Not Guilty

FBI Director James Comey has just issued a letter to Congressional leaders that “In connection with an unrelated case the FBI has learned of the existence of emails that appear to be pertinent” to the previously closed FBI investigation of Hillary Clinton’s private email server.  Comey doesn’t yet know whether these new emails are “significant” or how long it will take to fold new investigative work on these new emails into the FBI’s previous work.  He released the letter as a “supplement” to his previously testimony about the email server to Congress. 

I’m not going to speculate as to what’s in the new emails or why these emails hadn’t been discovered prior to the time the FBI closed its case on the matter last summer.  And nobody else should either.  

But I have to say that this matter is annoying, and not just because I support Hillary Clinton.  The key issue is whether Clinton intended to violate a statute aimed at preventing people from stealing government information and intentionally delivering it to people who shouldn’t have it.  I’ve been a lawyer for over 35 years, and, having heard the arguments, I believe the FBI Director was right the first time when he concluded that “no reasonable prosecutor” would bring a case against Clinton with the facts the FBI had discovered.   Even if Clinton’s behavior was “extremely careless,” extreme carelessness is not a crime. 

There’s a bigger issue here, and it applies as much to Donald Trump as it does to Hillary Clinton.  The partisans on both sides of the aisle are trying to apply a lawyerly rule of strategy to this election that makes sense in the courtroom but not in the arena of public opinion.  One of the first things they teach you in law school is that it’s often better to try to win your case on procedural foot faults where the rules are clear—your opponent filed late, filed in the wrong court, didn’t use the correct size paper in its brief or pleadings, for example—than it is to venture into a trial on the merits where a judge may have the leeway to rule against you.  A win, after all, is a win. 

In this election, it seems that both sides want the other side to be “disqualified,” either because of the improper handling of governmental documents in the case of Mrs. Clinton or because of the improper handling of female body parts or fraudulent business practices on the part of Mr. Trump.  Rather than taking their cases to the voters, both sides seem to want to win on anything but the merits of the policies they support. 

That is no way to run a democracy.  In a democratic election politicians, stand before their peers—the citizens of this country—who will render judgment, not just on the policies they espouse, but on them as people.  Why should anyone, in this democracy, want lawyers, prosecutors or judges to play the role democracy assigns to the people? 

The law that both sides insist should be followed to the letter is but the embodiment of the community’s judgment about what should or should not be done, and about how transgressions of that judgment ought to be addressed.  In our country, due process requires the community to set out specifically what it will tolerate and what it won’t.  We simply do not punish people for things that they do that may enrage us unless we have first given them clear notice of the particular things that will lead to punishment in the form of a statute.  And we don’t punish anyone unless and until the community, usually in the form of a jury, decides beyond a reasonable doubt, that each element of the statute leading to culpability has been violated. 

We use juries to make decisions about culpability because it is impractical to have the community at large sitting in judgment on every case.   Because we want to avoid arbitrary judgments from small groups of people, we typically require either unanimity or near unanimity before we allow the state to deprive a person of life, liberty or property. 

We require juries to be impartial, and we take great care to insure that jurors learn about the people and the things that they have done anew.  In appropriate cases, we even move court proceedings  to distant locations where the people who make up the jury pool are unlikely to know anything beforehand about the people they might be judging. 

We are in the last two weeks of a national election.  It is absurd to think that either of these two candidates could get a fair trial in front of an impartial jury anywhere in the country.  Both of these two candidates are extremely well known, and it’s simply implausible that anyone in this country hasn’t formed an opinion about their characters or the things they have been accused of doing.  Despite any instructions a judge might give to a jury about how to resolve the fates of these two people, there isn’t any reason to think that a jury wouldn’t go beyond the law, exactly the way that the Supreme Court went beyond the law in Bush v. Gore.  It’s hard to imagine that a jury—12 citizens--wouldn’t be influenced by the realization that it alone has the power to decide who, as a practical matter, will be president.  

That is why, despite the reasonable assertion that both of these two people ought to be treated just like anyone else accused of potentially criminal behavior, it is unreasonable to think that either of these two people could possibly be treated like anyone else.  The implications for the health of American democracy of letting the FBI, a prosecutor, the Justice Department, a judge or a 12-person jury decide who will be president require that Clinton and Trump be treated differently. 

The best way to deal with Secretary Clinton and Mr. Trump is simply to let the people at large serve as the jury.  With respect to Secretary Clinton, the facts of her case have been extensively litigated in the court of public opinion and before Congress.  By now, everyone knows what she did and is in a position to decide for themselves whether what she did makes it unwise to trust her with national security.  If it does, vote against her. 

