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What Mueller Wrote about Obstruction

Josh Marshall explains it very well here. Mueller definitely did not write that he did not find proof without reasonable doubt that the President is a criminal.

I want to explain it in a way which is not so good, in fact bad, basically malicious, too petty to be evil.

Mueller clearly wrote that he accepted DOJ policy that he could not ask a grand jury to indict Trump *while Trump is President*
He added that he would not write that he would have sought an indictment except for that policy, because it would be unfair to accuse Trump yet not have a trial where Trump could present a defence, confront accusers and subpoena witnesses.

This means he clearly wrote that no matter how strong the evidence, a priori he had decided neither to seek an indictment nor to write that he would have done so except for the policy of not indicting serving presidents.

But Mueller didn’t stop there. He wrote that he wouldn’t write that Trump is clearly guilty of obstruction of justice. Then he noted that there are things he could, in principle, write which happen to be inconsistent with the assertion that Trump is clearly guilty. Finally he noted that he can’t honestly write any of them.

So he wrote to this effect “I won’t say that there is proof beyond reasonable doubt that the President is a criminal. I won’t say anything which contradicts the assertion (which I won’t make) that there is proof beyond doubt that the President is a crminal, because all such statements are false. All statements which contradict the assertion that there is proof beyond reasonable doubt that the President is a criminal are inconsistent with the available evidence. I stress again that I have not written that there is proof beyond reasonable doubt that the President is a criminal. Wink Wink. Nudge.”

Trump better hope that a majority of people can’t handle simple logic. I think he does hope that. I think he is right to hope that. But Mueller really made it very clear that he believes he has found proof beyond reasonable doubt that the President is a criminal and also he isn’t going to write that he found proof beyond reasonable doubt that the President is a criminal.

I’m not a prosecutor and I can write that the Mueller report clearly contains proof beyond reasonable doubt that the President is a criminal.

But Mueller didn’t (quite) write that.

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UN Convention on the Rights of the Child

UN Convention on the Rights of the Child

After Peter Dorman’s latest post this seems appropriate to follow up.  Very recently I was at a talk where somebody spoke on the United Nations Convention on the Rights of the Child.  A theme of the talk was how few Americans know about this UN Convention while most reasonably well informed people in virtually the entire rest of the world know about it.  A first version of it was passed  by the UN in 1959.  A second round was in 1989.  I do not know what the US’s position was on the first round, but on the second round, while the US signed it in 1995, it was never ratified by the Senate and never has been.  Right wing Christian types claimed it took away rights of parents over their children, although any reasonable examination of it shows that is nonsense.  Up until 2015, Sudan and Somalia also were with the US in not ratifying it, but then both of them did so, leaving the US to be the only nation on earth (or at least in the UN) not ratifying it.

Unsurprisingly there may be more reasons now why the current Senate will not raritify it as it looks like US behavior on our southern border is in open violation of parts of the Convention.  It has 42 articles, and the fact that so many nations have accepted it is a sign of how really uncontroversial it should be.  There is no reasonable reason to oppose any of the 42 articles.  Anyway, I shall simply note a few that are now especially unfortunate now given recent US conduct. (these are the simpler versions for children):

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Unreading Marcuse’s “Repressive Tolerance”

William S. Lind’s cultural Marxism conspiracy theory boils down to the claim that in his essay, “Repressive Tolerance,” Herbert Marcuse “called for tolerance for all ideas and viewpoints coming from the left and intolerance of all ideas and viewpoints coming from the right” and that college administrators and professors have put Marcuse’s proposal into practice in the form of “Political Correctness.”

Marcuse did indeed make a statement that seemed to propose exactly that: “Liberating tolerance, then, would mean intolerance against movements from the Right, and toleration of movements from the Left.” The problem with taking the proposition literally, however, is that on the very first page of his essay, Marcuse had already dismissed it with the awareness that,”no power, no authority, no government exists which would translate liberating tolerance into practice.” The proposition, he added, was intended “to open the mental space in which this society can be recognized as what it is and does.”

