March 30, 2019
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Collusion and Causation

by Jonathan Wallace

We lawyers are all about cause and effect. Defense counsel specialize in breaking the links between actions and consequences. I vaguely remember a case in which the defendant fired on the victim in front of many witnesses, but the fatal bullet passed through and was not recovered, so no forensics could be done. Defense counsel, perhaps successfully, argued that it was not necessarily the defendant's bullet which hit the victim; maybe some other unknown person with an unknown motive had fired at the same moment, unseen by anyone.

There is a certain kind of loud mouth defense attorney who was prevalent in the early 1980's, vanished for a good moment, and is becoming more common again in the Trump era. You present your proofs of her client's misdeeds--here for example is the check with the signature by which the client misappropriated funds, or the email to the employee solicited duriung the noncompete period--and this lawyer howls, "But where's your evidence?"

I am thinking about these tactics now because this kind of rhetoric is becoming widespread in our politics and culture. Climate change may always be the lead example, where, when a human-induced problem is too frightening, or it is too inconvenient for Capitalism to forego profits, the first and foremost tactic is always to attack causation. Some years ago, I publicly debated a Libertarian (which is a really useless endeavor) who said eight times before the audience, and four more times in private, that climate change is Not Happening, and then added, at the end of a really dull evening: "And there's nothing we can do about it anyway".

In the duty free environment of Congress (see what I did? I didn't even see that coming until I typed it) (or is that a denial of causation?) it seems to be a truism that "Nobody on our side is ever responsible for anything". Presidents as executives until fairly recently were expected to step up and be responsible for everything. There is even what I call a "Japanese" theory in which the top excecutive is responsible even when something is not her direct fault, because, to run our affairs together, we have to be able to hold someone to account. An early, really great boss of mine wrote a memo to an associate after they made a mistake on a case: "I take 100% of the responsibility. How much do you take?" There is only one right answer to that question: "Also 100%".

I began noticing in the '90's executives at places like Enron blaming subordinates. It always seemed clear that nothing could be weaker, lamer, or more dishonest for a CEO, a self-indictment that "I wasn't enough on the ball to know that my employees were cheating, even though it was obvious to a lot of other people". This is almost always a lie; because executives are responsible for culture and the culture promoted the lying and stealing. The other day, I watched the Theranos documentary on Amazon, The Inventor. Predictably, there is a moment late in the documentary when CEO Elizabeth Holmes tells an interviewer that she is very disappointed at being let down by the lab people, who assured her that the Edison device actually worked. One of the lab employees says, a lot more truthfully, that there were two cultures at Theranos, the "carpet" culture and the "tile" culture. In the lab, the "tiled" part of the huge building, there was a struggle against almost impossible constraints to create a working machine, which in many cases only ceased when people couldn't bear it any more and quit, or in the case of one senior exec, committed suicide. On the "carpeted" side of the building, the corporate offices, Holmes and other empty-eyed people constantly represented they had a product when they didn't. Towards the end, there is a clip of Holmes, when the Wall Street Journal had already exposed the fact that Theranos is using its competitors' blood analysis machines because it has none of its own, adroitly and brazenly claiming that Theranos is using a new and doubly nonexistent technology which has replaced the nonexistent Edison.

I find Elizabeth Holmes fascinating because she is not an outlier, but really business as usual in our world today; her errors were of quantity, not category; she did what everyone else is doing, just a bit more extremely and ineptly. The reason she was able to attract people like Henry Kissinger, George Schultz and James Mattis to her board is that they were already churning Narratives in the same way before she was born. There is a story about Kissinger presiding over a meeting to determine the cover story for our support of the Pinochet dictatorship in Chile, which was raping and murdering dissidents in military custody. When a young employee suggested that we claim Chile's geographical importance to American security, Kissinger supposedly laughed and said, "Yes--Chile is a dagger pointed at the heart of Antarctica". The remark was never intended for public knowledge, and the Nixon administration issued its justification.

Trump through-out his business career has never accepted blame for anything. Nothing is ever his fault; the buck stops anywhere but on his desk--including the clasic blaming of subordinates. As candidate and President, a lot of the causal links he snaps are quite remarkable, like arguing that Bin Salman was not clearly responsible for the murder of Jamal Khashoggi, for example, or that he believed Vladimir Putin's statement that he had not interfered in the election.