Mr. Trump’s case, too, has also been heavily litigated in the court of public opinion.  Everyone now has extensive evidence about Mr. Trump’s attitude and actions with respect to women.  Everyone knows that multiple contractors have claimed that Mr. Trump failed to pay them in accordance with the terms of their contracts.  And everyone also knows that Mr Trump's "university" has been accused of defrauding students.  If you believe that Mr. Trump is too unsavory a character to be the President of the United States, vote against him.  

I am well aware that the analogy I am making to trial by jury is imperfect.  But, what’s really at stake here isn’t whether either of these people receives a relatively mild sanction.  Given what has happened to people like David Petraeus or Sandy Berger  it’s not likely that anyone would  lock Clinton up. Even if applicable statutes of limitation did not protect Trump from prosecution, sexual battery is a minor crime that’s not ordinarily prosecuted unless the touching was egregious, most of the other things he's been accused of are the stuff of civil lawsuits.  What's at stake here is which one of these people (and the factions that support them) should govern.  And that is a call we all should make through a fair democratic process.  It should not be left to prosecutors, lawyers or 12 angry men.   

When You're A Star

   

         I’ll admit it.  When I first heard about Donald Trump’s lewd remarks about groping women, I wasn’t outraged.  In fact, the first thing I did was to look at the vintage of the words.  He’d made those comments over ten years ago during what he probably thought was a private moment. To me, this seemed like a “gotcha” that members of the media live for.

        I thought, well, tThis is Donald Trump, after all.  If we’ve learned nothing else about the man over the last 15 months, we should have learned that for him, women are just collections of legs, butts, breasts, faces and “wherevers” that can be compared, rated and used for his own gratification.  It’s no wonder that the Clinton campaign has recorded a sufficient number of Trump’s derogatory comments about women to have cobbled together a devastating ad showing girls listening to those comments while looking sadly at themselves in mirrors. 

            So why are these newly unearthed comments news?  Why are Republican politicians—including his own running mate, Mike Pence—scurrying for cover and even urging him to get out of the race?  Are they only now discovering that this man means electoral disaster for the party?

            At first blush, I figured that this was just more of the same.  Donald Trump seems to have gotten away with disparaging remarks about Muslims, Mexicans, African-Americans, Jews and war heroes.  The next outrageous thing he says seems to wash over the last outrageous thing he’s said.  In fact, in the last 15 months, he’s said so many outrageous things that it’s hard to remember them all.  Why would anyone think that the public would take this episode any more seriously than it has taken any of the others?

            Perhaps it is the crude language.  He used several of the words that George Carlin told my generation couldn’t be said on television. Of course, those words can be said on cable TV shows and movies, and with such resources readily available, it could be that nobody thinks anyone should have to suffer hearing those words from a Presidential candidate.

            Not.

            I think I could have simply shrugged off the latest Trumpisms, attributing them to the fact that this man seems never to have grown out of his adolescence.  This was high school locker room banter.  But then I read his statement in its entirety, and I realized that Donald Trump had gone much farther.  Here are the words that most upset me:

“And when you’re a star, they let you do it.  You can do anything.”

            These 14 simple words say it all.  They explain what’s wrong with Donald Trump.  They explain his race for the Presidency.  And they explain why this man should never be allowed anywhere near the White House.

            The President of the United States is the world’s ultimate celebrity (aside, of course, from Beyonce).  The person occupying that office is completely surrounded by the media.  Everything that person says or does gets reported, not just locally, but globally.  Everyone on earth who has access to a television or computer connected to the internet knows who the American president is and what the American President looks like.  The President can summon the media on a whim and even demand TV and radio airtime on a few moments notice.  For a person who craves attention, the presidency is nirvana.

            Is there any wonder that Donald Trump wants to be president?

            Americans expect that anyone who reaches the pinnacle of American governmental power will be ruthless to some extent.  All the same, we expect this ruthlessness to be exercised within the context of certain norms and expectations that will eventually be enforced by our political system.  It’s why Richard Nixon didn’t get away with Watergate.

            But 2016 is not 1974.  We’ve obliterated so many of those norms since then, and our expectations for our political leaders are much lower.  So much of what would have been unthinkable in 1974 is commonplace now.  The growing gridlock in Congress has encouraged presidents of both parties to expand their powers beyond presumed Constitutional limits, setting precedents for their successors in office.  What limits will there be on a president like Donald Trump who has evidenced no understanding of our Constitution, no understanding that the oval office does not convey upon its occupant unlimited power, and who feels that becoming an even bigger celebrity than he is now by winning an election will give him license to do whatever he wants.

