Sunday, June 10, 2018

What Kim Jong-Un Wants

What does Kim Jong-Un want from this week's summit from President Trump? More than anything else, he wants what he has always wanted, like his father and grandfather before him: to split the U.S. off from its allies South Korea and Japan. The worst part is, he is already getting what he wants.

Now, I am not in any way an expert on Korea. But no Korea experts are involved, or apparently allowed to participate, in Trump's North Korea summit. Trump himself has openly refused to prepare for this summit, raving about how his first impression of Kim's body language will tell him everything he needs. [Pro tip: if you are planning to make a crucial strategic decision based on an adversary's body language, do not let the adversary know that. Too late, I understand.] That I know more about Kim Jong-Un's goals than the President of the United States is a scandal. I'm just a random person who tends to remember what he reads in the newspaper.

One of North Korea's longstanding diplomatic goals, maybe on a tactical level their most important goal, has been bilateral peace talks with the United States, meaning two-way talks, just us and them. The United States has refused, insisting since the George W. Bush administration on six-way talks instead. And for many years, we did participate in those six-way talks, refusing North Korea's requests for one-on-one sidebars. Our official reason for demanding six-way talks has been that if the North Koreans are building nuclear weapons, all of North Korea's neighbors need a seat at the table. I mean, that's true enough.

The six-party talks from 2003 to 2009 involved the U.S., North Korea, Russia, China, South Korea, and Japan. Why would we insist on the presence on Russia and China, who aren't always particularly helpful to us? Because we refused to be in a room with North Korea without South Korea and Japan there. The North Koreans could bring their friends, because we weren't showing up without ours. If North Korea wanted to talk to us, they have to talk to our regional allies, too. Because we were never hanging Japan and South Korea out to dry. That was our longstanding, bipartisan position.

Trump's two-way summit gives the North Koreans what they have long wanted: a chance to deal with us separately from the South Koreans. Just giving them that is a major concession. A lot of people have focused on the fact that giving them a presidential-level meeting is also a massive gift, and that the normal plan would be for Kim to have to earn a face-to-face with POTUS by giving concessions and having a deal almost done. But any meeting with the North Koreans that doesn't involve the South Koreans is an even bigger concession, maybe the biggest.

Kim Jong-Un wants, more than anything, to get the United States out of his potential sphere of influence. Because what he ultimately wants is South Korea. He doesn't want to negotiate peaceful reunification. He wants to unify Korea by taking the rest of it over, and the thousands of American troops in South Korea make that impossible. If he could do that without a shooting war, negotiating reunification on his terms by using the threat of military force, I think he would. But he may also like his chances in a straight military rematch with South Korea. But he knows he can't fight us. He wants us to leave, so he can use his military muscle on South Korea (and, secondarily, to intimidate Japan). This is why there was a flare-up a few weeks ago after regularly scheduled joint drills between the U.S. and South Korean military. Kim hates that most of all.

Now a normal president of the United States roped into two-way talks with the North Koreans would still not sell the South Koreans out, or the Japanese. Obama and Bush refused to hold two-way talks with Kim's government, but if they had they would have kept America's commitments to its allies clearly in mind. But those commitments have never fully entered Trump's mind. He does not value America's international commitments and instinctively dislikes them. Jis recent misbehavior at and after the G-7 summit makes that all too clear. And Trump is, unfortunately, stupid. He is more than capable of giving away Japan and South Korea's security without thinking.

In fact, he is stupid enough that he's eager to do that. He's already mouthed off about pulling all US troops out of South Korea, which would be Kim Jong-Un's geopolitical wet dream, and Trump is not smart enough to make Kim trade for that. He's talked about that as something he wants. It's like holding a summit with Fidel Castro in 1964 and suggesting, during the run-up to the meeting, that it might be easier just to get rid of Miami.

Can Trump be trusted to protect South Korea's interests? Two years into his administration, he has not appointed an ambassador to South Korea. I don't mean hasn't gotten one through the Senate. I mean, hasn't given the Senate a name. Any name. And Japan is one of the G-7 countries at which he was venting his intemperate toddler fury this week. You tell me: can a man who gets into a fight with our closest ally over milk be trusted to protect the security of our Asian allies?

Kim Jong-Un has already won. This week, he gets to find out how much he's won.

cross-posted from Dagblog. All comments welcome there, rather than here.

