Burning Down The House

Published June 15, 2017 at https://www.thenation.com/article/burning-down-the-house/

“As the weather gets warmer…” That’s the throwaway description I heard on a recent radio report about increased migration to Europe from countries in Africa and along the eastern Mediterranean. “As the weather gets warmer,” there are spikes in the number of people willing to climb into rickety rafts and risk their lives crossing perilous seas. The story went on to describe the rescue efforts, the babies saved, and the hundreds of lives lost in a single day. The weather, however, was left hanging, naturalized like a rite of spring, buried in the kind of casual syntax used to signify the annual migration of birds, or of a wave of pensioners, after wintering in Florida or the South of France. The implication that the vagaries of weather had anything to do with flight, political asylum, or war melted quietly into the background.

But “warmer” doesn’t begin to describe the brutal, record-breaking heat that has afflicted certain parts of the world. For the last several summers, cities in nations throughout the Persian Gulf and Arabian Sea region rarely saw temperatures below 100 degrees Fahrenheit, and in some places they soared as high as 127 degrees.

I recently heard former vice president Al Gore speak at the Center for Earth Ethics at Union Theological Seminary in New York City. He made clear the ominous link between climate change and the current global diaspora. One of the underlying causes of the conflict in Syria, Gore noted, was “the worst drought ever measured in the eastern Mediterranean,” which lasted from 2006 until 2010. “That drought, long before the Syrian civil war started, destroyed 60 percent of their farms, killed 80 percent of their livestock, drove one and a half million climate refugees into their cities, where they collided with another one and a half million refugees from the Iraq war…. The wave of refugees from the eastern Mediterranean and the Middle East and North Africa began to grow…and we’ve seen the European Union become destabilized.”

(As if to underscore that point, the National Academy of Sciences has explicitly connected the war in Syria to man-made climate change and the region’s savage drought.)

Gore’s speech was the antipode to Donald Trump’s recent announcement that he would withdraw the country from the Paris climate accord. Trump spoke using the monetized terms of exchange value: “economic burdens,” “industrial edge,” “trade policy.” He was consumed by competitiveness to the point of silliness: If India can burn coal, then we should do it too. Trump’s stated commitment to put “Pittsburgh…before Paris” was a narrow, exclusive, go-it-alone view of American interests in the face of impending and shared global disaster.

Gore speaks from a broader model of the human as enmeshed in a biome whose ability to recover from the traumatic insults of pollution and species extinction has an absolute limit. Gore’s attention is trained upon the long-term (if unintended) consequences of our technological revolution and the myriad externalities that market measures exclude.

Consider the case of Gene Cranick, an elderly, wheelchair-bound man who lived in one of the largely rural counties of Tennessee, where people have to subscribe to the services of the fire department on an individual basis—so-called “pay to spray.” Cranick forgot to pay the $75 annual fee. His house caught on fire; the fire department came but only hosed down the house and field of a neighbor, who had paid the $75. The firefighters watched Cranick’s farm burn to the ground, killing his pets and destroying his field and all of his other possessions. Cranick offered to pay the actual cost of putting out the fire, but the fire chief/department declined to accept his offer, because to do so would incentivize others to become “free riders” and not pay the annual fee.

From the narrow moral framework of the private market, this outcome makes “sense.” Much like Trump’s image of the climate, fire is imagined as a consequence that can be contained to a single rational actor, and payment is foregrounded as the central moral value. But in a larger moral framework like Gore’s—that of public health and environmental interest—fire is a shared threat, a public harm, whose potential for ignoring human boundaries poses risks that we must address by pooling our resources for the collective good. Community health and safety become the central moral values here.

This system of signification can be tracked as a form of knowledge production, an ideological lens through which we learn to see the world and ourselves—either as radical individualists, or as the cohabitants of a common home. Consider how the water supply of Flint, Michigan, was treated like Gene Cranick’s fire: The state’s adherence to “for-profit” governance dictated an agenda in which the long-term public costs were written out of a short-term, “value-added” metric for budgetary (but not human) health. Consider how Trump frames coal production only in terms of wealth production rather than disease production. Or how drought and flood and species extinction and food-chain collapse are framed less as holes in the planetary boat in which we’re all sinking, and more as winnable wars over unlimited resources. But that kind of wealth—whether Trump Inc.’s or Pittsburgh’s or Paris’s or China’s—is not what’s at stake in this battle. Instead, what’s at stake is our planet’s gorgeously resonant ecosystem, sustained by very fragile interconnections upon which all future life is inextricably interdependent.

