On Obstruction, the Mueller Report is Clintonesque

On April 18, US Attorney William Barr released Special Counsel Robert Mueller’s report on the probe into “Russian meddling” in the 2016 presidential election. The report cleared President Donald Trump and his campaign team of allegations that they conspired with the Russian government in that meddling. But on the question of “obstruction of justice,” Mueller punted in an eerily familiar way.

Return with me briefly to those thrilling days of yesteryear. Specifically, July 5, 2016. As I wrote then:

“FBI director James Comey spoke 2,341 words explaining his decision not to recommend criminal charges over Hillary Clinton’s use of a private email server to transmit, receive and store classified information during her tenure as US Secretary of State. He could have named that tune in four words: ‘Because she’s Hillary Clinton.’ Comey left no doubt whatsoever that Clinton and her staff broke the law …”

Mueller’s report likewise cites evidence of multiple attempts by the president to obstruct his investigation. “[T]he President sought to use his official power outside of usual channels,” he writes. “These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.”

But before the evidence, the punt: “[W]e determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’”

Translation: Anyone else who did what Donald Trump did would find himself buried under obstruction of justice charges. But Donald Trump is the President of the United States.

The difference between Comey’s treatment of Clinton and Mueller’s treatment of Trump is that Clinton’s immunity to laws meant for mere mortals was unofficial — based on her prominence as a ranking member of the political class — while Trump’s similar immunity is a formal function of his holding a particular office.

Did Trump “obstruct justice?” I’m no lawyer, but Mueller’s report indicates that Trump abused his power to attempt to impede the investigation. That sounds like obstruction to me.

Does it matter that the investigators found no underlying crime after overcoming the obstructions? Some people think so. I don’t.

If you were accused of a “missing body” murder you didn’t commit, and asked someone to give you a false alibi (because you were actually in bed with someone other than your spouse and didn’t want THAT known), or gave a false tip to the police, you’d face charges independent of the underlying crime even if the supposed victim turned up alive.

Why? Because (in theory at least) a criminal investigation pursues the truth of the matter, not just a particular suspect or verdict.

Trump’s conduct was aimed at frustrating that pursuit of truth. Immune or not, that’s wrong.

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Governing Least: A Litany of Insight

Dan Moller’s Governing Least is packed with random insights and philosophic wit.  Some highlights:

Why so much political philosophy sounds desperate:

Only those already unsympathetic to utilitarianism are likely to be swayed by Rawls’s brief observations. Those who begin their political philosophy by defending the morality of rights don’t so much preach to the choir as exorcize the elect.

Why so much political philosophy sounds so blind:

The reason France does not require aid is not because some external group took pity on the French, but that they were able to generate exponential economic growth themselves. This makes it puzzling that philosophers write long books about aid without mentioning economic growth, and generally seem to imply that the path to escaping poverty lies through individual altruism. Why ignore the only mechanism that has ever succeeded in lifting millions of people out of poverty when thinking about poverty?

A great explanation of the Theory of the Second-Best:

Suppose that a company enjoys monopoly powers that we cannot immediately remove under the present regulatory regime, but that one of its upstart rivals enjoys a market- distorting state subsidy which we can remove. It is a fallacy to infer that market efficiency will be improved by at least killing the subsidy— the reverse may well be true— just as it is fallacious to reason that if our military lacks both bombs and bombers the second- best solution is at least to build the bombers.

Why predictable outcomes can co-exist with abundant opportunity:

The data on intergenerational mobility or its absence is sobering, to say the least. In the United States, sometimes this leads commentators to call into question the traditional self- conception of America as a “land of opportunity.” It’s hardly a land of opportunity if outcomes are determined at birth, runs the criticism.

