Last week I wrote a rundown of some of the many, many lies Brett Kavanaugh told under oath during his testimony before the Senate Judiciary Committee. An NBC News report from last night reveals that he may very well have told another one. A pretty damn serious one, in fact.
The story surrounds the claims of Kavanaugh's college classmate, Deborah Ramirez, who says that Kavanaugh exposed himself to her. Her claims were first made public in an article in The New Yorker in late September. Kavanaugh claimed under oath that the first time he heard of her claims was in the New Yorker story, which he suggested blindsided him and which he characterized as "an orchestrated hit to take me out.”
The NBC story claims, however, that based on text messages exchanged between Kavanaugh, his nomination/legal team and old colleges friends, Kavanaugh and/or his surrogates were working behind the scenes to head off Ramirez's allegations at least two months before the New Yorker story broke:
Further, the texts show Kavanaugh may need to be questioned about how far back he anticipated that Ramirez would air allegations against him. Berchem says in her memo that Kavanaugh “and/or” his friends “may have initiated an anticipatory narrative” as early as July to “conceal or discredit” Ramirez.
If he and/or those working with him were trying to get people's stories straight about Ramirez's allegations in July it was, quite simply, a lie for him to say last week that the first he heard about those allegations was in the New Yorker story. A lie aimed at hiding the fact that he knew of a serious allegation beforehand and suggesting that an effort to suppress the allegation -- to craft "an anticipatory narrative" -- was undertaken. This would stand as a lie, by the way, irrespective of the truth of Ramirez's claims.
If the text message bear this out -- and all it would require would be for them to show that, at some point before the New Yorker story, Kavanaugh and/or his team were texting people talking about Ramirez's allegations with at least some degree of specificity -- there is no defense for his testimony last week. It will stand as perjury and it should be disqualifying. More than that, it's the sort of thing that, in almost any other circumstance, would cause his state bar to investigate him with the eye toward a license suspension or disbarment.
Yet, it still seems, Republicans will attempt to ram him through and onto the Supreme Court.
As an attorney with 11 years of trial experience, I found Christine Ford's testimony about her alleged attempted rape by Brett Kavanaugh to be convincing and compelling. Any lawyer with even half that experience would, if they were not being nakedly partisan, agree.
Contrary to what random people on the Internet will tell you, this is not a matter of everyone's opinion being of fair and equal weight. Experienced legal practitioners know that there are basic criteria for what makes a witness believable. Ford met virtually all of them. If a lawyer tells you otherwise, they are lying for partisan reasons.
I'm less interested this morning in her credibility, however, and more interested in the credibility of Brett Kavanaugh. Based on yesterday's hearing that, likewise, should be pretty uncontroversial. He's a liar. He lied repeatedly about things big and small, both yesterday and while under oath several years ago. To wit:
Some of these matters may seem, in isolation, to be trivial. In context, however, they are anything but. The sort of person Brett Kavanaugh was as a high school student has direct bearing on the very serious and heinous act of which he is being accused and his lies about such matters -- his drinking, his attitude toward and treatment of women -- have a direct bearing on his credibility. That he would blatantly lie about such matters is damning and utterly destroys the credibility of his denials. While there is not enough evidence to bring criminal sexual assault charges against Kavanaugh, there is plenty of reason to believe he lied repeatedly in an effort to get out from under the accusations, suggesting that he did, in fact, do what Christine Ford said he did.
Even short of that, however, his lies are disqualifying in and of themselves. He's a lawyer. He's a judge. He's poised to become one of the nine most powerful jurists in the nation. A single lie about even a trivial matter under oath would place any attorney's license in jeopardy and say damning things about his credibility and ethics as an attorney. Multiple lies from a man who wishes to serve on the Supreme Court are inexcusable and would, at any other time in out nation's history, ensure the failure of his nomination.
Yet Kavanaugh will likely be confirmed. He will be confirmed because Republicans do not care that he lied. They do not care about anything other than a political victory and control of the Supreme Court and they will countenance perjury and, it seems very likely, attempted rape, in order to get it.
I defy any person -- especially any lawyer -- to make a case for Brett Kavanaugh's credibility and fitness to be a Supreme Court justice in light of his lies and, yes, his perjury. I defy them to do it without reference to broad political talking points, ends-justify-the-means rationalizations and tu quoque reasoning. I do not think it can be done. At least not if one is being intellectually honest. Even the Republicans with whom I engage on social media and who, normally, will make an effort to argue that white is black until the position is no longer tenable are not even making the effort, likely because they know they cannot do so.
You will likely get your Supreme Court justice, Republicans. But you are getting it at the price of your soul. And you are certainly getting it at the cost of my respect for you. Now and forever going forward.
Most people will watch the Brett Kavanaugh hearing today in order to see whether Christine Ford or Kavanaugh is more believable as they testify about the alleged sexual assault that has led us here. As they weigh the witnesses' credibility, they should remember that they need not rely solely on the "he said, she said" aspects of all of this.
Brett Kavanaugh's boyhood friend, Mark Judge, was named by Christine Ford as an eye-witness to the alleged sexual assault. If what Kavanaugh and all of his supporters says is true, and that it did not happen, Mark Judge should be able to DESTROY Christine Ford's testimony, corroborate Kavanaugh's testimony and end this definitively. He should be able to say "yes, I read what Dr. Ford said about this, but it is simply untrue. This never happened." It would constitute at least some -- perhaps a lot of -- corroboration for his denial.
Instead, Judge literally went into hiding and the GOP is refusing to subpoena him.
This is a farce. it is an instructive and illuminating farce, but the outcome is preordained. Republican Senators will listen to Christine Ford today, but they will not hesitate to confirm Brett Kavanaugh because they do not think that backing an attempted rapist is as bad as not getting their first choice confirmed to the Supreme Court before Election Day.
On Saturday the University of North Carolina football team will host the Pitt Panthers in their home opener, kicking off the Tar Heels’ 92nd season in Kenan Memorial Stadium in Chapel Hill. Almost none of the 40,000+ fans who will show up have any idea who the stadium is named after, and even those who think they do probably have it wrong.
They've likely heard the name Kenan, as it is an extraordinarily prominent name in and around UNC. One of the university’s founders was a Kenan. The business school is named after a Kenan as is a charitable trust that endows dozens of professorships and distributes numerous grants benefitting literacy, the arts, science, technology, and secondary school education. A Kenan is currently on the Board of Trustees for the UNC School of the Arts.
Almost all things Kenan at UNC are named after chemist, industrialist and developer William Rand Kenan Jr., an 1894 UNC graduate who, after teaming up with his brother-in-law, the oil man Henry Flagler, built railroads and made a fortune developing Miami and the Florida coast. When he died in 1965 he bequeathed most of his $95 million fortune to his alma mater. Today the trust that bears his name is worth over $300 million.
The football stadium is not named after William Rand Kenan Jr., however. Rather, at his request, and following a generous donation, it was named after his parents, William Rand Kenan Sr. and Mary Hargrave Kenan. It is they, according to a plaque affixed to a freestanding monument inside the stadium, who Kenan Memorial Stadium is intended to memorialize and continues to memorialize to this day.
Most fans entering Kenan Stadium probably don’t pay much attention to the plaque and, as a result, don’t know the first thing about William Rand Kenan Sr. Even if they did read it, though, they would not learn the most notable thing about him.
William Rand Kenan Sr. was the commander of a white supremacist paramilitary force which massacred scores of black residents of Wilmington, North Carolina on a single, bloody day in 1898.
For nearly a century the events which took place in Wilmington on November 10, 1898 were known as “The Wilmington Race Riot.” That very name, however, was a lie intended to obscure what really happened.
Long portrayed as a violent uprising of black instigators put down by heroic and noble white citizens fighting for law and order, it was, in fact, a massacre. It was simultaneously a coup d’etat in which a white militia, led by a former Confederate officer and a white supremacist named Alfred Moore Waddell, killed black residents in the streets and in their homes, chased even more out of town, burned black-owned businesses to the ground and overthrew the local government, led by blacks and their white Republican allies in a coalition born of the briefly-ascendent Fusion Movement, which had just been legitimately elected.
History has tended to portray the massacre as spontaneous. It was anything but. It was preceded by months of racial and political tensions, stoked by red shirt-wearing white supremacist Democrats who were aggrieved that in Wilmington, then North Carolina’s largest city, a Fusion government sought to protect the gains freed blacks had earned during Reconstruction. On election day in 1898 the red shirts attempted to steal ballots and drive black voters away from polling places. Those efforts failed and the black-Republican coalition held power.
That night a group of over 450 white men met at the courthouse and signed a so-called “White Declaration of Independence” which specifically called for the repeal of black voting rights and the banishment of black political and business leaders from the town. The following morning signatories to the Declaration burned the offices of the Wilmington Daily Record, — the town’s black-owned newspaper — to the ground and threatened its publisher with lynching. The massacre, planned out in advance and undertaken with deliberation, had begun.
