Fox News

I will crank out another clickbait nemo dat post sometime, but this post will focus on Fox News.

Yesterday it was revealed that Paul Manafort and Rick Gates had been indicted, and it was also revealed that earlier this month George Papadopoulos had pleaded guilty to making false statements to the FBI. Papadopoulos's "Statement of the Offense" (link to PDF), in particular, indicates that Russians purporting to act on behalf of the Kremlin made repeated contact with the Trump campaign and probably tipped the campaign off about the hack of John Podesta's email. How the Trump campaign responded to those overtures is not yet fully known to the public, and that is the focus of intense speculation at this point, but it's clear that at the very least there was low-level collaboration.

So in short, it was a bad day for Trump. Several of the people I follow on Twitter provided running commentary on Sean Hannity's Fox News program, and so I ended up watching it on YouTube. And in fact it was remarkable. To put it in context, Hannity has long been one of Trump's biggest fans, and there was even speculation that he would leave his position at Fox News to work for the administration. But Hannity is probably more effective helping Trump from outside than he would be as a formal administration employee.

Anyway the program can probably best be described as mindless propaganda. It did not rise to the level of well-crafted propaganda—Hannity did not bother to maintain a coherent narrative, and he did not confine himself to the literal truth—but it was delivered with a straight face and with no hint of reservation. Any viewer with no grasp of the underlying facts and with lower-than-average skepticism could come away convinced that Hillary Clinton and the Democrats are guilty of treason while Trump and his associates are being falsely maligned. (I won't get into the details right now, but the basic game is to pretend that the sale of Uranium One amounted to treason, driven by large contributions to the Clinton Foundation. In fact the deal did not permit any export of uranium from the United States, and perhaps more importantly then-Secretary Clinton had little to do with it.)

People on Twitter have started referring to Fox News as "state television," and that's basically right. Conservatives would claim that Fox merely counterbalances the liberal-dominated media, but there's an important distinction between the alleged liberal bias of mainstream news and the blatant sycophancy of Fox News. Mainstream media is less partisan and less predictable. It plays by rules that may be annoying and may be (are) easily manipulated at times, and it has a permanent, ineradicable ideological slant.

But it also has some redeeming features, most notably a reasonably strong impulse to get the literal facts right. The mainstream media also won't shamelessly carry water for any particular person or party. (Again I should probably qualify that with "reliably"—at times the media really does bend over backwards for someone, but in doing so it respects limits, and it is generally fickle.) The media won't stay on sides or cover things up.

So Fox News is not just a conservative mirror image of the mainstream media. It is a propaganda outfit with minimal regard for any kind of truth. And it has been this way for a long time, although its devotion to Trump is arguably new in its intensity and lack of ideological grounding, as Matt Yglesias pointed out:

I have no idea whether or not Trump will scuttle NAFTA, but I’m sure whatever decision he makes Hannity will praise it to the stars.

— Matthew Yglesias (@mattyglesias) October 27, 2017

I don't have anything original to say here, I suppose. I will try to write a few further posts about what I think the implications are, but the short version is... they're bad.

Nemo Dat

Law can be fun! This post should not be considered legal advice, it is simply an exploration of a interesting topic. Also, it is very high-level, and the results in any particular jurisdiction could be quite different.

"Nemo dat" is (possibly ungrammatical) Latin for "no one can give." It is a legal principle that has been part of Anglo-American law for a long time. In essence, the principle states that you generally can't give greater title to property than you have. I'll give an example and then look at some exceptions.

Let's say I check out a library book, remove any indication that it belongs to the library, and then sell it or trade it to a friend as a used book. The nemo dat principle focuses on my property rights, so let's start there. What I had was not outright ownership of the book, but rather the right to possess and use it for a limited period of time. Under the nemo dat principle, that's the most I could possibly transfer to someone else. So depending on the rules of the library, I could maybe give the book to my friend for the remainder of the check-out period.

What I couldn't do, of course, is give my friend what I purported to: outright ownership of the book. Therefore if the library were able to track the book down, the library could recover it from my friend. (Maybe not until the due date! However, defacing the book would probably have terminated my right to keep it until then.)

This brings us to an important point. Imagine that my friend is innocent. He didn't know the book was stolen, and he paid good money for it. The law is therefore confronted with two innocent parties: the library that owns the book and a good-faith acquirer of the book. The nemo dat principle is simply the decision that in this dispute, the library should win and should get the book back. (Both the library and my friend have a good cause of action against me, and the law will never let me defeat either of them in a lawsuit over the book or the sale price. But quite often, it turns out, the dishonest party has fled the jurisdiction by the time the duplicity has come to light, and the only thing the law can do is allocate the losses between two parties who have done nothing wrong.)

