Jury Shopping?

            Upon taking office on 1 January 2022, New York County (i.e. Manhattan) District Attorney Alvin Bragg inherited several investigations of Donald Trump that had been launched by his predecessor, Cyrus Vance, Jr.  One, into the Trump Organization, rather than Trump himself, he let go forward to a successful conclusion.  Another centered on money paid to the adult performer who used the stage-name “Stormy Daniels.” Vance’s prosecutors had been trying to figure out that case for a long time.  Bragg suspended it.  Then he revived it. 

            The case is complicated.[1]  According to the New York Times, “falsifying business records can be a crime.”  (Emphasis added.)  That “can” implies that it also may not be a crime. Trump is said to have violated New York State law by falsifying business records.  Specifically, the Trump Organization reimbursed Trump’s personal attorney, Michael Cohen, for the $130,000 in “hush money” that Cohen paid to Daniels on behalf of Trump.  The money was listed as a legal expense. 

However, simply falsifying business records with an “intent to defraud” is a misdemeanor.  To elevate the crime to a felony, Bragg’s prosecutors need to demonstrate that Trump intended to “commit or conceal a second crime,” again in the words of the New York Times.  Current speculation holds that the “second crime” could be entering the money paid to Trump’s lawyer, Michael Cohen, as a “legal expense”[2] when it was actually an unreported campaign donation. 

            According to the Times, “Whether hush money can amount to a campaign donation is not settled law.”  Either it is very common and undiscovered or no one but the occasional sexually incontinent politician engages in it.  One of Trump’s lawyers has argued that he paid the money purely to spare his family from a sordid story that he has long denied.  “He had to pay the money because there was going to be an allegation that was going to be publicly embarrassing for him, regardless of the campaign.”

            Making an unreported campaign donation violates both Federal and New York State law.  However, the Federal prosecutors are not pursuing this case.  Can a state official prosecute someone for violating a federal law?  Probably not.  So, that leaves prosecuting Trump for violating state election law as the “second crime.”  However, federal election law preempts state election law.  So the unsettled legal status of “hush money” at the federal level raises questions about the viability of this approach.  Still, there are legal loopholes that might serve. 

            Perhaps more to the point, the problem is how an elected district attorney is to get Donald Trump in front of what the New York Times calls a “jury in deep-blue Manhattan.”  For that matter, in Fulton county, Georgia, a District Attorney convened a grand jury to examine Trump’s attempts to overturn the 2020 election results in the Peach State.[3]  In the November 2020 presidential election voting in Fulton county, Joe Biden won 72.65 percent of the vote.  Is this jury shopping?  Still, it may turn out that sometimes ham sandwiches are safe.          

[1] Ben Protess, Jonah E. Bromwich, William K. Rashbaum, and Kate Christobek, “Possible Case Against Trump Would Hinge on Untested Theory,” NYT, 22 March 2023. 

[2] The money went to a lawyer.  What else is it?  There’s a legal form for reporting “hush money”?  If there is, would anyone believe that someone in the Federal bureaucracy wouldn’t leak that information? 

[3] Glenn Thrush and Adam Goldman, “Trump Inquiries Pose Stress Test For Justice System,” NYT, 24 March 2023. 

Why Iraq 2.

During the run-up to the attack on Iraq, the Bush Administration insinuated that Saddam Hussein had covert ties to al Qaeda and that Iraq had been involved in the 9/11 attacks.  The administration more forthrightly claimed that Iraq’s stockpile of Weapons of Mass Destruction (WMD) had to be put out of potential action.  So either retribution or pretribution.  Later on, both of these justifications were proved false.[1]  Deputy Secretary for Defense Paul Wolfowitz is the villain in many accounts.  He felt confident–without any hard evidence–that Iraq bore guilt for the 9/11 attacks.  Early on, Wolfowitz seems to have talked President Bush into sharing this belief.  The inability of the intelligence agencies to find significant evidence to support this belief then led to a manipulation of the intelligence that did exist.  Then the WMD justification surged forward.  Most of all, group-think and hierarchy led to a spreading certainty that Iraq posed a danger.  Later in his time as president, George W. Bush, battered and enlightened by experience, might well have stopped this “log roll.”  In the first years of his crisis-ridden presidency, however, he lacked the maturity and the experience needed to do his job. 

