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Slaying Song

I came across this article by Joseph Bernstein, “Why Is A Top Harvard Law Professor Sharing Anti-Trump Conspiracy Theories?”:

On April 22, Tribe shared a story from a website called the Palmer Report — a site that has been criticized for spreading hyperbole and false claims — entitled “Report: Trump gave $10 million in Russian money to Jason Chaffetz when he leaked FBI letter,” a reference to the notorious pre-election letter sent by former FBI director James Comey to members of Congress that many have blamed for Hillary Clinton’s November loss.

The “report” the article points to is a since-deleted tweet by a Twitter user named LM Garner, who describes herself in her Twitter biography as “Just a VERY angry citizen on Twitter. Opinions are my own. Sometimes prone to crazy assertions. Not a fan of this nepotistic kleptocracy.” Garner, who has 257 followers, has tweeted more than 25,000 times from her protected account.

“I don’t know whether this is true,” Tribe’s tweet reads, “But key details have been corroborated and none, to my knowledge, have been refuted. If true, it’s huge.”

Reached by email, Tribe said that he was aware of the Palmer Report’s “generally liberal slant” and “that some people regard a number of its stories as unreliable.” Still, he added, “When I share any story on Twitter, typically with accompanying content of my own that says something like ‘If X is true, then Y,’ I do so because a particular story seems to be potentially interesting, not with the implication that I’ve independently checked its accuracy or that I vouch for everything it asserts.”

OK, then. But the “Palmer Report” thing ran a bell—didn’t someone send me something from there once? I did a quick search and found this Slate article, “Stop Saying the Election Was Rigged,” regarding “the rampant sharing of two postelection articles from Bill Palmer.”

Kinda sad to see a high-paid law professor fall for this sort of thing.

Still, though, whenever I see the name Laurence Tribe I will think of this letter. Bluntly put, indeed. If you’ll forgive my reference to bowling.


  1. Jonathan says:

    I carve out an exception for lawyers. That is, lawyers are trained to be advocates and our system of justice is based on the concept that zealous advocacy by all sides, by both sides in a criminal or civil trial, will best uncover the truth. The problem is people don’t understand that lawyers are advocates, that they frame essentially everything they utter – or tweet – within their mental argumentative approach. So lawyers, bluntly, aren’t truthful in the sense of ‘the truth, the whole truth and nothing but the truth’, because that’s what ‘witnesses’ are sworn to answer as lawyers question them in specific ways designed to present not the ‘truth, the whole truth and nothing but the truth’ but versions of truth that either convict or acquit. That the public doesn’t understand this is the fault of lawyers and credulous journalists. That the public doesn’t understand the difference between what advocates say and ‘the Law’ is a general civics problem. ‘The Law’ is a body of precedent and so on, not what a legal expert ‘says’ because that is just advocacy.

    I’ve been outright fighting with people over the last few days as they insist, for example, that DT, Jr committed a crime because a proffer of information that a person claims is from a foreign government is a thing of value. They point me to ‘legal experts’ and say this is the way it has always been interpreted. Example would be a Vox story that quotes a former official and legal expert as saying, ‘The law states that no person shall knowingly solicit or accept from a foreign national any contribution to a campaign of an item of value,” Goodman tells me. “There is now a clear case that Donald Trump Jr. has met all the elements of the law, which is a criminally enforced federal statute.’ He’s making a lawyer’s argument: he believes he can fit this event to this law and he states this in a way that indicates to a non-lawyer he’s sure but which a lawyer reads as bullshit meaning he thinks he can fit these acts to a law if he can convince a prosecutor to indict – which I’ll explain below is a huge lawyer’s copout – and if he can then convince a jury that these facts make up the crime and if he can convince the judge that the law intends this to be a crime.

