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Our Moral Betters, In Context

[ 232 ] May 30, 2015 |

Orin Kerr:

If I understand the history correctly, in the late 1990s, the President was impeached for lying about a sexual affair by a House of Representatives led by a man who was also then hiding a sexual affair, who was supposed to be replaced by another Congressman who stepped down when forced to reveal that he too was having a sexual affair, which led to the election of a new Speaker of the House who now has been indicted for lying about payments covering up his sexual contact with a boy.

And let us not forget the youthful indiscretions of Henry Hyde, Dan Burton, and Helen Chenoweth.

My opinion has always been that being a good spouse and being a good public official have pretty much nothing to do with one another. But if you’re going to make lies about sexual infidelity an impeachable offense…

Dennis Hastert was forced to stand in line at the bank at least 106 times to withdraw hush money in cash

[ 202 ] May 30, 2015 |


The SPECIAL FEBRUARY 2014 GRAND JURY further charges:

The allegations contained in paragraphs 1(a)-1(l) of Count One of
this Indictment are realleged and incorporated herein.

Beginning no later than July 2012, and continuing until on or around December 6, 2014, in the Northern District of Illinois, Eastern Division, and elsewhere, JOHN DENNIS HASTERT, defendant herein, did knowingly and for the purpose of evading the reporting requirements of Title 31, United States Code, Section 5313(a) and regulations prescribed thereunder, structure and assist in structuring transactions at Old Second Bank, People’s State Bank, Castle Bank and Chase Bank by withdrawing and causing the withdrawal of $952,000 in United States currency in amounts under $10,000 in separate transactions on at least 106 occasions; In violation of Title 31, United States Code, Section 5324(a)(3).

Who is the real victim here?

Seriously now:

I realize Hastert isn’t a lawyer, but how does a guy who was at the top of DC food chain not realize that this isn’t going to work?

What happened is that Hastert started withdrawing $50K in cash at a time to pay off his extorter. Protip: if you’re going to cover up malfeasance via cash transactions, bone up on your banking laws first. Banks have to report cash transactions of $10K or more. So after Hastert took out more than that on several separate occasions, bank officials had a chat with him (He had the legal right to make such withdrawals, but part of the banks’ reporting obligations is to try to figure out why the nice old man down the street keeps coming in every second Thursday with a suitcase and asking the teller to fill it with $50,000 in unmarked bills).

After it’s explained to him that the bank has an obligation to report these transactions to the IRS, Hastert gets the bright idea that he’ll just go to the bank a lot more often, and take out slightly less than $10,000 each time. They’ll never catch him now! Except the federal government also has a rule that structuring transactions with malice aforethought to avoid the reporting requirements is illegal.

On top of all that, lying to the feds about why you keep taking out suitcases full of cash from your many different bank accounts is also a crime all by itself.

Again, how does someone like Hastert not know this already? In particular, how does he let himself be interviewed by the FBI without his lawyers there?

I guess there’s a pretty obvious answer, under the circumstances, to the second question.

I’m Prone to Her

[ 58 ] May 29, 2015 |

It’s rare that a song grabs me by my throat and doesn’t let go. It’s a choke I welcome.

What’s the last song that grabbed you and didn’t let you go?

Our Moral Betters

[ 135 ] May 29, 2015 |


The unassailable moral greatness of the people who wanted Bill Clinton impeached over a blowjob remains striking:

Indicted former House Speaker Dennis Hastert was paying an individual from his past to conceal sexual misconduct, two federal law enforcement officials said Friday.

One of the officials, who would not speak publicly about the federal charges in Chicago, said “Individual A,” as the person is described in Thursday’s federal indictment, was a man and that the alleged misconduct was unrelated to Hastert’s tenure in Congress. The actions date to Hastert’s time as a Yorkville, Ill., high school wrestling coach and teacher, the official said.

“It goes back a long way, back to then,” the source said. “It has nothing to do with public corruption or a corruption scandal. Or to his time in office.” Thursday’s indictment described the misconduct “against Individual A” as having “occurred years earlier.”

Asked why Hastert was making the payments, the official said it was to conceal Hastert’s past relationship with the male. “It was sex,’’ the source said. The other official confirmed that the misconduct involved sexual abuse.

