Dangerous Speech

October 23, 2017

I had a “discussion” recently with a friend who describes himself as a “proud supporter of Donald Trump” concerning the NFL protests. Not wanting to have the conversation devolve into yet another experience of parallel conversations, I tried to keep it simple: the players have a 1st Amendment right to protest. The response was unexpected. Some of it was the usual diversionary blather about dishonoring the military, sacrifices of patriots, etc., etc.

I kept reminding him that the 1st Amendment applies, even then. Ultimately, he voiced what I believe is really behind the agenda of Trump in creating the controversy. He said “the 1st Amendment shouldn’t apply to the flag.” That was the first disappointment – the realization that this intelligent man, who had heroically served in the military, reflected a substantial number of Americans who define their patriotism in direct opposition to the values that have defined being American for centuries, not to mention the oath he swore to defend the Constitution. Trump clearly wants to attack the freedom of the critical press – of free speech – using Stalinist phrases to describe them as “the enemy of the people” and threatening to put them out of business. His ignorance or disrespect for the Constitution is being blindly mirrored by his followers who believe only their version of patriotism is true and acceptable. Then came the second disappointment.

Trump followers not only mirror his disrespect for the Constitution, they mirror his pathological and personal attacks on anyone who disagrees, or is critical. You cannot have a conversation with a Trump follower on the merits of the issue. If you present a logical challenge to their argument, it quickly becomes a personal attack. In this instance, my friend began cursing at me and said “if you hate America so much, why don’t you leave it?”. It genuinely surprised me. The only thing I had argued was that the Constitution guaranteed their right to protest. I think that because he had been deceived into believing that the protest was against the flag (the players’ protest is for criminal justice reform) and that if anyone protested the flag (or defended the rights of those protesters), then they must hate America. Defending free speech now means hating America? That is what they are saying to us. This is a fundamental socio-political change and a very disturbing one. The kind that leads to civil unrest.

There are two kinds of America’s evolving now, split apart by a divisive demagogue in the White House and mutating quickly apart. One America is the “love it my way or leave it” America. They shroud themselves with the symbols and ornaments of patriotism: the flag, solemn postures during the national anthem and standing ovations at ball games for veterans. They are the cult of the “America First.” Freedom has a cost – it must be the way they define it. It is an emotional patriotism devoid of substance and knowledge or appreciation of the Constitution. You must stand when they want you to stand, shut up when you disagree, never criticize Trump. Ironically, the same “America first” Americans are now beginning to suggest that colluding with the Russians to win an election is acceptable (e.g. Sean Hannity), further illustrating the schizophrenic nature of Trumpism. The other America is confused and reeling from that movement. Nearly all Americans (including NFL players) love America and are loyal. So, they find things like burning the flag or dishonoring the sacrifices of veterans disagreeable. Yet they are also Americans who believe in the principles of the Constitution and are faithful to them. We feel uncomfortable being on the side of defending acts that we would not do, or defending media that we find objectionable, but know that real loyalty… real patriotism is standing with the Constitution and not with a demagogue who happens to be President.

Perhaps the consolation is in knowing that defending the rights of people to free speech, even that speech which we deplore, is the true meaning of patriotism. Remember the phrase oft cited reflecting the intent of our Founding Fathers, the quote from Voltaire “I disapprove of what you say, but will defend with my life your right to say it.”


Iran Primer

October 18, 2017

There are two areas of the world where many people in many countries believe catastrophic wars are becoming increasingly likely: Iran and North Korea. Iran has been a near boiling teapot ever since the disastrous Bush invasion of Iraq catapulted Iran into being the lone Moslem superpower in the area. Prior to the destruction and dismemberment of Iraq, it had been a check on Iran’s hegemony. Trump has managed to make this problem much worse by de-certifying the agreement to limit Iran’s nuclear weapon ambitions. Iran, like North Korea, view the development of nuclear weapon capability as a guarantee against regime change – a defensive last resort against what they perceive as American interest in destabilizing the regime. The concern is certainly valid. Here are the historical and contemporary reasons why Iran has sought to develop a nuclear weapon.

We could start in 1953, when the U.S. engineered a coup to oust the democratically elected Mohammed Mossaddegh. The reason why the U.S. overthrew the legitimately elected Prime Minister is that he threatened to nationalize the oil industry threatening profits of U.S. and British Oil Corporations. We installed the Shah, whose brutal and despotic rule alienated much of the population by the mid-seventies. Then came the storming of the U.S. Embassy which, among other things, revealed secret documents detailing the U.S. complicity in executing opposition leaders, mostly Muslim Clergy. Since then, there has been a constant state of hostility between us, including proxy wars using Iraq and other Sunni Muslim countries to oppose the rising power of Iran. Iran’s concern that the U.S. will try to cause regime change is valid based on history since 1953.

