2019 Year In Review: History's judgment is a chimerical thing
Well. So, 2019 is a thing that happened. Like, disco and other atrocities. History shall render a judgment. Or, will it? This will be a ramble. I was born a ramblin' man.
I'm going to ramble about music in order to make an analogy, and then get to the politics. You've been warned.
Every micro-era has its own version of pop music, upon which "culture" looks back and frowns in dismay, wondering how anyone could have ever found it enjoyable. And yet, plenty of people did. Along with plenty of detractors. From disco to hair metal to boy bands to... whatever is popular today. I don't know. I managed to tune out long ago. However...
None of these sub-genres were ever uniformly popular, and after a period of time, you get your nostalgia factor. Some people decide, hey! Maybe disco was actually awesome! (Hint: it isn't, and never was. Neither was hair metal, nor any of that garbage.) Music critics can coalesce around certain opinions. It is kind of fun to watch them decide what constitutes "good." And if you look through the history of popular musical criticism, you can find plenty of examples of musicians and albums panned in their time that later become canon. Music critics are as subject to groupthink as any other group, and are as frequently incapable of independent thought as any teenager.
And you can get contrasts between what music critics declare "good," and what the masses like. Actually, that's kind of the norm. History's judgment on music?
"History" isn't a thing. I'll give you a reference: Nirvana's Nevermind. That was supposed to be a turning point album for my generation. I never liked it. The joke for some people from my generation who knew music was that it sounded better the first time it was recorded. By The Pixies. Kurt Cobain got the quiet-loud-quiet dynamic from The Pixies. I wasn't really a Pixies fan, myself, but at least they had their own thing. Cobain took that, added some punk distortion/banging away at the guitar in a way that I could manage with very minimal practice, lyrics that were... often "abstract," his voice was nothing special. Basically, I didn't get Nirvana. I went through a "grunge" phase, like everyone else in that era who liked rock, but when there were guitarists like Mike McCready and Kim Thayil, and side project albums that still sound great, like Mad Season's Above... no. Nirvana? I never got it.
"History," though, has somehow deemed Nirvana to be a very great and important band. Certainly, any history of popular music from the late 20th century will address Nirvana, but I can explain to you precisely why they were overrated. In excruciating detail.
And I was far from the only music fan who never bought a copy of Nevermind. ("Downloading" wasn't a thing yet.) Music critics are legally required to say that it was a great, and important album, but people whose tastes lean towards R&B? Country? Blues? Jazz? Lots of them, at best, just never... minded it. Charlie Hunter notwithstanding.
To say nothing of the weirdos like me, who appreciated some grunge, but just didn't like Nirvana.
History isn't a thing. By that, I mean it isn't one thing, rendered as a singular.
High school students who take AP History have to study for the AP test, and they are graded on a consistent standard. That's not my department, nor is my name Wernher Von Braun, but this is messy enough in Psychology (see my recent rant on Philip Zimbardo and the AP test). In practice, the judgment of history is a messy thing because what I think about history and what you think about history may not be the same things.
In Germany, it is actually a crime to deny the Holocaust.
In the US, revisionist history about the Civil War is rampant, and kids who grow up in states that seceded are taught a bizarro version of what happened that bears little resemblance to reality. They are taught that slavery was not the cause of the Civil War. Instead, it was something about abstract states' rights and blah, blah, my grandpappy! Fortunately for the reality-based community, we have the actual Declarations of Secession that the Confederacy states issued-- the analogs to our Declaration of Independence-- and those documents made crystal clear that they were, indeed, seceding because they wanted to preserve slavery, but while schoolchildren everywhere still have to memorize passages of the Declaration of Independence as part of basic education, those critical passages from the southern states' Declarations of Secession are meticulously hidden from southern kids' education as part of their revisionist history exercise.
Hence, this country doesn't even have common agreement on why the Civil War happened. This is not complicated, but the country can't agree on it.
History's judgment? History, who? Ain't no person named, "History." (OK, some jerk probably named a child, "History," and that person should rightfully hate his or her parents, but you get my point.) There are 330,000,000 people in this country. Some are "historians." Others of us supposedly have more of a say. I, as a political science professor, might have more of a say than some computer programmer working for Google, which hosts "blogspot." So, I render judgment, right? I can make an assessment, and I can even write books, but nobody is under any obligation to believe me, even in the few instances in which my books get assigned by my fellow academics.
"History" doesn't render a judgment. 330,000,000-and-counting people individually render non-independent judgments as they speak to each other, and attempt to reconcile cognitive dissonance by rendering judgments on history through tortured readings of facts. Or at least, "facts."
