in the various centers. (A friend familiar with Shambhala’s history opined that Chogyam “would have been MeTooed if it had been around back then.”)

When I first visited a Shambhala center, Karme Choling in Barnet Vermont, I was intrigued by two doors on the front of the main building. One was a normal exterior door. About 20 feet to the right of it was a highly decorated door. It had bright paint and complicated trim work. There was a note on it. The note said that the fancy door was only for the use of the Sakyong. (I was telling a friend of mine about this recently and we both simultaneously exclaimed, “Fuck THAT!”) So here was a beautiful, perfectly good door left unused 99.99999% of the time, waiting for the appearance of the king.

Exactly what were they expecting? It is completely unsurprising to me that he was a sexual predator. I look at the door as a symbol from two angles. One, what would deference like this do to someone’s personality? Two, what psychologically normal man would accept the idea of his own personal fancy door? If I was leading some organization and people offered me my own personal door that is never used in my absence I’d find it preposterous and embarrassing. Most people would.

Beyond these examples, what I see is that the more charismatic the preacher, the more that the church gains its identity from an individual, the greater the incidence of crime, both sexual and financial. The evangelical movement and the mega-churches with their mega-pastors have been in the news as well.

I am so sick of men in robes. Put a robe and a funny hat on a guy and people line up to bow down. The stories I have heard about priests, pastors, masters, gurus, senseis, and shamans abusing their power have filled me with a natural suspicion of men in robes.

Now we are watching the spectacle of Judge Brett Kavanaugh’s Supreme Court hearings. He was a clerk for Judge Alex Kozinski, who resigned after allegations surfaced that he had spent his career sexually harassing female employees. Judge Kozinski served on the federal bench in the 9^th Circuit and was a reliable conduit for clerkships with the Supreme Court. His approval could mean a huge boost to a young lawyer’s career. His personal approval. Kavanaugh himself has acted as a “feeder” of clerks to the recently retired Supreme Court Justice Anthony Kennedy. A couple of Yale professors were known to have advised female law school grads that Kavanaugh preferred a particular “model” look.

In contrast to the gurus, there is my own father. He was a judge for a couple of decades. He spent his workday wearing a robe. While he wore it, people were deferential. They stood up when he entered the courtroom and spoke to him in respectful tones. Here’s the important part, though; at the end of the day he took the robe off, hung it in a closet, and returned to being a regular guy. He was a husband, a father, a friend, just like all the other men in the neighborhood.

His power at work was significant. He changed the course of people’s lives. Even so, he worked within a body of laws. These laws were not in his power to change. The ordinary people within his jurisdiction, through their legislators, had the power to change the rules that guided and restrained his actions. For that matter, a clerkship with him was not the golden ticket to success. His power did not reside within him, personally, and that’s the key.

We hate bureaucracy. We like it when people can cut through the complexity and get things done. Mostly we don’t understand the law. Still, it’s the price we pay for a (moderately) just and (moderately) stable society. A mafia boss would be really convenient to have around, if he’s on your side. Likewise a dictator or any strongman. But, being such, they tend to be on their own side. Complex, pain in the ass laws and agonizingly slow bureaucratic processes stand between us and tyranny.

It is human nature to exalt a spiritual leader. It’s basic psychology. It is necessary and proper, therefore, to build accountability into any religion. Religious leaders need to be accountable to public rules and public scrutiny, and those rules need to be established and changed by the laity. What’s more, humility needs to be built in. Religious leaders should use the ordinary door, sit at the same table, and get in line with everyone else. Otherwise, what exactly do you expect?

(Note to readers: I always like these essays to be spread around. Right click on the title of the post, hit "Copy link location" and paste the link into a Facebook post or a tweet or whatever. I'll be most grateful)