    I found this Vox article to be a good representation of the two main kinds of sloppy thinking and legalese distortions I’m seeing, so here’s the other prong: “The emails are simply put damning as a legal matter,” explains Ryan Goodman, a former Defense Department special counsel and current editor of the legal site Just Security. “The text of the emails provide very clear evidence of participation in a scheme to involve the Russian government in federal election interference, in a form that is prohibited by federal criminal law.” In legalese, he’s actually saying he believes there must a ‘scheme’, meaning a conspiracy of some sort, which is a conclusion, and yet he’s indicating to non-lawyers that the act of this meeting (and the emails) are themselves criminal which is, in lawyer’s terms, intentionally confusing two statutes to create an overall impression of guilt when in reality if there is a conspiracy then this might be evidence of that but it can’t by itself by a criminal act unless it is also a criminal act on its own, a point he conveniently leaves out. He’s actually saying he’s guilty so he’s guilty, which is the way the law worked when we drowned witches: you can’t assume guilt to find a person guilty. If there’s a conspiracy, you actually have to prove the conspiracy. This may be evidence of something or not but that doesn’t make it a crime on its own and yet this advocate presents it this way, the journalist doesn’t catch it and people scream at me that he’s guilty, guilty, guilty because they’re duped by advocates who are speaking to people who want to be convinced he’s guilty.

    To explain the problem with the first advocate’s legalistic sounding statement, consider that a crime has two elements, mens rea and actus reus, meaning generally intent to do an act that is criminal. Or as Alan Dershowitz pointed out with regard to Comey’s firing, you can’t make a crime out of something that a person has a legal right to do and Trump had a legal right to fire Comey. Dersh doesn’t mean there can’t be ‘obstruction’ but rather, as I discussed about conspiracy, you actually have to show obstruction so you can maybe use this firing as evidence in a larger pile of evidence but you can’t criminalize the firing itself because it was clearly a legal act that is not criminal at law. In the DTj issue, Vox gives it to us really straight: “The crucial phrase here is “other thing of value,” legal experts tell me. It means that the law extends beyond just cash donations. Foreigners are also banned from providing other kinds of contributions that would be the functional equivalent of a campaign donation, just provided in the form of services rather than goods. Like, say, damaging information the Russian government collected about Hillary Clinton.” I’ve found non-lawyers don’t even get the obvious ‘Like, say’ switch from cash to cash equivalents to ‘like say, damaging information’ as though it’s crystal clear the ‘like, say’ is the same as cash. Here’s a basic tip: do you see any precedents cited? Any case law? Any regulations issued by the FEC? Anything at all other than ‘like, say’? No. They don’t exist. In legalese, there is a clear link between cash and its functional equivalents, one developed over decades and centuries – and the FEC lists these – so everyone has a clear conception that paying for janitorial services or paying for people to pass out flyers is the same as a cash donation in that amount. Where does the idea that ‘damaging information’ is ‘like, say’ the same exist in law? It may exist somewhere but I can’t think of an example. The closest that comes to mind is a civil infraction for something like a 10(b)(5) violation or some other technical securities ‘insider trading’ violation made without intent, without mens rea, so it isn’t criminal but is something that can be fined by an agency. But in general, you can’t have a crime without both the requisite intent and the requisite criminal act so if the act isn’t clearly criminal then how can you have intent? Advocates can bloviate all they want about how this is clear evidence and there must be a crime somewhere in there but that doesn’t make Law. DTj says he doesn’t think this was a crime because he doesn’t believe this is a crime, which isn’t an excuse if you press a knife to person’s throat and then claim ‘I was only joking’ when rung up on assault and battery, etc., though it may be a defense to attempted murder – see how crimes have different intents? Remember that a criminal conviction must be ‘beyond a reasonable doubt’ and yet advocates phrase this law so it looks there can’t be any doubt at all though there is no precedent, no regulation, no finding that agrees and the description becomes ‘like, say,’ to extend cash to a third class or type. So how exactly can you prove beyond a reasonable doubt that DTj intended to break a law that has not been interpreted in this manner unless you ‘like, say’ information is cash and this is so bleeping obvious, etc. though it apparently wasn’t that obvious before.