There is a second important point here. Imagine that my friend sells the book to another friend, who sells it to someone else, and so on. Subject to an exception we'll get to shortly, the nemo dat principle still applies. The library can theoretically recover the book from the 20th or 200th or 2,000th buyer. By that time, of course, it would have been virtually impossible for the buyer to research the book's "chain of title," but it doesn't matter. Nemo dat, to the extent it applies, means that not one of those sellers was able to give a purchaser greater title to the book than he had, and so the library still wins. As a result the "chain of title" matters tremendously (although in practice, of course, it is often very difficult to track down stolen property and it can also be difficult to prove that it is the same property that was stolen).

Over time a number of exceptions to the nemo dat principle took root. One important exception is that someone who buys property from a retailer in good faith can take good title to the property even if it was stolen at some point. So if a truckload of radios is stolen and then sold, and one of the radios somehow ends up on the shelf in an electronics store, someone who buys it with no knowledge of the theft gets to keep it, even if the original owner later tracks it down. Again there are two innocent parties, but for a variety of reasons the law now awards the property to the good-faith purchaser.

Of course that's another way of saying that a retail store can give better title than it has. The original owner of the radio could have recovered it from the retailer without compensation, as a straightforward application of the nemo dat principle. But the innocent customer was able to take good, clean title to the radio. By the way, that extends to every subsequent owner of the radio (except maybe someone who, coincidentally, was culpable in the original theft). Now that any defect in title has been scrubbed away, the nemo dat principle allows full ownership of the radio to be given to subsequent purchasers or even gratuitous transferees (people who get the radio as a gift).

Why is this? I don't know exactly. The law wants to protect retail customers, or it wants to encourage open commerce, or something. Bear in mind, in the retail store the radio was sitting there on the shelf for all the world to see. The retailer may be dishonest, but his dishonesty is inherently limited by the nature of his business. Anyone, including the original owner, can walk in and examine the merchandise. And if the original owner does so and sees the stolen property (and can prove it is hers), the retailer is out of luck.

You may be wondering about pawn shops—the answer is that pawn shops must generally submit to extremely intrusive government oversight because they are such an obvious vector for stolen property. I do not know whether they can give clean title, but I suspect they can (that is, I suspect they are eligible for the retailer exception to nemo dat). But they have to provide lists of their goods to the state, which can check stolen goods reports and identify any matching property.

Paper currency is another important exception to nemo dat. In the United States, each dollar bill has its own serial number, and you could theoretically prove that a particular bill was stolen from you. Nevertheless, the only person you can recover the bill from is the thief himself (or maybe his collaborators). Note that I'm not talking about monetary damages—I'm talking about the actual piece of paper money that was stolen from you. Someone can obtain good title to a dollar bill simply by taking possession of it lawfully. Doesn't have to be a retail transaction, doesn't have to be a commercial transaction at all. It's extremely important for money to be trustworthy, for it to be worth its face value, and money changes hands so often that if title could be clouded by the nemo dat principle, it could barely function for its intended purpose.

Similar exceptions have been made for certain financial instruments, including securities. Again, the logic is that "negotiability"—the ability to give good title to something regardless of anything that happened in the past—is justified because it facilitates important commercial activity. One share of IBM stock must be exactly the same as another, so people can transact easily and anonymously. And so the policy decision underlying the "nemo dat" principle—to favor the original owner of property over an innocent acquirer—is flipped, and the original owner is out of luck.

The punchline here—and there is a punchline—will have to wait for my next post.

Responding to Weinstein

In the wake of the Weinstein story, I have seen two basic proposals for social change. They can be pretty well summed up by these tweets:

More formal workplace environments with less after-hours socializing and much less alcohol would be good for us. https://t.co/CiB962vSyY

— Josh Barro (@jbarro) October 10, 2017

Or men could just not be predatory dicks https://t.co/40G2mJbmQt

— Clara Jeffery (@ClaraJeffery) October 10, 2017

I won't pretend to be neutral here—I think Barro has the better side of this argument—but I'll try to present both sides fairly.

Barro's approach might be called "architectural." He wants patterns of social behavior to be designed to make it more difficult for people like Weinstein to harass people. By analogy, you can imagine a city responding to assaults in a city park by installing lights, or even by closing the park at night. It is hard at first to see what could be objectionable about that. You can't imagine a city resident responding, "Oh sure, we could install better lighting, or men could just not be predatory dicks."