Extraordinary historical rendition.
And the end result is a bunch of people claiming that slavery had nothin' to do with the Civil War, which should really be called, "The War of Northern Aggression." Bless their hearts.
So. 2019. Weird year, huh? (I told you it would take me a while to get to this.)
As with all things political, the center of the 2019 universe was he who correctly believes himself to be the center of human existence-- Donald Trump. Robert Mueller concluded his investigation into Russia's 2016 election interference and the Trump campaign's involvement with it, with the post-script of Trump pressuring Volodymyr Zelensky to announce investigations into the Bidens and a wackadoo conspiracy theory that Ukraine framed Russia for the DNC hacks, in exchange for a White House meeting and foreign aid. A whistleblower report on that pressure gave us the third formal impeachment in US history.
Behold, 2019 in all its... sure. Let's call it "glory." History. Rendered for judgment.
You ever smell putrid fat being rendered? You have now!
Plenty of history-types will say that you can't render any kind of historical judgment within the time frame in which you study an event. You need perspective. Then again, my point about the Civil War is that the rendering can so easily turn to rendition anyway that the idea of "history" coalescing around a judgment is nonsensical. Chimerical. The judgment of history is a mythological beast, and nothing but a hodgepodge of stuff that doesn't fit together in any coherent way, which would matter if it existed. But, it doesn't. So... never mind. (Sorrynotsorry.)
Nevertheless, we can already note several things about "history" and 2019.
I won't say that "everyone" will get the Mueller Report wrong, but most will. Most are getting it wrong now, and getting it right requires either reading the Report, and people are mostly too lazy for that, or getting your information from a persnickety source. Hi! I'm a professor who a) reads source material, and b) has no compunctions about saying that "everyone" is getting something wrong. In fact, I rather enjoy doing that. So, I'll read the Report for myself and notice when the popular dialog completely misses the point on Mueller's findings. Then again, I'm just ramblin' on blogspot on a lazy Saturday mornin', and by the rules I give my own students, this blog post is not a usable source for class papers! So, if any of my future students ever cite this, I'm about to dock your grade! Don't say I didn't warn you! (Once on the syllabus, and once right here, in the post!)
Instead, if you are trying to figure out what happened, don't take my word for it. Just go read the damned Report! It's right there! Linked.
So here is what the "first draft of history" appears to be regarding Robert Mueller's findings on whether or not Donald Trump's campaign "conspired" with Russia during 2016: supposedly, "Mueller found no conspiracy or collusion," or some variation thereof. That isn't what happened. The first draft of history is wrong.
First, never use the word, "collusion," because it isn't a term in criminal law. Mueller even explained why he avoided the term, as an implicit response to the phrase, "no collusion," generally tweeted in all-caps. Conspiracy, however, is a crime, so Mueller examined the evidence, and found that while yes, there is evidence of conspiracy, the evidence would not sustain criminal convictions because the evidence required for a conviction under conspiracy law is very strong. It's just nearly impossible to get a conviction for "conspiracy."
Here are a couple of examples. First, consider the Trump Tower meeting between Donald Trump Jr., Paul Manafort, and some Russians. Don Jr. took the meeting because he believed the Russians were going to give him dirt on Hillary Clinton. Why did that not violate criminal conspiracy laws? Part of Mueller's explanation for why he couldn't get a conviction was that in order for someone to violate "conspiracy" laws, the violation must be knowing. This is the "willfulness" standard. See page 187 of the report. In other words, "I didn't know it was a crime" actually is a legal defense in the case of criminal conspiracy. It is not a valid legal defense in the vast majority of criminal matters. You can't kill someone and claim not to have known that it was illegal. You can't smuggle drugs across the border and claim not to have known that it was illegal. Conspiracy law actually does require that the person know it was illegal. Conspiracy law just works differently
So yes. Don Jr. actually did escape prosecution in part because he could plausibly claim to have been too stupid to know that "conspiring" with a foreign government like that was illegal. Stupidity is not usually a viable legal defense. In this case, it was. And Mueller said so. See page 187 of the report, in which Mueller writes that conspiracy law requires that the violation be "willful," but that Jr. "could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law." In other words, Don Jr. could factually argue himself to be too stupid for a conspiracy conviction under the willfulness standard.
That is rather different from a finding of "no conspiracy." A finding of "no conspiracy" would mean finding exculpatory evidence. That is not what Mueller found, and not what Mueller wrote. He wrote, as a prosecutor, that a conviction could not be sustained given the way conspiracy laws are written and... Fredo.
