Rules-Regulations-Laws-Traditions

In New York City there are a number of Clubs that have long had discriminatory practices that most of their members were (or claimed to be) unaware of.

For example, most (if not all) clubs were single-sex and many clubs quietly discriminated against non-white and/or Jewish people.

And then came the end of the 20th Century and things began to change – too fast for quite a few people.

One all-men’s club discovered that that they were falling behind in getting their fair share of new, young male members. The club learned that the women in the lives of those young men often objected to their joining a club that excluded women.

The old men geezers said ‘no way change’ on their watch, and a compromise was suggested: that one room alone be designated for 20 years for men only to give the old guys a haven, as they would eventually die off. That failed by opposition from both sides.

In the meanwhile, all this “private” stuff got into the press and things heated up to the point that many employers of such club members said they would no longer reimburse their employees for club expenditures unless those clubs accepted women.

That did it, as it nearly always does! Money must talk!

Now, 20-plus years after opening its doors to women, that club is vibrant and healthy.

How could that club’s membership have been so dense and stubborn for so long?

The answer is that practices and rules gain inertia. They become embedded and it becomes as unthinkable to change them as it would be to try to alter the laws of gravity.

Of course, there are many rules that inconvenience, but do not discriminate.

Today for example, virtually all clubs ban smart phones completely—to the point that members have to go out into the freezing cold to call an Uber. Try getting that changed! No way—even pneumonia is not an exception!  The clubs I belong to are tough.

Most clubs have some rules about appropriate attire. Slowly one sees fewer neckties. Shocking, I’m sure, to purists!

So far there are no known rules about socks? Some older members have difficulty getting socks on. More people now go sockless thanks to UGGs which have the socks built in. Don’t tell anybody.

Rules are part of what makes us different from other species.

Thank God for rules.

And even better: thank God for the wisdom and instinct to revisit and change rules as we all grow and our world changes.

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Seeing Is Believing?

Our basic defenses against deception are primitive. We’re taught as children to use our senses to ward off danger. In such cases, the senses we’re reacting to are almost always physical – we smell smoke, see a predator, hear a gunshot, etc. “Seeing, smelling and hearing is believing,” we’re told, although exceptions to this simple rule quickly mount.

As adults, we’re frequently called on to exercise “common” sense, a more amorphous sort of sense built on pattern recognition and whatever similar wisdom comes with age.

That’s it – the whole of our ability to detect all sorts of threats is based on a flimsy collection of physical senses and a vague and subjective sense of how the rest of humanity might view the situation.

It is, to say the least, an arsenal wholly inadequate for our times.  The hucksters, charlatans, snake-oil salesmen and hackers – in government and out – have every advantage. Their attack is on the very idea of objective truth, the idea that beneath our perspectives and biases lies an incontrovertible reality that cannot be denied.

The debate over climate change was their first great victory, and it paved the way for the more dramatic subversions of truth we’ve experienced since. It’s an indictment of our schools, our institutions, and society in general that a handful of so-called scientists on the payroll of interest groups can overwhelm the consensus of 98 percent of the scientific community that climate change is real, current, and caused by human behavior.

The media is a huge part of the problem. Rather than defending objective truth, they became cowed by assertions of political bias and decided that objectivity in reporting – a cornerstone of journalistic principles – meant giving both sides equal weight (and equal time) even when the evidence overwhelmingly supports one side. The he said/she said structure of modern reporting leaves it to the reader or viewer to decide his or her version of truth, regardless of the facts.

Social media is even worse. The “common” in common sense once referred to a collective in which differing perspectives were prevalent; now, it’s simply a reference to your friends, followers, and others who already think exactly like you do.

It’s a flaw of the human design that we tend to gravitate toward people who are already like us whether the commonality is race, education, politics, or income. It’s a flaw in human behavior that we’re content with this arrangement. For people who only watch MSNBC, or who only read the Wall Street Journal, the world often seems cut and dry; but try to mix a serious liberal source with a serious conservative source, and you will suddenly have a much deeper sense of a deep truth, not as the fixed certainty of a partisan prism, but as contentious, challenging assertion of competing facts.  It’s hard, to be sure, but whatever side of the political divide you live on, truth still matters.

Finding it isn’t a Democratic or Republican problem, but an American one.

What Is An American?

On its face, trying to define “an American” may seem like a silly exercise. In our present circumstances, however, nothing could be more important for the future of our country.