History has likewise portrayed the violence in Wilmington that day as being carried out by an unruly mob. This is also a lie. The massacre was an organized paramilitary action in which the Wilmington Light Infantry, a state militia unit which had just returned from duty in the Spanish–American War, spread out over the city, taking it over street by street, killing black citizens in the process.
The most intimidating — and the most deadly — component of the Wilmington Light Infantry was was its machine gun squad, which commanded a rapid-firing Colt gun mounted on a horse-drawn wagon. The gun, capable of firing 420 .23 caliber rounds a minute, was not property of the United States Army or the state militia. Rather, it was purchased by local businessmen who, according to contemporary accounts, believed that the gun would “intimidate into quietude” those who saw the weapon and “overawe Negroes.” The machine gun squad was likewise itself not a military force. It was led by a Civil War veteran and local businessmen named William Rand Kenan Sr., with other local business owners under his command.
The bloodshed began when foot soldiers shot and killed blacks who had gathered on the street following the burning of the Daily Record’s offices. The massacre grew much deadlier when Kenan’s machine gun wagon crossed the Fourth Street Bridge into the predominantly black part of Wilmington known as Brooklyn. Its first fusillade came in response to what witnesses claimed to be sniper fire, though no sniper was ever found. According to eye-witnesses, the gun’s volley killed 25 blacks in a matter of seconds. Later, as Kenan’s machine gun squad proceeded past an area known as Manhattan Park, it was witnessed firing into a house where three black residents were killed. The gun was later used to threaten black churches into opening their doors to be searched for weapons whites believed blacks to be stockpiling and individuals white leaders deemed to be dangerous or subversive. No weapons were found but many black residents were marched out of hiding. Some were thrown in jail. Some were never seen again.
As the morning wore on, Kenan’s forces and other units of the Wilmington Light Infantry conducted house-to-house searches, intimidating residences into compliance, arresting blacks by the dozens and shooting those who gave even the slightest hint that they might resist. Some blacks who were specifically identified as influential in the community were hunted down and killed. As shots rang out, hundreds of black men, women and children fled town, some permanently, some to take shelter in nearby cemeteries and swamps until the violence subsided. By sundown, buildings in Wilmington’s black neighborhoods were pockmarked with bullet holes and anywhere from 60 to as many as 300 blacks had been killed. The exact number is lost to history due to white leaders’ hasty burial of bodies in mass graves and due to black witnesses either having fled town or having been intimidated into silence.
The next morning white leaders, with the backing of the Wilmington Light Infantry, forced the Republican Mayor, the board of aldermen, and the police chief to resign at gunpoint after which they and black leaders which had not been killed or who had not fled were marched to the train station and forced to leave the state under armed guard. That same day Alfred Moore Waddell — the white supremacist leader who orchestrated the events which led to the massacre — was named mayor, an office he would hold until 1905. The coup d’etat completed.
Within a year of the massacre the North Carolina legislature — determined to prevent blacks from holding political power like they did for a time in Wilmington — passed a new constitution which made it close to impossible for blacks to register to vote and imposed poll taxes and literacy tests that effectively disfranchised black voters completely. Nearly every other southern state would model laws on these North Carolina statutes. The “Solid South” of the Jim Crow era was secured and would remain in place, officially, until the passage of the Civil Rights Act in 1964. Unofficially, efforts to discourage blacks from voting continue to this day.
William Rand Kenan Sr. was hailed as a hero for his role in the massacre. The white-owned Wilmington Messenger newspaper lauded the Wilmington Light Infantry and Kenan personally, writing “[i]n the Revolutionary War, in the Civil War and in this race war, a Kenan was the bravest of the brave.” A few weeks after the massacre it was reported that Kenan held a massive barbecue for all of those who participated, after which the assembled men gave Kenan a vote of thanks for his service in the massacre. In February 1903 Kenan was named to the University of North Carolina's Board of Trustees. He died two months later.
For the next several decades the Wilmington Massacre was invariably branded a "riot," "insurrection," "rebellion," "revolution," or "conflict," necessitated by an unlawful uprising of black aggressors, with the violence of it all dramatically downplayed, distorted or cast as unavoidable. A typical example of this can be seen in Incidents by the Way, the 1958 memoir of William Rand Kenan Jr., the UNC benefactor, who wrote of his father’s actions thusly:
“As a small boy I was much impressed with the following: There was a riot of colored men in Wilmington and my father organized a company of men with all kinds of rifles together with a riot gun on a wagon and they cleaned up the riot very quickly, although they were compelled to kill several persons. My father rode the wagon and directed the operation.”
William Rand Kenan Jr. was, in fact, 26 years-old at the time and was working as a chemist for Union Carbide. He was almost certainly well-aware of the circumstances of the massacre and likely distorted the timeline of it, casting himself, erroneously, as a “small boy,” in order to distance himself and his family from its horrors as time passed.
It is highly unlikely that any of the thousands of football fans who come to Kenan Stadium each fall or any of the dozens of young men who play for the Tar Heels — a great many of whom are black — are aware of the infamy of the stadium’s namesake. Indeed, even those most familiar with the university and its connection to the Kenans know little if anything about it.
“The Kenans are an enormously generous family of benefactors to the University of North Carolina. Everybody knows that,” UNC history professor Harry Watson told me when I interviewed him recently. “The average undergraduate would say ‘oh, yeah, the Kenans, they’re a pretty important family who have given us a lot of money’ but the biographical details are not likely well known as even that,” Watson said. “Kenan Sr.’s role in the violence of 1898 is not widely known at all.”
“There are probably a couple of people on campus who know,” said UNC history Professor William Sturkey, who specializes in the history of Jim Crow and the New South. “I think a lot of people would be quite shocked. It’s just something that’s been buried and forgotten.”
It’s not the first thing that has been buried and forgotten about the history of the Kenans.
A plaque on Kenan Memorial Stadium refers to the Kenan family's wealth as coming from “chemicals, power, railroads and hotels.” That is true so far as William Rand Kenan Jr.’s adult fortune was concerned, but the Kenans were already wealthy thanks to plantation slavery. Indeed, according to an 1850 slave census, the Kenan family owned 49 people, including 23 people aged 10 or under. This would be the household in which William Rand Kenan Sr., who manned the gun in Wilmington and for whom the stadium was named, was raised.
Last February Sturkey, a member of the school’s Faculty Athletics Committee, introduced a motion recommending that the athletic department take steps to place a new plaque on the stadium to note the family’s slaveholding past. His intention was not to cast the Kenans in a bad light — he did not know about Kenan Sr.’s role in Wilmington at the time — nor was it his intention, as so many people are accused of doing when such matters arise, to “erase history.” To the contrary, Sturkey said, it was the history of the slaves owned by the Kenans that was erased. As a historian, Sturkey said, he just wanted the full story to be told.
“[Slaves’] presence and their lives were omitted. And not just omitted, but intentionally omitted.” Sturkey said. He said that, via his motion, he was suggesting that the Faculty Athletics Committee ask the athletic department to “take steps to recognize the existence of these people whose lives were so crucial to compiling the wealth which built the university . . . it was about simply telling the truth and not misleading people.”
Sturkey’s motion was unanimously passed but it has not been acted upon and the athletic department has given no reason why it has not done so. Not that the athletic department would be the first department which has chosen to ignore the slaveholding history of the Kenans. Over at the Kenan-Flagler Business school website there there appears a timeline of the Kenan family's history. It conspicuously jumps from 1793 to the 1880s, with no mention whatsoever of what the Kenan family was doing, and how it was making its money, during the intervening years.
“Kenan is a name that’s all over our campus, but in terms of how we’ve approached history, we’ve let the greatest benefactors tell their own history,” Sturkey said. “But by doing that, of course, we’ve allowed them to have the complete say in what that history is.”
Based on recent events at UNC, it would appear that, if the Kenans and the university continue to insist upon complete say in how history is told, they will do so at their peril.
Like so many other places in the south, North Carolina is no stranger to the ongoing controversy surrounding memorials and monuments of the Confederate and Jim Crow eras. It is unique, however, in not only its opposition to doing much if anything about them, but in its affirmative protection of such monuments.
For 105 years, a statue called “Silent Sam” sat on a prominent quad on UNC’s campus, facing the main street which passes the university. While ostensibly intended to commemorate the Civil War and its fallen soldiers, Silent Sam, like so many other Confederate monuments erected in the late 19th and early 20th century, was in fact a monument to the Jim Crow Era. If there was any doubt of this, one need only read the speech given by industrialist, philanthropist, and white supremacist Julian Carr at Silent Sam’s dedication ceremony in 1913.