If you wish to contribute to the effort to raise awareness about climate change and its very real and present dangers, you can make a donation to the Climate Reality Project or to the Center for Earth Ethics at Union Theological Seminary. Al Gore’s new film about climate change, An Inconvenient Sequel: Truth to Power, will be released in theaters on July 28 (when, as Wikipedia so helpfully notes, it will open against Atomic Blonde and The Emoji Movie).

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Panel Discussion: Earth Ethics in the Time of Climate Change

Conversation at Union Theological Seminary, June 6, 2017, under the auspices of the Center for Earth Ethics:

Panel discussion on fossil fuels, climate change and economic development, featuring former vice president Al Gore.  Perspectives from law, moral philosophy, and religion explore the ethical and ecological implications of continuing to invest in and develop fossil fuel infrastructure despite knowing the repercussions for planet and people alike. Karenna Gore, Director of Union’s Center for Earth Ethics and Rev. Derrick Harkins, Union’s Senior Vice President for Innovation in Public Programs, will lead Mr. Gore, Azza Karam, Chair of the U.N. Interagency Task Force on Religion and Development, Rabbi Burt Visotzky, Director of the Milstein Center for Interreligious Dialogue at Jewish Theological Seminary, and Patricia Williams, the James L. Dohr Professor of Law at Columbia University Law School, in a conversation that helps us build a moral, historical, and legal framework around this issue to help better understand and engage the problem.

 

 

 

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How Donald Trump’s Words Create Emergencies

A Linguistic Political Analysis

by Patricia J. Williams

published in The Nation Magazine, May 18, 2017

Like many people, I don’t understand the tenacious fealty that Donald Trump, for all his feckless inconsistency, inspires among his core followers. Undoubtedly, there are tangled layers of identity politics that underwrite his ability to command such loyalty while committing the political equivalent of shooting someone in the middle of Fifth Avenue, as he once joked about doing—axing the head of the FBI, sharing state secrets with Russia. Nevertheless, I remain intrigued by one aspect of that power: the subtleties of rhetoric into which he has been able to tap, using little more than a 200-word vocabulary. I am intrigued by the social life of Trump’s nouns and verbs.

Let me begin with an easy example of what I mean: Aside from the pronouns “he” and “him” and “she” and “her,” the English language doesn’t have gendered or raced nouns. Yet it seems we do invest certain words and ideas with that kind of linguistic 
exclusivity—“nurse,” “fireman,” “CEO,” even the very notion of “success” itself.

I wrote an essay when President Obama was first elected, worrying that at a deep lexical level, the very word “president” was raced and gendered as white and male. I don’t mean the narrative or historical precedents; I wonder if just the word “president” doesn’t have an invisibly raced masculinity as part of its reference that taps into something beyond what we think of as intentional prejudice. A black and/or woman president is more ineffably unsettling, almost as a grammatical matter. It’s like a verb that doesn’t agree with its subject—one wants to keep adjusting the form until it sounds or looks right.

During his campaign and before, Trump exploited that sense with interrogations of Obama’s birthright and disparagements about whether Hillary Clinton looked presidential. It was racist and sexist, but it exploited this undercover meaning of “president,” against which even the most pants-wearing cartoon renderings of Clinton—to say nothing of Obama and his lovely little family—stood in contrast. Backlash 
seemed inevitable.

If Trump is to some degree a beneficiary of our concept of the “presidential,” I think there are yet more interesting examples of how he makes his actions seem inevitable and good to his base. I suspect that telling FBI director James Comey “You’re fired!” was, to Trump’s devotees, the mere semantic residue of a months-long discourse that made the final coup feel necessary, logical, and just-in-time.

The notorious tweet by Trump’s son Donald Jr. during the campaign illustrates the operative grammar of what I mean: “If I had a bowl of Skittles and I told you just three would kill you. Would you take a handful? That’s our Syrian refugee problem.” The “if” clause sets up an alt-fact hypothetical, followed by an immediate shift to the present tense: “That is” our problem. This effectively snatches a fictional conditional from the realm of the contingent future possible and makes it present, factual, here 
and now.