One striking element in the movement toward war came in the lack of push-back from responsible quarters.  In the House, 81 Democrats voted for the 2002 Authorization for the Use of Military Force, while only 6 Republicans voted against it; in the Senate, 29 Democrats voted for it, while only one Republican voted against it.  When the war went wrong, many people weaseled.  Furthermore, the claims about Iraq-al Qaeda contacts and Iraq’s possession of WMD went largely unchallenged by the media.  Later, feeling twice deceived by “lies and the lying liars who tell them,”[2] journalists and academics rejected out of hand the war-for-democracy claims.  They went in search of other motives for war.  They suggested an attempt to dominate the world oil industry,[3] faulty or manipulated intelligence gathering and analysis, and the effect of “victory culture.”[4]  What they didn’t do was to look at the history. 

After the first two justifications collapsed (along with the careers of some of the people who had offered the justifications), the Bush Administration began to claim that the war’s purpose had always and only been to replace tyranny with democracy in Iraq.  From there it would spread to the rest of that benighted region.[5]  Why hadn’t they led with this argument, since it was so close to what they actually believed? 

Perhaps the “neo-cons” believed that Americans would not support a war for democratization, while they would support a war for vengeance.  If so, they were ignoring the arguments of an eminent predecessor, both scholar and presidential adviser, Robert E. Osgood.  Osgood had believed that Idealism and Self-Interest could be reconciled in foreign policy.[6] 

[1] The former had been incredible from the start.  Saddam Hussein’s Iraq was a secular state and equal-opportunity oppressor.  Al Qaeda was a movement of Sunni zealots.  When Saddam Hussein invaded Kuwait and threatened Saudi Arabia, Osama bin Laden had offered to lead an Islamist foreign legion against him in defense of Islam’s holy places.  Nor could the intelligence community offer much in the way of evidence supporting tales of contact between the two enemies of the United States.  The second justification seemed to have more substance.  The United Nations weapons inspectors for Iraq believed that Hussein’s government had concealed large stockpiles of WMD.  However, that is true of many anti-American countries (China, Russia, Pakistan, Israel).  Why attack only Iraq? 

[2] The title of Al Franken’s 2003 “fair and balanced look at the Right.” 

[3] A bunch of this material is displayed at Rationale for the Iraq War – Wikipedia 

[4] On the latter, see Tom Engelhardt, The End of Victory Culture: Cold War America and the Disillusioning of a Generation (2007). 

[5] Max Fisher, “Two Decades Later, a Question Remains: Why Did the U.S. Invade?” NYT, 19 March 2023.

[6] Robert E. Osgood, Ideals and Self Interest in America’s Foreign Relations (1953).  Got a copy on my shelf. 

Why Iraq 1.

            Why did the United States invade Iraq in March 2003? 

Taking a historical view, the roots of the invasion might be found in the first decade after Western victory over the Soviet Union.[1]  Debating the question of what to do with victory in that struggle, most people wanted a “peace dividend.”[2]  Reduce defense spending and focus on domestic issues.  However, a small coterie of “neo-conservatives”[3] wanted to use America’s position as the sole super-power to push reforms abroad.  Poverty and tyranny held a tight grip in many parts of the world.[4]  It need not remain so. 

For example, the neo-cons seem to have made a correct diagnosis of the problems of the Middle East.  Those problems stemmed not from the existence of Israel, nor from being caught up in post-World War II international rivalries, but from 500 years of Turkish misrule.  Great landowners, rich merchants, and ambitious soldiers—all of them as crooked as a dog’s hind-leg—were deeply entrenched in Middle Eastern countries.  The “neo-cons” moved from a correct diagnosis to a spectacularly wrong cure.  Essentially, “people everywhere just want to be free.”[5]  Knock over a dictator, declare democracy, put up some big box stores, and stand back. 

They had a particular concern with Iraq.  President George H. W. Bush had led the United States and an international coalition in the First Gulf War.  Much of Iraq’s military forces were destroyed in this war, but the President had stopped the allied advance stopped close to the Kuwait-Iraq border.  He had not pursued regime change.  The President’s modesty and self-restraint left a savage dictator in power.[6]  In retrospect, the “neo-cons” wanted to correct this error.  They had lobbied President Bill Clinton “to aim above all, at the removal of Saddam Hussein from power.”  In 1998, Congress passed and President Clinton signed into law the “Iraq Liberation Act.”[7]  Still, he didn’t pay them no never-mind.[8]  Hussein remained in power.  Then came President George W. Bush; then came 9/11. 