Kentucky and the APAC

[ 1 ] May 29, 2015 |
Toyota carlogo.svg

“Toyota carlogo” by Unknown – Licensed under Public Domain via Wikimedia Commons.

The first in a series of posts looking at the relationship between the Commonwealth of Kentucky and the Asia Pacific is up at the Diplomat:

TMMK came to Kentucky during a period of stress between Japan and the United States, with Washington making near-constant complaints about Japanese trade practices. The wounds of World War II were fresher in the 1980s than they are today. The Kentucky state government pushed hard against this tide, making clear that Toyota was welcome in the area. Indeed, many argued that it pushed too hard; the inducement package produced protests, and became a key issue in the 1987 Kentucky gubernatorial campaign.

How to Make the TPP Work for Workers

[ 13 ] May 29, 2015 |


David Dayen talked to me about Out of Sight and how to create a global system of workers rights. An excerpt:

Loomis, who also writes for the liberal blog Lawyers, Guns and Money, masses an impressive amount of examples of the current appetite among multinational corporations for a race to the bottom, from Haitian wage theft to factory disasters in Thailand to the destruction of subsistence agriculture in Mexico to forced labor on shrimp boats to “sacrifice zones” where corporations deposit their toxic waste around the world. In each case, Loomis challenges the conventional wisdom that workers abroad benefit from making clothes or electronics for multinational corporations by raising their living standards, however meekly. In reality, this is outweighed by the massive environmental and health burdens ravaging their communities, and the awful conditions under which they toil.

His solution has resonance amid the TPP debate. “Workers should have the right to sue their employers or the companies contracting with their employers,” Loomis writes, “regardless of where the site is located.” Without this key feature, corporations will simply gravitate to the lowest-cost site for their factories and continue to abuse workers for profit.

This is a clever spin on what we see now with modern trade deals. They almost universally feature investor-state dispute settlement (ISDS), where companies can appeal to extra-judicial tribunals, presided over by corporate lawyers who may have worked for that corporation at one point, and sue for “expected future profits,” lost when countries change regulations and violate the terms of international trade agreements. Trade negotiators claim this is critical to protect foreign investments from discrimination by host governments.

Workers don’t have the same privilege. They can’t appeal to some international body when they experience abuse, even if it violates trade deals. Unions and non-governmental organizations must appeal to a government to make claims against other countries, and that process simply hasn’t worked. Loomis’s idea would initiate a worker-state dispute settlement, or WSDS, giving workers direct access to sanctioning unlawful activities, rather than routing them through a third party. “This is not about turning our back on international agreements,” Loomis said. “It’s about making them serve us instead of serving corporate interests.”

How did baseball’s milestone marks get created?

[ 209 ] May 29, 2015 |


Specifically, why is a player’s 3000th hit such a big deal, and when did it become one?

Over the next couple of weeks, Alex Rodriguez will provide an excellent example of the arbitrariness of the career milestones that occasion different levels of media attention.

Rodriguez is about to drive in his 2000th run. He will be only the third player, after Aaron and Ruth, to do so (if you don’t count Cap Anson’s years in the National Association as major league stats, which I don’t because he was a bad guy).

Meanwhile, he’s also about to become the 29th player to get 3,000 hits. The latter achievement is going to get a lot more media attention, because somewhere in the distant past (apparently shortly after Sam Rice retired while 13 hits short) 3,000 hits became The Official Mark of Baseball Greatness. How and when did this happen?

A similar thing happened (quite a bit later I’m guessing, since only two three players had reached the mark prior to 1960) with 500 home runs. In the pre-internet days, when we had to walk five miles to school through six-foot snowdrifts, and baseball statistics were primitive and hard to come by, those were the two milestones that counted. (For pitchers it was and remains 300 wins, probably because 300 is 3000 divided by ten).

Relatedly, I was a fanatical baseball fan and something of a baseball stats geek as a teenager in the 1970s, and I literally don’t remember hearing anything about Aaron passing Ruth to become the all-time RBI leader, which according to the record books happened sometime early in the 1975 season (Of course Aaron’s 715th home run the year before was one of the biggest sports stories ever).