Carr, who advocated for taking voting rights away from blacks and who referred to the Wilmington Massacre as “a grand and glorious event” after it occurred, did not mince words on the afternoon Silent Sam was dedicated. He talked openly, and with no small amount of pride, about how Confederate soldiers saved “the very life of the Anglo Saxon race in the South,” adding, “to-day, as a consequence the purest strain of the Anglo Saxon is to be found in the 13 Southern States — Praise God.” He added that, in the days after the end of the Civil War he had, on the very spot where the statue now stood, “horse-whipped” a “negro wench” for speaking disrespectfully to a white woman. Given how it was spoken of at its very dedication, there is no question that the statue was not intended to memorialize fallen soldiers but, instead, to stand as a monument to white supremacy.
Silent Sam had been a source of controversy for years, but in the wake of 2017’s Unite the Right march in Charlottesville which, among other things, cast more light on Confederate and Jim Crow-era monuments, protests had increased significantly. The university listened to protesters’ arguments but claimed it could do nothing about Silent Sam because its hands were legally tied.
And, to a very large degree, they were. By both a university bylaw adopted in 2015 and by a state law passed in 2015 which prohibit the renaming or buildings and removal or relocation of monuments under all but the most narrow of circumstances. Given the timing of the passage of these laws and the events which inspired their adoption, they were, without question, aimed at heading off protests of monuments to the Confederacy and Jim Crow before they began. Absent those laws, the sign makers would be pretty busy: UNC has no fewer than 30 buildings named after figures tied to white supremacy.
Not that those laws are the only thing motivating UNC officials and donors. Some seem quite eager to protect monuments to the Confederacy and Jim Crow on their own terms.
Last month a series of emails were leaked and published in which one member of the UNC Board of Trustees called for cameras with night vision to be installed around Silent Sam in order to protect it and called protesters “criminals” and “entitled wimps” who should be arrested as a deterrence measure. In another email the university’s Vice Chancellor referred to university leadership’s interest in “preserving a piece of our history,” and defending the statue from “outside parties” who may protest it. Wealthy donors threatened to withhold six-figure contributions to UNC if Silent Sam was removed, with one calling protestors “spoiled intellectuals.” Whether it was because of that direct pressure and the interests of UNC officials in protecting the statue, or whether it was because university bylaws and the state law prevented them from taking action, in early August the UNC Board of Governors announced it had no plans to remove Silent Sam.
If UNC officials thought that would be the end of the matter, they were sorely mistaken. In the wake of the decision to take no action, protests intensified. On the evening of August 20 — the night before the fall semester began — hundreds of protesters gathered around the statue, threw ropes around it and, in less than ten seconds, brought Silent Sam crashing to the ground. What was left of Silent Sam was taken to a university warehouse in the back of a dump truck. His fate is as of yet unknown, but at the moment the University seems intent on re-erecting the Jim Crow relic.
While a statue can be toppled, a 60,000-seat football stadium cannot be razed by a few hundred protesters. Unlike what has happened with troublesomely-named buildings and monuments at Duke University, the University of California at Berkeley and what will soon happen at Stanford University, it cannot be removed or renamed, at least without the sort of political and legal action which no one in a position to do so seems at all willing to undertake. Which leaves UNC -- which did not return a call or email seeking comment -- in a precarious position. Indeed, the university would seem to have only two choices.
The first choice would be to acknowledge the role of William Rand Kenan Sr. in the Wilmington Massacre and to find a way, via additional plaques or interpretive materials, to tell the full history of that dark chapter of the Kenan family. In so doing it might, as Professor Sturkey suggested, begin to recognize the totality of the history upon which UNC was built and begin to remember those who have been intentionally erased from that history. Given the Silent Sam pushback and based on how even a modest motion to amend the misleading historical plaque about the Kenan family at the stadium was already ignored, it seems unlikely that the university would do such a thing.
Which would leave the only alternative: to do nothing. To continue to bury the history of its stadium’s namesake and his role in one of the darkest atrocities of the Jim Crow era, thereby allowing the largest and most prominent building on campus to memorialize a man who should, by all rights, stand in infamy.
Will the university do nothing? Better yet, will the people who toppled Silent Sam and those who supported them stand idly by if it does?
Special thanks to LeRae Umfleet, author of A Day of Blood: The 1898 Wilmington Race Riot (2009), published by the North Carolina Office of Archives and History, which served as an important source for this article
Judge Brett Kavanaugh is nearing confirmation to become the next Justice of the Supreme Court of the United States. As you likely know by now, he has also been accused of sexual assault when he was in high school. The story of his accuser, Christine Blasey Ford, can be read in The Washington Post.
The short version: during a drunken high school party, Kavanaugh allegedly caught her in a room, held her down and attempted to take her clothes off in what was likely an effort to have sex with her. An effort which would've been rape, because Blasey Ford did not consent. Indeed, she claims that she tried to fight off Kavanaugh and tried to scream, but that he placed his hand over her mouth to prevent her from doing so. Thankfully, however, she managed to escape in part due to Kavanaugh's drunken state and the drunken state of one of his friends who was also in the room. The incident has traumatized Blasey Ford for years, she says, and she suffered from post traumatic stress disorder. Kavanaugh and the other man who was allegedly in the room at the time deny the accusations completely.
Now that Blasey Ford's story is out, you will hear a few things, over and over again, from Republicans and those who want him to be confirmed:
Those things are all true. But they also don't matter when a lawyer or a judge is involved. The bar is nowhere near that low.
All lawyers, before being admitted to the bar, are subject to a test of "character and fitness." This involves background checks and interviews. If you do not pass your "character and fitness" test, you are not admitted to the practice of law.
The thing about the character and fitness test is that it specifically deals with stuff that happened a long time ago, before you were a lawyer. It often deals with stuff that never resulted in criminal charges. It does not matter if you denied, because the test is your candor. Indeed, someone who has been arrested and has gone to jail and has done their time, has atoned and is frank about it all has a BETTER chance of being admitted to the bar than someone who wasn't charged with anything but offers sketchy denials when asked about a given incident that had otherwise gone un-investigated.
(It's probably also worth noting that a history of financial irresponsibility is a relevant subject of inquiry and that getting into non-criminal financial trouble in such a way that raises questions about your judgment can also keep you from getting your law license. That could also be relevant for Kavanaugh too, but we'll let that go for the time being)
The key to all of this is that the test -- contrary to what Republicans will say for the next few days -- is not "his word against hers" or how long ago it was or whether there was anything criminal that arose from it. It's about his character. It's about his candor. It's about his integrity.
That's a high bar, not a low one. And it's that high a bar SIMPLY TO GET YOUR LAW LICENSE. Now think about how high that bar should be to get, literally, the highest possible legal job in existence: Justice of the Supreme Court of the United States of America.
Non-lawyers may think it's silly or overstating things, but lawyers know: if bar examiner had been made aware of these allegations when Kavanaugh graduated law school, he would have, at the very least, been subject to greater investigation on the matter. Depending on how he answered those questions -- if he was evasive or incomplete in his answers, even if he stuck to his denial -- he may have had his license withheld. People have had that happen to them for far less.
Against that backdrop, it is not at partisan to say that the allegations against Kavanaugh should, at the very least, result in far more inquiry and questioning of him. It should also go without saying that, if he sticks to what are starting to become less-than-satisfying or less-than-illuminating denials, he shouldn't be confirmed.
It's not partisan to say this because the standards to which all lawyers are held are directly invoked here. It is a matter for his chosen profession which, the reputation of lawyers notwithstanding, demands high moral and ethical character of its practitioners.
To become the next Justice of the Supreme Court, Kavanaugh should be obligated to show that he has cleared that considerable bar.
Do you like bourbon? Then I have a story for you.
Some of you may remember The Great Pappy Van Winkle Heist from back in 2013. Hundreds of bottles of the most expensive, most highly sought-after bourbon known to man, Pappy Van Winkle was reported stolen. Coming as it did amidst an unprecedented boom in the popularity of bourbon, it made national news. International news even.
In 2015, Franklin County, Kentucky Sheriff Pat Melton claimed to crack the case. A criminal syndicate was behind it, he said. Racketeering! Guns! Drugs! Serious, serious business. Over a half dozen arrested. A man named Toby Curtsinger the alleged kingpin. The assailants faced decades in prison under state RICO laws. It was a major, major deal and, once again, made news around the globe.
And then, three years later, it was no longer big news at all. It wasn't even all that big of a crime.
One person had charges dropped against them. Everyone else pleaded guilty, with all but one serving no jail time whatsoever. The alleged kingpin, Toby Curtsinger, was sentenced to 15 years. He served 30 days and was released on shock probation just this past weekend.
What made the case turn into almost nothing, with almost no jail time? The fact that there really was no Pappy Van Winkle Heist at all. At least not as it was portrayed.