Friday, June 08, 2018

Zero-Sum Trump and the Chumps

I used to be close to a pair of senior citizens who'd retired from long, prosperous careers as bookies. And after a while I began to realize that, although they were both still extremely sharp, they were not especially good with money. They weren't catastrophes. They didn't go broke with bad investments. They just never did as well as they should have, almost never got the full value from a deal. They had both done very well in an illegal business, but they seemed weirdly unable to make an honest buck.

My friends saw business as a strictly zero-sum game, where they could only gain if someone else lost. The way they saw it, there was a fixed amount of money floating around the world, and you had to grab as much of other people's as you could. This is a perfectly accurate approach to betting on the third race. Gambling is a zero-sum proposition. One party loses, the other wins, and absolutely nothing of value is created. A fixed amount of money just gets redistributed. There is no such thing as a deal where everyone comes out ahead. You get ahead because someone else screws up. Every transaction is ultimately somebody's mistake.

What my older friends could not get their heads around, or on some level couldn't believe, is that there are deals that can make everyone involved richer, bargains that are wins for both sides because they create value. Plenty of perfectly honest people have trouble with this idea, too, and subscribe to the fixed-amount-of-dollars-in-the-universe idea. You can run a decent small business from basically that perspective. But our entire economy is based on the fact that new wealth continues to be created. The country as a whole gets richer. There is more money than there used to be, because there are more things for money to buy. (What people who get freaked out by the fact that money changes value don't understand is that it's about the relationship between the amount of money and the amount of things available to purchase with your money.)

Most business people who succeed on a large scale do so by looking for deals where everyone can profit, not because they're altruists but because those are deals that other people want to make. You can make money off deals where the other side also makes money, and everybody's happy, and then maybe you can use some of the profits to make more mutually-profitable bargains! Success! Capitalism! Whoo hoo! My friends had trouble seeing those deals, because, I think, they kept asking themselves which party was the sucker here, and assuming that it might be them.

The current President of the United States also subscribes to the zero-sum, fixed-amount-of-money view of business. This is really strange considering he put his name on a book called The Art of the Deal, but it's clearly true. Trump does not believe in win/win propositions. He sees the world as win/lose. It explains a lot of his business behavior, and a lot of his business setbacks. It explains, most of all, why most large New York banks will no longer lend him money. Donald Trump does not actually think about business like a businessman. He thinks about business like a con man.

His obsession with trade deficits is pure zero-sum. If you think of there being a fixed amount of trade in the world, a fixed amount of value to pass back and forth, then deficits and surpluses are all that matter. More money is going out than is coming in! Disaster! But if you think of trade as a pie that continues to grow, letting America keep taking more slices even if it runs a deficit with this country or that, then trade deficits aren't the whole story. You want there to be more international trade, not less, because you want that pie to keep growing. Trump imagines a pie whose size is fixed by immutable law, which can never get larger (wrong) or smaller (dangerously wrong), and he's fixated on trying to get a bigger slice than the next guy. And the next guy turns out to be Canada.

(Now, free trade has its problems, because it isn't just about both countries doing well. You need to take care of displaced workers inside your own country, and we haven't. But Trump is never going to fix that, because his zero-sum attitude applies to the working class, too. For the poor to do better, Trump assumes, the rich would have to do worse, in exactly the same amount, and he has no interest in that at all.)

So, Trump is going to the G-7 summit with our six most important economic allies (and not just economic allies) enraged with him. This, to a reasonable businessman, would seem bad for business. To Trump, it's good. Because in Trump's zero-sum, you-can-only-win-what-others lose world view, there are no actual allies. How could there be? If everything you gain comes out of their pocket, and everything they gain comes out of your pocket, no one can actually ever be your friend. This is stupid and short-sighted, but well. There we are.

Trump is incapable of understanding that our trade relationship with, say, France, could ever be good for both the US and France. That our trade relationship with France actually has been good for both the US and France, for more than seventy years, does not matter in this calculation. It doesn't matter to Trump that something is obviously true, because he doesn't see how it could be true, so it must not be. Are you trying to play him for a sucker?

Multiply this mistake by six, then by a hundred. Trump misunderstands every single one of our trade alliances. All of them. He sees all of our long, mutually-profitable relationships as just so many people with their hands in our pockets, which is why he hates our allies and lavishes praise on our enemies. We don't have trade deal with our enemies, so they're not taking advantage of us like, say, Canada. Trump is on the road to a pointless destructive trade war because he doesn't actually believe in capitalism. He doesn't believe in economic growth. He thinks all of that is a cover story, a scam. He does not view the world in capitalist terms. He views the world like one of the small-time mill-town bookies of my youth.