Consider, next, perhaps the most conspicuous example of the Trump campaign working actively in conjunction with the Russian government. During the campaign, Paul Manafort-- Trump's campaign manager-- met with a Russian agent named Konstantin Kilimnik to give Kilimnik some private, internal polling data. That kind of thing would be valuable for a foreign power working actively through social media interference, which Russia was doing. Why was this not sufficient evidence of conspiracy? According to Mueller, in order to secure a conviction for "conspiracy," he would have needed to know what Kilimnik did with the polling data. Obviously, the Russians weren't talking. Manafort himself had no answer, stopped talking, violated his proffer agreement, committed perjury, and talked secretly to Trump's attorneys while supposedly operating under a proffer agreement. Consequently, Mueller couldn't gather the evidence necessary.
In order for Mueller to have found "no conspiracy" or "no collusion," he would have needed to find an exculpatory explanation for the Manafort-Kilimnik meeting. Not only did he not find such an explanation, part of Manafort's legal mess was that Mueller caught him lying and violating his proffer agreement, and then Manafort shut his pie hole about this meeting. That's a long way from finding an exculpatory explanation for the Manafort-Kilimnik meeting, and it speaks instead to the difficulty of securing a conviction for "conspiracy."
It isn't that Mueller found no evidence of conspiracy. He most certainly did. The evidence just wasn't enough for any criminal convictions because the evidence required for a conspiracy conviction is very strong. That's just how conspiracy laws work.
Think of it this way. Almost nobody gets charged with insider trading. Does that mean it doesn't happen? Of course not. But, all I need is a vaguely plausible alternative explanation for why I bought or sold that stock, to say that I would have done it anyway. Only the dumbest of the dumb get convicted for insider trading. Conspiracy laws are similarly weak because convictions are so difficult to secure.
Is this not what you heard from the press? That's bad reporting. This was what was actually in the Report.
If you were paying attention to how journalists covered Mueller, it went something like this: Mueller exonerated Trump and his campaign on criminal conspiracy. That is plainly not what happened. Mueller simply didn't have enough to sustain any convictions on criminal conspiracy charges because the evidentiary threshold is very high. Is it possible that the Manafort-Kilimnik meeting was innocent? Maybe, but Mueller did not find exculpatory evidence demonstrating its innocence. Instead, he found that the meeting was insufficient for a conspiracy conviction, and that Manafort's behavior was obstructive regarding the meeting.
That's very different from "Mueller found no conspiracy" or... "no collusion."
So, the press got it wrong. And that's a problem when journalists write what we often call "the first draft of history."
Why has the first draft of history gotten Mueller's report so wrong? Laziness, William Barr, and Mueller himself.
Let's start with laziness. Understanding what happened required reading the Report and thinking about it in a more nuanced way than the binary YES/NO on the conspiracy question. It just wasn't as simple as having Mueller come out and say either that Trump did it, or didn't. As a corollary to the laziness point, journalists have yet to find a way to handle the issues of balance and neutrality in the Trump era. As a consequence, they let themselves get browbeaten into the "no collusion" storyline once Mueller released his report to balance out all prior reporting on, for example, the Trump Tower meeting, the Manafort-Kilimnik meeting, and so forth. Trump was not actually exonerated on conspiracy, but it was easier for journalists to say that he was than to tell the actual, more complex story.
Part of the reason for that is that Trump wasn't the only one doing the browbeating. William Barr played his part, giving a less-than-honest press conference prior to the release of the Report, that Mueller himself found deeply problematic.
Yet Mueller did himself no favors with a performance before Congress that ranged between sedate and, if I'm being honest, borderline senile. He had an opportunity to, if not control, then influence how "history" would remember the Mueller Report, and he botched it badly with among the worst performances you are likely to see in front of any congressional panel. He was terrible in every way. Should that have mattered? No, but there are lots of things that shouldn't matter, and do. You can either profit by this, or be destroyed. It's your choice, but I warn you not to underestimate the power of meaningless nonsense elevated beyond its pay grade by idiots who can't read.
I'm not sure if "idiots who can't read" was originally intended to be a reference to Congress, or the voters who elected them. It works either way, but I just felt like doing the reference. 'Cuz. Writing is funny that way.
And now there's an impeachment. What now? I have speculated about the Democrats not sending the articles of impeachment to the Senate for a trial, which would solve some of their problems, but in all likelihood, they'll cave, and the "trial" goes to Mitch McConnell, who will continue to coordinate "trial" plans with Trump, who will then be acquitted after the Senate puts Joe and Hunter Biden on trial.