            Our politics has grown far more tribal than it was 42 years ago.  Nixon realized that the jig was up when Republican Senator, Barry Goldwater explained to him that counting both Democratic and Republican votes, there weren’t enough supporters in the Senate to avoid conviction and removal from office.  I have my doubts that, were Donald Trump to win the presidency and then step out of line, Republican Senators would intervene they way they did in 1974.  Neither Senate Majority Leader Mitch McConnell nor House Speaker Paul Ryan have yet repudiated Donald Trump. They’ve calculated that having Trump in the White House is in their interests.  What would it take for them to put country ahead of party?

            The Republican objections I’ve heard to Donald Trump’s comments focus on how insulting and demeaning they were to women.  Not unexpectedly, they seem to ask men to consider how people under their care—their wives, their daughters—feel.  That’s the wrong question.  We should all be embarrassed by what Donald Trump said.  We should all feel threatened. We should all feel insulted.

            The right question to ask is why anyone would want to make a person like Donald Trump, a man who cannot empathize, a man who objectifies others, a man who cannot express remorse or shame, a man who thinks he knows everything and cannot admit a mistake, the face of the United States and an ex officio role model for our children?  And that begs another question.

            As of this moment 74% of Republicans say that Republican party officials should continue to back Donald Trump. Have they no sense of decency, at long last?  Have they left no sense of shame?          

Chill

     

       Today, I want to talk to my Democratic friends.  If you’re a Republican and a Trump supporter, you’ve got the day off.  What I’ve got to say today will be of absolutely no interest to you.

            It’s time for the freak-out over Hillary Clinton’s poll numbers to stop.  Put the worry beads away.  And stop thinking about the logistics of moving to Canada.  Donald Trump is not going to win this election.

            I know.  You’re obsessed with the election forecasts on FiveThirtyEight.com and Nate Cohn’s Upshot column in the New York Times.  You probably look at both first thing in the morning, at lunch and just before you go to sleep at night.  And you’ve been watching incredulously as Hillary Clinton’s odds of winning the election have slowly eroded.

            What you need is a reality check and some perspective. 

            Here’s the reality check.  We live in a country that is split pretty evenly between Democrats and independents who lean left on the one hand and Republicans and Independents who lean right on the other.  And, let’s face it, Hillary Clinton’s candidacy comes with a whole lot of baggage.

            Both Donald Trump and Hillary Clinton got bounces after their conventions over the summer.  Hillary got a bigger bounce than Donald Trump did, but that’s neither here nor there.  We call them bounces because public opinion goes up and then it comes down.  The race has settled down to about where it was in the Spring.  Hillary Clinton still enjoys a small but significant advantage over Donald Trump.   FiveThirtyEight.com and the New York Times are still saying that despite Clinton’s slide in the polls, she has a substantially better chance of winning the election than Donald Trump has.

            Here’s the perspective.  Take a look at this graph from RealClearPolitics.com.  This shows you aggregated polling numbers for the 2012 election.  You probably don’t remember this, but President Obama’s reelection was no sure thing.  As of September

21, 2012, Barack Obama held a polling lead of only 3.5 percentage points.  As of the day before the election, the polls were showing an extremely tight race.  Obama led by only 0.7 percentage points. 

            On Election Day, though, Obama beat Romney by a 6 percentage point margin.

            There are a number of lessons to learn from this.  The first is that even if you aggregate polls as RealClearPolitics.com does, the results are still only probabilities.  Polls can only tell us only what particular people said at a particular moment in time.  The math we use to impute what we learn from a relatively small subset of people to the entire population of voters has its limits.  The best we can do is use that math to come up with an estimate of what is really going on in the population at large.  And that estimate is going to be subject to a margin of error that we can never reduce to zero.

            The second is that unless you want to believe that something miraculous happened between November 5 and November 6—and, being liberals, you probably aren’t that much into miracles—you need to look for an explanation for the difference between the predicted margin of 0.7 and the actual margin of 6.  And, there are at least two.

            First, you may have noticed that the polls have seemed to respond to the news.  That’s kind of puzzling, since by now, most people have made up their minds about who they’re going to vote for.  According to FiveThirtyEight.com, there still seems to be an unusually large chunk of voters who haven’t decide yet.  But given the fact that Clinton and Trump are extremely well known, it’s likely that these people will never resolve their ambivalence about these two candidates and that they just won’t vote at all.  The volatility we are seeing in the polls may be coming from this group.