Contemporary causes of hostility include the significant expansion of Iranian influence ever since the U.S. essentially destroyed Iraq, the only power in the region with the financial and population capacity to oppose them. Iran now controls the politics of Iraq and has military units operating openly in Iraq, attacking the U.S. allied Sunni and Kurdish militia. Iran now also controls a significant part of Syrian territory and political influence in Lebanon, and has been fighting a proxy war in Yemen. They also fund a number of terrorist organizations that have successfully targeted our European allies.  Israel’s Prime Minister has been openly calling for a military strike on Iran for years, and in Trump seems to have found an ally.

The prevailing speculation among our allies is that Trump is making the Iran agreement a domestic political issue, which is doubly disturbing for them. Even members of Trump’s administration agree that Iran is complying with the agreement, which however flawed it may be in many regards, has stopped the development of Iran’s nuclear weapons program. The refusal to recertify and refer to Congress has destabilized the situation, however the radical Mullahs in Iran seem to have responded with restraint to Trump’s decision, which says more about the President than it does about the crazies in Iran. If Congress acts as irresponsibly as Trump and ends the agreement, then Iran will no doubt have a nuclear weapon in 2 to 3 years, our allies will be further alienated, no country will be able to trust any agreement with the U.S., and Israel has already declared that they will go to war rather than allow Iran to have a nuclear weapon.

Secretary of State Tillerson may have been correct in his assessment of Trump’s intellectual capacity, and we may well be heading towards a catastrophe as Senator Corker of TN has publicly warned. In this recent development even our own allies believe that the U.S. is the problem that makes war more likely.

Budgets and Taxes

October 17, 2017

One of the more complex and mind-bending issues in government today (and arguably at any time) are the processes of budgeting and tax reform. In the minutia of numbers that even CPAs are afraid to tread, the budget and tax reform issues are a playground for the wealthy to create a lot of mischief. Until President Obama took office, the budget process was at least open in Congress, with the normal process of hearings acting as a kind of opaque openness. Sure, closed committee hearings, backroom deals with lobbyists and pork-barrel deals kept the process of making the budget sausage from public scrutiny, but at least a few elected officials knew what was happening and could alert taxpayers.

The GOP decided that they would no longer operate with normal procedure when they obtained the majority in the House and no budget has been approved since then. It’s been a destructive process, creating crises of impending government shutdowns, and it is especially threatening now since tax reform is also on the agenda at the same time.

Can Congress create a budget and reform taxes at the same time without risking profound financial problems for future generations? It scares a lot of people. Republicans who under Obama warned darkly of our impending doom because of budget deficits, are now openly advocating tax reductions that will nearly triple the deficit by radically reducing revenues from the richest 10 percent of Americans, and all corporations. An estimated 90 percent of tax reductions will benefit less than 10 percent of Americans, resulting in an exploding deficit. Republicans hoped to resolve health care before the tax and budget decisions since nearly one-sixth of the economy is health care related and, with the end of Obamacare, the costs of delivering health care and obtaining health care insurance will skyrocket. That will only add onto an already catastrophic increase in the deficit if their plans succeed, unless Medicaid is ended.

How do Republicans justify the Trump tax plan? They say increased profits will trickle down to create an economic boom, resulting in higher tax revenues. That has already proven to be consistently untrue, but one need only look at the record profits of corporations the last 3 years without any discernable increase in re-investment to understand how ridiculous the argument is. If American corporations and the richest Americans are already flush with cash and not investing in American job creation, why would they change with even more profits?

The economic reality is that the richest Americans invest in financial markets, not in new businesses. American corporations invest in foreign markets where labor costs are half of what they are in the U.S. That makes American middle-class families double losers: higher overall tax rates and lower wages. Some Conservatives who railed against deficits, are so cynical to use exploding the deficit as a way of eliminating spending on social programs such as Social Security and Medicaid/Medicare – you know, turning us into a Third World society.

What we really need is a tax increase on upper income levels – a modest 3% on the top 1% of American incomes would nearly erase the deficit, even while lowering rates for the middle class. Clinton raised taxes on the richest Americans and the result was the biggest economic boom in our lifetime and a budget surplus. We need to eliminate tax loopholes for corporations, and create a low, flat tax rate (possibly with incentives only for job creations or wage increases). Start taxing Wall Street trades currently exempted. Don’t bet on that happening. Republicans are intent on rewarding the rich and Trump desperately needs to sign some kind of legislation.