I am the first and so far the only person I know of to speak to Toby Curtsinger about the case on the record. He invited me to Frankfort to interview him back in January. He told me everything. The reality is far more interesting than the coverage, even if it's nowhere close to being as sexy. I did a short writeup of it for it for Bloomberg-Business Week, which they illustrated into a fun little cartoony bit.
The short version: people in distilleries have been stealing bourbon forever. People have been stealing Pappy for years too. No one really paid it much mind. The alleged Heist was mostly a function of an overzealous employee noticing the inventory being off by 200 bottles and calling the police because he was worried he'd get in trouble. Note: the inventory was always off, usually by more than 200 bottles, and there is almost no chance anyone would've gotten in trouble for it, let alone noticed it. Buffalo Trace would almost certainly have done what they always did in such instances: written the missing bottles off as "breakage." Once the police were called, however, it was a big deal and it all spiraled from there.
In reality, the "Heist" was a snapshot in time, made possible by antiquated security and quality control at the Buffalo Trace Distillery, not uncommon at most distilleries until relatively recently. If not for a local sheriff (since voted out of office) trying to make himself look good and the Buffalo Trace Distillery realizing, after the fact, that it was the best free advertising Pappy Van Winkle ever got, none of this would've made even local news. In the end, of course, this was also all made possible by a crazy cocktail culture-fueled bourbon bubble characterized by marks paying thousands for a bottle of wheated bourbon that, 20 years ago, was being sold in novelty, collectable crocks with cartoon hillbillies on it. That sort of dynamic tends to incentivize a black market and tends to help pedestrian stories make the headlines.
Oh, and despite being portrayed as the "Pappy Van Winkle Bandit" none of the charges against Toby Curtsinger actually involved Pappy Van Winkle. He was popped for possessing five barrels of stolen Wild Turkey. It truly was the Pappy Van Winkle Heist that wasn't.
Finally: I actually did a much, much longer and in-depth writeup of all of this that, for various reasons, didn't work for Bloomberg, but I'm happy they ran with this at least. I may be writing up the longer version someplace, even if I only end up putting it on this blog.
With very few exceptions -- very notable exceptions, yes, which are not to be diminished but which skew more recently in our memory -- the Supreme Court has, historically, stood more often against progress than for it. We have been fortunate that that has not been the case in many important instances, but it is a matter of simple legal and historical fact that the court has lagged behind the political process in delivering justice rather than lead it.
The Court never ruled against slavery, did not deliver women the right to vote and took nearly a century to even begin to rule against Jim Crow. Even in instances where a single Supreme Court case stands paramount in the vindication of rights, such cases were only decided after years of people pushing our nation to get there, hard, in the social and political sphere. The Court often carries the ball over the goal line, but it's the people who marched it down the field.
This is not to say that we should not be worried about the Court's hard shift to the right. There will be considerable damage done to the course of human progress as a result of it in both the short term and long term. It is undeniably the case, however, that what the Court does will not be the final word.
It will not be the final word if people continue to fight, politically and socially, for justice and progress. Not if we push back against this madness by every means necessary, do whatever can be done to advance the cause of humanity and to beat back the cause of revanchism, nihilism and just plain evil.
Be sad today. Then get pissed. Then get to work. People who have faced far harder times than us have dealt with a society far less inclined to listen to their voices and far more inclined to do them violence as a means of silencing them. Yet they were not deterred. They did not wallow in defeatism. They kept fighting. And they won. Do them proud by doing the same.
Justice Kennedy is retiring, and he's going to be replaced by a much younger, more conservative justice who will do a great deal of damage in the very long time he serves on the bench. There's no way to sugarcoat that. Not at all. I will, however, make a few observations that you can give however much weight you'd like:
1. Despite Kennedy's past votes preserving victory in liberal causes, he has never been a sure thing, and each time there was much reason to believe he'd go one way before he went another. In light of that -- and in light of his track record in recent terms -- I had little faith that if, say, a Roe v. Wade challenge game up again that he'd vote to preserve abortion rights and I suspect he'd break right on host of other issues. Yes, it's bad that he's leaving and worse that we have Donald Trump nominating his replacement, but let's not pretend we're losing a liberal light of the judiciary, especially given that, five hours ago, he helped end organized labor as we know it in the Janus case.
2. A lot of people are saying the open Supreme Court seat will motivate Republican voters for the midterms this fall. I think that's overstated and possibly plain wrong. There are a lot of GOP voters who are strongly motivated by packing the courts with conservative judges, but those are also the sorts of GOP voters who vote in every election anyway. In this they're akin to that lady you know who works at the library, drives a Subaru, carries the NPR tote bag and can tell you the name of everyone on the ballot, right down to the third party candidate for that open school board seat three months before the general. Just as she's gonna be there voting for Democrats every damn time, the folks who get off on stripping people of their rights via the judicial system are already quite motivated, thank you very much. They're a big reason we're in the current mess.
3. While I have learned by now that there is nothing dumber, less-strategically-inclined and less effective than a Democratic political campaign, I suspect that the battle over the Supreme Court seat -- which Republicans will win, by the way, 100% -- could serve to help motivate Democratic voters who may not have otherwise come to the polls this November. This is especially the case if the seat is still open come November, but even if it is not, the sort of rhetoric with which Democrats should rightfully fill the air for the next couple of months over all of this should be the sort of things that motivate voters, especially young, normally less-than-fully engaged ones. People will vote if they think their very values and possibly even their very way of life is on the line. It very much is for the left. It is not for the right.
This is just my kneejerk reaction, mere minutes after Kennedy's announcement. Maybe I'm wrong, but I'd ask you: please, let's not be defeatist. There are elections to win this fall.
Another mass killing. Another round of politicians offering "thoughts and prayers," but acting as if nothing else can be or should be done. It doesn't have to be this way.
When people suggest measures to address gun violence, the response is, invariably, "that wouldn't eliminate these massacres!" As if there is no middle ground between totally eliminating all bad things and doing absolutely nothing. We don't think this way about automobile or airplane crashes. We don't think about medical problems this way. That people revert to such an all-or-nothing response when it comes to guns is purely a function of their unwillingness to do anything, not the inefficacy of taking action.
Indeed, there are several things which could be done to reduce the probability of mass shootings happening again or, at the very least, making them less common and, when they do occur, less deadly.
Unlike some people on the left who talk about gun regulations, I do appreciate that the Second Amendment exists and I appreciate that it limits much of what can be done to address gun violence. The Second Amendment does not, however, foreclose action. Indeed, the landmark Second Amendment case, District of Columbia v. Heller, specifically held that "like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Justice Scalia's majority opinion, in fact, provided that all manner of reasonable restrictions -- including licensing, background checks and restrictions related to mental illness and the like -- could be imposed without offending the Second Amendment.
We can and should work to pass laws or regulations, on the state or federal level, as appropriate, that impose some common sense on a gun industry that, at present, enjoys a shocking lack of oversight due to political cowardice and the power of the gun lobby. The restrictions I favor, which would in no way unreasonably infringe upon people's legal rights under the Second Amendment as currently interpreted, fall into three categories:
None of these sorts of regulations would take guns away from law abiding citizens or infringe on the their rights under the Second Amendment. All of them would work to keep guns from falling into the hands of violent criminals and discourage those who would seek to inflict mass casualties.
No, these regulations would not totally eliminate gun violence in this country. Such an expectation is unrealistic and rejecting any reasonable measure because it does not meet that unrealistic expectation would be absurd. Such regulations would, however, go a long way toward reducing gun violence.
Every lawmaker should be asked why they don't support these measures. Any lawmaker who does not have a good answer should be voted out of office.
In the wake of yesterday's deadly vehicular attack in Manhattan, President Trump, Senators John McCain and Lindsey Graham and others have called for the accused attacker to be handed over to the military, for him to be sent to Guantanamo Bay and for his Miranda rights and other due process protections afforded to him under the Constitution to be disposed of.
This is not new, of course. Men in Trump's McCain's and Graham's position have long sought such Constitutional rollbacks for terrorist suspects of a certain kind (though, curiously, not for terrorist suspects of a different kind). They most famously obtained such things after 9/11, with the passage Patriot Act, the advent of black site torture and interrogation centers and the imprisonment of terrorist suspects and men designated "enemy combatants" at Guantanamo Bay, with its attendant permanent, trial-free detentions.
Not that those were their only efforts in this regard. In 2010 Senator McCain sponsored the "Enemy Belligerent Interrogation, Detention, and Prosecution Act," which called for placing terrorist suspects -- including those whose alleged criminal acts occurred on American soil -- in indefinite military custody for purposes of interrogation, during which time their Constitutional rights would be suspended. Calls for similar measures are often renewed following acts of terrorism.