Approximately 6,000 words of dense verbiage intervene between Marcuse’s discounting of the proposition and his restating it in stark, attention-getting terms. The casual reader could be forgiven for having forgotten the initial disclaimer along the way. What is implausible, though, is that college administrators and professors would have collectively adopted the formula as gospel while expressly ignoring the caveats. In fact, in a 1968 postscript to his 1965 essay, Marcuse indicated that his proposition had encountered “virulent denunciations” which he attempted to counter with a restatement of its rationale and acknowledgement that the practice he called liberating tolerance “already presupposes the radical goal which it seeks to achieve.”

Marcuse’s postscript apologia is hardly more convincing than his original essay. The problem, in my view, is that Marcuse attempted to illustrate a terminological paradox with a “counter-paradox.” His diagnosis — that “tolerance” in an administrated state rife with propaganda is not all it is cracked up to be — was apt. But he clumsily succumbed to the temptation to offer a prescription. And since he realized that there is no pat solution, he offered a pseudo-cure instead, in the form of a facile “thought experiment.”

It may well be that the crude, simplistic slogan of “intolerance against movements from the Right, and toleration of movements from the Left” would have appealed to student radicals in the 1960s, in which case, Marcuse’s popularity would have been due more to incomprehension than to affirmation. But among his peers, even in the Frankfurt School, there was no such luck. Correspondence between Marcuse and Theodor Adorno from 1969 show Marcuse’s defensiveness in response to Adorno’s tense disapproval of his “undialectical” activist sympathies:

You know me well enough to know that I reject the unmediated translation of theory into praxis just as emphatically as you do. But…

Like you, I believe it is irresponsible to sit at one’s writing desk advocating activities to people who are fully prepared to let their heads be bashed in for the cause. But…

Meanwhile, Max Horkheimer “too has joined the chorus of my attackers” while Habermas was publicly warning against “left fascism.” By the early 1970s, Marcuse’s brief moment of notoriety was rapidly fading.

Marcuse’s paradoxical fable of “liberating tolerance” (and intolerance) was not even the most pernicious part of his “Repressive Tolerance” essay. The same social conditions that make “tolerance” abstract and spurious, Marcuse argued, also “render the critique of such tolerance abstract and academic, and the proposition that the balance between tolerance toward the Right and toward the Left would have to be radically redressed in order to restore the liberating function of tolerance becomes only an unrealistic speculation.” So, there you have it, folks! Herbie has been giving you the jive and now he’s telling you it’s all jive. What, oh what… is to be done?

Indeed, such a redressing seems to be tantamount to the establishment of a “right of resistance” to the point of subversion. There is not, there cannot be any such right for any group or individual against a constitutional government sustained by a majority of the population. But I believe that there is a “natural right” of resistance for oppressed and overpowered minorities to use extralegal means if the legal ones have proved to be inadequate.

Andreas Baader invoked this “natural right of resistance” at his 1968 trial for arson, with the outcome that he was sentenced to three years imprisonment for political vandalism that caused no injuries and relatively modest property damage. So much for Marcuse’s objection to sitting “at one’s writing desk advocating activities to people who are fully prepared to let their heads be bashed in for the cause.”

Closely reading Marcuse’s “Repressive Tolerance” essay gives me a new insight into what Lind is doing with his cultural Marxism hoax. Lind has appropriated Marcuse’s theme of there being a regime of repressive tolerance but has inverted its origin and attributed it to Marcuse’s “liberating tolerance.” Marcuse’s “mental space,” “unrealistic speculation” or petitio principii that “already presupposes the radical goal which it seeks to achieve” is recycled by Lind as the actual persecution endured by conservative students under the imagined regime of “cultural Marxism.”

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Copycat Crime and the Conscience of a “Cultural Conservative” part two

…it would be absurd to subscribe to the author the unintended consequences of an author’s statements without considering the circumstances which surround them. It is, however, equally absurd to pretend that the ideological history of a work’s consequences are entirely extrinsic. — Jürgen Habermas

With all its limitations and distortions, democratic tolerance is under all circumstances more humane than an institutionalized intolerance which sacrifices the rights and liberties of the living generations for the sake of future generations. — Herbert Marcuse

As we saw from his March 17 webcast, William Lind was not inclined to consider taking any responsibility whatsoever for the (presumably) unintended consequences of his rhetoric. This is not to say, however, that he isn’t eager to take credit for political influence his ideas may on powerful state actors.