Similarly, President Trump has used the phrase “law-abiding” in a very exclusive way. In a speech to the NRA in April, he promised: “No longer will federal agencies be coming after law-abiding gun owners.” In Trump’s English, “law-abiding” doesn’t simply denote a citizen abiding within the law. “Law” has a perimeter, in this instance walled even against agents of the federal government. “Law” becomes an abode, a geography distinct from the dystopic realm of the nation-state.

I wonder if this isn’t exactly what Trump was gesturing toward when he sent his longtime head of personal security (not even a Secret Service agent) to deliver the termination letter to James Comey. Comey, officially the nation’s top “law man,” was sacked for his purported failure to abide within the narrower law of unquestioned loyalty to Trump.

Trump sometimes seems to revel in what he frames as an embattled status of constant persecution, against which he must perform constant acts of resistance. If some see this as paranoid and pugilistic, I think it appeals to his base by transforming a passive sense of political disaffection into an active charge: intercepting “carnage” before it happens. He becomes a “preemptive” self-defender holding at bay the subjunctive mood of probable, pending, or 
likely victimization.

Trump’s language drives a sense of the necessary with constructions that imply action, such as “immigration must be controlled.” This creates a grammatical neediness that must be fed—a challenge to be met, a mountain to be climbed, an America to be regained, a message to be spread, a wall that must be built, an enemy that must be annihilated, as well as the always reflexively terrifying terrorist who must be stopped.

These embodied horrors demand perpetual action, the obligations of quarantining, segregating, expelling, or exterminating. Donald Trump speaks this language fluently, though hardly exclusively: It can be traced throughout American political diction, the necessity for reacting to an ill-defined passive object. Comey needed firing… The hidden semantics operate as progressive, lurking, and active, provoking foreboding through moody tenses and tense moods, requiring resolution. It is a discourse that very efficiently layers a global sense of emergency with domestic fears of crime.

Ultimately, this kind of catastrophized thinking makes due process seem like a luxury we cannot afford. It nullifies statistics. It is the “eucatastrophe” of Greek theater, the deus ex machina that rises up out of the backdrop to save the day and end the story. It is the release, and the relief, the “of course”–ness of that cathartic catastrophe suspended in the middle of Fifth Avenue: “I could…shoot somebody” is reformed by the syntactical expectation that “somebody needed shooting.” Law is thus subsumed by the grammatical imperative of order—an executive, self-executing, executionary order-above-all.

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Angelus Novus

by Patricia J. Williams

published in The Nation Magazine, April 3, 2017

https://www.thenation.com/article/cruel-intentions/

 

I went to the theater with a friend recently. Afterwards, we sauntered around the unfamiliar neighborhood and wandered into what looked like a funky artisanal-beer emporium. Hanging by the entrance was a larger-than-life-size portrait of the actor Michael Richards. I froze, then turned and walked out. My friend, who is British, couldn’t understand: “Isn’t that just the guy from Seinfeld?”

My friend is also someone who keeps mistaking the Confederate flag for the Union Jack. To most Americans remotely familiar with tabloid media, however, Richards is the man who, in 2006, closed down his own comedy show by shouting at a black heckler: “Shut up! Fifty years ago, we’d have you upside down with a fucking fork up your ass!… You’re brave now, motherfucker!… Throw his ass out, he’s a nigger. He’s a nigger! He’s a nigger!” A predictable amount of brouhaha followed, culminating with an apology by Richards on the Late Show With David Letterman: “I’m not a racist, that’s what’s so insane about this. And yet it’s said, it comes through, it fires out of me.” Then he hung his head and received a round of applause for having apologized.

I have spent my life working for civil rights, social justice, and freedom of expression, but at that moment I was just thirsty. I felt the sudden deflation of what had been a very pleasant evening. It made me feel sad… and old. An old, tired “snowflake,” as right-wingers have taken to calling anyone with feelings. I started to explain to my friend what a “snowflake” was, but he reminded me that Milo Yiannopoulos is a Brit. He knew all about that.

Milo Yiannopoulos, of course, is the former Breitbart editor who angered a crowd at the University of Wisconsin, Milwaukee, by mocking a transgender student by name, all the while using a so-called “trigger cam” to live-stream the faces of students in the audience framed within a telescopic gun’s crosshairs. Yiannopoulos shrugged off the distress his antics caused with a sneering dismissiveness: “[They] said I had used violent words, as though violent words were a thing.”