Nevertheless, the rhetoric in reaction to the Mueller report reaches an unprecedented level of absurdity. Whatever Trump denies having done, you can hear him over and over on cable news in July 2016 saying the words “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” Russia began its hacking the same day. I could go on and mention other examples, like Jared Kushner astonishing the Russian ambassador in December 2016 by suggesting that the latter create a safe room in the embassy that Kushner could use for secret communications to Moscow. But let's stop right there and really think about "Russia, if you're listening".

For seven years, I have been working on a Mad Manuscript about free speech, which is now an unreadable, unpublishable 6,800 pages. (I wrote an encyclopedia, by accident--no, I did it on purpose.) Here are some excerpts illustrating the ways in which power analyzes causation when it is prosecuting dissidents: "In the first Smith Act prosecution, the U.S. attorney elicited from ex-Communist witnesses the assertion that official tracts and statements opposing violence, were actually couched in 'Aesopian language' intended to communicate the opposite." In the Chicago Seven conspiracy trial, "Bobby Seale had not previously met any of the other defendants before arriving in Chicago on August 27, 1968. The other defendants were unsure why Seale had even been included in the indictment, except that the Justice Department seemed to have a special interest in the Panthers, whom J. Edgar Hoover had described as America’s greatest internal; threat, and Jerris Leonard, new head of the Civil Rights division under Nixon, called 'a bunch of hoodlums'". In the post-9/11 Patriot Act prosecutions for "material support" of terrorism, the following colloquy occurred which will be authentically surprising to many liberals. "In oral argument for... Holder v. Humanitarian Law Project (HLP), 130 S. Ct. 2705 (2010) Supreme Court Justice Kennedy asked Elena Kagan, then Solicitor General, now on the Court herself, whether filing an amicus brief on behalf of a terrorist group would be a crime. Kagan said, 'To the extent that a lawyer drafts an amicus brief [for designated terrorist groups] ... then that indeed would be prohibited'". In an Idaho case, “a college student [charged with] running a website that happened to have links to other websites which in turn featured speeches by Muslim sheikhs advocating violent jihad" was charged with "providing material support in the form of 'expert advice or assistance' by running the website and linking it to such statements.”

"Conspiracy", as everyone knows, is based on the Latin for "breathing together". In the J20 cases in Washington, journalists were prosecuted in effect for breathing twenty feet away from people who were smashing windows. In a sense, the Congress did us a very small favor in passing the "material support" law, because at least you can understand what the rule means, while it always seemed that "conspiracy" could be anything at all. By contrast, you have materially supported the bad guys if you say or do anything that makes them happy. Think that could not possibly be? In the Holder case, the Court concluded that if a nonprofit went ahead and taught peaceful mediation techniques to a group listed as terrorists, that would be material support because it might “lend [them] legitimacy”.

This should make it really, really clear that there are two theories of causation, one which applies to left wing dissidents, and a completely different one for President Trump and other members of the power hierarchy. Trump famously also said during the campaign that ""I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters". What he might have said is, "and I wouldn't even be charged". At the same time, you or I might be convicted for haplessly standing nearby on the sidewalk at the moment he fired that shot.

If one standard applied to the marginalized left and to the powerful (as the Fourteenth Amendment's equal protection clause seems to demand) then no doubt "Rusia are you listening" would be a convictable felony offense. Because it made an enemy happy.

* * *

That was my punchline, but as a kind of post-script, I would like to offer a case study of how breaking the links of causation is pervasive in other realms of our culture. Here is Matthew Taibbi of Rolling Stone sounding remarkably like a flack for the administration: "The indictments of the Russians, which first of all aren’t proof, they’re just allegations, they very specifically didn’t make a connection between the Internet Research Agency and the Russian government, so that piece of it was not really reported all that well. It quickly became, 'The Russians attacked us.' Well, what does 'The Russians' mean? Is it anybody in Russia? Is it necessarily a Russian government operation? Perhaps. Probably. We don’t know for sure. It could be, absolutely, but I don’t think that’s been established".

That's a really astounding statement when you break it down, on the same level of logic and morality as "maybe someone else fired the shot". A lot of other people around us who were formerly heroes of mine are now strangely Putin-friendly, or at least prone to lose any sense of cause and effect only where Putin is concerned , among them Glenn Greenwald. While Taibbi's and Greenwald's thinking remains mysterious, another former hero, Julian Assange, is more completely exposed.

A choice of words can be like a poker tell. Taibbi is like that blustering lawyer, shouting "Where's your evidence!" Why?