Distillation for a Resistance (First Edition)

We’re early in this new political era, with a long time ahead of us, and there’s a need to get a sense of one’s bearings. (The sound way to approach the new politics that has overcome America through the three-thousand-year traditional of liberty to be found in many places, the Online Library of Liberty being only one. But that’s the reading and study of a lifetime; there are essays contemporary to us that are both useful and readily distilled.)

These recent essays and posts consider, or a useful to understand, the incipient authoritarianism of America’s next administration. They are a good basis for a beginning, for a distillation of one’s thinking.

Some recent essays for consideration:

Gingrich’s Defense of a Self-Pardoning Administration: From Bad (12.19) to Much Worse (12.21)

On the Diane Rehm Show of 12.19.16, former Speaker of the House Gingrich offered that a Trump Administration could simply pardon its own advisors to remove those advisors’ unlawful conflicts of interest:

I think in the case of the president, he has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon. I mean, it is a totally open power, and he could simply say look, I want them to be my advisors, I pardon them if anybody finds them to have behaved against the rules, period. And technically under the Constitution he has that level of authority.

An administration like this would be – not merely technically, but in fact – a lawless one (where law was used to negate the demands of the law).

Two days later, Gingrich repeated his assertion that a president could act this way (revealing it as a trial balloon of sorts, “I’m not saying he should. I’m not saying he will’):

The Constitution gives the president of the United States an extraordinarily wide grant of authority to use the power of the pardon. I’m not saying he should. I’m not saying he will. It also allows a president in a national security moment to say to somebody, “Go do X,” even if it’s technically against the law, and, “Here’s your pardon because I am ordering you as commander-in-chief to go do this.”

Under this reading of the Constitution, what couldn’t a commander-in-chief do, in the name of national security?  The answer is that there is nothing he could not do, or (affirmatively formulated) that he could do anything and thereafter pardon those responsible.

Note also the change in circumstances on which Gingrich grounds his remarks: on 12.19 he’s talking about conflicts of interest within an administration, but by 12.21 he’s discussing use of state power under a claim of national security. Perhaps Gingrich thinks the change in circumstances limits the scope of how a president might use the pardon power, but it fact his later example actually expands dramatically the power of the chief executive.

The 12.19 example’s use of pardons might involve wrongful but non-violent business conflicts; the 12.21 example’s use of pardons would exonerate the use of violent force (whether used abroad or domestically) of any possible magnitude against supposed national enemies.

Gingrich’s new second formulation is worse than his first: any location, any amount of force, thereafter subject to pardon by the president of the United States.

Declaration Over Pledge

When I was a child, we would – as students and politicians do today – recite the Pledge of Allegiance. It sticks in my memory, and so it’s easy to type its words without looking them up: “I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.”

Among those thirty-one words, there’s mention of liberty, but not so much, so vividly, as the first thirty-six words that declared to all the world America’s deepest, founding principles:

We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Someday, a time that will be a better day, I believe that we will wisely begin our affairs with a declaration over a pledge.

The Work of the Next Several Years 

Charles Blow writes of the work ahead for those many citizens who now find themselves compelled to defend their rights:

I fully understand that elevated outrage is hard to maintain. It’s exhausting.

But the alternative is surrender to national nihilism and the welcoming of woe.

The next four years could be epochal years in the history of this country. They could test the limits of presidential power and the public’s passivity.

I happen to believe that history will judge kindly those who continued to shout, from the rooftops, through their own weariness and against the corrosive drift of conformity: This is not normal!

Via Donald Trump, This Is Not Normal! – The New York Times.

One cannot say that this will be the work only of the next few years, knowing that often a few years stretch into several. There will be some moments of weariness; they will prove nothing as against the vigor that comes from being in the right.

Republicanism Without Principle

Writing at Commentary, Noah Rothman has a short, but powerfully insightful, post entitled Republicanism without Principle.  The essay is, immediately, about Trump and the Republican party, but it applies as nicely to republicanism as a form of government under the pressure of radical populism.  (It’s worth noting that Commentary is a conservative publication; one finds some of the strongest critiques of Trump from steadfast, free-market conservatives.)