Let us consider this reasoning in more detail. The critic seems to reason as follows: If there were anything like equality of opportunity, then we couldn’t predict outcomes at birth, but we can, and so the land of opportunity is a myth. Let us assume the standard to meet here isn’t exact equality of opportunity for every single citizen. Could there still be reasonably high levels of opportunity despite outcomes— including bad ones— being highly predictable from the start? The critic seems to assume the following principle:

Predictability defeats opportunity: if we are able to specify social outcomes with a high degree of accuracy in advance, then the people in question cannot enjoy much opportunity.

Why accept this principle? What is it that connects predictability and opportunity? The obvious answer is that we think we know enough about people to be confident that if they did enjoy opportunities, they wouldn’t exercise them in a way that leads to bad social outcomes. The fact that we know that Smith will end up poor in all likelihood suggests that he is powerless to avoid it, since if he were capable of influencing the outcome, then he would. This amounts to another, deeper principle:

Predictability is evidence of incapacity: the fact that we can predict poor social outcomes is evidence that those who experience them lack a capacity for avoiding them.

Another way of putting the matter is that a fixed proportion of poor outcomes might be bad, but it wouldn’t be bad for reasons of diminished opportunity, since it might be the case that there are going to be winners and losers in anything resembling a free society, and as long as everyone has a fair shot at being a winner, things aren’t so bad. (No doubt more would need to be said about what “losing” amounts to for us to feel reassured.) What is terrible about predictability is that the losers aren’t just random, but never had a chance. Because predictability is evidence of incapacity, we know that those with poor outcomes never had a chance to succeed, and a fortiori they lacked anything like an equal or reasonable opportunity for success.

The problem is that it isn’t true that predictability, in itself, is evidence of incapacity, that outcomes are beyond our control. I don’t want to deny in the end that certain forms of incapacity do play a role in social outcomes, but how much is far from settled, and by opening with the assumption that predictability implies incapacity, we go wrong from the start. The fundamental confusion is between the epistemic question of what we can say about the future and the metaphysical question of what people are able to do at a given time in given circumstances. There are various fancy examples to illustrate this in the free- will literature, but for our purposes we can stick to some everyday examples:

Rope line: at the airport, we predict with great confidence that people will walk along a particular circuitous path— the one laid out by the velvet ropes. Nevertheless, the passengers are free to step over the ropes any time they like. It’s just that hardly anyone does. Predictability here doesn’t imply incapacity, it’s just that the passengers all have reason to exercise their freedom in a certain way.
Victim-blaming is (often) question-begging:
[I]t sounds mean to claim that people generally have a capacity to influence social outcomes when thinking about the poor, a bit like victim-blaming. But such a denial would involve insisting that something like the following claims are generally true (readers are invited to imagine these in the mouths of their own children facing unfavorable social circumstances, such as a lousy school system):
• “I can’t help it that I skipped class.”
• “It wasn’t possible to do my homework.”
• “I had no control over whether I had children.”
• “There was no way I could have worked this past year.”
It is important to acknowledge that for some people, these statements will be true. Mothers have children due to rape, classes go unattended because of gunfire or violence in the school, recessions destroy employment opportunities even for those who are highly qualified and persevering and willing to accept low wages. The point isn’t that all poor social outcomes are blameworthy, but that most (not all) people can exercise an enormous amount of influence over whether they lead a decent life in the developed world, even when ignorance or other internal impediments bar the way.
Governing Least is so packed with insight that I could easily have made this post three times longer.  Read it and see for yourself!
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What If You Killed the What-Ifs?

I was talking to a friend this morning who was in a bad place. He’d forgotten to do some work over the weekend, and he wondered how to handle the inevitable let down when his supervisor found out.

He asked what he should do. I asked what his options were.

He said there were two. He could try to fake that he’d done the work and do a terrible job on his deliverables. Or he could preemptively fess up, say sorry, and ask how best to make it up this week.

I said option two sounded like it had a higher probability of limiting the damage than option one.

He responded with a series of ‘What ifs’. He was imagining all the bad things that might happen. I said okay, what about option one? Same what ifs.