The Swamp

October 14, 2017

“Clean the Swamp.” What a great marketing catch phrase. We don’t hear it as much these days, but we should. Not even a year into the Trump presidency, he has more scandals going than the last three presidents combined (and I am including Bill Clinton). Here is a partial list:

Money Scandals

  • Ongoing personal/family profits from lobbyists, foreign diplomats and foreign investors meeting with White House staff (estimated to be over $50 million in less than 1 year) – see Emolument Clause of the Constitution.
  • Frequent golf trips at taxpayer expense to Trump Resorts. Over a dozen trips in 6 months at an estimated cost of $34 million to tax payers (roughly $2 million every golf outing at his resorts).
  • Interior Secretary Zinke being investigated for taxpayer funded charters for personal trips (not including jet charters from businesses lobbying the Interior Department).
  • HHS Price resigns after private jet charter scandal.
  • EPA Pruitt being investigated for private jet charters, wants executive dining room and personal chef, wants soundproof phone room at EPA (Pruitt has met weekly with numerous business and lobbyist interests, and has not met with a single member of the EPA’s own science section).
  • Ivanka granted valuable trademark rights in China two weeks after Trump reverses claim that China was a “currency manipulator.”
  • Kushner caught soliciting investments from foreign states for family businesses.
  • Treasury Sec. Mnuchin uses charter jets for honeymoon and view the eclipse at taxpayer expense.
  • VA Chief Skulkin forced to resign after money scandal.
  • Trump lawyer Koswitz gives Manhattan D.A. $50,000.00 campaign contribution, drops criminal investigation of Ivanka and Trump Jr.
  • Trump advisor Icahn resigns after caught manipulating industry policy to make a fortune on stocks he owned.

Personnel Issues – Senior Level Only

  • Fynn (NS adviser) – foreign agent.
  • Manafort (campaign manager and frequent advisor to President) – foreign agent.
  • Carter (foreign policy adviser) – foreign agent.
  • Kushner, Sessions, Flynn lying on official investigations on the number of meetings with Russian representatives.
  • Kushner uses private e-mail server for house business (see “lock her up”)
  • Lead investigators of possible Russian Collusion fired: Bharara, Powell, Comey.
  • Price resigns.
  • Priebus resigns.
  • Bannon resigns.
  • Walsh (Communications) resigns.
  • Dubke (Communications) resigns.
  • Shaub (Office of Ethics) resigns.
  • Harvey (NSC Middle East Advisor) resigns.
  • Walsh (Communications) resigns.
  • Gorka (White House advisor) resigns.
  • Schiller (Communications) resigns.
  • Spicer (Communications) resigns.
  • Scaramucci (Communications) resigns.

Kind of swampy, eh?


A Hard Time

October 13, 2017

I’ve been practicing law now for decades and I have seen a lot of changes. Not just regarding the law, but also people. People seem so polarized and ideological – meaning that many jurors I see care more about their personal beliefs than facts. This is especially true on police misconduct cases. Of course we all support the police, not in small part because we have to depend on the police. Even as recently as 10 years ago, jurors, while skeptical of any claim against the police, would still be willing to do the right thing. Now it seems more true than not that even when jurors believe the evidence against the police, they rule in their favor because they are afraid of how it will affect other officers.

The same is true with medical malpractice. Jurors I talk to all say that they are more concerned about the affect of a monetary verdict on insurance premiums than they are about how serious the injuries were to the victim. Years of propaganda from corporations and Conservatives have convinced people that the police won’t police if bad cops are punished, and their own health care will be affected if they give money to a victim as compensation. Common sense tells us that if cops know they will be punished if they break the law, then fewer would break the law. Instead, we have an explosion of police shootings of innocent citizens. Common sense tells us that if doctors have to be more careful with patients, then fewer errors will occur and health care costs will go down, but deaths due to medical mistakes continue to kill over 50,000 patients a year. It is a matter of emotions and beliefs instead of overwhelming facts and common sense. It is as though any compensation for victims is coming from their own finances.

However, there is another even more disturbing change that I sense. It’s a certain hardness, even cruelty, among people concerning the suffering of others. It can be measured in the amount of compensation provided to victims (rather, the lack of it), especially for pain and suffering. It is also measured by the comments I hear about suffering. People who suffer constant and disabling pain, and will for the rest of their lives, are often given token compensation or none at all. It’s as though suffering is meaningless. The cruelty of dismissing the suffering of another person is disturbing.