Rothman observes the absence of ideology in Trump:

The fatal conceit of any populist movement is that it is non-ideological. It is entirely practical, its advocates insist. It has no use for theoreticians and philosophers. After all, what have they ever produced? The urgency of the present crisis demands of us the resolve to use every tool in the toolbox. What crisis, you ask? And what tools? The questions alone betray a suspicious lack of revolutionary consciousness. They mark the incredulous inquisitor as unfit to share the fruits of the new enlightenment….

Rothman rightly sees the danger – to liberty, to safety, to well-being – in such movements:

A nihilistic detachment from ideology is also the abandonment of principle, and that is a dangerous condition in leaders vested with the kind of awesome power that American presidents enjoy. The ideology that informs principle serves as a check on that power. Pragmatism is its own philosophy, one which justifies every manner of behavior with little regard for its morality or long-term consequences….

If principle grounded in an intellectual framework comes to be seen as an impediment to progress, any manner of remedy to that condition is soon justified in the populist mind. And pragmatism necessitates the kind of ugly remedies that principle often proscribes….

Here we now are, in America.  There’s more to Rothman’s essay that I’d easily recommend, about the views of the clique surrounding Trump.  (They are, to be sure, men who would set aside concern for any particular meal or view for the sake of a place at the table and a window seat.)

Rothman’s success, here, however, is more universal: a concise description of government without ideologically principled limitations.

Answer of Telfer and Edmonds to Former Coach Fader’s Federal Lawsuit

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In August, Timothy Fader, the former wrestling coach at UW-Whitewater, filed a federal lawsuit against former chancellor Richard Telfer and then-Athletic Director Amy Edmonds (she has since been demoted), alleging defamation & constructive termination stemming from a dismissal because Fader reported an alleged sexual assault committed by a recruit directly to Whitewater police rather than a campus supervisor.  See, Former Coach Fader Files Federal Lawsuit Against UW-Whitewater Officials.

Although the complaint names Telfer and Edmonds in an individual capacity, both are receiving a defense in this civil matter with state resources (and so at taxpayers’ expense).

Whitewater is a city with a median household income of $30,218, where 36.7% of all residents, 15.2% of all families, and 18.6% of all children live below the poverty level.  Telfer’s last publicly-paid salary before retirement was a reported $212,600.

I’ve promised to follow the case, and immediately below is a copy Telfer and Edmonds’s answer and Fader’s complaint.

Answer:

Download (PDF, 110KB)

Complaint:

Download (PDF, 6.78MB)

Trump Surrogate Defends Precedent of Internment Camps

Carl Higbie, a Trump surrogate, while speaking to Megyn Kelly on Fox News suggested the internment of the Japanese during the Second World War as a precedent for a registry of Muslim immigrants to America. Kelly rightly rejected the precedent, as the internment of Japanese Americans during the Second World War and the Korematsu decision upholding that internment have been considered – at least until recently, it seems – among the worst civil liberties violations of that era.

What was unmentioned only weeks ago is now part of our political discussion; what is part of our political discussion now may yet become policy in the new administration.

Getting Protest Hashtags (#NotMyPresident) Half Right

Columnist Paula Dvorak, writing at the Washington Post, contends that saying “saying #notmypresident is the same as saying #notmyconstitution or #notmycountry or #notmyAmerica.” See, Stop protesting democracy. Saying #notmypresident is the same as saying #notmyconstitution.

Dvorak is only right about the first two hashtag phrases – she overreaches on the others. It’s true that #notmypresident is like saying #notmyconstitution, as the first depends on the constitutional order of the second.  That’s the reason that I have not, and will not, use #notmypresident: Trump was elected lawfully the 45th president of the United States on November 8, 2016.  Defending the constitutional order is a worthy defense (and a needful defense as Trump is likely to threaten constitutional norms many times while in office).  That defense begins with a fair acknowledgment of who has been elected.

Dvorak’s wrong, however, to think that #notmycountry or #notmyAmerica are somehow impermissible: those terms describe what someone thinks of the society more broadly, apart from a legal or political understanding.