    I don’t even need to go into detail about how none of these legal advocates admits the emails weren’t from the Russians but from a 3rd party saying stuff that he may not have believed was true, that may not have been objectively true, etc. and how that complicates the legal issues further. They’re advocates. They’re always advocates. If put under oath, they might admit that saying you’re ‘soliciting’ when responding to a 3rd party offer of something has all sorts of legal problems even if law enforcement is doing the offering. I mean for example that it’s very difficult to convict people enticed by law enforcement into bribery/corruption though the ‘criminality’ seems obvious to the public: it’s hard to convince a jury that the person enticed had the requisite mens rea or intent to commit the crime without being induced. This is often referred to as ‘predisposed’, as in without the entrapping action the person would not have conceived the intent to commit this act. I’ve never heard of a law under which a person can be guilty of ‘soliciting’ something which may not be crime to solicit and which may not be real. Legally: can you be guilty of soliciting something that isn’t real? A relatively close case is that you solicit sex with a minor who is actually an adult cop posing as a minor on line. There is actual solicitation of someone the defendant believed was a minor, but it is specifically a cop not just anyone. See? Let’s say you approach a young person for sex and you believe that person is under 18 but they’re actually 20: then there is no crime because the person wasn’t a minor so no actus reus even though you had the intent. The law codes have specific exceptions for cops posing as minors to make a crime. Is there a crime when you ‘solicit’ what is described as ‘like, say’ maybe kind of functional equivalent to cash when that ‘like, say’ doesn’t even exist? Cash exists, services exist but information may or may not exist. So if someone comes to you and says I have damaging evidence on your opponent that has been compiled by the North Koreans and you go ‘Love to see that’ and it turns out to be ‘proof’ that your opponent is a space alien, are you guilty of a crime? Again, cash has value and services have a value that can be denoted in cash but what is the value of information? What is the value of information that doesn’t exist? What is the value of nonsensical information? Can you be convicted for the criminal crime of soliciting nonsense from a foreign government?

    Finally, I think journalists bear a huge amount of blame for this kind of sloppy, inflammatory analysis. An example is a WaPo piece comparing a Soviet offer to Humphrey which involved an offer of cash and, says Dobrynin, anything else. The rather obvious point is the Soviets offered cash. It is not unfair to note that cash is ‘like, say’ cash. I don’t think it takes understanding legal advocacy to figure that out. I’d also note that in 1968 we were in the Cold War so no one would rationally trust anything coming from the Soviets other than an ICBM.

    • AnonAnon says:

      … There’s a lot to unpack here but to answer one particular point.

      Federal Elections Commission in 1990 issued the following advisory opinion:

      If, however, Mr. Hochberg imparts poll result information to you or anyone else working for
      your campaign, including any data or any analysis of the results, or if he uses the poll
      information to advise your campaign on matters such as campaign strategy or creating media
      messages, such poll information will constitute an in-kind contribution from Mr. Hochberg to
      your campaign, and an expenditure in an equal amount by your committee. 11 CFR 106.4(b).
      See also 11 CFR 104.13(a) and (b). The amount of such a contribution will be determined by
      calculating the share of the overall cost of the poll allocable to that particular information. Cf. 11
      CFR 106.4(e).

      So to answer your statement: “Here’s a basic tip: do you see any precedents cited? Any case law? Any regulations issued by the FEC? Anything at all other than ‘like, say’? No. They don’t exist.”

      No. There is some precedent established by the FEC that “poll information will constitute an in-kind contribution.”

      I might suggest following for more information.

  2. Thanatos Savehn says:

    Sotomayor was the pick of the plaintiffs’ bar and I’m not a fan but she did get it right (and scored a big win for the plaintiffs’ bar) when she authored the SCOTUS opinion holding that statistical significance is not some sort of final arbiter of the truth:

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