A side issue in all this is the extent to which the steriod era has or is going to destroy the magic of 3000/500 in the mind of the members of the BBWA, who control the politics of glory, in re the Hall of Fame.

. . . in comments, several people argue that RBI are context-dependent in a way that hits aren’t, and that therefore the career hits leaderboard is a better measure of greatness than the list of career RBI men. Except:

Top ten RBI leaders who aren’t in the 3000 hit club:

Al Simmons
Frank Robinson

Top ten hits leaders who aren’t in the top 29 in career RBI (equivalent to career 3000 hit list):

Eddie Collins

Obviously the second group is made up of great players, but just as obviously career RBI is a better proxy for all-time greatness than career hits.

Foreign Entanglements: Indonesia’s Burning Boats

[ 0 ] May 28, 2015 |

On the latest episode of Foreign Entanglements, I speak with Natalie Sambhi about Indonesian politics and foreign relations:

An academic matter

[ 202 ] May 28, 2015 |


The Michael LaCour affair reminds me that I know of several flat-out crazy and/or evil people who have managed to make it big in the academic world. Or maybe this is just an observation about the world in general. In any case academia seems to have its own peculiarities, some of which are illustrated by the following story.

X and Y are both on the market for an entry-level academic position. For various intellectual, sociological, and psychological reasons they are to a significant extent rivals for the same tenure-track slots, which are very scarce and extremely competitive.

X and Y both get initial interviews at Very Prestigious University (hereinafter VPU). Y gets a second interview at VPU; X does not. X then tries to destroy Y’s chances of getting a job at VPU, by engaging in an astonishingly malicious fraud, which among other things involves inventing supposed harsh criticisms of Y’s work, and attributing these imaginary criticisms to members of the faculty at VPU.

Y doesn’t get the job at VPU. It turns out that, for reasons not relevant here, Y not getting the job wasn’t actually caused by X’s fraudulent scheme. Still, under slightly different circumstances the scheme could have had its intended effect. (The analogy with the LaCour matter would be if the paper had been rejected by Science, and then the fraud had been discovered before it was submitted elsewhere).

By the end of the hiring season, Y has gotten a tenure-track job at another school, while X has gotten a position at Fairly Prestigious University. At this point Y knows about X’s fraudulent scheme, but doesn’t know X’s identity. Just after X and Y start their new jobs, Y finds out who X is.

Y consults with various academic mentors. This process leads to these events coming to the attention of Prof. A, who threatens to out X if X does not acknowledge X’s guilt to Y, and to X’s new employer, FPU. X then confesses to Y and to FPU.

X and FPU then enter into an agreement. X agrees to leave FPU, and FPU agrees not to disclose what X has revealed to FPU about X’s fraudulent scheme to destroy Y’s job prospects at VPU. (FPU also agrees not to reveal the existence of any agreement between FPU and X).

By the end of the academic year, X has secured a new job at Got Played University. X gets this job with the help of glowing recommendations from various people at FPU, who know why X is leaving FPU. At this point nobody at GPU knows anything about the true circumstances of X’s departure.

Four years later, X is a Rising Young Star, and is up for early tenure. X has now gotten into a bizarre fight with another member of GPU’s faculty, which results in X filing a frivolous complaint with a government agency against this faculty member. This faculty member has many friends throughout academia, at least one of whom knows the story of X and Y. The friend provides a detailed account of the incident to GPU’s dean.

The dean calls the dean at FPU, to try to confirm the story. The dean at FPU refuses to discuss the matter (or the existence of any such matter etc. etc.). GPU’s dean then decides that he can’t pursue the matter further, because all he has to go on is a second-hand story from somebody at another institution who won’t go on the record about any of this. (GPU’s dean actually knows Y personally, but does not contact Y). X then receives tenure at GPU.

There are several other baroque or perhaps gothic twists to this little tale. Here are just a couple:

At the same time X is going through the tenure process, A decides to use X – who he doesn’t actually know — to attack Z, an anonymous internet critic of both A and X. A accuses Z of engaging in behavior similar to that which X engaged in toward Y, although Z’s behavior is “similar” only in the same sense that taking a questionable tax deduction is similar to robbing someone at gunpoint.