In his March 24 webcast, Lind revealed the “scoop” that his initiative may have inspired President Trump’s executive order to protect conservative speech on university campuses. “We have,” Lind boasted, “what I think is the inside story on one of last week’s news events — mainly the President Trump’s announcement that 35 billion dollars worth of federal funding for higher education is going to be tied to freedom of thought and expression on college and university campuses.” According to Lind, what happened is that, as a board member of a conservative group of Dartmouth University alumni, he wrote a memo — subsequently forwarded to the White House by a well connected board member — that recommended substantially the steps taken by Trump in his executive order.

This, by the way, is a basic rule of politics. If you’re going bottom-up you come in as a supplicant. You’re either ignored or kicked in the teeth. The way you get something to happen politically is to come in top-down. You come on… you come down on the center you’re targeting from a higher political level. Well there’s no higher level obviously than the White House.

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No, the Meuller report ***DID NOT*** “find no collusion!”

No, the Meuller report ***DID NOT*** “find no collusion!”

This past week I nearly became apoplectic about he malfeasance of much of the press and the punditry reporting of Barr’s 6 paragraph substantive “summary” (3 paragraphs each as to “collusion” and “obstruction of justice”) of Mueller’s roughly 300 page report.

As an initial matter, because Mueller’s grand jury is continuing to meet, and there are still subpoenas and witnesses outstanding, it is incorrect to say that “the investigation” has concluded. clearly “the investigation” is ongoing. What *has* concluded is Mueller’s involvement as special counsel, now that an Attorney General has taken over who did not have to recuse himself. Keep that basic point in mind.

But that’s not what got me livid. Much has already been covered by others. But it is one important, even fundamental, aspect of Barr’s executive summary on which I wanted to focus.

Start with the fact that Barr is a very good attorney. He is going to choose his words, and what he cites and what he omits with great care. Now, this is the *totality* of the language from the actual Mueller report that Barr quotes as to collusion:

“[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Barr repeats this formulation virtually verbatim twice more in his letter. Here’s the second time:

Stop right there. Let me just slightly reword Barr’s money quote:

“[T]he investigation established that members of the Trump Campaigndid not conspire or coordinate with the Russian government in its election interference activities.”

All I did was change the phraseology (in italics) slightly. But the meaning is much more definite and sharper. In my formulation above:

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Nazi executioner judge: “Political correctness is worse than Nazi tyranny.”

The terrorist mass murder in Christchurch, New Zealand two weeks ago has sent me back to my archives to retrieve my documentation of Anders Breivik’s extensive plagiarism of the writings of William S. Lind, et al.

Did I say “extensive” plagiarism? Breivik copied and pasted the whole 19,000 word pamphlet, making minor revisions here and there and deleting around 4,000 words that dealt with more arcane academic topics, such as Derridean deconstruction. Below is an example of the markup comparison of documents from Lind’s to Breivik’s, with insertions in blue and deletions in red:

At the end of Lind’s tract, he included a bibliographical essay “…as a guide for interested citizsens who want to learn more about the ideology that is taking over Western Europe and America.” One of the entries in that bibliography was The Frankfurt School: Its History, Theories and Political Significance by Rolf Wiggershaus. Lind quoted a passage from the book’s “Afterword”

Since the publication in 1970 of his book The Poverty of Critical Theory, Rohrmoser has promulgated, in constantly varying forms, the view that Marcuse, Adorno and Horkheimer were the terrorists’ intellectual foster-parents, who were using cultural revolution to destroy the traditions of the Christian West. Academics such as Ernst Topitsch and Kurt Sontheimer, who saw themselves as educators and liberal democrats, followed in Rohrmoser’s footsteps. In 1972 Topitsch, a critical rationalist who was Professor of Philosophy in Graz, had stated that behind the slogans of ‘rational discussion’ and ‘dialogue free of domination’ there was being established at the universities ‘a distinct terrorism of political convictions such as has never existed before, even under Nazi tyranny’