The common thread: fear and distrust of the American criminal justice system. A belief that, somehow, our centuries-old institutions are unable to handle such cases. This is a baseless and pathetic claim. Our criminal justice system has repeatedly shown that it is capable of dealing with terrorism suspects. In contrast, our habit of throwing detainees into secret detention sites and dispensing with due process and the rule of law has been a miserable failure.
Federal civilian criminal courts have convicted hundreds of individuals on terrorism-related charges since 9/11. These convictions include those resulting from investigations of terrorist and criminal acts by those with identified links to international terrorism and include several high-profile terrorists such as the “Shoe Bomber” Richard Reid, the 1993 World Trade Center bomber Ramzi Yousef, the "Times Square Bomber" Faisal Shahzad and Osama bin Laden's son-in-law, Sulaiman Abu Ghaith. In contrast, military commissions have convicted only eight. All of those prosecutions took years and cost millions. In the end, three of those convictions were overturned completely and one overturned partially.
Some who advocate for military tribunals doubt the security of a U.S. courtroom and stoke fears about the safety of the populace near where suspects are held, but such claims are baseless. Federal prisons hold hundreds of individuals convicted of terrorism-related offenses and none have ever escaped. None of the federal districts which have held or tried terrorism suspects have been attacked in retaliation.
Others say that the seriousness and high-profile nature of the crimes demand a different sort of justice system. This, however, is exactly what terror suspects want. They want to be martyrs, figuratively if not literally, and want to appear as though they have gained the special attention of our highest elected officials. When they get it -- when we publicly freak out like Trump, McCain and Graham are and put them before army officers in a special proceeding -- their supporters can cast them as warriors, taking on the United States government and the United States Army. When you put them in a courtroom in a federal courthouse, they're just criminals. Their crimes cast as simple murder, not an act of war.
There is a greater flaw with the calls for military tribunals and the denial of suspects' rights than their lack of efficacy, however: denying due process rights to our enemies defies the very values we are fighting to protect.
The Constitution is not optional. Indefinite detention, suspension of basic rights and the deprivation of Due Process flies in the face of American values and violates this country’s commitment to the rule of law. Sacrificing our principles in the vain hope that doing so will make us safe has only made us weak. Weak because it sends the message to our enemies that our most sacred ideals are not strong enough to withstand external threats. Weak because it sends the message to our would-be allies that we do not stand for that which we claim to stand and that our words and promises carry no weight.
A man attacked innocent people in New York yesterday, and he should be held responsible for his crimes. Attacking our Constitution, our federal courts, the rule of law and the bedrock values upon which our country was built is no way to do that. Indeed, doing so more effectively wages war on America and its institutions than anything a criminal terrorist suspect can ever hope to accomplish.
The mass shooting in Las Vegas that left 59 people dead on Sunday night is, on one level, shocking and on another unsurprising.
It's shocking in its violence, its cold-blooded calculation and its scale. Shocking in a way that something so awful must always be shocking to anyone who values and cherishes human life. Shocking to all of us who have not become numb to gun violence. To those of us who cannot and will not allow ourselves to become numb to it, because to allow this increasingly common and increasingly deadly sort of tragedy to become just another news story which holds our attention for a few days before being forgotten is to abandon our very humanity.
This is all unsurprising, however, because our laws and, increasingly, our very values, practically ensure that events like those that unfolded in Las Vegas will occur again and again. I'll get to the laws shortly, but it's worth talking about the culture of guns in America for a moment.
There is, obviously, a long and rich history of gun ownership in America. We are a nation born of the fighting of armed civilians marshaled into a revolutionary army. We are a nation whose land was explored by hunters and frontiersman. We are a nation populated by farmers and sportsmen and the children and grandchildren of farmers and sportsmen, the vast majority of whom were and are responsible and law-abiding members of our community. Our history -- and the largely rural character of America for most of that history -- forged a culture in which owning firearms, while never a requirement of responsible citizenship, was most certainly compatible with it. Where I grew up, in Michigan and West Virginia, there was hardly a household that didn't have at least one hunting rifle in it. I'm sure a lot of you grew up in similar circumstances.
Recently, however -- very recently -- there has been a marked shift in what it means to be a gun owner in America and who it is that owns most of our guns. Some have referred to this as "extreme gun ownership," in which people own a dozen, two dozen or perhaps scores of guns, including quasi-military weapons and hundreds upon hundreds of rounds of ammunition. This dynamic, which has resulted in a full 50% of all guns in our country being owned by 3% of the population, is perfectly legal, of course.
But however legal it is for a person to stockpile weapons like this, it's worth scrutinizing why they do so. Yes, a small portion of these people are genuine collectors. I suspect a much larger proportion of these people, however, own numerous weapons for what amount to philosophical reasons. Many of these people -- and I know a good number of them personally and professionally -- are afraid of something, be it rational or irrational. A fear egged on by the gun lobby and a conservative media that has convinced a wide swath of Americans that there are enemies hiding around every corner and that our government is their greatest enemy of all. I further suspect that we will find out that the Las Vegas shooter, Stephen Paddock -- who likely owned all of his guns legally -- harbored fears like these. Fears which, even if they did not lead him to commit mass murder, inspired him to compile a private arsenal, which in turn allowed him to carry his rampage out far more readily.
We can legislate until our pens run dry, but we will not stop the next Stephen Paddock unless we truly understand how a person can come to live in a state of such suspicion and fear that they feel it necessary to stockpile private arsenals that have only one deadly purpose. Until we understand how a country that was once comprised of households with some hunting rifles became one in which owning a dozen or more military-inspired guns became a lifestyle choice. We must, as a nation, come to understand how something that was, until very recently, thought of as a tool, became a symbol of so many people's personal politics and identity.
Achieving such an understanding may not be a simple matter, but it may not be as tough as passing new gun laws, which are obviously not easy to implement or change.
Part of this is by design. While, as a lawyer, I disagree with the legal notion that the Second Amendment confers an absolutist, unquestionable and un-regulatable individual right rather than a collective right of action (the words "a well-regulated militia" seem to be the only words in the Constitution conservative judges seem to think mean nothing) the fact of the matter is that any broad-based effort to ban certain types of firearms or to broadly restrict gun ownership in this day and age would be met with intense political opposition and legal challenge. Likely successful legal challenge, mind you, thanks to the current makeup of the federal judiciary, its view of the Second Amendment and the deep pockets of the National Rifle Association which has the entire Republican Party under its control and much of the Democratic Party living in fear.
The fact, however, that wide-ranging gun regulations seem legally and/or politically impractical in the current environment does not mean that there is nothing that can and should be done. Indeed, there are a host of common-sense regulations that we can and should pursue that do not violate the Second Amendment as currently interpreted but which would go a long way toward reining in the scourge of gun violence plaguing our country.
One of these is obvious, if only in hindsight of the tragedy in Las Vegas: outlawing devices that allow semi-automatic guns, which are legal, to be transformed into automatic weapons, which have been illegal to manufacture for civilian use for over 30 years. This relates specifically to “bump stocks,” which are attachments that enable semiautomatic rifles to fire faster, mimicking the action of automatic weapons. Under no set of circumstances should a person be allowed to legally acquire devices which convert a legal weapon into one that is essentially identical to those which are illegal. Thankfully, there appears to be some movement this week on that very issue.
Beyond the currently newsworthy topic of bump stocks, we should work to pass laws or regulations, on the state or federal level, as appropriate, that fall, generally, into three categories:
None of these sorts of regulations would take guns away from law abiding citizens or infringe on the their rights under the Second Amendment. All of them would work to keep guns from falling into the hands of violent criminals and discourage those who would seek to inflict mass casualties.
Ultimately, though, there are many complex, historical and cultural factors which have led us to this regrettably violent place in our nation's history. As such, there is no one thing that can be done to drastically reduce gun violence in this country, let alone eliminate the threat of a mass shooting. Anyone who promises that they can put an end to such things is not being honest with you.
We can, however, do many things, each of them modest in and of themselves, that work to add a much-needed dose of common sense and responsibility to an issue which has, increasingly, led itself to intense, emotion-based polarization and special interest group-fed partisan rancor. We should start to do so, immediately.
This afternoon Angela Ahrendts, Senior Vice President of Retail at Apple Inc., said of Apple stores, “we don’t call them stores anymore, we call then town squares, because they’re gathering places.”
Ahrendts' comment could simply be written off as hubristic marketing-speak, but to me it's an unwittingly sad comment about how, in the current age, a luxury goods story can and does serve as a rough proxy for a public square and how, concurrently, civic society continues to be degraded.