In December 1941 and in August 1945 the answer was pretty simple and easy: We were all Americans. (An extraordinary exception was mistakenly allowed by FDR in the jailing of American-born Japanese in California in anticipation of an imminent invasion.) That existential threat and the great military victory brought the nation together and, combined with the post-war economic boom, served as a great leveler, bringing prosperity and stability to millions of families.

Today, that sense of commonality is beset on all sides by an emerging nationalism that is steadily eroding our post-war progress, at home and around the globe. Fueled by changing demographics, economic uncertainty and anger toward all kinds of elites, this “new wave” of diffuse, if ill-defined nationalism is sparking anew questions about who is entitled to claim the mantle of “American.”

It is a far more complicated question than it was in either 1945 or 1865. The Civil War, perhaps the most vicious war in our history, was fought philosophically on relatively simple, if fraught, grounds, and geographically pitted only two sides against each other.  Today’s challenges are more daunting on both counts, with multiple points of division geographically dispersed across all fifty states.

The breakdown appears mainly –but not exclusively–to be between people who:

  • Were educated through college or not
  • Work in industrial jobs or not
  • Were born a minority or not
  • Had some experience in government or not
  • Have incomes less than the national average or not
  • Who are at or beyond retirement age or not
  • Whose IQs are above or below 100

Those seven variables suggest a broad theme: a lot of different “have nots” who are angry and fearful about their futures. That would include quite a lot of middle class whites – male and female — who for the first time feel they are losing control and are blaming it on a black President. The result is that those people are resorting to ancient tribal instincts of exclusion, claiming to be “real Americans” because they represent the essential base on which America was built and now rests.

It is a little like a military in which the noncommissioned officers and men might feel that they can do their jobs without any of the commissioned officers to help.

That strikes me as somewhat similar to the racial divide that once defined and still haunts the South, in which simply being white was the last thing poor people had as an advantage over similar blacks.

But flukes of nature like that are not the basis for a solid democracy, and where one is born and to whom, are beyond everyone’s control. We all, moreover, are relentlessly and constantly subject to powerful statistical forces that inevitably mold us into a massive Bell curve distribution of 350,000,000 people.

It should go without saying that if any large part of either half of that Bell curve were simply removed, the rest would all be in grave danger. We need to recognize that we ALL—in a general sense—need each other ALL the time.

The same general distribution of the American population along that Bell curve has existed since the Second World War; what has changed is that the gap between haves and have-nots has grown sharply with the haves keeping for themselves an ever-larger piece of the economic and political pie.  The historic promise of the middle class in the post-war boom wasn’t so much prosperity, but rather economic security. Today, that security is threatened by stagnant wages, skyrocketing costs for housing, education and health care, and a volatile economy undergoing painful shifts.

Trump, of course, mercilessly exploited those anxieties and fears to (almost?) get himself elected President. One might have expected, or at least hoped, that he would then use that platform to address all these very real challenges; instead, Trump has exacerbated them seemingly for no better purpose other than to try to stay in office.

If the nation continues down Trump’s road of divisiveness, we may just fall into the trap of thinking we can get ‘it’ all for ourselves – forgetting that we all need each other.

That is a sure recipe for serious conflict. Indeed, it’s designed and likely to spark conflict. We urgently need new national leadership that does not seek its power based on division but exerts it power and influence toward TOGETHERNESS!

Take That!

A story: a man was driving at midnight in a freezing rainstorm when he got a flat tire. He recalled having seen a house a few moments before and got out of his car to seek help. The rain was even worse than it had looked from inside the car. Within seconds he was soaked through and freezing. As he walked, growing ever more miserable, he wondered what kind of reception he might get knocking on the door in the middle of the night. Most people would be frightened to hear the doorbell at that time, he thought. Being snug, warm, and dry, they would not grasp his predicament and might turn him away. The prospect of being forced back into the rain seemed unbearable. He pictured the long, cold walk back to his car. He would have to spend the night freezing in his car. He would have no dinner or breakfast. And those folks would be snuggling in their warm bed.  The selfishness of people knows no bounds. By the time the driver arrived at the house and rapped on the door, he was furious. Then a bleary-eyed man in a bathrobe opened up, the driver took one look at him and punched him in the mouth, yelling, “Take that, you sonofabitch.”

When you stop laughing (if you ever started) ask yourself what was that all about.

It is so simple, it is scary.

First, “do not assume”—it makes an ass out of u and me!