What struck me as odd about the above passage was that “Rohrmoser” had no first name. At first, I suspected the passage was simply cut and pasted in without acknowledging that it was a quoted text. But the absence of quotation marks may have been simply an artifact of indent formatting lost during conversion to a web document. I was curious to find out Rohrmoser’s first name, which appeared in the sentence before the passage quoted by Lind:

Günther Rohrmoser was a social philosopher employed by [Hans] Filbinger, who, as a judge at a naval court martial during the last days of the Second World War, had pronounced a scandalous death sentence which he defended during the 1970s by saying that what was the law then could not be injustice today.

Hans Karl Filbinger was Minister President of Baden-Württemberg from 1966 to 1978. In October of 1977, in response to the kidnapping and murder of Hanns Martin Schleyer by the Red Army Faction, Filbinger gave a speech in which he blamed the teachings of the Frankfurt School for the terrorism. Such accusations, elaborated by academics such as Rohrmoser, Topitsch, Sontheimer and others became the basis for efforts to suppress student activism and the teaching of Critical Theory.

In 1978, Filbinger was accused of having presided — either as prosecutor or judge — over the executions of several sailors at the conclusion of the Second World War. The Wikipedia article outlines extenuating circumstances in his favor: several of the death sentences were in absentia and never carried out, others were commuted to prison sentences and in the one case that resulted in an execution he appears, according to the Wikipedia article,  to have been “filling in” for a prosecutor who had already asked for the death sentence. In In Pursuit of German Memory: History, Television, and Politics After Auschwitz, Wulf Kansteiner offered the following account of the outcome of the scandal:

With proper symbolic guilt management, none of these facts would have ended Filbinger’s career, but he committed two major public relations mistakes that made his resignation inevitable. First, Filbinger failed to reveal the full record of his service as a military jurist; the press found a total of four death sentences that listed Filbinger as an officer of the court and that he professed to have forgotten. Second, although Filbinger explained and defended his actions at length, he never apologized to his colleagues, his voters, or the relatives of the soldiers he had condemned to death. He failed to realize that legal innocence no longer amounted to historical innocence. Just because he had not committed any crimes in the eyes of the law did not mean that he could survive in the court of public opinion.

So it wasn’t the crimes Hans Filbinger committed — or didn’t commit — but the cover-up that disgraced him. Lind’s omission of the context for Wiggershaus’s discussion of Rohrmoser’s attacks on Critical Theory as the “foster parents of terrorism” deprives his readers of two crucial perspectives. The more sensational but ultimately trivial insight was the status of one of the accusers of the Frankfurt School as an actual Nazi who presided over at least one execution and subsequently tried to conceal his past.

But the more important aspect was the precedent in West Germany of the 1970s of a political campaign against Critical Theory orchestrated by high government officials. In addition to Filbinger, Franz Josef Strauss, leader of the Bavarian Christian Social Union, and Alfred Dregger chairman of the Christian Democratic Union in the state of Hesse “promptly labeled the Frankfurt School a cause of terrorism.”

Jürgen Habermas gave a contemporaneous account of this assault on the Frankfurt School in an article that first appeared in Der Spiegel in October 1977 and was subsequently translated and published in the New German Critique. It is worthwhile to quote at some length from that article because illuminates an historical parallel that few Americans would be at all aware of:

As an undergraduate I was struck by the fact that such influential figures of the post-war generation, eminent men like Martin Heidegger and Carl Schmitt, had made politically astonishing statements and had advocated unfortunate doctrines. The first, as chancellor of the University of Freiburg, had welcomed the Nazis’ seizure of power and exalted its significance metaphysically, while second had theoretically vindicated that state which Hitler created. After the war, neither of them considered an unequivocal political explanation or a public revision of their actions to be necessary.