A has discovered Z’s identity, and decides to disclose it to X, even though back when A was threatening to expose X’s fraudulent scheme, he speculated both about X’s mental health, and about what effect exposing X would have on X’s apparently fragile mental state. A probably suggests (this is speculative) to X that X file an administrative complaint against Z. In any case, A praises X in a public and fulsome way for pursuing this course of action. (When praising X A does not, needless to say, reveal that he knows X has engaged in vastly worse behavior than anything Z has done).

While pursuing this administrative action against Z — which, like X’s complaint against X’s colleague at GPU, ends up going nowhere — X publishes a number of polemics upbraiding Z and others for engaging in the same general type of malfeasance that X had committed against Y, although again, X’s behavior was exponentially worse. (Recall that X is doing all this at the very same time X is going through the tenure process).

I’ve confirmed the details of the story with three different people who had first-hand knowledge of the events. I also spoke to GPU’s dean, and asked him what he planned to do if he learned X was under consideration for a job at another school. He told me he would have to think long and hard about that.

On one level, I can’t really blame him that much for his ambivalence. After all, there are dozens of people – certainly most everyone at FPU and GPU, and of course Y – who know much if not all of this story, and yet it remains off the official record. Why? For one thing, X is an obsessively ambitious person, of apparently questionable mental stability, and who wants to get tangled up with somebody like that, especially once the person has tenure and is close to unfireable?

For another, rationalizations in these situations are always at hand: while it’s true X’s behavior, had it been known at the time, would have absolutely barred X from ever getting a tenure-track job, maybe it was an otherwise inexplicable one-time act, brought on by exogenous factors which have since been dealt with, cured, or what have you. (This seems to me about as likely as Michael LaCour having been a scrupulously honest fellow until he suddenly had some sort of breakdown, but whatever).

Anyway, I’m not going to attach names to this story, at least not at this time, in part because a couple of at least mostly innocent bystanders have asked me not to. For what it’s worth, in my view the single biggest villain in all this – that is if we assume on principles of interpretive charity that X and A are more crazy than evil — is FPU, and especially its dean, who agreed to offload X onto GPU by covering up an incident which should have permanently precluded X from getting hired for any academic job. But there’s more than enough blame to go around.

Finally, this matter, like the LaCour affair, raises questions about how common these sorts of breakdowns in systems designed to protect academic integrity are. As in the case of LaCour, this story illustrates that institutions like academic tenure must function to a significant extent on the basis of an assumption that those participating in the process are doing so in good faith, even when doing so is inconvenient or costly to them.

It was obviously convenient for FPU to lie to GPU about X, and it would have been costly, in various at least short-term senses, for GPU to deny X tenure after they discovered what FPU had hidden from them. And so here they, and we, are.

“No, Toby. And no more questions about whether this is a joke.”

[ 55 ] May 28, 2015 |


In fairness, Pataki was able to get elected governor and didn’t nearly destroy a prominent corporation, so I guess as long as Fiornia remains in the race he can’t actually be the biggest joke in the clown car. Indeed, that would be more a distinctive status than he merits.

They Still Criticize What They Can’t Understand

[ 113 ] May 28, 2015 |


Megan McArdle knows she wants the Supreme Court to gut the ACA. But like many ACA troofers she is not entirely sure which particular version she wants to go with. At a minimum, though, she remains committed to the idea that it’s entirely plausible that the Moops invaded Spain:

These articles, however, often don’t provide important counterarguments. For example: Congress indisputably chose exactly that crazy, insane, totally inconceivable structure for the Medicaid expansion passed in the same law. In fact, it was considerably more coercive: if you didn’t expand, you lost all your Medicaid funding, not just the new stuff. Why would Congress choose a structure that might result in a net loss of insurance coverage? We can sit around and speculate, but ultimately the correct answer is “Who cares? They did.”