I asked him if he could control what the supervisor did in response to whatever approach he chose. He said no. I said, “Then forget the what ifs. They are irrelevant. They’ll happen regardless. Focus on what you can control and pick the course of action with the highest probability for the least painful outcome. Then stop thinking about it.”

He felt paralyzed by the what ifs. Stressing over eventualities he couldn’t control froze his decision making process. He was going to default to option one, not because he thought it was better, but because he never had time to think clearly and choose due to all the worry about what might happen two steps down the road.

Kill the what ifs. Take the step in front of you based on the best evidence you have. See what happens. Take in the feedback. Adjust. Choose the next step.

That’s it. It really is that simple. But it’s hard. We worry a lot about many things out of our control, or only potentially in our control in the future based on a series of responses out of our control.

If you want less stress, think about fewer things. But think about them well.

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Are You Being Played?

I suspect Scott Adams has been playing his listeners. I’ve suspected this for months, but have only discussed this with one person. Until now.

I’ll go ahead and tell you now what I think has been going on.

I believe he is using the technique of “pacing and leading” to get his “conservative” listeners to change their minds on “climate change” (and a few other topics as well). He plays the neutral “voice of reason” with his audience who seems to mostly be Right Statist, but he is much more Left Statist than he lets on. (I so dislike using the terms “Left” and Right” in political discussions, since there’s really only Statist or not. Yet sometimes it seems necessary to examine the interplay between these mirror images.)

Back when he first started discussing the topic, I got the distinct feeling this was what he was doing. In spite of his protests of “I’m just looking at the argument– I don’t know because I can’t know. I’m not a climate scientist.” it seemed to me he was going to take the alarmists’ side when it was all said and done. He gave clues to that effect. Because he is a government supremacist, after all.

And this is the general arc of what I’ve watched happening.

He started off leaning slightly to the skeptical side. So as to agree with the listeners he was (apparently) wanting to influence. Pacing them. He has been slowly and carefully moving slightly more to the alarmist side since then. Two steps forward and one step back. Leading them to where he seems to want them to go.

He has straight out said he uses persuasion (and hypnosis) techniques in his writing and podcasting. He has described these techniques and pointed out examples when they are used by others. Then he uses the techniques on his listeners. He’s doing it right in the open. I believe his intent is to influence his listeners to move away from Right Statism toward Left Statism– maybe to bring them to a center position.

Can I prove it? No. He would say I’m mind reading and there is no written or stated evidence that this is what he wants to do. As I’ve said before, since I can’t read minds I am left with reasoning out what someone is thinking by their actions. I could be wrong, but I doubt it. The future will tell.

I still listen to Scott because I find him interesting and because I still find it informative to get insight into the workings of the statist mind. But I try to mentally vaccinate myself against his persuasion while doing so by knowing what he’s doing. Who knows if I’m protected sufficiently.

Years ago, when I first started reading his Dilbert blog, he once claimed to be “libertarian, but without the crazy stuff“. I pointed out that the “crazy stuff”, as he defined it, is also called consistency. Consistency, based in principles. Things which get in the way of a full-on embrace of statism. Once you believe it’s OK to govern others and use government violence to force others to do what you want and stop them from doing what you don’t want them to do, there seems to be nothing that’s too far to justify. This is the road he travels. He expects you to follow. And he may be tricking people into following him.

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Nobody asked but …

Once again, I have anecdotal evidence about humanity that is very dreary.  Mark Twain said, “Always do right.  This will gratify some, the rest will be astonished.”  The reason for astonishment seems to be that there are damned few who are compelled to do right — much fewer always to do right.

Take, for instance, the sad tale of the pangolin.  Statists will insist that we need states to prevent the illegal trade in pangolin scales, and consequently the extinction of the species.  I would ask, “How’s that working out for you?”