These shocking examples – and they are, after all, just examples – sharpened my, sharpened our awareness of the consequences of the theoretical matters which we teach and write. They are not simply arguments which are absorbed by the scholarly process and then survive or dissolve within it. On the contrary, as published and spoken words, they have an effect on readers and listeners at the moment of their reception which the author cannot revoke or withdraw as if he or she were dealing with logical propositions. Now of course it would be absurd to subscribe to the author the unintended consequences of an author’s statements without considering the circumstances which surround them. It is, however, equally absurd to pretend that the ideological history of a work’s consequences are entirely extrinsic. There is only one pragmatic escape from this dilemma, and unfortunately it is not easily put into practice. An author’s awareness of this dilemma must sufficiently limit his teaching and writing: an individual should not succumb to the atmosphere of objective irresponsibility, nor should an individual expand moral accountability to such an extent that he or she is paralyzed by the fear of uncertain and unexplored areas. Then only silence would remain.

It is obvious that Strauss and Dregger want to intimidate us so that we shall seek refuge in this last alternative. Both obscure the fact that in the 1960s it was the left-wing professors who were especially and distinctly conscious of intellectual causalities. Instead Strauss and Dregger construct a scenario of objective responsibility in a manner which until now has only met with approval in the dominions of Stalinist bureaucrats.

Does William Lind take responsibility for the (presumably) unintended consequences of what he has written, given the dilemma framed above by Habermas? Lind does a weekly YouTube broadcast called traditionalRIGHT in which he gives his opinions on items in the news. On March 17, he discussed the mass murders in Christchurch. On March 24, he addressed an executive order signed by Donald Trump that would cut off federal funding from universities that inhibited the “free speech” of conservatives. I have listened to these segments several times and downloaded transcripts that I have read closely. I will present my summary and interpretation of them in a subsequent post.

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Looking for Mister Good Barr

Looking for Mister Good Barr

I confess. I posted The Barr Letter and Useful Idiots of the Jaded Left to troll for tin-foil hats. I am agnostic on the Mueller investigation. I have never viewed Mueller, Comey or Rachel Maddow as the savior of truth, justice and the American Way. My objection to Taibbi, Greenwald et al.’s gloating is primarily against their premature ejaculation — although their glee is also reprehensible under the circumstances.

But here is the thing about tin-foil hat thinking: if you are going to engage in it, do it right. Let’s say there is this vast establishment, deep state conspiracy to overthrow the popular will electoral college result of the 2016 election. Hey, I can get down with that! What makes the Glenns and the Matts and the Halaszes and likbezes so confident that William Barr isn’t part of that conspiracy? Absolutely nothing. They simply haven’t thought through their heist.

Here’s how I would NAIL Donald Trump if I was William Barr: I would write a four-page letter that appears to exonerate him from conspiracy or coordination and in which I explicitly decline to indict on obstruction of justice charges. See what I did there? No?

I sidestepped the “can’t indict a sitting President” rule. That sets a precedent. Now we let that settle in for a while. Nobody objects — least of all the President of the United States who thinks he has just been cleared. Next comes the indictment from SDNY. But wait a minute! You can’t indict a sitting President! Oh yeah? The Attorney General just waived that rule.

Is my little scenario true? I doubt it. But it is no less plausible than the half-baked conspiracy scenarios heralded by the half-cocked tin-foil hat crew. Of course the paranoid style is not noted for  consistency or for thinking things through.

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The Barr Letter and Useful Idiots of the Jaded Left

The Barr Letter and Useful Idiots of the Jaded Left

As everyone knows by now, President Trump has been totally “exonerated” for everything, ever, by a four-page letter from William Barr, the Attorney General whom he appointed expressly to “exonerate” him. With regard to potential obstruction-of-justice, on page three of his letter, Barr cited Special Counsel Mueller’s statement that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Understandably, Trump’s allies and surrogates are ecstatic that Trump has been so unequivocally and unconditionally exonerated by a letter about a report that “does not exonerate him.” But the gloating does not stop there. A contingent of “left” journalists and self-styled pundits are jumping in the self-congratulatory bandwagon.