 

To be fair, I don’t believe that violent words are “a thing,” either. Neither words nor iconography like swastikas or flags—or portraits, for that 
matter—are bats or guns or machetes. But it’s a conceptual mistake to pass off the gloating threat of a fork up the ass as performative passion. If we call people “garbage,” “parasites,” “cunts,” “dicks,” “niggers,” “pussies,” “apes,” “kikes,” “dykes,” or “towelheads”—if we laugh about it, if we chant such words at rallies, if we take them in deeply by sheer repetition alone, then our vision changes. Our hearts shrink. Our exclusions grow meaner and more marked, our laws much more punitive.

While there has been much attention paid to the more horrendous and overt breakdowns of civility—physical attacks on Muslims and Sikhs, the toppling of headstones in Jewish cemeteries, fistfights on college campuses—this insistence that we should “man up” and laugh at cruelty is not without consequences. The violence that erupted at the University of California, Berkeley, campus over an appearance by Yiannopoulous was apparently perpetrated by what was described as an outside group of about 150 masked people identifying themselves as 
antifascists (or “antifa”). Not good at all. But here’s something even more ominous in the long term: A petition has been launched on Change.org, now with almost 70,000 signatures, asking President Trump to “formally declare 
ANTIFA a domestic terrorist organization.” Since antifa is less an organization than a broad philosophy urging particular “modes of action,” it remains unclear what ideas would be included or what limits there would be to such a designation. There have also been calls to define Black Lives Matter as terrorist, as well as the protesters and water protectors fighting the Dakota Access Pipeline. This is an extremely serious matter: A categorization as “terrorist” places a person or group under heightened surveillance, infiltration, and the risk of having certain due-process rights suspended under the USA Patriot Act.

Let’s concede that the First Amendment allows people to say whatever nonfactual things float through their heads. But we are at a moment when we must confront the hard realities of genuine censorship—and it’s not about campus brawls or whether you think I cry too easily. The legal meaning of censorship has to do with the government silencing speech. Yes, speech should be utterly free as a general principle, but in our McCarthyite, anti-Muslim mood, the idea that words and images have no real consequence is specious at best. Words can incite, enrage, divide, or just take the wind out of one’s sails. They can affect voting patterns by muddying the waters with “alternative facts” or leaked propaganda.

As a renewed “blood and soil” brand of white nationalism surges throughout Europe, so here at home, Iowa Representative Steve King has endorsed the Dutch fascist Geert Wilders as someone who “understands that culture and demographics are our destiny. We can’t restore our civilization with somebody else’s babies.” But King is no outlier: White House adviser Steve Bannon has also befriended Wilders—as well as Marine Le Pen, Frauke Petry, and other leaders of Europe’s far right—thus placing our executive branch in the tiny hands of those who believe that geneticized “demography” is destiny. This notion that only people within a bounded—and 
biologized—cultural or ethnic geography can replenish a nation’s citizenry is a segregationist instinct that harks back to the Southern white-supremacist Redeemer movement during Reconstruction. “Other people’s babies” do not “restore.” Restoration looks to a fictive past, echoing Donald Trump’s promise to make America great “again.”

Out on the sidewalk in front of the pub, I could all but feel the angel of history being blown backwards, helplessly, into the future. I stood with my friend in the dark, quiet snowfall, wondering where to go.

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Double Standard

In her book Double Character: Slavery and Mastery in the Antebellum Southern Courtroom, legal historian Ariela Gross writes that in the old Deep South, a male citizen’s honor depended on public confirmation, unlike “the inward-looking piety of the Puritan tradition,” which located conscience and guilt in a “private sense of good and evil.” I couldn’t help thinking of that ethic when Elizabeth Warren was silenced on the floor of the US Senate during Jeff Sessions’s confirmation hearing after she called into question his fitness to serve as head of the Justice Department and as attorney general of the United States.

“You stated that a sitting senator is a disgrace to the Department of Justice,” said Republican Senator Steve Daines of Montana, rising to defend the honor of Donald Trump’s nominee.

Warren persisted: “I’m simply reading what [Coretta Scott King] wrote about what the nomination of Sessions to be a federal-court judge meant, and what it would mean in history, for her.” The 1986 letter by Dr. Martin Luther King Jr.’s widow asserted that Sessions “lacks the temperament, fairness and judgment to be a federal judge,” and accused him of pursuing, in his days as a prosecutor in Alabama, a “shabby” voter-fraud case against African-­American activists.