How will "history" render judgment on the Ukraine scandal and the impeachment? "History" is already getting Mueller's report wrong, and a century and a half later, large swaths of the country steadfastly avoid any acknowledgment of why the Civil War happened.
"We're doing this for posterity," or something. History will judge us... History?
Who will remember what when it comes to the impeachment of Donald J. Trump? G. Gordon Liddy and an assortment of Nixon partisans broke into the Watergate Hotel to get into the Democratic Party's headquarters. Nixon's involvement in the planning of the break-in has never been fully agreed upon, but the break-in itself has not been contested, and once the tapes came out, his actions attempting to cover up the break-in were not denied by anyone in the reality-based community. Nixon's resignation followed quickly, before the full House voted on articles of impeachment.
The reality-based community is an ever-shrinking portion of the country. Consider the bizarre conspiracy theory that Ukraine framed Russia for the DNC hacks in 2016. This lunatic idea, were it true, would be helpful for a certain portion of the political system in the same way that denying the role of slavery in the Civil War is cognitively convenient for some. So, we watch revisionist history reorient itself around conspiracy theories in real time.
What will "the history books" say? Whose history books?
I occasionally have the interesting experience of a student from China in one of my classes. When discussing facts and the media, I will often ask those students about Tiananmen Square. In China, they never learn about Tiananmen Square. Total media and history book blackout. Why? Go figure it out for yourself. And that's without getting into Mao's death count from the Cultural Revolution. In terms of body counts, the only person in history to beat him was Stalin.
That kind of thing would be hard to pull off here, now. What would be easier? Well, what's happening now? Facts are treated as malleable. Things of unknowable character. Or just plain opinion. Somewhere between postmodernist solipsism and tribalism gone way too far. We have, instead of a controlled media environment, a media environment so fragmented, and so filled with garbage and lies that only those of us with a degree of education actually know how to sort truth from lies. For many in the mass public, they just don't have the base level of knowledge, the education, the skill, the time, or really, the motivation. If you can't control the media, just bombard people with so many lies that they can't tell the truth from a lie, and you achieve a similar effect.
Anthony Downs, in An Economic Theory of Democracy, wrote about the costs and benefits of acquiring information when one lacks information. The costs of sorting truth from lies are going up. As that happens, people are less able to do so, and since nobody casts the pivotal vote, why bother? It isn't that the information isn't there. It's just that digging through the lies has become more costly. So, people are more prone to either believe lies for the sake of minimizing cognitive dissonance, or just plain laziness.
I'll refer you to my post from a few months ago on Neal Stephenson's Fall; or Dodge in Hell. The book was mainly about dead brains being scanned into a digital afterlife, but Stephenson writes about the social and technological changes that occur between "now" and brains being scanned into bitworld.
Stephenson's characterization of the world going forward is a sort of post-truth hellscape. The villain of the book, El Shepherd, trolls the world by pulling a DDoS attack on the telecommunications services in Moab, UT, while spreading some fake videos of a mushroom cloud. For a day or so, he actually convinces people that terrorists nuked Moab. Then, when the hoax gets revealed, a bunch of hardcore idiot-conspiracy theorists decide that the real hoax is the claim that Moab was not nuked. It just gets crazier from there. I'll refer you to my post on Fall, which addresses the problems of information in a post-truth world, but how close we are to that point is at least open for debate.
I won't say that we debate why the Civil War happened, because that's not a debate. That's the Monty Python argument sketch. I won't say that we are having a debate about whether or not Ukraine framed Russia for the 2016 DNC hack because either way, we're approaching the question of whether or not Moab, UT actually exists. And I don't mean that in some sort of philosophical, navel-gazing way. I just mean, are the cranks correct?
When Dodge's niece goes off to college in Fall, she has a professor who has a bunch of cards printed out, and distributed to students. On one side, the cards are just red. When you hold up the red face, you are indicating to someone that you find their arguments unworthy of your mental energy, and you are disengaging from them. On the other side of the card, a set of aphorisms are displayed to you, as reminders. The aphorisms are as follows.
1. Speech is aggression.
2. Every utterance has a winner and a loser.
3. Curiosity is feigned.
4. Lying is performative.
5. Stupidity is power.
I need to print up some of those cards and distribute them to my students. I think we're pretty much there.
How will "history" judge 2019? History, who?
"History" will not render judgment on Donald Trump, nor on the 2016 election investigation, nor on the impeachment. History ain't a thing. There are 330,000,000 people living in this country in a post-truth era. They can't agree on basic facts, and you can't have a judgment without a finding of facts.