She’s also wrong to think protests against Trump are undemocratic.  In fact, they’re democratic both broadly and narrowly.  Broadly, one should be able to protest lawfully as one wishes.  Narrowly, Trump wasn’t elected by a majority of voters, or even a plurality of them.  A plurality went to Clinton, and a majority went to all the alternatives to Trump.  If one thinks that democracy – rule of the demos – is what should matter, then one would be protesting for democracy by protesting against Trump.

One may accurately say that Trump’s election was constitutionally permissible at the expense of both the majority’s wishes and those of a plurality.  Lawful, to be sure, but by design with a limitation on majoritarian wishes.

This might all be a mere exercise in terms, were the consequences not so large: hundreds of millions, across a vast continent.  Define legitimate protest as narrowly as Dvorak does (so that it’s somehow out of bounds to say #notmycountry or #notmyAmerica) and one denies those millions something more meaningful than a single, lawful election’s result.

Kevin Drum on Trump and the End of Reconstruction 

Blogging at Mother Jones, Kevin Drum – like many of us, of whatever politics – seems uncertain about the consequences of a Trump Administration.  (In fairness, much has happened in a short time, and it’s hard to make sense of it all.)

Still, Drum’s thinking has shifted significantly over the last few days, in ways he no doubt sees.  His 11.9 day-after post, Things We Can Count on In the Next Two Years belies his 11.10 post, The United States Is Not About to Spiral Into Fascism and Tryanny

Two days after the election, Drum writes to reassure, contending that Trump will be no different, no worse, than 

say, Ted Cruz or Marco Rubio would be. Beyond that, though, he’s less conservative on the policy front. The reason Trump is uniquely bad is mostly symbolic: he’s willfully ignorant; he’s vindictive; he’s a demagogue willing to appeal loudly and proudly to racial animus; and he has the attention span of a small child. He’d be an embarrassment to any country, let alone the most powerful country in the world.

Isn’t that bad enough? There’s no need to pretend we’re about to spiral into a fascist nightmare or a financial collapse. We have not embraced tyranny. The United States is a very big battleship, even for Donald Trump.

One day earlier (that is, one day after the election), Drum sees a different prospect for America under Trump:

Since I have the Reconstruction era on my mind right now, it’s hard to avoid the obvious comparison. Reconstruction lasted about eight years, and then was dismantled almost completely. Barack Obama’s presidency lasted eight years and will now be dismantled almost completely. I will withhold my opinion for now on the obvious reason for this similarity.

There lies Drum’s – and our – problem. If a Trump era is anything like the end of Reconstruction was for millions of black Americans at that time, then there is every reason to be extremely concerned. Generations – indeed, during roughly a century of history – went by before millions received the rights the Constitution granted them.

There’s no need to belabor a point that Drum knows, and about which he is sympathetic. The problem for this country is that a politics like the end of Reconstruction was for blacks would be devastating for millions our fellow citizens. When one reaches the need for an analogy between our time and the decades after 1877, one has already arrived at a moment of crisis for huge numbers.

So, is Drum’s initial concern (by way analogy) on 11.9 justified, or is a Trump Administration likely to be little different from how a Cruz or Rubio Administration might have been (as Drum wrote on 11.10)?

Few during these last months thought that Trump, Cruz, and Rubio were much alike; there’s no reason to think they were. A populist politics of Trump’s kind will push as far as it can, making Drum’s initial concerns more probable than his subsequent reassurances.

UW-Whitewater’s Amy Edmonds Out as Athletic Director

UW-Whitewater’s current Athletic Director, Amy Edmonds, is reportedly out as head of UW-Whitewater’s athletic programs.  The report notes that she’s being demoted to associate athletic director (at a significant cut in salary).

There’s no certainty that she would, in fact, remain in a subordinate role following the apppointment of an interim director, let alone a permanent one.

See, http://royalpurplenews.com/19898/news/athletic-director-to-be-replaced/.

Edmonds was appointed interim director, and later permanent athletic director, during then-Chancellor Richard Telfer’s tenure. Edmonds and Telfer are now co-defendants in a federal defamation lawsuit from former wrestling Coach Timothy Fader. See, Former Coach Fader Files Federal Lawsuit Against UW-Whitewater Officials.