Warren was then formally silenced under Rule XIX of the Senate’s code of decorum, which had not been invoked in perhaps a century. It reads: “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”

As a purely technical matter, the lawyer in me would wish to point out that Senator Warren’s reading of Mrs. King’s remarks didn’t have anything to do with Jeff Sessions’s behavior as a senator, but specifically concerned his fitness to serve either on the federal judiciary or as US attorney general. In particular, attorneys general represent all of the people of the United States in criminal and civil cases. They construe all agency laws, functions, and regulations. They’re in charge of federal prisons; they supervise the activities of US marshals; they oversee the enforcement of civil-rights laws; and they advise the president on the limits of these laws. The accusations relating to Sessions’s history of prosecutorial misconduct, racial stereotyping, and voter suppression would seem germane to his ability to enforce the nation’s laws impartially.

Sessions’s subsequent approval by the Senate notwithstanding, I remain intrigued by the use of Rule XIX to silence Warren. It seems anachronistic, even quaint, this admonishment about “conduct unbecoming”—particularly given the last few years of bitter name-calling, obstructionism, and general bad behavior in Congress. A more familiar version of this code of conduct may be the Uniform Code of Military Justice, which lays out the offenses subject to court-martial. It includes Article 133, which criminalizes “conduct unbecoming an officer and a gentleman,” including defamatory language in one’s official, unofficial, or private capacity that diminishes the standing of the military as an office, a profession, and a duty.

The US military’s invocation of honor has been on display most recently in the pending court-martial of Sgt. Bowe Bergdahl for desertion and “misbehavior before the enemy.” The trial is presently mired in a procedural quagmire, because the commander in chief of our armed forces has denounced Sergeant Bergdahl personally and repeatedly (at least 45 times) in the most unbecoming terms imaginable. President Trump has stated that Bergdahl “should be shot,” that he should be thrown from an airplane without a parachute, that in “the good old days he would have been executed,” and that Bergdahl is a “whack job” and a “son of a bitch.” Alas, that “officer and a gentleman” rule seems to apply to the rank-and-file, but no longer to the commander in chief. (And heaven forbid that a good prosecutor might be tempted to see the similarity between Trump’s conduct in Mar-a-Lago—where he conducted foreign policy in the middle of a crowded restaurant—and what the military-justice code calls “misbehavior before the enemy by endangering the safety of a command, unit or place.”)

“Although honor was most prized when it came from equals,” Gross writes in Double Character, “honor thrived best in societies with a dishonored class, through whom and on whose bodies men could exercise honor.”And so, at various points in our history, those who dwelled in the dishonored geographies of “civil death”—women, slaves, Native Americans, indentured servants—were habitually banned from testifying or speaking in courts, in legislatures, even on their own behalf. Indeed, “talking back”—i.e., persisting in saying anything at all—was construed as not just an insult to one’s honor, but the endangerment of a gentleman’s reputation and status as a first-class citizen. (It’s amusing, perhaps, to think of this as the original “political correctness.”) Honor for some has always meant the silencing of others.

With the resurrection of something that exudes a faint whiff of the peculiar institutions of first-class citizenship and second-class humanity, it will be interesting to see how the ethic of civility among gentlemen plays out over the next few years: who gets to speak freely, and whose words are deemed threatening—or even terrorizing—­to politesse and the polity. We must have room on the record for the spoken objections, lived experiences, and inconvenient truths to be learned from women, from refugees, from Black Lives Matter, from veterans of our multiple wars, and from those water protectors standing vigil through this long, dismal, and very frigid North Dakota winter. We must insist that the honor of being heard is due to all peaceful dissent.

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You’re Fired! The Holman Rule Returns…

by Patricia J. Williams

published in The Nation Magazine, January 19, 2017

 On January 3, the House of Representatives passed a little-remarked funding package with an insidious provision. It reinstates the so-called Holman Rule and gives any legislator the power to amend fiscal appropriations so as to reduce the salary of certain federal employees to $1. In other words, it allows members of Congress to get rid of individual civil servants who are not to their taste.