So, without further ado...
I don't know about you, but for me, 2019 kind of felt like a year-long "being hit on the head" lesson.
I'm going to ramble about music in order to make an analogy, and then get to the politics. You've been warned.
Every micro-era has its own version of pop music, upon which "culture" looks back and frowns in dismay, wondering how anyone could have ever found it enjoyable. And yet, plenty of people did. Along with plenty of detractors. From disco to hair metal to boy bands to... whatever is popular today. I don't know. I managed to tune out long ago. However...
None of these sub-genres were ever uniformly popular, and after a period of time, you get your nostalgia factor. Some people decide, hey! Maybe disco was actually awesome! (Hint: it isn't, and never was. Neither was hair metal, nor any of that garbage.) Music critics can coalesce around certain opinions. It is kind of fun to watch them decide what constitutes "good." And if you look through the history of popular musical criticism, you can find plenty of examples of musicians and albums panned in their time that later become canon. Music critics are as subject to groupthink as any other group, and are as frequently incapable of independent thought as any teenager.
And you can get contrasts between what music critics declare "good," and what the masses like. Actually, that's kind of the norm. History's judgment on music?
"History" isn't a thing. I'll give you a reference: Nirvana's Nevermind. That was supposed to be a turning point album for my generation. I never liked it. The joke for some people from my generation who knew music was that it sounded better the first time it was recorded. By The Pixies. Kurt Cobain got the quiet-loud-quiet dynamic from The Pixies. I wasn't really a Pixies fan, myself, but at least they had their own thing. Cobain took that, added some punk distortion/banging away at the guitar in a way that I could manage with very minimal practice, lyrics that were... often "abstract," his voice was nothing special. Basically, I didn't get Nirvana. I went through a "grunge" phase, like everyone else in that era who liked rock, but when there were guitarists like Mike McCready and Kim Thayil, and side project albums that still sound great, like Mad Season's Above... no. Nirvana? I never got it.
"History," though, has somehow deemed Nirvana to be a very great and important band. Certainly, any history of popular music from the late 20th century will address Nirvana, but I can explain to you precisely why they were overrated. In excruciating detail.
And I was far from the only music fan who never bought a copy of Nevermind. ("Downloading" wasn't a thing yet.) Music critics are legally required to say that it was a great, and important album, but people whose tastes lean towards R&B? Country? Blues? Jazz? Lots of them, at best, just never... minded it. Charlie Hunter notwithstanding.
To say nothing of the weirdos like me, who appreciated some grunge, but just didn't like Nirvana.
History isn't a thing. By that, I mean it isn't one thing, rendered as a singular.
High school students who take AP History have to study for the AP test, and they are graded on a consistent standard. That's not my department, nor is my name Wernher Von Braun, but this is messy enough in Psychology (see my recent rant on Philip Zimbardo and the AP test). In practice, the judgment of history is a messy thing because what I think about history and what you think about history may not be the same things.
In Germany, it is actually a crime to deny the Holocaust.
In the US, revisionist history about the Civil War is rampant, and kids who grow up in states that seceded are taught a bizarro version of what happened that bears little resemblance to reality. They are taught that slavery was not the cause of the Civil War. Instead, it was something about abstract states' rights and blah, blah, my grandpappy! Fortunately for the reality-based community, we have the actual Declarations of Secession that the Confederacy states issued-- the analogs to our Declaration of Independence-- and those documents made crystal clear that they were, indeed, seceding because they wanted to preserve slavery, but while schoolchildren everywhere still have to memorize passages of the Declaration of Independence as part of basic education, those critical passages from the southern states' Declarations of Secession are meticulously hidden from southern kids' education as part of their revisionist history exercise.
Hence, this country doesn't even have common agreement on why the Civil War happened. This is not complicated, but the country can't agree on it.
History's judgment? History, who? Ain't no person named, "History." (OK, some jerk probably named a child, "History," and that person should rightfully hate his or her parents, but you get my point.) There are 330,000,000 people in this country. Some are "historians." Others of us supposedly have more of a say. I, as a political science professor, might have more of a say than some computer programmer working for Google, which hosts "blogspot." So, I render judgment, right? I can make an assessment, and I can even write books, but nobody is under any obligation to believe me, even in the few instances in which my books get assigned by my fellow academics.
"History" doesn't render a judgment. 330,000,000-and-counting people individually render non-independent judgments as they speak to each other, and attempt to reconcile cognitive dissonance by rendering judgments on history through tortured readings of facts. Or at least, "facts."
Extraordinary historical rendition.