[Updated to add: Maybe an even better example is instituting policies like body cams or civilian review boards meant to reduce police brutality. You can't imagine Jeffery opposing those policies on the grounds that police officers should "just not be predatory dicks."]

To understand where Jeffery is coming from, consider this idiotic tweet:

THINK:

If Weinstein had obeyed @VP Pence's rules for meeting with the opposite sex, none of those poor women would ever have been abused. pic.twitter.com/Kgl9FF7nam

— Sebastian Gorka DrG (@SebGorka) October 11, 2017

Pence's rules are, if memory serves, that he never eats a meal or drinks alcohol one-on-one with a woman unless his wife is present. What this means, of course, is that the men he works with probably have much better access to him than the women do, and it's hard to imagine this doesn't put women at a disadvantage when it comes to career advancement.

So what I think concerns Jeffery is how the burden of reducing sexual harassment gets allocated. The Upshot (part of the New York Times) ran a good piece on this, noting that men sometimes respond to sexual harassment scandals by reducing their contact with women in the workplace. You can see why this is morally outrageous, since it requires women to pay twice: first by being harassed and assaulted, and second by being cut off from professional advancement. Men should just not be predatory dicks!

Now in fairness to Barro, he specifically cited the New York Times piece and argued that it would be unfortunate for men to respond in such a way. Barro's suggestion is to clear away the vast gray area that currently allows sexual harassment to proliferate in the workplace. He wants to draw bright lines that eliminate ambiguity, which often serves as a hiding place for harassers. He also wants to purge professional spaces of activities that lend themselves to bad behavior, like excessive drinking with coworkers.

And as I indicated earlier, I think that's basically right. Men will try to harass women in any social context, and some will get away with it. But by defining acceptable behavior in such a way that harassers can't make plausible denials or claim ignorance, we can make it harder to harass and easier to punish harassment when it happens. This isn't moral abdication or Gorka-style stupidity, it's a responsible way to address a real problem.

Ambivalence in an Ambulance Hurtling Toward Annihilation

So, this happened:

We have a fresh update this morning on the pivot to tax reform. pic.twitter.com/8894y5qMYH

— Sahil Kapur (@sahilkapur) October 8, 2017

(I'm embedding this tweet, rather than the tweets themselves, in case someone decides to delete them. Also, for the record, it appears that Trump is lying about Corker begging for his endorsement.)

My feelings about this are a little complicated. On the one hand, I genuinely think Corker deserves credit for standing up to Trump. Corker is not running for reelection and doesn't have to care about anything anymore, but I'm sure it's still seriously unpleasant to stand up to Trump and incur the wrath of his idiotic supporters. Also, what Corker is saying here seems pitched at the correct level. It's not that Trump is a hypocrite on deficits or a bad person in general. It's specifically that he's a fucking child who can't be trusted for even a few hours without adult supervision. I feel a lot of criticism of Trump failed because it failed to capture the essence of his shittiness. Corker seems to be able to land blows that other pugilists haven't been able to.

On the other hand... what Corker is highlighting has been obvious to everyone since 2015, and Republicans were happy to put the country's nuclear arsenal under the control of this racist man-child and his avaricious, morally bankrupt children. The damage is done! The time to go public with your honest assessment of Trump was as early and as often as possible, to deny him the nomination or, failing that, the presidency. But very few Republicans did so—in fact, the only Republicans holding elected office who criticized Trump in honest terms were the Republicans running against him for the nomination, and most of them ended up endorsing him anyway.

So I guess... very partial credit? The other point here is that when I said "the damage is done," I was exaggerating slightly. The lion's share of the damage has been done. But Trump is being bottled up legislatively, and that's no small thing. Again it's very hard to tell how to allocate the credit. Obviously the Democrats have done a good job staying united against him so far (this hasn't been very difficult since Trump has only proposed massively unpopular legislation... if he had started with infrastructure things might have gone very differently). But I actually do give the Republicans who have stood up to him some credit. Again there's the timing issue. But it sometimes feels as though there is a tacit understanding that Trump gets judicial nominations and he gets to turn the executive branch into a racist hellhole, but that's it. Beyond that, Republicans and Democrats are trying to keep him from having any imprint on this country's laws, and they are succeeding.

That last sentence gives the Republicans too much credit—most of them voted for his shitty health care bills. Also, Republican leaders such as Paul Ryan and Mitch McConnell are allowing Trump's racist rhetoric to spread into their day to day messaging, which belies any notion that they are personally disgusted by Trumpism.