For more about Edmonds from FREE WHITEWATER, see, Coach Timothy Fader, Vindicated, Former Coach Fader Vindicated Five Times Over, Chancellor Telfer & UW-Whitewater Officials: Why Wait 147 Days?, and Questions on Assault Reporting, Formality, and Former UW-Whitewater Wrestling Coach Fader.

Absentee Voting in the Whitewater Area

One often hears that a given election is important, and that each person’s vote matters.  That’s been true so many times in our history, and it seems particularly so this year.

Absentee voting – by mail or in person – is a part of our law, and the window for in-person voting will open soon. Immediately below readers will find information on absentee voting in the City of Whitewater and for nearby communities.

Download (PDF, 126KB)

Coach Fader Appears on ESPN’s Outside the Lines

 

On Friday, former UW-Whitewater Coach Timothy Fader appeared on ESPN’s nationally-broadcast Outside the Lines, to describe the treatment that led him to file a federal lawsuit against former Chancellor Telfer and current Athletic Director Amy Edmonds. See, Coach fired for reporting sexual assault.

UW-Whitewater officials declined to appear on the program, but issued a statement that anchor Bob Ley read on the air. (The UW-Whitewater statement professes concern for assault survivors but declines to mention that two assault survivors have filed federal Title IX complaints against UW-Whitewater for failing to address their grievances properly as the law requires.)

Channel 3000 first reported on the lawsuit last Monday. This website posted on the lawsuit and story that same day, and included a copy of the federal lawsuit for readers (pdf).

For more on the story, see from Channel 3000 (WISC-TV), Former UW-Whitewater coach tells story to national audience. For prior posts from FREE WHITEWATER, see posts about Coach Fader and UW-Whitewater officials’ conduct.

Long Miles Ahead

I posted yesterday on the federal lawsuit filed against former Chancellor Richard Telfer and current Athletic Director Amy Edmonds.  SeeFormer Coach Fader Files Federal Lawsuit Against UW-Whitewater Officials.

One should not expect a quick resolution to the many issues the lawsuit raises, of mistreatment of honest employees & disregard for assault survivors. On the contrary, in a matter like this there are likely to be tactics of  (1) silence, (2) changing the subject,  (3) lying, (4) blaming terminated employees and assault survivors, and (5) self-serving but unethical insistence that injury to a few served a higher institutional purpose.

We’re nowhere near the end of all this. A federal lawsuit, and a federal investigation into Title IX handling of sexual assault complaints, is a consequence of, but not a certain cure for, the grievances asserted.

There is much yet ahead. 

Former Coach Fader Files Federal Lawsuit Against UW-Whitewater Officials

At Channel 3000, investigative reporter Adam Schrager reports on a federal lawsuit that former Coach Timothy Fader has filed against UW-Whitewater officials, in their individual capacities. (I had promised readers that I would continue to follow this story, and will continue to do so as the case unfolds.)

Both current Athletic Director Amy Edmonds and former Chancellor Richard Telfer are named defendants:

The lawsuit asserts that Fader was not renewed as the school’s wrestling coach in the summer of 2014 because he immediately reported an alleged sexual assault committed by one of his recruits directly to Whitewater police and not to his supervisors on campus, per university policy. After that, Fader alleges an official at a college in Minnesota called Edmonds for a job reference but was told that she could not “tell him the whole story,” creating “even more mystery and (implying) additional but unreported misconduct on Fader’s part,” according to the lawsuit.

Fader also makes the claim that there are no records of an earlier sexual assault he had reported to university officials. UW-Whitewater is facing two Title IX complaints filed with the Civil Rights Division of the U.S. Department of Education in the last two years. Title IX legislation was passed by Congress in 1972 to prohibit discrimination by gender in federally-funded education programs.

See, Former UW-Whitewater wrestling coach files lawsuit : AD, former chancellor named as defendants @ Channel 3000.

See, additionally, prior posts about Coach Fader and UW-Whitewater officials’ conduct.

More to come.