And the end result is a bunch of people claiming that slavery had nothin' to do with the Civil War, which should really be called, "The War of Northern Aggression." Bless their hearts.
So. 2019. Weird year, huh? (I told you it would take me a while to get to this.)
As with all things political, the center of the 2019 universe was he who correctly believes himself to be the center of human existence-- Donald Trump. Robert Mueller concluded his investigation into Russia's 2016 election interference and the Trump campaign's involvement with it, with the post-script of Trump pressuring Volodymyr Zelensky to announce investigations into the Bidens and a wackadoo conspiracy theory that Ukraine framed Russia for the DNC hacks, in exchange for a White House meeting and foreign aid. A whistleblower report on that pressure gave us the third formal impeachment in US history.
Behold, 2019 in all its... sure. Let's call it "glory." History. Rendered for judgment.
You ever smell putrid fat being rendered? You have now!
Plenty of history-types will say that you can't render any kind of historical judgment within the time frame in which you study an event. You need perspective. Then again, my point about the Civil War is that the rendering can so easily turn to rendition anyway that the idea of "history" coalescing around a judgment is nonsensical. Chimerical. The judgment of history is a mythological beast, and nothing but a hodgepodge of stuff that doesn't fit together in any coherent way, which would matter if it existed. But, it doesn't. So... never mind. (Sorrynotsorry.)
Nevertheless, we can already note several things about "history" and 2019.
I won't say that "everyone" will get the Mueller Report wrong, but most will. Most are getting it wrong now, and getting it right requires either reading the Report, and people are mostly too lazy for that, or getting your information from a persnickety source. Hi! I'm a professor who a) reads source material, and b) has no compunctions about saying that "everyone" is getting something wrong. In fact, I rather enjoy doing that. So, I'll read the Report for myself and notice when the popular dialog completely misses the point on Mueller's findings. Then again, I'm just ramblin' on blogspot on a lazy Saturday mornin', and by the rules I give my own students, this blog post is not a usable source for class papers! So, if any of my future students ever cite this, I'm about to dock your grade! Don't say I didn't warn you! (Once on the syllabus, and once right here, in the post!)
Instead, if you are trying to figure out what happened, don't take my word for it. Just go read the damned Report! It's right there! Linked.
So here is what the "first draft of history" appears to be regarding Robert Mueller's findings on whether or not Donald Trump's campaign "conspired" with Russia during 2016: supposedly, "Mueller found no conspiracy or collusion," or some variation thereof. That isn't what happened. The first draft of history is wrong.
First, never use the word, "collusion," because it isn't a term in criminal law. Mueller even explained why he avoided the term, as an implicit response to the phrase, "no collusion," generally tweeted in all-caps. Conspiracy, however, is a crime, so Mueller examined the evidence, and found that while yes, there is evidence of conspiracy, the evidence would not sustain criminal convictions because the evidence required for a conviction under conspiracy law is very strong. It's just nearly impossible to get a conviction for "conspiracy."
Here are a couple of examples. First, consider the Trump Tower meeting between Donald Trump Jr., Paul Manafort, and some Russians. Don Jr. took the meeting because he believed the Russians were going to give him dirt on Hillary Clinton. Why did that not violate criminal conspiracy laws? Part of Mueller's explanation for why he couldn't get a conviction was that in order for someone to violate "conspiracy" laws, the violation must be knowing. This is the "willfulness" standard. See page 187 of the report. In other words, "I didn't know it was a crime" actually is a legal defense in the case of criminal conspiracy. It is not a valid legal defense in the vast majority of criminal matters. You can't kill someone and claim not to have known that it was illegal. You can't smuggle drugs across the border and claim not to have known that it was illegal. Conspiracy law actually does require that the person know it was illegal. Conspiracy law just works differently
So yes. Don Jr. actually did escape prosecution in part because he could plausibly claim to have been too stupid to know that "conspiring" with a foreign government like that was illegal. Stupidity is not usually a viable legal defense. In this case, it was. And Mueller said so. See page 187 of the report, in which Mueller writes that conspiracy law requires that the violation be "willful," but that Jr. "could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law." In other words, Don Jr. could factually argue himself to be too stupid for a conspiracy conviction under the willfulness standard.
That is rather different from a finding of "no conspiracy." A finding of "no conspiracy" would mean finding exculpatory evidence. That is not what Mueller found, and not what Mueller wrote. He wrote, as a prosecutor, that a conviction could not be sustained given the way conspiracy laws are written and... Fredo.