While a small number of very rich people have always been able to keep themselves separate and apart from the masses, a larger and larger number of people are using money, technology and education to insulate themselves from the sort of everyday life all citizens once lived. Elite status, VIP sections, priority lines, “Cadillac” healthcare plans, private schools and all manner of other luxuries available to the professional and technological classes create a situation in which a larger swath of the well-educated and at least moderately well-to-do have created what amounts to a separate class apart from the rest of the country. A class that carries with it insidious assumptions, conscious or otherwise, that the affluent and educated are demographically superior to the poor. Or, perhaps, that the affluent and educated are the only people who even exist.
While, admittedly, there has always been some semblance of a class system in this country, the instances in which people come together in commons spaces -- in train stations, post offices, hospitals, libraries, public schools, museums and retail spaces -- has decreased dramatically. What's more, there was once a time in this country where the class divisions we had were at denied and diminished out of either shame or idealism born of the notion that the United States is not a class-based society. Today that conceit has been disposed of almost entirely, with “success” being increasingly equated with one's ability to buy one’s way out of the public sphere altogether.
We live in isolated and increasingly homogenous and cloistered communities. We have made it so that those with access to the gifts of the technological age can do their shopping, their banking and their interaction with the government via electronic means without ever having to encounter the general public or, at the very least, the part of the general public unlike themselves. The increasing power of a small handful of technology companies is exacerbating this trend, turning even basic acts of life, such as buying groceries, into a class-based pursuit.
As a result of all of this, the public sphere of life has broken down in many important ways. We do not come together as a society across economic classes in anything approaching the way we did even as recently as the early 1980s, let alone the way we did in previous decades. This is bad for democracy and social health because, when we do not interact with the whole of society in meaningful ways, we are no longer truly stakeholders in the whole of society. We are, at best, voyeurs, intellectually lamenting that which has befallen our fellow man, yet not really being invested in it in any real sense. When you encounter those in different circumstances than yourself only virtually, you can simply click away. Or you can just choose not to click in the first place.
Which brings me back to Apple. The nearest Apple store to me is in a place called Easton Town Center. It's a mall, but one of those outdoor malls that apes a cityscape, built on what used to be farmland out by the freeway outerbelt. There are storefronts and parking meters and sidewalks and all of that, but it's all private property. While it's a fake city, it holds the sorts of community events -- Christmas caroling, arts fairs, outdoor performances and the like -- that once took place in my town's real public spaces. Except it's not truly a community event given that no one has much business being there unless one is shopping or dining out at one of the luxury goods stores on its premises, and that's obviously not for everyone. And, of course, since it's private property, they can kick out anyone they want to for basically any reason or for no reason whatsoever.
Which certainly puts Apple's claim that its stores, a great number of which are located in places like Easton, are "town squares" in a different light. A light that is sadly telling of what our society has come to in this day and age.
President Trump pardoned Joe Arpaio because he likes the cut of Arpaio's jib.
He pardoned him because he knows it'll play great with his base. He pardoned him because Arpaio was an early political supporter and because Trump rewards loyalty. He pardoned him because Arpaio provided Trump with a rough blueprint for demonizing Obama, immigrants and minorities as a means of achieving electoral victory. He pardoned him because he shares Arpaio's contempt for laws, courts and political and legal authority that belongs to anyone but himself.
Like anything else Trump does, it was done based on a gut feeling and a selfish desire. If there is any doubt about that, one need only look at the way Trump bypassed the customary pardon process which involves review by the Department of Justice. There was not a ton of thought and analysis put into this. It was a purely personal, purely political act.
In light of that, anyone trudging into the weeds to frame this as some complicated interplay between the branches of government, the nuances inherit in the separation of powers or any of that stuff is selling you a bill of goods. They're doing this either because they support Trump or because, even if they do not, they support people who would have to do something about Trump if the pardon comes to be seen broadly as the disgraceful act that it truly is. When you're a Republican -- even a #NeverTrump Republican -- the last thing you want is for the people you do support to have to spend any time or political capital opposing Trump, because that takes valuable time away from cutting taxes for the wealthy and hamstringing the government's ability to, you know, govern. It also makes them worry that they're committing religious heresy.
But really, it's a simple case. Arpaio and Trump share supporters and share enemies and at a time when Trump feels that he's under attack, he's going to do whatever he can to show strength, to prove he has allies and to rally whatever support he feels he can rally. And make no mistake, he'll rally a lot of people to his side with this pardon because he and his supporters will couch it in terms of "law and order" -- Arpaio was a sheriff after all! -- and people eat up appeals to law and order.
Unfortunately, the growing public conception of law and order is twisted and corrupt. Indeed, "Law and order" has quickly become synonymous with "police," and any effort to oversee and check the power of police is seen as hostile to "law and order." This includes civilian political authority and the courts, which politicians and, increasingly, the public, have chosen to portray as an impediment to law and order as opposed to a necessary component of it.
In this, such vocal support of "law and order" is in direct opposition to the rule of law, which requires checks on the power bestowed upon men, particularly the coercive power of government as manifested in armed police forces. It's a craving for the "order" without the "law." People want cops to "get the bad guys" but increasingly have no respect for the process by which "bad guys" are identified and handled and refuse to accept that the police themselves can ever be "bad guys." Such a view is anathema to a functioning civilian-led democracy. Indeed, it the very definition of authoritarianism.
Which brings us back to Donald Trump and Joe Arpaio. To the extent you approve of this pardon, you approve of a leader using his extraordinary power to vindicate his personal obsessions and to reward his allies. To the extent you believe Arpaio was deserving of this pardon, you do so because you believe that the power of police should be absolute and that the power of the courts to rein in that power is illegitimate. You, quite simply, approve of an authoritarian government.
As everyone knows by now, a man was dragged off of a United Airlines flight by police yesterday and was injured in the process. The reason: United wanted to place a couple of its employees on the flight and kick off paying passengers to do it. I wasn't aware that a private business had the right to manhandle you when they messed up, but here we are.
While the condemnation of United over this event has been considerable, today the media has decided that the victim of this act of excessive force is the one owed scrutiny.
From the Louisville Courier-Journal:
From a news anchor at WJLA TV in Washington D.C.:
From the gossip site TMZ
Some of this might've been relevant if anything Dr. Dao did contributed to yesterday's incident. If he had been an unruly passenger or if he had assaulted someone or if he had broken some law. Looking at the past of someone who commits a transgression is often instructive and illuminating. It makes sense to do that sometimes.
But, of course, Dao committed no transgression here. He was roughed up in the name of bad corporate policy made worse by it being carried out incompetently. His past is of no consequence or relevance to what happened yesterday. So why is the media digging into it so eagerly?
Part of it is mere sensationalism. The United story has captured the attention of the nation and anything that can keep it going is in the best interests of certain segments of the media. If it bleeds, it leads, and Dao bled. If there's sex or drugs or a crime involved, all the better. One may have to dig years into Dao's past to find that, and it may not have anything to do with the news story itself, but beggars can't be choosers as they chase ratings and page views, so whatever dirt anyone can find on the guy is, apparently, fair game. This sort of muckraking is a story as old as newspapers themselves.
There's a deeper motivation at work here, however. It may be an unconscious motive on the part of any one member of the media pushing this kind of smear job, but it's a motive aimed at giving us something we, as a society, crave in these sorts of situations. The need to believe that a person who had something bad happen to him had it coming to him. And that, in turn, nothing bad like this could ever happen to us.
In the past 24 hours I've seen countless people -- otherwise disinterested individuals, -- rush to United's defense to talk about the fine print on tickets or the need to overbook flights or how, in general, people forfeit their rights once they get on a plane. People coming, almost reflexively, to the defense of authority, lest anyone suggest that authority was abused. If you're the sort of person who doesn't feel comfortable challenging the status quo and take much greater comfort in defending it, this line of reasoning is tailor made for you.
Not everyone is like that, of course. Some people are super upset with what United did regardless of the underlying policy but are desperate to minimize the ugliness of the incident because confronting ugliness is not a pleasant thing for many. To that end we see the media dig into Dao's past which will, almost certainly, result in Dao being considered "controversial" or worse by the public, causing them to see his ejection from the United plane in a more ambiguous, less ugly light. "Sure, he was roughed up," they'll say, "but he's no angel."
It's all about people wanting to feel better about the incident. To make them believe that it was not as arbitrary as it seemed. To make them think this was a special case, in which the victim was partially to blame. To make them less likely to question how and why it happened. To make them less likely to ask themselves whether they have ever done something, actively or passively, to enable this particular sort of horror. If a truly innocent man has something terrible happen to him, it shakes our faith in the system. If a sketchy individual with a sordid past does, well, everything is just fine. And maybe he even had it coming.
We all sleep better if we think the world is just. The world is more just if the people who do bad things have bad things happen to them and the people who have bad things happen to them turn out to be bad. We all want to sleep better, so sometimes we'll work extra hard to make sure that state of affairs exists.
Even if we have to delude ourselves into believing it does. Even if we have to smear a victim to make it so.