First proposed in 1876 by Representative William Steele Holman (D-IN), the provision’s original object was to curb corruption among customs officials. Today, the rule has strayed far from its original purpose, instead giving Republicans another tool with which to “starve the beast” and enforce political conformity. Its reincarnation does not grant the power to fire outright, as the original Holman Rule did, but it does allow civil-service salaries to be reduced to $1 at the whim of legislators. Representative Morgan Griffith (R-VA), who spearheaded the rule’s revival, rebuffed the notion that it could be used to fire federal employees en masse. According to The Washington Post, he “favors a strategic application, likening it to a bullet from a sniper rifle rather than a shotgun.” Griffith deemed it unlikely that Congress would “go crazy” with such cuts, but “I can’t tell you it won’t happen…. The power is there. But isn’t that appropriate? Who runs this country, the people of the United States or the people on the people’s payroll?”

History can be a remarkable echo chamber: Griffith’s language is very similar to earlier defenses of the Holman Rule. A 1943 instantiation of the rule was used to justify the proposed elimination of the salaries of thousands of federal employees targeted for being too leftist. The pressure to retrench those salaries was fueled by secret investigations led by Representative John Kerr (D-NC), who summed up the issue as follows: “Whether or not the people of this country want men who are not in sympathy with the institutions of this country to run it…these people under investigation have no property rights in these offices.”

It was in response to those clandestine investigations that Representative Martin Dies, chair of the House Committee on Un-American Activities, proposed an appropriations bill defunding the salaries of 39 employees whom he denounced as “irresponsible, unrepresentative, crackpot, radical bureaucrats” whose associations included “Communist front organizations.” Dies’s appropriations bill became law.

Three of the 39 employees so indicted went on to sue the federal government, becoming plaintiffs in the 1946 case of The United States v. Lovett. One was Goodwin B. Watson, an educational psychologist and, years later, founder of The Journal of Applied Behavioral Science. Another was William Dodd Jr.; he had worked for the Federal Communications Commission, but was apparently punished for his associations with the American League Against War and Fascism and the Committee for Anti-Nazi Literature. Robert Lovett, the named plaintiff, was a Harvard-educated English professor whom President Franklin Roosevelt had appointed as secretary to the Virgin Islands. Perhaps because he’d signed the Humanist Manifesto—a document attesting to the values of humanism, atheism and freethinking—Lovett was accused of being a communist, a charge later shown to be untrue.

       All three men had performed their jobs well, and the agencies in question wished to keep them. Justice Hugo Black, writing for a majority of the Supreme Court, ruled that their being targeted was no “mere appropriation measure” (which would not be reviewable by courts) but instead was designed to “permanently bar respondents from government service.” The Court ruled that the salary amendment was effectively a bill of attainder that was prohibited by Article I, Section 9, of the Constitution. As Justice Black wrote: “Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.”

These safeguards include the right to due process, hearing, and review. They include the First Amendment’s proscription against government censorship and the system of independent oversight provided by the Office of Government Ethics, recently attacked by 
Republicans in Congress.

The federal government is the nation’s largest employer, with nearly 2 million civilians on the payroll. For all the glee expressed in some quarters about eviscerating “the bloat” and “draining the swamp,” public jobs are an important part of our democracy as well as our economy. Competitively assigned civil-service positions underwrite America’s remarkable continuity of governance; such an unshakable foundation is enabled by job security and the long-term store of accumulated knowledge produced thereby. As the Trump administration gathers the names of those who believe in abortion rights or global warming or equal pay for women or aid to African nations, it is not unreasonable to fear a coming wave of ex-post-facto punishment, including salary retrenchments that might disable not only bureaus like the Environmental Protection Agency, the Department of Housing and Urban Development, or the Social Security Administration, but also the Public Broadcasting System, the National Institutes of Health, the Kennedy Center, and the Smithsonian’s National Museum of African American Art and Culture.

In view of the Supreme Court’s Lovett verdict, the reassertion of the Holman Rule is unsettling. This Congress seems prepared to gut precisely the insulating mechanisms of nonpartisanship so essential to an enduring agency system—one based on performance rather than unbridled political patronage.

 

 

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Serving Two Masters

by Patricia J. Williams

published in The Nation Magazine, December 1, 2016

 Donald Trump’s presidential campaign found its footing in a terrifying, Twitter-driven terrain of real and imagined lawlessness—at the border, in the “inner cities,” at the hands of ISIS—and his ascent to the White House was underwritten by many of his supporters’ yearning for extralegal resolution. As we hover on the brink of a period of extended exceptions to and suspensions of the law, it’s worth tracking how we arrived here, and what might lie ahead. There are three forces I believe have been especially effective in titrating this newly toxic brew of anti-law populist culture.