I guess we see this same hardness in society in general, where empathy for victims is overwhelmed by political or ideological concerns. The murder of an innocent black man in Minnesota or Missouri is dismissed or even defended by many people. Suffering and injustice that is undeniable is met with this common phrase: “yes, but what about …” Whether it is a social sea change or not, the implications for society are profound. If victims cannot get justice from the legal system, then the only alternative is violence and anarchy. We already see this beginning in places like St. Loius, where an obviously unjust dismissal of a police officer resulted in days of rioting. So what is the cure?



Guns (Again)

October 12, 2017

What more can anyone say? If there is any proof that our government is controlled by money it would be the gun lobby. The fact that the vast majority of American citizens, Republicans, Democrats and Independents, support increasing gun control measures while Congress continues to pass utterly insane gun laws to make it easier to get even more lethal weapons is proof that our democracy has been hijacked. The same Congress and President seen praying for the victims of the Las Vegas terror were the same guys who passed a law making it easier for people with serious mental illnesses to purchase guns last month and who are about to pass another law to allow the sale of gun silencers. Can you imagine the death count if the Vegas shooter had silenced his weapons? As Kimmel aptly said “they should be praying for god’s forgiveness for being owned by the NRA.”

Nothing is going to change regarding gun violence, except the death count. It’s a fact that we have to live with – or is it? If every one of the roughly 80% of Americans who think there should be some common sense restriction on gun sales were to make it clear to Congress that they were going to vote on that issue, it might change. Better yet, if the same number of people contributed one dollar to campaigns of politicians running on stricter gun control, change might come. But those are only theoretical ideas because the fact is that Americans are complacent about violence in general.

Our culture is a violent culture, more violent than any other nation in the world. Some countries, such as North Korea, have governments that use violence to keep power. That violence is targeted and political. Our culture is one of random violence among the people.  Controlling guns would eliminate the vast majority of violent deaths, but not stop violent deaths altogether because we have become habituated to violence … indoctrinated from an early age by everything from video games to incessant coverage of carnage in the media. Watching violence in the media may not cause violent acts, but it sure numbs us to it and allows us to ignore it. Gun control policy is controlled by money from the NRA, but gun violence is a symptom of something far more profound and intransigent. Until we change our tolerance of violence in general, none of us are safe (no matter how many guns we own).


Parenting and Protesting

October 11, 2017

Since I became a parent I’ve observed different parenting styles among other parents. It seems to me that there are two types of parents. Both types of parents love their child. One parent thinks their child can do no wrong. The other type of parent loves their child just as much, but will admonish the child when they do wrong and encourage them to do better.

It seems to me that the same paradigm applies to patriots. One type of patriot loves their country and their attitude is “love it or leave it.” The other type of patriot occasionally takes a knee and encourages the country to do better. No doubt that Trump manufactured the controversy over the recent protests of NFL players to distract attention away from his failing presidency, and the tactic is further fracturing American society.

The battle lines may appear to be defined differently – both sides are talking past each other. For players, the protest started as a means of highlighting the continuing problem of police violence against black men and a justice system rigged to allow the legal killing of innocent citizens. The other side sees it as a matter of disrespecting the sacrifices of Americans to preserve freedom. It’s probably not hard to guess which side I fall on, especially as a lawyer with children of color. What has formed my opinion is less the politics than the practical: I had to have a conversation with my boys that I never imagined would be necessary.

I live in the most affluent city in Michigan, but that is no insulation for my sons from profiling. Far from it, because once they get a driver’s license they are sure to be pulled over frequently in our neighborhood. I recall Will Smith talking about being pulled over near his home in Beverly Hills because the officers saw only a black man with a ball cap. I recall a professional tennis player being tackled by police without warning as he waited outside his hotel in New York City.  I recall numerous stories from clients and friends, virtually every African-American I have met, who all experienced or know someone who experienced profiling and worse. The very fact that black parents must have that conversation with their sons in this country is shameful.

As much as I understand the players protesting, I am totally dismissive of the fake patriots who are so upset with them. Not all of them are the same, but most of these counter-protesters are just following the emotional lead of their great leader. I asked one person who was so upset at the players that she refuses to attend a Lion’s game. She thinks it’s awful. She denies it’s about race and insists it is about patriotism – patriotism as she wants them to express it. I asked her “wow, if you are that offended by the players taking a knee during the national anthem, you must be really upset with the Russians attacking our election …” Her response – “that’s fake news.”