Sad to say, my retired bookie friends, much as I loved them, would probably have screwed up the G-7, too. They just could not think big enough. But to give them their due, they would never have lost money running a casino.

cross-posted from, and all comments welcome at, Dagblog

Tuesday, April 10, 2018

Don Corleone's Guide to Attorney-Client Privilege

So the President of the United States is very concerned, and very confused, about attorney-client privilege. Let me try to explain, using the example of Tom Hagen from The Godfather. Why The Godfather? Two reasons. First, I want to. Second, I have a terrible suspicion that some of Trump's misunderstanding comes from watching the Godfather movies. (He does love TV.) Trump reportedly believes any meeting that has a lawyer in the room is protected by attorney-client privilege, and oh my sweet God is that not true.

Tom Hagen, as you know, is the Corleone family's unofficially-adopted son, a lawyer who doubles as the Corleone Family's chief lawyer and its consigliere, or criminal adviser-in-chief. No real Mafia organization has ever used an attorney as consigliere. It's just a pun (consigliere means "counselor," which Americans use to address lawyers), and a bit of narrative efficiency. Puzo uses one character to do two or three different jobs (Puzo's consiglieres also do the job of Mafia underbosses) so that he has one well-developed character instead of three sketchier minor characters. But Mafia consiglieres are most definitely not attorneys.

That said, how much of what Hagen does in The Godfather would be covered by attorney-client privilege?

None of it. Basically, not a damn thing.

Now, I am not a lawyer. I am also not a racketeer. But I think I've got a basic layman's grasp of the principle involved here, which is: You are not allowed to use your law degree to commit crimes. Get real.

Criminals are allowed to have lawyers. But lawyers are not allowed to be criminals. The Crips can have an attorney. But attorneys cannot join the Crips.

What this means, in practice, is that if you are accused a crime, even if it's something you actually did, you can hire a lawyer to defend you. And that lawyer cannot tell the authorities about things you reveal while preparing your defense. Attorney-client privilege protects your conversations with your attorney because otherwise you couldn't use an attorney. (A defense lawyer who tells the prosecution incriminating things about you is worse than no lawyer at all.)

On the other hand, if you are planning a crime and you ask your lawyer to help you plan it so it will work better, that is not attorney-client privilege. That is, what's the phrase, a criminal conspiracy. In the same way, if you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice.

So, let's say hypothetically that Don Corleone, the Godfather, is accused late in his life of a murder he committed in his youth, in which case he can retain Tom Hagen to defend him. Hagen would not be conspiring with him; he would be defending him in exactly the way the law envisions, and they would enjoy attorney-client privilege. This would allow Don Corleone to admit, privately to Hagen, that he actually did shoot Don Fanucci to death back in the day; he wouldn't have to lie to his lawyer and pretend to be innocent. Then Hagen and Corleone could effectively strategize about what case the prosecutors might have and what evidence there might be. Hagen could ask the Don what he did with the murder weapon, and Don Corleone could tell him, so Hagen could decide how likely it was that the police had found it. (Answer: probably not.) He could ask if the Don had used accomplices who might rat him out. (Answer: no. Tessio and Clemenza suspected, but weren't involved and didn't know anything.) This isn't pretty, but it allows the accused criminal to defend himself in court. And the prosecutors could not then haul Hagen into court and force him to tell them what Corleone said about the gun. That's how attorney-client privilege works.

If on the other hand, Hagen and Don Corleone have a conversation about beheading a horse in order to intimidate a Hollywood producer, that is not an attorney serving a client. That's two gangsters conspiring to commit a crime. Hagen can't play the attorney-client privilege card.

Hagen and Don Corleone actually know this, which is why they behave like criminal conspirators rather than attorney and client. Corleone carefully gives his instructions to Hagen in private, with no witnesses and nothing written down, so there is no evidence. (The horse-beheading is presented as a kind of gangster magic trick, where we can't see either man give the order or even see when Hagen had time to communicate any instructions to confederates. "Could you have your car take me to the airport?" is the construction of an alibi.)

Later on, when Don Corleone is incapacitated, Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant. Then Hagen is part of a more involved discussion about whether and how to kill a rival mobster and his pet police captain. Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either, for a simple reason: he is committing multiple felonies.