Consider, next, perhaps the most conspicuous example of the Trump campaign working actively in conjunction with the Russian government. During the campaign, Paul Manafort-- Trump's campaign manager-- met with a Russian agent named Konstantin Kilimnik to give Kilimnik some private, internal polling data. That kind of thing would be valuable for a foreign power working actively through social media interference, which Russia was doing. Why was this not sufficient evidence of conspiracy? According to Mueller, in order to secure a conviction for "conspiracy," he would have needed to know what Kilimnik did with the polling data. Obviously, the Russians weren't talking. Manafort himself had no answer, stopped talking, violated his proffer agreement, committed perjury, and talked secretly to Trump's attorneys while supposedly operating under a proffer agreement. Consequently, Mueller couldn't gather the evidence necessary.
In order for Mueller to have found "no conspiracy" or "no collusion," he would have needed to find an exculpatory explanation for the Manafort-Kilimnik meeting. Not only did he not find such an explanation, part of Manafort's legal mess was that Mueller caught him lying and violating his proffer agreement, and then Manafort shut his pie hole about this meeting. That's a long way from finding an exculpatory explanation for the Manafort-Kilimnik meeting, and it speaks instead to the difficulty of securing a conviction for "conspiracy."
It isn't that Mueller found no evidence of conspiracy. He most certainly did. The evidence just wasn't enough for any criminal convictions because the evidence required for a conspiracy conviction is very strong. That's just how conspiracy laws work.
Think of it this way. Almost nobody gets charged with insider trading. Does that mean it doesn't happen? Of course not. But, all I need is a vaguely plausible alternative explanation for why I bought or sold that stock, to say that I would have done it anyway. Only the dumbest of the dumb get convicted for insider trading. Conspiracy laws are similarly weak because convictions are so difficult to secure.
Is this not what you heard from the press? That's bad reporting. This was what was actually in the Report.
If you were paying attention to how journalists covered Mueller, it went something like this: Mueller exonerated Trump and his campaign on criminal conspiracy. That is plainly not what happened. Mueller simply didn't have enough to sustain any convictions on criminal conspiracy charges because the evidentiary threshold is very high. Is it possible that the Manafort-Kilimnik meeting was innocent? Maybe, but Mueller did not find exculpatory evidence demonstrating its innocence. Instead, he found that the meeting was insufficient for a conspiracy conviction, and that Manafort's behavior was obstructive regarding the meeting.
That's very different from "Mueller found no conspiracy" or... "no collusion."
So, the press got it wrong. And that's a problem when journalists write what we often call "the first draft of history."
Why has the first draft of history gotten Mueller's report so wrong? Laziness, William Barr, and Mueller himself.
Let's start with laziness. Understanding what happened required reading the Report and thinking about it in a more nuanced way than the binary YES/NO on the conspiracy question. It just wasn't as simple as having Mueller come out and say either that Trump did it, or didn't. As a corollary to the laziness point, journalists have yet to find a way to handle the issues of balance and neutrality in the Trump era. As a consequence, they let themselves get browbeaten into the "no collusion" storyline once Mueller released his report to balance out all prior reporting on, for example, the Trump Tower meeting, the Manafort-Kilimnik meeting, and so forth. Trump was not actually exonerated on conspiracy, but it was easier for journalists to say that he was than to tell the actual, more complex story.
Part of the reason for that is that Trump wasn't the only one doing the browbeating. William Barr played his part, giving a less-than-honest press conference prior to the release of the Report, that Mueller himself found deeply problematic.
Yet Mueller did himself no favors with a performance before Congress that ranged between sedate and, if I'm being honest, borderline senile. He had an opportunity to, if not control, then influence how "history" would remember the Mueller Report, and he botched it badly with among the worst performances you are likely to see in front of any congressional panel. He was terrible in every way. Should that have mattered? No, but there are lots of things that shouldn't matter, and do. You can either profit by this, or be destroyed. It's your choice, but I warn you not to underestimate the power of meaningless nonsense elevated beyond its pay grade by idiots who can't read.
I'm not sure if "idiots who can't read" was originally intended to be a reference to Congress, or the voters who elected them. It works either way, but I just felt like doing the reference. 'Cuz. Writing is funny that way.
And now there's an impeachment. What now? I have speculated about the Democrats not sending the articles of impeachment to the Senate for a trial, which would solve some of their problems, but in all likelihood, they'll cave, and the "trial" goes to Mitch McConnell, who will continue to coordinate "trial" plans with Trump, who will then be acquitted after the Senate puts Joe and Hunter Biden on trial.
How will "history" render judgment on the Ukraine scandal and the impeachment? "History" is already getting Mueller's report wrong, and a century and a half later, large swaths of the country steadfastly avoid any acknowledgment of why the Civil War happened.