Second, if you must assume, try to err on the side of assuming good intentions. Most of us really want to do the right thing, including helping strangers in need.

How does this fable apply in today’s world?

We have begun to assume automatically the worst of people we do not know. Not surprisingly, they tend to reciprocate in kind.

The echo chamber of social media once promised to be a digital bridge bringing more people together, but it has instead largely done the reverse. Anonymity frees people from accountability, particularly from people they do not know.

We all need to and should want to know more about strangers we encounter daily.

We will, of course, not love them all, (nor them us) but we surely will come to realize soon enough that they (men and women alike) also pull on their pants one leg at a time! And, we should invite them to become part of our world.

One way to do that would be to try regularly to connect with the people we see in daily life. Some combination of “hello, goodbye, have a nice day” do help but those words and phrases have largely become routine sounds without much real meaning.

It would be great if we could adopt a new word, for example a word for thanks in Japan (’ARIGATO’), to introduce a new expression into our language to greet complete strangers with friendliness and a sign of willingness to become acquainted. (By the way, Japan is still one country that still seems to pull together.)

Give it a try. I have. It works particularly well when the other person asks what that word means—“Thanks for being here.”

General Kelly: Curious and Curiouser?

General Kelly was brought into the White House Chief of Staff position in 2017, to reduce the chaos and confusion that characterizes the Trump White House. Instead of achieving “managed chaos”, he has now been sidelined by the President to the point that there is no word to describe what now goes on in that beautiful white building.

So what is next? That is where the story may become very interesting.

The President obviously is not shy about firing people—either through tweets or intermediaries. However, the President seems unable to bring himself to press the button and open the trap door under Kelly’s chair. WHY?

Kelly knows too much?

When Trump does not talk about people or subjects there is usually a very good reason—mainly that it would open the door to seeing/learning stuff that could be very harmful to him. No public tax returns, no comment on Stormy, no explanations about Flynn, no action about Mueller, and so on. Where there is a standoff, Trump and his lawyers seem content to stick their fingers in their ears and carry on as if nothing is wrong.

Kelly, despite some of his old fashioned views, has a distinguished military record and career. He has capped it with a yeoman’s effort to help a President try to make sense by acting as a Chief of Staff must—part baby sitter and part advisor.

If Trump does not fire Kelly, but simply lets him hang limply in the journalistic breeze, whatever is left of the general’s distinguished reputation likely will disappear very fast.

The time has come for Kelly to pull up his socks and say ENOUGH!

Trump likely will be so relieved that he will cover Kelly with lovely encomiums.

Then Kelly will face the toughest choice of his life. Will he stay silent on the theory that it is not polite to speak ill of your late employer? Unless?

Or, will he realize –the way Comey has with a Higher Loyalty–that his pay check came from the US Treasury and he was really employed by the people of the United States to whom he owes the truth?

Inevitably, if he tells his story, there will be some Trump diehards who will rail about him as an untrustworthy, blabbermouth, slime ball like Comey.

There will also be many “Trumpeteers” who may, for the first time, come to realize what has really been going on in clear sight in that House that belongs to “we the people!”

General, please do your thing, ASAP! And remember, certain types of slime balls also get rich!

The Best Evidence Rule

I graduated from Harvard Law School in 1956, practiced law for a couple of years and then moved into investment banking. That is my modest way of saying: beware of my expertise. Yet, I did learn quite a bit that non-lawyers might struggle with when they are confronted, as we all are today, with numerous legal processes in the daily news.

When Special Counsel are rummaging around in a vast body of history such as the Trump case, they are trying to tease out a lot of facts that tie things together—or do not—to find incriminating information about some of the actors. They then sometimes indict these actors and secure guilty pleas or convictions all aimed at building towards their ultimate task, target, or subject of inquiry.

As they are doing that, they have to be constantly conscious of the “best evidence” rule.

No, that does not necessarily mean the “best” (or most convincing) evidence in support of their case; instead, it means the best reliable source or type of evidence needed by a trier of the facts. For example, hearsay or testimonial evidence is rarely, if ever, sufficient to bolster an important and damaging claim against a defendant. Documents, photos or contemporaneous data (e.g., GPS tracking) clearly showing a story or facts are far better than the recollections of any eyewitness.

The best evidence rule places a heavy burden on a prosecutor to outdo the defense. And the defense has to do its best to overcome the type of evidence produced by the prosecution.

Why is this important in the Trump case?