The “leftist” critique of the Russia collusion story follows a certain “dialectical” logic: first, the lesser of two evils is the greater danger and therefore my foe and second, the enemy of my enemy is my friend. Alleged journalist Glenn Greenwald presents an inarticulate version of this critique when he sputters hyperbole on Democracy Now. Greenwald magically transforms not establishing an actionable criminal case into not a shred of evidence.

 

 

Matt Taibbi gives a more nuanced performance in comparing Russiagate to the Bush administration’s lies about Saddam’s weapons of mass destruction. Taibbi qualifies his hyperbole by noting the hundreds of thousands of deaths and trillions of dollars wasted as a result of the latter. “Unless Russiagate leads to a nuclear conflict, we’re unlikely to ever see that level of consequence.” But in terms of journalism?

As a purely journalistic failure, however, WMD was a pimple compared to Russiagate. The sheer scale of the errors and exaggerations this time around dwarfs the last mess. Worse, it’s led to most journalists accepting a radical change in mission. We’ve become sides-choosers, obliterating the concept of the press as an independent institution whose primary role is sorting fact and fiction.

What a load of bollocks. Are we now supposed to believe that up until the time of the Steele dossier, the corporate news media was “an independent institution whose primary role is sorting fact and fiction”? Fox? Breitbart? Daily Caller? Not to mention non-stop CNN and NYT coverage of Trump rallies, diners in rural Pennsylvania, personable neo-Nazis, Clinton emails and climate change

In his comprehensive critique of journalistic failure, Taibbi mentioned Fox once and the Daily Caller twice — to note their coverage of Michael Cohen’s denial of having ever been in Prague. Throughout the whole affair, the vast right-wing propaganda Wurlitzer was presumably acting as “an independent institution whose primary role is sorting fact and fiction.” Thank you, Matt Taibbi for your bold refusal to choose sides!

Not that it matters, but the mainstream media framing of the Russia collusion story was orchestrated by the “victim” of the “witch hunt.” The Mueller investigation was initiated by the Trump-appointed Deputy Attorney General who wrote the memo to give Trump cover for firing James Comey. The soi-disant “left” critics of Russiagate have bought that framing and are now gloating that “their side” has won.

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Light Sentence

“Legal observers were surprised by the relatively light, 47-month sentence received Thursday by President Trump’s former campaign chairman Paul Manafort, who was convicted in August on charges of tax and bank fraud.

The 69-year-old, who appeared in the court in Virginia in a wheelchair and pleaded for compassion, could have been sentenced to up to 24 years in federal prison.

With time served, Thursday’s sentence means Manafort could spend a little more than three years behind bars for this case.

NBC News and MSNBC legal analyst Glenn Kirschner: ‘As a former prosecutor, I’m embarrassed. As an American, I’m upset … I am just as disappointed with Judge Ellis. It’s an outrage and it’s disrespectful of the American people.'”

I have been in level 4, 2, and 1 prisons. I used to chase prisoners a long time ago. None of these prisons are a walk in the park. The prison up in Pugsley, Michigan was a level 1 and one of the most dangerous ones in the state as they transferred a bunch of long timers there who did not give a . . . . . you know what I mean. For this peace of garbage ‘Manafort’ it has to be a huge let down having to associate with the lesser human beings who will be making fun of him. Lets see what the next sentencing brings. If they run it consecutively and it goes over 10 years, he will go to a Level 4.

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WaPo Sued for $250 million

This is really, really Rich . . .

Nick Sandmann, high school junior who faced off with Native American elder Nathan Phillips on the Lincoln Memorial steps is suing WaPo for $250 million. It is “only the beginning said attorneys Lin Wood and Todd McMurtry, on their firm’s website, noting that it was the ‘first lawsuit’ on Sandmann’s behalf.”

The Nathan Phillips MAGA smirker “video went viral in January as multiple groups collided after Sandmann attended the Right to Life March and Phillips attended the Indigenous People’s March, two separate events. Sandmann did not give way upon Phillp’s approach at the Lincoln Memorial.

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