"We're doing this for posterity," or something. History will judge us... History?
Who will remember what when it comes to the impeachment of Donald J. Trump? G. Gordon Liddy and an assortment of Nixon partisans broke into the Watergate Hotel to get into the Democratic Party's headquarters. Nixon's involvement in the planning of the break-in has never been fully agreed upon, but the break-in itself has not been contested, and once the tapes came out, his actions attempting to cover up the break-in were not denied by anyone in the reality-based community. Nixon's resignation followed quickly, before the full House voted on articles of impeachment.
The reality-based community is an ever-shrinking portion of the country. Consider the bizarre conspiracy theory that Ukraine framed Russia for the DNC hacks in 2016. This lunatic idea, were it true, would be helpful for a certain portion of the political system in the same way that denying the role of slavery in the Civil War is cognitively convenient for some. So, we watch revisionist history reorient itself around conspiracy theories in real time.
What will "the history books" say? Whose history books?
I occasionally have the interesting experience of a student from China in one of my classes. When discussing facts and the media, I will often ask those students about Tiananmen Square. In China, they never learn about Tiananmen Square. Total media and history book blackout. Why? Go figure it out for yourself. And that's without getting into Mao's death count from the Cultural Revolution. In terms of body counts, the only person in history to beat him was Stalin.
That kind of thing would be hard to pull off here, now. What would be easier? Well, what's happening now? Facts are treated as malleable. Things of unknowable character. Or just plain opinion. Somewhere between postmodernist solipsism and tribalism gone way too far. We have, instead of a controlled media environment, a media environment so fragmented, and so filled with garbage and lies that only those of us with a degree of education actually know how to sort truth from lies. For many in the mass public, they just don't have the base level of knowledge, the education, the skill, the time, or really, the motivation. If you can't control the media, just bombard people with so many lies that they can't tell the truth from a lie, and you achieve a similar effect.
Anthony Downs, in An Economic Theory of Democracy, wrote about the costs and benefits of acquiring information when one lacks information. The costs of sorting truth from lies are going up. As that happens, people are less able to do so, and since nobody casts the pivotal vote, why bother? It isn't that the information isn't there. It's just that digging through the lies has become more costly. So, people are more prone to either believe lies for the sake of minimizing cognitive dissonance, or just plain laziness.
I'll refer you to my post from a few months ago on Neal Stephenson's Fall; or Dodge in Hell. The book was mainly about dead brains being scanned into a digital afterlife, but Stephenson writes about the social and technological changes that occur between "now" and brains being scanned into bitworld.
Stephenson's characterization of the world going forward is a sort of post-truth hellscape. The villain of the book, El Shepherd, trolls the world by pulling a DDoS attack on the telecommunications services in Moab, UT, while spreading some fake videos of a mushroom cloud. For a day or so, he actually convinces people that terrorists nuked Moab. Then, when the hoax gets revealed, a bunch of hardcore idiot-conspiracy theorists decide that the real hoax is the claim that Moab was not nuked. It just gets crazier from there. I'll refer you to my post on Fall, which addresses the problems of information in a post-truth world, but how close we are to that point is at least open for debate.
I won't say that we debate why the Civil War happened, because that's not a debate. That's the Monty Python argument sketch. I won't say that we are having a debate about whether or not Ukraine framed Russia for the 2016 DNC hack because either way, we're approaching the question of whether or not Moab, UT actually exists. And I don't mean that in some sort of philosophical, navel-gazing way. I just mean, are the cranks correct?
When Dodge's niece goes off to college in Fall, she has a professor who has a bunch of cards printed out, and distributed to students. On one side, the cards are just red. When you hold up the red face, you are indicating to someone that you find their arguments unworthy of your mental energy, and you are disengaging from them. On the other side of the card, a set of aphorisms are displayed to you, as reminders. The aphorisms are as follows.
1. Speech is aggression.
2. Every utterance has a winner and a loser.
3. Curiosity is feigned.
4. Lying is performative.
5. Stupidity is power.
I need to print up some of those cards and distribute them to my students. I think we're pretty much there.
How will "history" judge 2019? History, who?
"History" will not render judgment on Donald Trump, nor on the 2016 election investigation, nor on the impeachment. History ain't a thing. There are 330,000,000 people living in this country in a post-truth era. They can't agree on basic facts, and you can't have a judgment without a finding of facts.
So, without further ado...
I don't know about you, but for me, 2019 kind of felt like a year-long "being hit on the head" lesson.
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