[1] The Soviet Union abandoned Communism, abandoned its empire in Eastern Europe, disintegrated into many states, and ceased to oppose the United States around the globe.  If that isn’t victory, I don’t know what is.  At the same time, it may have given then Senator and now President Joe Biden the wrong template for understanding “victory” in the Ukraine War.  He’s affable as all get-out, but not an original or independent thinker. 

[2] They got what they wanted.  U.S. military spending | National Priorities Project (archive.org)  However, the “black budget” of the American intelligence community is linked to that of the Defense Department.  Cutting defense spending cut intelligence spending at the same time that expensive information technology systems were becoming vital.  This compounded the cuts in human intelligence expertise during the rise of Osama bin Laden.  Alas. 

[3] See: Neoconservatism – Wikipedia 

[4] Indeed, the United States had supported and co-operated with many such regimes.  As Franklin D. Roosevelt reflected on the Cuban dictator Fulgencio Batista, “He may be a son-of-a-bitch, but he’s our son-of-a-bitch.”  It isn’t beyond imagining that the philosophically-inclined “neo-cons” concluded that we had got our hands dirty winning the Cold War, but now we should seek to undo that harm as best possible.  Of course, something “not beyond imagining” isn’t necessarily what happened. 

[5] See: The Rascals – People Got To Be Free – YouTube  To be fair, every decade has a lot to answer for. 

[6] The UN had authorized using force to evict the Iraqis from Kuwait, not to change the regime.  Other major powers, like Russia and China, would take umbrage if the United States changed the rules of the game unilaterally.  Iraqi society was a sectarian landmine whose explosion would lead to violence, suffering, and—in all likelihood–increased influence for Iran.  So, yes, modesty and self-restraint.  Where can we get some? 

[7] On which, see: Iraq Liberation Act – Wikipedia 

[8] He also didn’t pay any attention to the Rwanda genocide.  Americans, he thought, didn’t want another war. 

The Old Days.

            Among the thoughtful members of America’s elite[1] the predominant mood seems to be nostalgia.  Leslie Lenkowski, a professor emeritus of Public Policy at Indiana University, used a book review to describe and add to some of the recent thought on the decline over time of social solidarity in the United States.[2]  The stakes in this game are high.  Since Alexis de Tocqueville’s Democracy in America, that social solidarity has been seen as the foundation of democracy. 

            The one-time “nation of joiners” has become a “nation of spectators.”[3]  All sorts of political, social, and economic changes wrought this transformation.  Some of the changes were divisive in themselves.  Income inequality has grown and people have moved toward socio-economically homogenous communities, with intellectual homogeneity as an effect.  Some of the changes reversed the instilling of a civic religion.  Common, though far from universal, military service ended after Vietnam.  Movies and other forms of mass entertainment have moved from celebrating American democracy to portraying it a device serving powerful occult interests.[4] 

Haass and Lenkowski both assign a primary role in this American crisis to the elites.  For Haass, it is up to them to encourage their constituencies in all the major institutions and areas of national life to “embrace obligations,” not just rights.  For Lenkowski, the problem lies, first and foremost, with the critics “from across the political spectrum, that bring into question American history and ideals, the fairness of American society and institutions, and the ability of individuals to make a difference in the face of supposedly hidden forces.”  Elites must act differently if America is to be restored. 

            But maybe the rot isn’t in the elites, or not only in the elites.  Maybe it is in the common man as well.  In a democracy, politicians try to give both the “interests” and the “public” what they want.  As Haass says: “We get the government and the country we deserve.  Getting the one we want is up to us.”  What have we wanted?  Low taxes, high spending, big deficits; one percent of Americans willing to do military service; low voter turnout and difficulty filling jury pools; and Not In My Back Yard coupled with a sense of grievance-as-identity. 

