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)

It Talks

Your favorite Minor Heretic is not a joiner. I am not someone who enjoys political organizing, meetings, phone banking, or any of that. I went to a couple of Indivisible meetings in my area and left wanting to sniff glue. Nothing against the fine people who organized them; I just don’t have enough patience.

Still, I felt as if I had to do something. I’d feel like an idiot sitting on the sidelines while the majority in U.S. House (and, perhaps, the Senate) was being decided. Especially if it went the wrong way.

Thankfully and unfortunately, the answer is simple: Money. It talks. It makes the world go round. It’s what I want. Get back, keep your hands off of my stack. And so on.

The question is, where to give? I figured that directly to candidates is the most efficient way. But which candidates? Some districts are 100% solid Republican or 100% Democratic. It’s kind of pointless to donate to those.

I looked around online and found some candidates who are 1) decent Democrats, and 2) in races where the predicted margin is tight; 47% to 53% or similar. These are races where a few bucks could make a real difference.

If you want to do the deep dive you can go to 538.com and see what Nate Silver’s crew have calculated. Here are the 25 races they think are most likely to tip the House Democratic. A surprising number of House and Senate races are 99-1 for one party or the other.

From a variety of sources I came up with the following list. I include the candidate websites so that you can check them against your own moral compass and donate directly if you choose. I took a little money out of my savings and split it among them. I figure that if the House doesn’t flip, at least, then my savings won’t do me much good in post-democracy oligarchic America.

Candidate	Website	Senate/House	State	District
Beto O'Rourke	https://betofortexas.com/	Senate	TX
Kyrsten Sinema	https://kyrstensinema.com/	Senate	AZ
Jacky Rosen	https://www.rosenfornevada.com/	Senate	NV
Antonio Delgado	https://www.delgadoforcongress.com/	House	NY	19
Tammy Baldwin	https://www.tammybaldwin.com/	Senate	WI
Claire McCaskill	https://clairemccaskill.com/	Senate	MO
Jared Golden	https://jaredgoldenforcongress.com/	House	ME	2
Anton Andrew	http://www.antonandrew.com/	House	PA	160
Melissa Shusterman	http://www.melissashusterman.com/	House	PA	157
Harley Rouda	https://harleyforcongress.com/	House	CA	48
Bill Nelson	https://www.nelsonforsenate.com/	Senate	FL

You can go to actblue.com and create an account. This will streamline your donating to Democratic candidates.

A warning: You will have to go through your emails and unsubscribe to the deluge of fundraising requests you will get. They always have an unsubscribe link at the bottom. They cease instantly, though.

If you are an extrovert and eager to get out there canvassing and calling, please do. If you live in a place with solid Democratic legislators then try the Sister District Project to support Democratic candidates elsewhere. In Vermont, also try Lean Left VT.

Whatever you do, don’t sit this one out. Thank you from the bottom of my heretical heart.

Somewhere, “Dandy” Don is singing

The news came out today that Allen Weisselberg, Chief Financial Officer of the Trump organization, has been offered immunity from prosecution by the federal prosecutors of the Southern District of New York.

Sidebar one: Those of you old enough may remember when Monday Night Football was co-hosted by Howard Cosell and “Dandy” Don Meredith, former star quarterback of the Dallas Cowboys. (Meredith hated Cosell’s nickname for him, FYI) Meredith was known for his humor. When a game was in its last minutes, with one team irretrievably behind the other, he would start singing an old Willie Nelson song. “Turn out the lights, the party’s over. They say that all good things must end. Call it a night, the party’s over…”

Sidebar two: When prosecutors offer immunity to a witness, it comes in one of two flavors, use and transactional. Use immunity means that the testimony of the witness about a crime (or crimes) can’t be used against him. Any other evidence against him remains admissible. Transactional immunity means that the witness is protected from prosecution no matter where the evidence comes from. It is the get out of jail free card. Prosecutors prefer use immunity and defense lawyers prefer transactional immunity. The transactional type is rarely offered, and only when there is a much bigger fish than the witness who needs to be reeled in.

It looks like Weisselberg has been offered transactional immunity for his testimony. (Update: there is now debate in the news as to whether he got use or transactional immunity. In terms of the risk to Trump and Co, there isn't much difference. Apparently federal prosecution tends towards use immunity.) As CFO of the Trump organization, there is only one person above him in the hierarchy, Donald J. Trump himself.

Weisselberg has been with the Trump organization since Trump’s father still ran it, back in the 1980s. Any and every Trump financial transaction since that time has gone through his hands. He knows everything and he has participated in everything directly. He’s the one who directed the Trump organization accounting people to transfer money to Michael Cohen’s account for the hush money payoffs to Stephanie Clifford and Karen McDougal.

Weisselberg prepared Trump’s tax returns, oversaw his purchases, managed his loans, and generally managed all the details of running Trump’s enterprises. He was also a trustee and manager of the Trump Foundation, which is under investigation by New York State charity regulatory authorities for fraud.

Informed speculation:

Fact: Trump’s fixer/lawyer Michael Cohen entered a guilty plea on multiple felony counts without an explicit deal trading testimony for leniency. This is unusual. One of the felonies directly involved Weisselberg, as I mentioned above.

Fact: Investigators raided Cohen’s house under warrant and obtained millions of pieces of evidence, including paper documents, emails, text messages, and recordings of conversations between Cohen and other principals of the investigation.

Speculation: Cohen pleaded guilty with no conditions because there was so much documentary evidence that he had no leverage to bargain with. He just has to hope for a few crumbs of mercy from prosecutors. Undoubtedly the name Weisselberg appears in many of those documents and recordings. Weisselberg knew this as soon as the news of the Cohen raid came out, and realized that the jig was up. When prosecutors approached him, he made what is known as a proffer, a bid for immunity in exchange for testimony. Weisselberg’s proffer has to have been one of the most extensive since Sammy “The Bull” Gravano turned on John Gotti. It must involve decades of illegal transactions.

The probability is that there are both federal and state charges to be pursued. State crimes cannot be pardoned by Trump, so Michael Cohen, Eric Trump, Don Jr., Jared Kushner, and Ivanka could all be beyond presidential help. For that matter, Trump himself.

David Pecker, publisher of the National Enquirer and protector of Trump’s sexual misdeeds, also received assurances of immunity in return for testimony, but that’s almost an afterthought. Weisselberg, Cohen, and Cohen’s stash of evidence are the keys to the kingdom. There’s nothing in between the Trump family and criminal convictions except time.