I do respect some people who are upset about the NFL protests. I understand how they feel and they have a right to feel that way – as long as they have enough patriotism to allow other Americans the unabridged right to protest, especially protest against the government. I have absolutely no tolerance for people who want a few black football players fired for a peaceful protest but dismiss an attack on our country by Russia. Those people are motivated by race, not patriotism.


Out of This World (Please!)

October 3, 2017

Time to take a little break from the 24/7 cable news siren song of fear, anger and controversy to remind ourselves of the wonders of the world and universe we live in. I was just thinking about the end of the Cassini-Huygens mission to Saturn last week. The long mission to Saturn was a scientific accomplishment worthy of wonder itself, let alone the mind-boggling discoveries made about Saturn and its moons. Imagine the complexity of calculating the numerous variables involved in steering a spacecraft millions of miles around the sun at precisely the right angle, with precisely the right burst of rockets and centrifugal/gravitational forces to gather enough speed to go faster than any man made object ever, then avoid several planets and thousands of asteroids, calculate the force of gravity, and brake at exactly the right orbit around Saturn with communications delayed by hours.

What a wonderful thing when a human brain can sort this incredible complexity into a successful mission. A collection of billions of cells in our skulls creates consciousness in a process we still can’t even understand how to study. Not only does the brain somehow create self-awareness, it creates the ability to think in three dimensions at a rate faster than any supercomputer yet devised. It transforms mathematical calculations into a mission like Cassisni and we see the tangible results in images and data!

Then there are the results of the mission itself to wonder at.  Cassini discovered that Saturn has at least 62 moons, one of which has an ocean beneath a frozen crust that may be able to support life (Cassini was deliberately burned up in Saturn’s atmosphere to avoid harm to any potential life form). Even the Rings of Saturn revealed new discoveries – billions of particles of ice and rock woven like a spinning rope on a perfectly flat plane. Saturn also has a single storm encompassing three quarters of the planet for entire years. It’s a wonder and wonderful.

I think that when we escape the gravity of our own human flaws and self-concerns we discover a wonderful universe and all the fatigue of conflicts evaporates. From the miracle of our brain and consciousness to the universe beyond our world, there is so much to discover and joy that is in discovering. If only we spent as much time staring at the night sky as we do at cable news …

Judge Moore and the “Rue” of Law

October 2, 2017

Most judges respect the rule of law, and even when they try to distort the law to justify decisions they respect the process of appeal. Not so with the GOP nominee Roy Moore. He was properly removed from the bench twice for misconduct – specifically by contemptuously ignoring rulings by the Supreme Court and encouraging other judges and law enforcement agencies to do the same. Although he claims to be following a “higher law” (meaning his interpretation of the word of god), he is proven to be a lawless judge. The likely newest member of the U.S. Senate next year, in fact, rues the law and the Constitution.

Men like Moore seem like caricatures – an amalgam of all the bigoted believes of the antebellum South, but he is not – and his election win in Alabama proves it. You might think that some of his beliefs reflect either the ravages of dementia or some parody of a slave owning Baptist minister, but they are not. He is an unapologetic bigot. Some of his publicly stated beliefs, which include the death penalty for homosexual behavior, banning any public prayers that are not “Christian”, banning American citizens who are Muslims for elected office, would seem to rule him out of any election. It is hard to accept his winning the nomination because the only logical conclusion is that the GOP base in Alabama endorses bigotry. What is even more disturbing is likelihood that he will be win in the statewide election.

Some Republicans will justify their vote for Moore as a vote against the GOP Establishment, as the Rasputin of politics Steve Bannon positioned the race. However, it is inescapable that a vote for Moore is an endorsement of a very bigoted form of religion over the rule of law and the Constitution. A vote for a Democrat would be a rebuke of the GOP, but a vote for Moore is a vote for bigotry. Moore has been clear that his election will be a license to establish “god’s law” over the rule of law. I’ve started to accept the idea that 30% of America is lost in a wilderness of fear and alt.facts, but I’m not sure I could ever accept the idea that a man like that could become a Senator from any state, including Alabama. I mean, Sessions was bad enough, but he was a closet bigot (and something else too). One hesitates to use the phrase “out of the closet” for Moore, but he is as open as can be about his bigotry. Maybe this represents a continuation of the same process unleashed by the election of Trump. Maybe Trump was elected because he said bigoted things and not despite it. Maybe this is a large part of Alabama coming out of its closet and grasping for the glory days of Jim Crow.

I guess we will know next year.