I just watched the latest Trump press conference. As usual, it was a disaster. Not for him so much, as he's apparently bulletproof and/or oblivious, but for things like rationality, democracy and civil society. It served as just the latest in a never ending series of reminders that we have given a dangerously arrogant, deluded and incompetent man the nuclear codes.
It also reminded us that the press has no idea how to ask Trump a question.
I understand why they are having so much trouble. While presidents have used press conferences as a means of propaganda and reality denial for as long as presidents have given press conferences, at least a small amount of actual information has been disseminated at the things over the years. Presidents -- even Nixon -- have always possessed at least a scintilla of shame which regulated just how big their lies could be and which, in turn, reined in their most nonsensical tactics of distraction. As such, a reporter's lazy, open-ended or compound question has never been that harmful. Presidents have become experts at ducking them and steering them to other, more comfortable topics, but they have always at least pretended to be acquainted with reality and have always communicated some rudimentary information as they sparred with the Fourth Estate.
Not Trump. He hits the lectern at Mach 2 with his hair on fire spewing a brand of nonsensical drivel that would make Tristian Tzara chuck it all, go back to school and become an actuary. He is so utterly shameless that, were he not so mendacious, dangerous and corrupt, it'd almost be perversely admirable. He has blown past Orwellian archetypes so quickly that he is not even bothering to answer the question "what is two plus two" with "five." He's gone straight on to "potato."
As such, the presidential press conference has shed the last vestiges of an exchange of information and has, necessarily, become a truly adversarial affair. The guy being questioned has already, in explicit terms, declared war on the press. The investigative journalists and columnists have grokked this and are firing their big guns at Trump on the daily. It's time for the members of the White House Press Corps -- the ones who actually get to ask Trump questions -- to quit pretending they're sparring and join the goddamn fight.
While I am a member of the media, I'm not really a reporter. I never went to J-school and I don't interview people very often. I don't have a fedora with a card that says "press" in the band. I don't even own one of those cool little digital tape recorders. As an interviewer of willing, sensible and amiable subjects, I'm fairly mediocre. I get the basic information fairly well, but I'm not fantastic at digging too deeply below the surface. I just don't have the reps yet.
But as a lawyer who did cross-examinations and depositions and who conducted internal investigations for 11 years, I do have a lot of experience asking questions of people who don't want to answer them. Or who have something to hide. Like any trial lawyer, I've sat across a table or stood across a room from people who I knew to be lying to me and I got them to either admit it or to look so bad in denying it that they may as well have.
I was not successful at it because I am uniquely talented. Indeed, compared to my colleagues, I suspect I was pretty average when it came to legal talent and instincts. I was successful at it because I followed some basic rules that I and every other trial lawyer is taught. They are rules that, in this mad age, when the President of the United States of America is trying to get one over on us like some employee embezzling from the payroll of my clients tried to get over on me, would serve the White House Press Corps well.
The big ones:
Litigation, war and conducting presidential press conferences are, obviously, very different things. But they do have a few things in common. In all three you have a mission. Thanks to the approach the Trump Administration has taken, in all three you, unfortunately, have an adversary. Above all else in all three you have to have a plan and it has to be a plan that you can carry out without your adversary controlling the terms of engagement. By following the rules of litigation and, in some cases the rules of war, you're way more likely to be successful than whatever the hell it is you're doing now.
While I’m a sportswriter now, I am a lawyer who spent ten years in private practice and one year working for the Ohio Attorney General’s office. In that time, a chunk of my practice was devoted to defending allegedly crooked politicians before the Ohio Ethics Commission, the Ohio Elections Commission and the Joint Legislative Ethics Commission. When I was with the state I represented the Ohio General Assembly, providing it with advice with respect to the legality of its actions.
It’s been a few years since I’ve done that and I was never a particularly important member of the Ohio ethics bar, but I had my moments, some of them ridiculous, and learned some things about that weird world. Among the biggest takeaways: the procedure of an ethics investigation is of the utmost importance. Indeed, it is often more important to the outcome of an ethics investigation than are the actual facts of the underlying ethical allegations.
It’s easy for me to say this now because my preferred candidate just lost in the Electoral College despite winning the popular vote. I thus appreciate that it looks self-serving for me to say this.
I have, however, been opposed to the Electoral College since I first studied it in depth 25 years ago and would be no less opposed to it if the situation were reversed. You can choose to believe that or not. If you don’t, you won’t care about anything else I write here and will assume I am viewing this through a partisan lens. If that’s the case you may as well move along and save yourself some time.
It is, however, a fact that I would be against the Electoral College even if it had elected Clinton despite Trump winning the popular vote. I’m against it even when it does not work such anomalous results. As I said the other day, Donald Trump is the fairly-elected President of the United States. I do not claim that he was illegitimately elected. This is the system we have and both he and Clinton knew it going in. The results will stand. And they should.
But the system should not stand.
I just read a fascinating story by Sarah Ellison in Vanity Fair about the downfall of Fox News head Roger Ailes. The backstory is well known by now, of course: Ailes sexually harassed women he employed for decades and got away with it for almost as long. His downfall came when former Fox News anchor Gretchen Carlson sued him for it in July, leading to his disgrace and departure.
The Vanity Fair article is not interesting for the facts regarding Ailes’ conduct, however. For a much better treatment of that go with Gabriel Sherman’s detailed and at times sickening account of it all in his early September story at New York Magazine. No, it’s fascinating because it’s an account of the legal process which actually effected Ailes’ termination. Specifically, the Fox-led internal investigation of Ailes launched by James and Lachlan Murdoch, sons of News Corp head Rupert Murdoch, and Gerson Zweifach, the general counsel of 21st Century Fox once Carlson filed her lawsuit.
Someone snagged some alcohol and took it, quite illegally, to where it shouldn’t have been taken. It wasn’t an impulsive crime of opportunity, however. It wasn’t someone knocking over the corner liquor store. This was planned. Planned by professionals who knew exactly what they were taking and exactly who would be drinking the illegally-obtained booze. And the people who would be drinking it would be paying top dollar for the privilege. Far more than the retail price.
Why? Because the alcohol in question was scarce. Not the sort of thing you could find just anywhere. Its scarcity is what made it valuable. Its scarcity likely even made it taste better to the folks who would eventually drink it. Better to them than it would taste to someone who drank from the same bottles obtained through legal means. Better than stuff that, objectively speaking, was not much different and may have in fact tasted better than the illegal stuff before its qualities were enhanced by the air of danger and intrigue which infused it with … greater complexities.
The booze in question: Coors beer. Obtained illegally by Burt Reynolds and Jerry Reed in the 1977 film “Smokey and the Bandit.” It was illegal to ship Coors east of Texas in 1977 and that illegality made it a highly sought-after commodity to Big Enos and Little Enos Burdette, who bankrolled the racket in order to get the stuff to serve, quite appropriately, at a banquet in honor of the winner of the Southern Classic truck rodeo in Georgia.
It seems preposterous now that the plot to the second highest-grossing movie of 1977 was set in motion by someone coveting Coors beer. Because, with all apologies to the good folks at the MillerCoors Brewing Company, Coors is kind of crappy. A mass-produced light lager that your dad probably drank because that’s about as good as he could do for the price and which you probably drank when you were in college because, Jesus, you didn’t know any better.
But drive the plot it did. Its believability as a McGuffin supported by its scarcity east of Texas. Its value supported by a small handful of wealthy men who used its scarcity and their ability to overcome it as a means of showing off to their friends. When the Bandit and the Snowman smashed their way through that last police blockade with that truck full of Coors and handed their haul over to Big and Little Enos, the retail price of their load didn’t matter a bit.
The same goes for another bunch of booze illegally swiped: 200 bottles of Pappy Van Winkle bourbon, stolen from the Buffalo Trace Distillery in Frankfort, Kentucky back in October 2013. Those bottles go for anywhere between $40 and $250 at retail but, because of their scarcity, can fetch over $1,000 in private sales. Some sales have netted as high as $5,000. And those are just the sales between friends and acquaintances on the so-called “gray market.” There’s no telling what they’d go for on the truly black market.
It’s not that Pappy is so much better than any other bourbon. Oh, it’s good. Thanks to a good friend with family near Lexington I was lucky enough to have some back before the bourbon bubble truly inflated. I enjoyed it a great deal. But it’s not hundreds of times better than the next best thing. It really can’t be.
All bourbon, in order to be bourbon, has to have a mash bill (i.e. the proportion of grains used in the fermentation process) of 51% corn. Up to that point, the stuff is all identical. It’s what makes up the other 49% that gives different bourbons their different tastes.