The thing is that it would be a long time before logic and order corrected the ills of the state — if ever.  But there is also the thing that statists are clueless about statism being necessary THOUGH evil.  Statism is useless AND evil.  Statism is wrong AND evil.  There is nothing that government does which non-government can’t do.

— Kilgore Forelle

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The History of History

It would be interesting, though very difficult, to study how history changes.

I don’t mean how the sequence of human events changes from the present into the future, I mean how the past changes. Since it exists only in memory from our present perspective, the stories we believe about the past are the past. But those stories aren’t fixed. They change all the time.

I’ve seen some books and studies that look at a few historical events and document the ways in which history textbooks dealt with them in, say, the 1950s vs today. The changes are often dramatic, but presented in a deadpan Orwellian fashion as if it has always been this way, nevermind what we used to say.

And it is of course true that history is mostly written by those on reasonably favorable terms with the dominant political powers. When those change, histories also change.

Imagine if the German army had won World War II, or the Soviet Union had won a nuclear showdown with the United States. Do you think the dominant historical narrative would be the same? Not only would the telling of those conflicts be different, but the story of all previous history would be different. There is little reason to believe our current historical story is any less biased.

And in most cases, you can’t easily go to the evidence to prove which version is true. Evidence is scant. Most of history, especially ancient history, is based on one or two fragments or artifacts that get translated by one or two people who then get referenced by others who get referenced. If you wanted to find out whether a particular ancient figure was real, you might find the best you could get was someone who wrote a story about them, and it’s unclear whether the story was intended as fiction. There is no harder evidence for many things in history.

This does not make history a scandal or conspiracy, but it ought to cause humility. It needn’t cause paranoia about being lied to. In fact, I find it thrilling. It means the world is full of so much more mystery than we assume if we simply accept dominant narratives as provably true.

It is useful to think probabilistically about history (and everything else). If you experience something firsthand, you can be certain it happened. If a trusted friend relays a story, you might be slightly less certain. By the time you’re hearing fifteenth-hand someone referencing an nineteenth century scholar’s belief about when the Sumerians built the Ziggurats based on one type of textual analysis, the probability is it totally accurate should be a lot lower.

In Orwell’s dystopia, history gets changed by the politically powerful at moments notice by changing the official story. While I do think it’s easier than most of us assume to change the dominant historical narrative, it takes a lot more than changing some government documents or publicly funded textbooks. Academics and professional historians are the easier part. Artists and novelists are the more important part.

When you think about the American West, or Ancient Egypt, or Medieval Europe, you have a lot of ideas that are pretty coherent and consistent with other people’s ideas about these things. While most are not contradicted by history books, they didn’t originate there. It’s not the source material that causes us to believe historical narratives as much as it is the fictional narratives built on top of it. Even though we know A Connecticut Yankee in King Arthur’s Court is a fictional narrative (built on top of another at least mostly fictional narrative of Arthur), the historical setting becomes a little more real in our brain every time a fictional story uses it as a backdrop.

A handful of movies like Jurassic Park that portray dinosaurs as predecessors to birds probably do more to make that part of the historical narrative than whatever studies or researchers they are referencing.

On the one hand, the power of art and fiction to shape our beliefs about the past is a bit troubling. I takes very little evidence from very few sources for a bunch of stories to spin up and make us believe things with higher probability than warranted, simply because it is repeated in so many stories on top of stories.

On the other hand, it’s cause for comfort. It’s empowering. I means an Orwellian regime is going to have a harder time controlling the past. Sure, they can handle the subsidy-sucking professoratti, but to control the narratives of all the artists and story-tellers? A Herculean task. In fact, the inability to control rebel creatives has brought down many a dictatorship.

History is not a fixed thing. Our knowledge is so slim. This makes probabalistic thinking important. It makes the stories we tell important. It makes the lenses through which we view the past important.

History has a history. The way it’s presented today might not be better than it once was or could be. It’s useful to think about ways it might better be told and understood.

(Bonus: Here’s a great video on ways of seeing the past.)

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