Anyway it's all a quandary, but if we don't all die in a nuclear holocaust, and if Trump signs no major legislation while he is President, then in 2021 we can hopefully pick up and start rebuilding the country. And Collins, Murkowski, McCain, and maybe Rubio and Corker, will deserve some modicum of credit for growing spines—too late, but not without some positive impact on the country.

The Pareto President

A quick observation. A sign of a weak leader is that he or she cannot withstand opposition even from relatively weak factions. A weak leader is therefore forced to seek changes that practically no one opposes. In principle this can be done, but it takes skill and luck. A strong leader is not constrained in the same way.

Of course whether this is good or bad depends on the merits of the legislation. But to use an analogy from economics, a strong leader can push through legislation that is "Kaldor-Hicks efficient," meaning that the people who gain from the change could theoretically compensate the people who lose. A weak leader, by contrast, is constrained to settle for "Pareto efficient" legislation, meaning legislation that produces no losers (or, equivalently, legislation that actually provides for some kind of compensation for the losers).

(Note that a strong leader could also push through legislation that isn't efficient at all, costing the losers more than it benefits the winners. This would be an argument for inserting lots of "veto points" so that just about everyone has to be bought off in order for legislation to pass. The counterargument is that veto points are themselves subject to severe abuse. It's not an argument I care to address right now.)

Anyway this is what we see with Trump. Every time he proposes something, whatever group is hurt by the proposal kills it. A stronger President could push things through, forming a coalition of the groups that stand to gain and then rallying them to get the bill passed. But Trump is weak. Alternatively, Trump could design legislation that doesn't impose material losses on anyone. But this is difficult even for very smart people, and Trump is stupid.

I'm not making any predictions about the tax cut legislation. Tax cuts should inherently be pretty easy since no one actually cares about the debt. But in general I expect the Trump administration will continue to struggle to get even mildly complicated legislation through Congress.

Senators in Hospitals, Democracy in the Balance

When Graham and Cassidy conceded that their bill seeking to repeal the Affordable Care Act didn't have the votes, they were merely acknowledging a reality that had been apparent to most observers since the previous Friday, when John McCain announced that he would not vote for the bill. Susan Collins waited to announce her "no" vote until the CBO had weighed in the following Monday (though not with a full score of the bill, which would have taken weeks), and the next day Graham and Cassidy acknowledged defeat. (People had speculated that the bill might not be pulled until the voting was done in the Alabama primary for the Republican nomination to replace Jeff Sessions in the Senate, but in fact the bill was pulled in the middle of the day on that Tuesday, September 26.)

So it was startling when President Trump suggested that the latest effort had failed only because a key senator who supported the bill was hospitalized. Trump said this several times, forcing the senator in question, Thad Cochran, to clarify that he was recuperating from medical treatment but was not hospitalized.

Putting aside any quibble about Cochran's health status, the simple fact is that his vote would have made no difference to the bill's fate. With three Republican senators announcing that they would not support the bill (and with the Democrats unwavering in their opposition), the bill was dead whether or not Cochran voted. Trump's lie was an insult to the intelligence of his audience.

Now for all I know Trump is simply very incurious, and someone mollified him by telling him that Cochran's illness was a factor in the bill's defeat. In fact that seems like the likeliest explanation to me. Of course he also might have made a conscious decision to lie. Either way, it shows a shocking disregard for the truth. Either Trump is happy to say false things, or he's happy to run a White House in which he is routinely told false things and then repeats them. I actually don't know which would be worse.

But this brings me to my depressing conclusion, which is that all of those "Trump supporters are standing by him" stories actually do (or at least could) serve a purpose. What I would like to see is an interview in which a Trump supporter is shown irrefutable evidence that Trump lies constantly. My suspicion is that it would make no difference whatsoever. If anything, it would present another occasion to rail against the media. One of Trump's big innovations is that he doesn't bother to lie convincingly, or at least, he doesn't bother to try to convince anyone who is remotely intelligent or well-informed. And what has thrown so many of us for a loop is that we expected this behavior to come at a very high price. Maybe it has, maybe his low approval numbers really do reflect a kind of national revulsion.

But maybe not. Maybe we are entering a time in U.S. politics when adherence to the truth is only occasionally helpful, and tribal affiliations dominate everything. At least, that's the impression I get when I see something like the "hospitalized senator" lie, which I doubt 5% of voters could identify as such.