Below is an embedded copy of the federal complaint:


Download (PDF, 6.78MB)

The Masking Effect of Act 10 

We’ve had Act 10 for several years now, and during that time in no sector has that law been more discussed or felt than in K12 public education. Whitewater has avoided some of the Act 10 strife that has gripped other parts of the state, and that’s been to our advantage, whatever one thinks of the provision. 

(I am opposed to Act 10 on traditional libertarian grounds: any person in any occupation should be free to associate with others and bargain against, and in opposition to, the government. Those who hold office locally or statewide have too much authority as it is; they don’t need more tools, but rather deserve fewer.)

Yet whatever one thinks of the direct consequences of Act 10, it’s had a second, masking effect: all the attention to decisions involving resources has almost certainly obscured the sound of other decisions unrelated to fiscal policy.

(I’m not describing choices not made for lack of money, but choices made yet not heard for all the attention Act 10 has received.)

As we drift farther from Act 10’s beginning, and that law is either attenuated or people become inured to discussion of it, attention is likely to shift to policies over these last several years of which we’ve heard less. Act 10 has masked the sound of these other policies, but it’s a masking effect that will not endure: other subjects will come to residents’ hearing, no matter how loud Act 10 has been.

Attorney General Schimel’s Support for Senate Bill 656

Late last month, Wisconsin Attorney General Brad Schimel joined law enforcement officials at a press conference to announce his support for a bill that would offer amnesty for underage drinkers who report incidents of sexual assault (whether reporting as claimants or bystanders).   The bill (Senate Bill 656) would assure that someone could report an assault without worry of being cited for drinking, a possibility that might deter a claimant or bystander from contacting the police.

He was not alone in his support – SB 656 has support from both sides of the aisle, with both Republican and Democratic co-sponsors.

Once again, as with his meeting with sexual assault survivors (despite a refusal of UW-System officials to do likewise), one sees that A.G. Schimel understands that respect for individuals requires that their claims be heard.  Whether their claims are meritorious is a matter to be determined after they’ve had a chance to offer a claim –  failure to hear them out is deciding a matter a priori, a failure that would be inimical to the principles of a society based on individual rights.

(Those who are accused deserve and must have due process – that due process requires taking and processing a claim, not rejecting or pretending that claims have not been made.)

One alternative to hearing claims and offering due process to all individuals is a crude act utilitarianism in which university officials – in the name of protecting an organization’s reputation but truly to protect their own reputations – bury claims, ignore claimants, and ruin the careers of those who report incidents.

The UW System – and UW-Whitewater officials in particular – are accused by multiple claimants of burying claims (1 and 2), contending falsely that publicly-paid bureaucrats cannot speak to claimants, and insisting self-servingly that claims can only be presented one way.

A.G. Schimel’s support for SB 656 is support for the view that being heard can and should legitimately trump the circumstances surrounding when and how one makes oneself heard.  His support further undermines the unpersuasive, risible contention that the Telfer Administration at UW-Whitewater acted on principle in these several matters.

There’s no serious choice in this:  one can embrace the reasoned view of a well-educated, experienced prosecutor who has (sadly) seen many cases of assault in his career, or one can side with the flimsy, self-protective claims of lightweight administrators and their press flacks.

Contrasting Wisconsin Attorney General Brad Schimel and Media Relations Director Sara Kuhl

In December, Laura Dunn, Esquire and four of her clients, all with experiences within Wisconsin as sexual assault survivors, met with Wisconsin’s Attorney General, Brad Schimel, to discuss their concerns about how the UW System is addressing sexual assault complaints. SeeUW sexual assault survivors meet with AG, seek meeting with UW system leaders @ Channel 3000.

(One of Ms. Dunn’s clients appearing on camera is from UW-Whitewater; at least one other client of hers, to my knowledge, is also from UW-Whitewater.  That second client gave an audio interview to WISC-TV on 3.19.15, but was not part of the December 2015 video interview.)

Repeatedly, officials at UW-Whitewater and in the UW System have insisted that they cannot speak with the assault survivors who have pending federal Title IX claims against UW-Whitewater (there are now two) or the UW System (there are at least three more against other UW System schools).

This is simply absurd as a matter of law.  Not simply absurd, but manipulatively, mendaciously absurd.  There is no general prohibition whatever, in law or in legal practice, against talking or meeting with adversarial or potentially adversarial claimants.  In fact, these kinds of meetings and discussions happen commonly between opposing sides in all sorts of legal matters.