The first is Trump’s talent for modeling a contagious, near-poetic anger that makes due process seem like a luxury we simply can’t afford. While it may seem scattershot at times, such panic-priming ultimately enables predictive models of policing, algorithmic assessments of “likely” behavior, group profiling, segregation based on suspicion rather than conviction, and a predisposition to literally shoot first and ask questions later. This mode of political address is often couched in talk of “law and order,” but it privileges order above all. As a practical matter, we may see the full unregulated potential of Big Data technologies unleashed—a fear to which I alluded in my last column. Nearly all of us can expect to be surveilled coldly, by strangers, and then tagged and followed and graded and boxed.

A second force attending the coming order is a dangerous predilection for punishment as unfettered play. Trump doesn’t just call for payback; he seems to relish the idea. He not only published his wish to execute the now-exonerated Central Park Five, but spoke of wanting to see them suffer too. He responds disproportionately to the slightest of slights to his ego; no matter how petty, he’s “gonna love” suing ’em, bankrupting ’em, sending ’em to jail. Trump styles himself as powerful with a vengeance—unrelenting vengeance. One sees that extra dollop of avenging glee reflected in the postelection exuberance of some of his followers—not just in happiness about his winning, for example, but in the ubiquitously expressed desire to see Hil
lary Clinton’s supporters actually cry. As projected by and through Trump’s network of delivery systems, his enthusiastic attacks on the “soft,” “wussy,” “coddled” practitioners of “political correctness” can appear as incoherent acts of random sadism. But Trump is telegraphing something consistent: undoing law in the name of order, using a language of violence and the logistics of the hunt.

Third and finally, there is Trump’s boastful self-presentation not just as a Washington “outsider,” but as an exceptional individual beyond the law or judicial regulation—half-sovereign, half-outlaw. (After all, he’s the one who could “stand in the middle of Fifth Avenue and shoot somebody” and get away with it.) When it comes to clear conflicts of fiduciary responsibility, he believes that “the president can’t have a conflict of interest…because everything a president does in some ways is like a conflict of interest. But I have—I’ve built—a very great company, and it’s a big company, and it’s all over the world.” Trump seems to have cribbed this magical theory of total immunity from Richard Nixon, who once told David Frost that “when the president does it, that means that it is not illegal.” This isn’t quite true, as Nixon discovered, since the statement conflates the individual who serves as president with all the powers of the state. When that distinction is lost, a king is born—or a dictator.

While Trump has sold his lawlessness to the American people as a form of zealous advocacy on their behalf, his disdain for the law will likely serve his own enterprises first. Privately profiting while supposedly acting on behalf of another overlaps substantially with what the law calls graft, bribery, extortion, double-dipping, or just plain stealing-from-grandma. This is true even of billionaires and business magnates: If I’m actively serving as both the president of a nation and the head of a profitable clothing manufacturer, by what rule ought my administration be guided when trying to decide between two companies bidding to fulfill an order for Army uniforms—one of which is owned by me? On the one hand, I have a duty to advance the incorporated self-interests of my shareholders; and so I would be bound to ensure that my enterprise was awarded the contract. On the other hand, my oath of office makes clear the responsibility I have to citizens and taxpayers; this would point in the opposite direction, binding me to accept the lowest bid from an independently vetted contractor. In his interview with The New York Times, Trump seems to merge the interests at stake: his company’s profiting in India = making America great again! Alas, this kind of faulty syllogism is commonly known as commingling.

While a president is exempt from being criminally prosecuted under federal conflict-of-interest laws, this is not a license to use the office for personal profiteering. The emoluments clause of the Constitution specifies that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This clause is more or less the secular instantiation of Matthew 6:24, to wit: “No man can serve two masters…. Ye cannot serve God and mammon.”

The role of president of the United States requires operating as a surrogate for the body politic. To paraphrase Aristotle’s notion of justice, a public servant strives for good not in the individual sense, but in terms of that which will render “someone else’s good.” First, this means respecting human dignity instead of relying on data and surveillance without due process. Second, it means executing the laws with restrained self-mastery, without which one is, according to Aristotle, morally “incontinent.”

Third and finally, the president is our embodied head of state. Heading any other incorporation is one head too many.

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