No matter how much you flog this cardboard horse, it’s never going to become ambulatory. There remain two obvious problems with this analogy, both fatal. First of all, unlike with the Medicaid expansion, there was no threat, which is a rather obvious problem with the assertion that Congress was trying to coerce the states. In this respect, citing the Medicaid expansion is an own goal. And in addition, the Medicaid program had no federal backstop. For the analogy to hold, the ACA would have had to make no provision should states fail to establish insurance exchanges; if this was the case McArdle’s reading of the statute would be plausible. But the idea that Congress went to the trouble of establishing a federal backstop but then designed it to fail is simply absurd. The federal backstop to the exchanges is nothing like the Medicaid expansion; McArdle is conflating two different types of cooperative federalism that are very different.

So how does McArdle deal with the latest story showing that nobody who drafted or voted for the statute shares her obvious misreading? Why, Gruber, Gruber, and more Gruber, plus some additional bullshit:

Actually, this is not crazy, but very wise. Memory is incredibly fallible, especially about stuff you’re highly motivated to believe.

We now have two cases of wonks who were closely connected to the drafting process, who said at one point that the King interpretation of the statute is insane to anyone who followed the construction of the law … and can be found on tape at an earlier point (in one case, during the legislative process) advancing exactly the theory that they subsequently declared completely and obviously insane. Do I think that their later argument was a strategic lie? No, despite conservative shouts that I am being naive. Scout’s honor, cross my heart and hope to die, I think that they simply forgot what they’d earlier believed.

Memory is so very terrible, and this law is so very complex.

First of all, these two wonks did not say what McArdle says they said. Senate Majority Leader, Speaker of the House, President, Secretary of Health and Human Services, and newly elected NDP premier of Alberta Jonathan Gruber didn’t say that tax credits wouldn’t be available on federal established exchanges; he said that the federal government might be too slow in setting up federal exchanges, a very different argument. I assume the second unnamed “wonk” she’s referring to is Jonathan Cohn, who prefaced comments that weren’t about the final statute with “[t]his is not something I’ve looked into that closely.” Even if Gruber and Cohn did definitively state at the time that tax credits would not be available on federally established exchanges, this would be not very meaningful cherry-picking (especially since neither person drafted or voted on the relevant provisions. One thing that McArdle conveniently ignores from the latest Pear story is that the father, architect, and midwife of the ACA Jonathan Gruber does not actually appear in the account of the drafting process.) But she doesn’t even have the cherries.

The obvious other problem with the “memory is fallible so ¯\_(ツ)_/¯” argument is that it’s not just ex post facto accounts of the statute but the contemporaneous process that shows no evidence that anyone ever thought that tax credits would not be available on federally established exchanges. Why did the CBO never consider the possibility that the federally established exchanges wouldn’t provide tax subsidies if the statute unambiguously established this? Why did not state officials even consider this possibility? Why was there no controversy about what would have been a highly unusual and highly consequential policy choice? Why do many other parts of the statute assume that the tax credits would be universally available? Memory is fallible, but this case the memories gain additional by being consistent with all of the relevant available evidence. McArdle’s magic realist version of the law, conversely, is both nonsensical on its face and is supported by no evidence involving anyone involved with the legislative process whatsoever.

But why should we focus on what divides us? Let’s reach across those party lines and find a point of consensus:

That doesn’t mean I know how the court will rule next month; cases rarely end up at the highest court of the land unless there are at least two plausible readings of the words.

Indeed — the I.R.S. reading is, at an absolute minimum, plausible. So the government wins! I’m glad McArdle was able to stumble, however inadvertently, into the correct conclusion.

The Death of the Cool

[ 124 ] May 28, 2015 |


Scott Walker has something cool for the ladies: mandatory sexual assault for those seeking abortions!

During the interview with conservative radio host Dana Loesch, Walker defended a bill he’d signed in 2013 that required women get the ultrasounds.

“The thing about that, the media tried to make that sound like that was a crazy idea,” Walker said. “Most people I talk to, whether they’re pro-life or not, I find people all the time who’ll get out their iPhone and show me a picture of their grandkids’ ultrasound and how excited they are, so that’s a lovely thing. I think about my sons who are 19 and 20, and we still have their first ultrasounds. It’s just a cool thing out there.”

I suppose demonstrating that he doesn’t understand the concept of consent shows that Walker is really serious about winning the nomination — surely it’s a litmus test.

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