To believe otherwise, one would have to believe that Brad Schimel, Attorney General of the State of Wisconsin, a graduate of the University of Wisconsin-Madison School of Law, an accomplished county prosecutor having conducted over one-hundred fifty jury trials, who has chaired the Wisconsin Crime Victim Council and Sexual Assault Response Team, somehow has a weaker grasp of the law than Sara Kuhl, a university public-relations woman and sometime proprietor of 2Kuhl Public Relations.

(Now I’m libertarian, not a Republican, so A.G. Schimel and I would likely disagree over points here and there.  Nonetheless, there is simply no imaginable circumstance in which I would reject Mr. Schimel’s assessment of what’s legally possible for Ms. Kuhl’s view.  In fact, to take the measure of Ms. Kuhl’s position, in her view the request of Laura Dunn, Esq. [University of Maryland Law and Adjunct Professor at that same school] for a meeting is, also, unjustified in legal practice. That’s absurd, too.)

Ignoring these claimants is contrary to conventional legal practice, perpetuates a response of collective silence in the face of individual grievances, and asks the community to reject the views of accomplished, qualified attorneys for the sake of shallow sophistry.

The Hon. Alex Kozinski on Good Science

The Hon. Alex Kozinski is a judge on the United States Court of Appeals for the Ninth Circuit.  The Ninth Circuit has jurisdiction over most federal appellate matters in the western continental United States.  Judge Kozinski is nationally know among members of the bench, and served as chief judge of the Ninth Circuit for many years (2007-2014).

One of his finest accomplishments (and at sixty-five he’s still busy as judge and legal scholar) is his thoughtful defense of exacting standards for expert studies at trial.

To be a defender of exacting standards requires that one be an opponent of junk science, crackpot theories, and shoddy studies.  That’s the Whitewater aspect of this: Americans can and should do better than the low standards local publications set for policymaking and policy studies.

In the audio clip above, Judge Kozinski speaks (last fall) to the Cato Institute about the need for sound reasoning in criminal matters.  Early in the clip, he mentions a motion – a Daubert motion, following Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – used to exclude expert testimony that falls below an acceptable standard as Federal Rule of Evidence 702 requires.  Daubert was a civil case, and it’s Judge Kozinski’s point that in criminal matters a Daubert standard in favor of reason – and against junk science – hasn’t been applied as often it should be.

We could use a Daubert standard for local government projects around here; even Daubert-lite would be a big improvement.

4 Points About Public Records Requests

So a local paper complains that a local school superintendent won’t comply with a public records request, won’t put the paper on a media contact list, and simply ‘must’ improve communications.  

A few points —

1.  Compliance with a public records request isn’t a ‘communications’ issue; it’s a legal issue, of rights of residents under Wisconsin law.  

2.  Perhaps there would be a greater willingness of public officials to comply with the Public Records Law (Wis. Stat. §§ 19.31-19.39) if newspapers hadn’t made clear that they’re too weak or too miserly to challenge officials’ non-compliance at law.

3.  A newspaper can say all it wants that it’s the ‘leading media company’ of its area, but that doesn’t mean much in a diverse media environment in which newspapers are doomed (as almost everyone knows them to be).  

In any event, social media messaging in many communities – by itself – vastly outstrips the reach of any media company.  Sorry, gentlemen, there is no ‘leading’ force anymore.  

4.  When a resident or publisher thinks about pursuing an issue in which a public records request might be needed, he or she should consider what might be next if officials slow-walk, respond only in part, or simply deny the lawful request.  One would prefer that local officials felt a duty other than self-interest disguised as public interest.  What one would prefer describes – less and less – the environment in which we live.

Residents, bloggers, and community groups that seek information under a public records law should be prepared to defend that request at law.  One hopes that won’t be necessary, but rights are more than hopes, and so one should think ahead, even before a request is submitted: what’s next at law if officials obstruct this request?  See, along these lines, Steps for Blogging on a Policy or Proposal.

That’s a big commitment, but a commitment one should be prepared to see through.