We’ve been here before.  At the start of the New Deal, opinion high and low turned against the culture of the Twenties.  Franklin D. Roosevelt spoke for many when he dismissed the before-time as “a decade of debauch.”[5]  The Thirties were to be a decade of collective, practical action for the common good.  The desires of the individual would come a distant second.  They ended in an un-wanted war that demanded national solidarity.  A year after Pearl Harbor, a line from “Casablanca” (1942) summed-up the change: “I’m no good at being noble, but it doesn’t take much to see that the problems of three little people don’t amount to a hill of beans in this crazy world.” 

Is it going to take some national economic or military disaster to change our minds? 

[1] It says something about our country that a person can get into the elite without being thoughtful. 

[2] Leslie Lenkowski, “We’re All In This Together,” WSJ, 2 March 2023.  He reviewed Richard Haass, The Bill of Obligations: The Habits of Good Citizens (2023).   On Richard Haass, see: Richard N. Haass – Wikipedia 

[3] While Lenkowski cites earlier assessments of this shift, his argument is supported by the work of Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2000). 

[4] See, for a few examples among many: “The Pelican Brief,” (dir. Alan J. Pakula, 1993); “Enemy of the State” (dir. Tony Scott, 1998); “Shooter” (dir. Antoine Fuqua, 2007). 

[5] Quoted in William E. Leuchtenberg, Franklin D. Roosevelt and the New Deal, 1932-1940 (1963), p. 343. 


            In Fall 1938, in the aftermath of Munich, President Franklin D. Roosevelt called for the expansion of the American Army Air Force (AAF) from 1,200 airplanes to a force of 15,000 planes.  Army Assistant Chief of Staff George C. Marshall then tried to talk some sense into his boss.  Sequence, he insisted: first one thing, then the next thing.  What the AAF needed first was the construction of lots of airfields and the establishment of mass training programs for pilots, navigators, bombardiers, air-gunners, aircraft mechanics, and all the other people who would service and fly the planes.  Only after an adequate infrastructure had been created would it be desirable to build the planes.[1]  There are lessons in this little anecdote. 

Wind and solar power provide “clean” energy, while carbon-burning electricity generation create about 25 percent of the country’s “greenhouse gases.”  Clean energy suffers from constraints related to location.  They take up a lot of space and they work best where there is a lot of sun and wind.  So they are most easily constructed in areas remote from the urban areas of mass energy consumption.  Transmission of the energy from point of generation to point of use is handled by the nation-wide network of power lines and transformers.[2] 

Aye, there’s the rub.  The “nation’s antiquated systems to connect new sources of electricity to homes and businesses” is grievously delaying the transition from dirty to clean energy.[3]  What does “antiquated systems” mean exactly?  Power companies have squeezed out obscene profits by skimping on maintenance and modernization, right?  Apparently not.  Rather, there are other long-existing barriers not addressed by the climate legislation of the Biden Administration. 

The American electricity distribution grid took a long time to construct, beginning in the 1920s.  Eventually it reached a stable state, with only a handful of new power plants being added every year.  After spectacular “blackouts” in the 1960s, attention turned to improving reliability.  Stable transmission systems led to the creation of a stable body of human capital.  In this case, it was power engineers who could understand the complex systems.  In short, there are two related bottlenecks in any rapid shift from one form of electricity generation to another. 

This is evident in current experience.  New projects seeking access to the grid system apply to the power authority in their region for permission to connect.  The current system is badly clogged because there are only a limited number of power engineers to assess the projects.  In 2012, it took two years for projects to gain approval; in 2022 it took four years.  Once the limited and over-loaded pool of power engineers completes an assessment, the applicant is often told that they must foot the bill for new transmission lines.  Long waits and unanticipated high costs have already derailed many “green” energy projects.  The large subsidies for clean energy generation, rather than transmission, offered by the Biden Administration are likely to make matters much worse. 

So, sequence: first one thing, then the next thing.  Which we’re not doing. 

[1] Robert Dallek, Franklin D. Roosevelt and American Foreign Policy, 1933-1945 (1979), pp. 172-174.  The Thirties and Forties witnessed rapid technological innovation in aircraft.  Building the planes before you had the infrastructure would guarantee that those aircraft were obsolete by the time you had the people to fly them. 

[2] See: North American power transmission grid – Wikipedia 

[3] Brad Plumer, “U.S. Solar Goal Stalled by Wait on Creaky Grid,” NYT, 24 February 2023.