If you're trying to solve the Sollozzo-McCluskey murders, you probably need to flip one of the five guys who were in the room when the plan happened. But a fictional detective might have some luck looking at some of the paperwork. Someone arranged for the trigger man (Michael Corleone) to go directly from the scene of the crime to a ship bound for Europe with a false passport. That means someone acquired the passport, and the boat ticket, before the murder. That's a conspiratorial act; it's done with foreknowledge of the crime, in order to abet it. It is part of the murder scheme. If Hagen purchased the passage, or the passport, through his firm, the police could raid his firm for that evidence. Attorney-client privilege would not apply.

Also, the Corleone Family clearly does a lot of boring, paperwork-based crime to run their operation. They pay off large numbers of judges and politicians. (Don Corleone is described as extraordinarily good at bribing and corrupting public officials.) They launder their illegal profits into seemingly legitimate enterprises. They evade taxes, for the inevitable reason that they cannot declare their annual income from gambling, loan-sharking, and extortion. To the extent that they do any of this through Hagen and his firm, those activities are not protected from law enforcement. They're crimes, and if the authorities in The Godfather got wind of them, Hagen's Manhatttan law office would be vulnerable to a raid by the FBI, directed by, well, by the US Attorney for the Southern District of New York, the same US Attorney's office that raided the real Michael Cohen's home and office yesterday.

Which brings us to where we are today. The FBI and Department of Justice are especially cautious about piercing attorney-client communications, and err on the side of assuming they're privileged. But attorneys whom they investigate don't have much cause to complain. Being a lawyer does not mean you're allowed to help your clients evade the law. You don't have a license to launder money. You don't get to violate tax laws for your clients, or election laws. In fact, slow down with me for this one here, you don't get to violate the law at all. Because first, it's the law, and second, you're a lawyer. You know, an officer of the court. You are even more bound to obey the law than the rest of us. But then again, what do I know? I'm not an attorney. I'm not even a crook.

cross-posted from Dagblog; please comment there, not here

Thursday, March 01, 2018

Partial List of Hope Hicks's White House Duties

White lies
Little fibs
Harmless prevarications
Genteel fictions
Telling the truth mainly, but stretchin' it some
Artful misdirection
Poetic license
Flights of whimsy
Pursuing a less literal, more memoir-centered notion of "truth"
Tall tales
Fish stories
Off-the-record briefings
Keeping our oral folklore traditions alive

Diplomatic balderdash
Stimulating the hearer's sense of wonder
Telling all the truth but telling it slant
Telling some of the truth, slantier
Slanting, baby, slanting
Strategic omissions

Misleading paraphrases

Verbal legerdemain 

Sympathetic nodding
Thrilling campfire tales
Press relations
Having the courage to describe the world as we wish it to be
Accessorizing properly for fall colors

Explaining how Santa can be in so many places at the same time
Seemingly accidental misrepresentations
Making soothing noises
Pulling Maggie Haberman's leg, just as a little joke

Sharing staff diet tips

Deliberately misunderstanding
Stone cold lying, bitch.

cross-posted from Dagblog: please comment there, not here

Friday, February 23, 2018

The Deputy Who Didn't Shoot

People, including the President of the United States, are heaping scorn and shame on the Broward County Deputy who was assigned to protect Marjory Stoneman Douglas High, but who did not go into the building to confront the Parkland shooter. He has lost his job. He will probably never live this down, and may never get over his guilt. I don't particularly admire him, but we should not pretend for a second that he is the reason that lives were lost. I might hope and wish he'd gone into that building, but his behavior was completely normal. He's not the first school-protection officer to behave in exactly the same way.

First, let's deal with a simple fact. He was outgunned. The shooter's AR-15 was superior to the deputy's sidearm in nearly every way. It's easier to aim, it has a longer effective range, it's more powerful, and it can fire many more bullets before reloading. The 19-year-old misfit had the law enforcement officer badly outgunned, because that's the country we have decided to live in.

The AR-15's superior firepower makes it more dangerous in the shooter's relatively untrained hands than the deputy's pistol was in his trained hand. The kid had enough firepower to kill the deputy before the deputy could get close enough to return effective fire, and the shooter had enough rounds in the magazine that he didn't need to be an especially good shot. He could just keep shooting. In a straight-up firefight, the expected outcome is that the shooter with the AR-15 kills the deputy with the handgun, not the other way around.