            Political science tells us rather definitively that something like 90% of people who are Democrats or Democratic leaners will eventually vote for their party’s nominee, and the same is true of Republicans and Republican leaners.  Our politics has become increasing tribal.  This election is not a grand policy debate.  It’s a football game, and we just want our side to win.

            If our politics is largely tribal and most people have already decided who their going to vote for, then you’d wouldn’t expect many people to change their minds definitively even after a bad campaign week.  Instead, you’d expect public opinion to be relatively stable.

            What may be going on is known as “non-response bias.”  Writing in The Daily Kos, David Jarman explains that when a candidate has a bad series of days on the campaign trail, his or her supporters may temporarily become somewhat demoralized and not want to talk to pollsters.  When that happens, the polling results reflect an oversample of the other candidate’s supporters.

            You can see how this might work if you look again at the Real Clear Politics graph.  The first presidential debate between President Obama and Mitt Romney took place on October 3, 2012.  As you may recall, the president’s performance was--how to say this--AWFUL.  The day before the debate, the tracking poll had the president leading Romney by 3.3 percentage points.  By October 8, Obama’s polling lead had collapsed to 0.5 percentage points, and by October 15, the day before the second debate, the president’s polling lead was only 0.1 percentage points.  According to Jarman, pollsters who were using more sophisticated techniques “found that there really wasn’t much of a debate effect at all, and the race stayed in pretty much the same narrow band from April on.”

            Clinton got a strong bump after her convention, and its effects were probably prolonged as Donald Trump had a number of unforced errors, including a stupid fight with the Khans, a Gold Star family who had lost a son in the war in Iraq.  You can well imagine that Trump supporters might have been demoralized by all of this and how they might not have wanted to talk to pollsters.  Trump’s mistakes were serious, and that may explain why Hillary Clinton’s probability of winning the election began to flirt with 90%.

            But what goes around comes around.  Trump hired a much more competent campaign staff that obviously managed to impose some discipline on him. He started using a teleprompter, and for a stretch, he stopped making unforced errors.  Far worse, though, more Clinton emails surfaced, Trump’s campaign reared up in righteous indignation over Clinton’s description of a portion of Trump’s supporters as “deplorable” and “irredeemable,” and Clinton was less than forthcoming about the case of walking pneumonia that caused her to collapse in the heat at the September 11 Commemoration in New York.  Clinton’s polling numbers fell back to earth.

            But a second explanation is the fact that modern elections are all about who gets their voters to the polls on Election Day.  Obama, in 2012, knew exactly who his marginal voters—people who generally liked him but might not have prioritized voting--were and had built an organization that could mobilize these voters on Election Day.  The Romney operation was a shadow of the Obama machine, and just didn’t have the wherewithal to do the same thing.  As a practical matter, Democrats tend to live in much more densely packed communities, and so it’s easier to get them to the polls than it is to mobilize Republicans, who like live in less compact geograpies.  The difference between the Real Clear Politics polling average and actual turnout could merely reflect the difference between the marginal Democratic voters who expressed an intention to vote and were mobilize by the Obama machine and the marginal Republican voters who said they were going to vote but never made it to the polls.

            Clinton has spent the better part of the last two years learning from Obama’s experience in 2008 and 2012.  She’s got an army and she’s running it with state of the art analytics.  In comparison, Trump’s team looks like a group of neighborhood kids who have gotten together to play pickup football on a Sunday afternoon.

            Listen, I know you want this to be easy.  Nobody likes to take chances, particularly with something so important.  But even if Clinton’s numbers were still brushing up against 90%, that still wouldn’t be a sure thing.  When her probabilities were that high, Nate Cohn was still comparing her possibility of losing the election to the possibility that a NFL field goal kicker would miss from the 20 yard line.  But as the 2012 Baltimore Ravens will tell you, sometimes field goal kickers do miss.

            So go pour yourself a nice cup of chamomile tea and relax for a few minutes.  Clinton should win this election. My prediction, though, depends on how well Democrats do the nitty-gritty work of getting people to the polls.  I’m assuming that Clinton’s machine will do its job effectively, but if you want to reduce the risk that Clinton will lose, get up off the couch and write a check, or, better yet march yourself down to Clinton headquarters and put in some time canvassing or phone banking.

            Feel better?  Good.  Now be a dear and invite our Republican friends back into the room.