Start with the Stormy Daniels hush money; paid just days before the 2016 election by Trump’s lawyer, using what he claimed was his own money (while waffling on possibly being subsequently reimbursed). On its face that statement is almost beyond belief—lawyers just do not do that and in most jurisdictions they are explicitly barred from using personal funds on a client’s behalf.

All the Special Counsel had on the facts was the record of the financial transaction, proving that the payment had been made (perhaps violating some banking rules). Trump has denied knowing anything about it. Cohen—the lawyer—said only he knew about it. Stormy disagreed with both of them. That left the Special Counsel with an impasse and effectively no evidence to refute Trump’s and Cohen’s assertions.

That is why the Special Counsel, with the agreement of the Deputy Attorney General, referred the case to the US attorney’s office in New York where, with the approval of a Federal District Court judge, based on evidence in their possession in support of their request, they sought and received permission to raid Cohen’s offices in pursuit of contradictory, presumably deliberately hidden evidence to rebut Trump’s and Cohen’s statements.

It was not only that they were seeking better evidence; they were seeking any type of evidence that could meet the best evidence rule, which they are obliged to try to find, if they were to do their required job thoroughly.

One of the factors now being used to attack the Special Counsel in that case is whether attorney-client privilege protects everything in Cohen’s possession. The simple answer is that the lawyer-client privilege only applies to evidence that came to him while he was actually acting as a lawyer for Trump. Since Trump claims not to have known about it, and Cohen claims Trump didn’t know about it, any evidence the FBI might have found in the raid, by definition, isn’t related to Cohen’s legal work for Trump.

Also complicating matters is that Cohen was formerly a Trump employee, as well as at times, his lawyer. When he was what, is, of course, a bit of a tangle which will have to be sorted out regarding any other evidence that might emerge from the raid. But that question was surely well considered in advance. And, the nature of whatever was found will help a judge decide what was what. Anything covered by an attorney-client privilege will have to be given back and never used – that’s why it is standard FBI procedure to have the information seized in a raid and reviewed by people isolated from the investigation itself. That too was surely well considered in advance of the raids.

So the American public is in for a bit of legal education, if they can find it within the obfuscation of talking heads, complicit members of Congress and the fiery, and largely fact-free, rants of our president.

We are proud that America, for almost 250 years, has been governed by the rule of law, and lucky that internal threats to it have been rare. We cannot, though, have it both ways. If we want to continue to be a nation of laws, rather than of men (mostly), we must let the legal processes run its course and try hard to understand all the ins and outs.

Mueller’s Role, Post-Trump?

When you open a newspaper in this day and age [like TODAY!], you are likely to be confronted by a photograph of either Robert Mueller or Donald Trump.

Pictures of Trump take many forms: he looks stern or he bloviates; he speaks to a crowd or shakes hands with a world leader; he salutes our troops and risks losing his toupee.

Pictures of Robert Mueller, on the other hand, are all the same. He walks down the same hallway in a dark suit. Sometimes he is in the process of buttoning his sport coat; other times, he is taking a file from an aide. His face is a closed book.

In many ways, Mueller is the anti-Trump. Unlike the president, Mueller shuns the spotlight. He is quietly effective while Trump is loudly, and publicly, incompetent. The Mueller investigation has been a black box, while the White House leaks like a kitchen strainer.

While the President appears to be, nominally, one of the most powerful people in the world, Mueller has potentially great, and real, power over the president.

As Special Counsel, he is the only person who can file criminal charges against the president. (It is worth noting that there remains some debate on that matter among legal scholars, as there is no exact precedent.)

Mueller entered this present assignment with virtually unanimous support from Republicans and Democrats in Congress. The conservative media has done its best to smear him and his team as witch hunters. Still, Trump firing Mueller appears to be one of the few things that could trigger successful impeachment proceedings from the Ryan-McConnell Congress.

If Mueller survives the Trump era with his reputation for integrity intact––which looks very likely to me––he might be convinced to embark on a final career in government to help the country adjust to the post Trump world. Though he is 73, he appears healthy and energetic. Unfortunately, at 73 he is too old for a Supreme Court appointment; he could, however, possibly serve as Attorney General for whoever comes along to heal our nation in the wake of the Trump presidency.

We need to be thinking not only about Democrat Presidential possibilities, but also people with exceptional moral authority to help them.

The need for a new era of stability, decency, transparency and dependability lies ahead, and like planning how to navigate peace while war is still underway, now is not too soon.

Mueller has 5 stars in my book and we need him badly.