We shouldn't assume that the deputy would have stopped or killed the Parkland shooter if he'd gone in. In fact, he was much more likely to have been killed by the shooter. The deputy would have needed to get some kind of tactical advantage on the shooter, by for example finding a way to get close to him and then shoot behind cover. But entering the building would probably have put him at a tactical disadvantage. He was much more likely to find himself in a position where the shooter had the drop on him, or was firing from behind cover, or both. The deputy had almost certainly undergone active-shooter training which made clear to him exactly how dangerous going into a building after a shooter is.

This is what the old assault-weapons ban was about: about not having the cops outgunned by criminals, or by random kids. But we have decided that the Second Amendment requires us to live in a world where nearly everyone has access to pretty serious firepower. The country where teenagers outgun the cops is exactly what the NRA has been lobbying for, has been demanding, for decades now.

The Broward County Sheriff has also announced from now on school-protection officers will have, well, AR-15s. But that's not a good solution; upping the firepower in an arms race just increases the risk all around. And it's too late now. The shooting is over, and the deputy only had the weapon he had.

Now, does part of my heart wish that the deputy had heroically gone into that building anyway, knowing he was more likely to be killed than the save anybody? Do I wish he'd tried? Sure. Especially when I compare his position to the unarmed teachers who had to sacrifice themselves inside. But we're asking for extraordinary heroism here, even for futile self-sacrifice.

If your position is that the deputy should have gone in and died trying even if it was hopeless, that he had a duty to get killed, that's a position. But admit that's what you're saying. 

Instead of blaming the deputy for not risking his life against the odds, we should ask why he was put in that position at all. We have created, and accepted, a system where the deputy is more likely to be killed himself than to stop the killing. Let's not talk about what he did or didn't do without keeping that in mind.

There was also an armed county deputy at the Columbine shooting. He didn't go into the building either. So what the Broward deputy did is not unexpected; it's what happened before. The deputy at Columbine High did manage to exchange some fire with one of the shooters in the parking lot, but when the killers went into the building he did not follow. Later, he and the same shooter exchanged some more fire through a window, without any real result. You will sometimes find people on the internet looking for evidence of "good guys with guns" point to the Columbine officer and say that it would have been worse without him, but there's no evidence of that. The Columbine shooters managed to kill 13 victims anyway. It's not clear the deputy even managed to slow them down much.

The officer at Columbine waited outside the building until backup arrived. That was not cowardice on his part. It was what he had been trained to do. He did not enter Columbine High, where he was more likely to become a victim than to save one. In fact, a number of other deputies and officers showed up and all remained outside the building, focused on evacuating fleeing students and sometimes providing covering fire for them. They shot back at the killers when the killers shot out windows, but they didn't enter the school. Eventually a SWAT team arrived, a force strong enough to overwhelm the shooters, and that SWAT team went into the building, at which point the Columbine shooters killed themselves.

The Broward County Sheriff has said unequivocally that his deputy should have gone “in. Addressed the killer. Killed the killer." The last part is wishful: just because Sheriff Israel would want his deputy to succeed in killing the shooter, that doesn't mean that it would have happened. You can expect your deputy to try. You cannot mandate that he succeed. And Sheriff Israel has to know that his deputy was more likely to be killed by the killer. Even I know that.

As for demanding that the deputy enter the building and engage the shooter, that may be an expectation. But it may be a retroactive expectation. I am not at all sure how the deputy was trained. Taking a defensive position and waiting for backup may, in fact, be what the deputy had been told to do in this situation. Deciding after the fact that he should have done something else is, well, too late. Maybe Broward County deputies are trained to rush into dangerous situations without backup if the situation seems bad enough. I have known cops who rushed into homes before backup could arrive because they thought a situation, such as a domestic dispute, was getting too dangerous too fast. (To be fair, those cops weren't rushing into buildings where there was gunfire.) But neither would I be surprised if standard Broward County training turns out to dictate exactly what the deputy ended up doing.

And, for what it's worth, we have been training a whole generation of cops, across the United States, to be very risk-averse, with training that heavily emphasizes the danger they're in. One of the reasons we've had so many police shootings of non-dangerous civilians is that the cops' training has made them intolerant of even very minor risk, and encouraged them to use deadly force in self-defense even against things that later turn out to have been phantom threats. Those civilians got killed because cops are now trained to approach every tactical situation from a place of fear. They have fear of their lives drilled into them as part of their training. It shouldn't be a surprise that a deputy whose training likely emphasized mortal fear didn't rush to face a genuine threat to his life.

cross-posted from Dagblog; comments welcome there, not here