But here’s bourbon’s little secret: there are generally only three different taste profiles once you get past the corn:
Pappy Van Winkle is a wheated bourbon. It’s a good one, usually aged longer – 10, 15 or 23 years compared to the 3-7 years of most bourbons – but it’s still a wheated bourbon. Unless you’re in the bourbon industry and have tasted multiple different bourbons hundreds of different times as a point of professional purpose, you’re not going to be able to identify a great many bourbons by taste alone. it’s safe to say that the occasional bourbon drinker couldn’t tell the difference between Pappy and, say, Willett Pot Still Reserve, W.L. Weller or a Maker’s 46. After they’ve already had a couple, a novice bourbon drinker could probably be fooled with a bit of Old Fitz. Maybe even some of those occasional drinkers.
Yet there Old Pappy sits at the top of the bourbon pyramid, coveted, sought after and, yes, even stolen. Not because it’s so great but because the folks at Buffalo Trace produce only 1% of the amount of it as the folks at Jim Beam 70 miles to the southwest make of their white label bourbon each year. Because celebrity chefs like David Chang, Sean Brock, and Anthony Bourdain have conspicuously endorsed it. Because its annual release has been well-marketed as “Pappy-Day,” creating a land rush effect.
Of course, Pappy Van Winkle Bourbon is not unique in this respect. Simple economics suggest that the low supply of any product combined with its high demand will beget a higher price. But there’s something else going on with Pappy Van Winkle. There the low supply and great demand is baked into the price. It comes before the price is set. But then an after-effect of exclusivity washes over it where either the price or the overall scarcity of the product works to make people think it actually tastes better than it really does. Ask anyone who has been fortunate enough to drink some Pappy recently. They’ll tell you it’s the best they’ve ever had. Mostly because they’ve been fortunate enough to have it.
It’s not simple snobbery at work here, however.
Back in 2008 some Caltech economics professors conducted a study which found that changes in the stated price of a given wine influenced how good volunteers thought it tasted. But it wasn’t just an instance in which vanity and exclusivity entered into things. The lead researcher, Antonio Rangel, concluded that "prices, by themselves, affect activity in an area of the brain that is thought to encode the experienced pleasantness of an experience.” Put differently: the price tag on the wine bottle literally made the person drinking it think it tasted better.
Another product which, I suspect anyway, affects brain chemistry is In-N-Out Burger. Here it’s not about price. In-N-Out Burger’s menu prices are pretty low, actually. It’s really about exclusivity. As a result of the company’s obsession with quality control and its refusal to franchise, In-N-Out’s reach has been limited to five states: California, Nevada, Arizona, Utah and Texas.
My brother worked at an In-N-Out burger in San Diego for several years. He can vouch for the quality of their food. But the taste? It’s good. Quite good! But are the burgers better than Shake Shack? Five Guys? Any number of other burger joints across the country which use fresh, high-quality ingredients? Maybe a bit. Maybe a good bit if your palette is simply more amenable to the extra Thousand Island spread, mustard grilled patties, and extra pickles of an animal style burger. But it’s not so much better than the next chain down to justify the frenzy and the hype, is it? My brother grew positively sick of the stuff after six months and started taking his lunch breaks at the Del Taco across the street.
I’m a baseball writer, and an annual tradition among baseball writers is for the ones sent to Arizona for spring training to gloat about the availability of In-N-Out Burger to the sad, unfortunate baseball writers who have to cover spring training in Florida. Whenever I travel from Ohio to California to visit my brother, I’m always asked by friends if I plan to stop at In-N-Out before or after I go to his house. And there those celebrity chefs again – among them Thomas Keller and our old friend Anthony Bourdain – singing In-N-Out’s praises, stoking that perception of quality and feeding that demand.
I’ll leave it to Antonio Rangel and his colleagues at Caltech to parse all of that. But for now I will try to find “Smokey and the Bandit” streaming online and giggle anew at the fact that the whole damn thing was set off by Coors beer. And wonder whether, if and when there is a reboot of the franchise, Big Enos and Little Enos Burdette will send the Bandit after Pappy Van Winkle, In-N-Out Burger or something else entirely.
Two seconds after the police car came to a stop, 12-year-old Tamir Rice was shot. Two seconds is all it took to end the life of a child playing with a toy. In the initial reports the police officers claimed they asked Rice to put his hands up three times and that he didn’t comply. We know now, however, that their entire interaction took a total of two seconds, casting serious doubt on the officers’ stated justification.
A child shot down for no good reason and a plainly implausible cover story. Yet people, for the most part, will believe the implausible cover story. Why?
I can’t begin to know what it’s like to have someone close to me killed. I also can’t imagine what it’s like to be black in a country that (a) was built on several centuries of enslaving and exploiting black people; and then (b) turns around and blames black people for the bad things which befall them.
I can read about this pernicious and destructive dynamic and I can understand it on an intellectual level, but the America that I get to experience is a totally different one than that which people who aren’t white males who make a decent living have to experience. And since I can’t imagine what that feels like, I haven’t spouted off too much about these sorts of things, even though I spout off about all manner of things throughout the day.
This doesn’t mean someone in my position can’t speak out about the specifics of the injustices in Ferguson and Cleveland and the public fallout of it all that is dominating the news this week. Many people in my general demographic category have, often eloquently. I just choose not to myself. I don’t offer much in the way of blow-by-blow of the incidents and the investigations and I don’t talk about the larger implications of the subsequent unrest. I don’t because I feel like most of what I would say about it all is naive, relatively ill-informed in ways that truly matter and that there are others who would do a far better job talking about the injustices visited upon Michael Brown and Tamir Rice and what it all means.
But since I am someone who comes from a safe and privileged background and since I live a safe and privileged life, I think I can offer some insight into the reaction many of my fellow privileged Americans have had to what has gone on in Ferguson and Cleveland. I can, I think, explain why many of my fellow privileged white Americans refuse to come to grips with the fact that bad shit goes down in this country and who refuse to believe that it’s racial and ethnic minorities, women and the poor who spend their lives looking down the barrel of that bad shit.
These are people who refuse to believe things like Michael Brown and Tamir Rice were shot and killed without justification and that the police are and should be held accountable for their deaths. People who latch on to every vague and often implausible account of hulked-up black men and ominous moves to their waistbands, nod their head and ultimately come down on the side of law enforcement in these all-too-common incidents, always.
It’s too simple to chalk it all up to racism. Sure, there are unabashed and crypto racists in your Facebook news feed right now talking about how the “thugs” had it coming, but there aren’t too many of them. Not as many as there were a few decades ago anyway. They represent a specific and non-trivial problem, but let’s ignore them for these purposes.
There are also a lot of people – an awful lot of people – who, while not themselves racist, are ignorant of the fact that they were born into and socialized by a system that is inextricable from America’s racist history. People who, even if they’ve applauded every bit of racial progress made in the past 60 years, are not totally conversant with just how thoroughly racism is ingrained in today’s America. How, even if slavery and Jim Crow are now things of the past, stuff like housing and educational and economic policies born in those eras still, quite shockingly until you actually read about it, carry on to this day. Privileged people who, however unwittingly, carry assumptions about how the world is in 2014 that simply aren’t true and which inform their beliefs.
But I’m not really talking about that dynamic either. It’s a critical dynamic to be sure, and one that causes a hell of a lot of the problems we have today, but it’s not the one that causes the immediate, knee-jerk defense of police officers like we’re seeing in the news of late and it’s not bolstering that certainty that everything that went down in Ferguson and Cleveland, however sad, went the way it had to go.
No, we can chalk that up to our fear of the horrifying and the power of denial.
When you, like I did, grow up in an ideal world with a mom and a dad and a good education and you don’t want for anything, there isn’t much room for the horrifying. There are anxieties and there are neuroses, but to privileged folks like me, the real horror of existence – of life and death and the possibility that it could very easily come to you at any second without justification – is utterly foreign.
Sometimes we get a peek of it. Maybe on the news, beaming images from thousands of miles away. We read about it. We hear about it second hand. But we don’t experience it. And on some level it’s so utterly out of our frame of reference that our brains work hard to deny its existence. To explain it away as something not real. I mean, think about the last time you saw some middle class white person on CNN talking about a tragedy they witnessed. What are the words they’re almost 100% certain to use: “I couldn’t believe it … it was … surreal.”
I’m not immune to this. I’ve never been involved in a shooting or a bombing, but I’m almost always quick to assume something that could be bad is not a worst case scenario. My son’s cough is nothing. That biopsy my mom is going in for is no cause for concern and, if it is, the doctor will fix it. That guy the guards are talking to by the courthouse entrance is not a security threat. My brain and the brains of people like me are not set up to grapple with awful things because I and people like me have not had to deal with truly awful things all that much. If things always work out just so – and for us, they usually do – you come to assume the existence of an orderly and just universe.
But it’s not an orderly and just universe. The universe is indifferent to our sense of justice. Mother nature and human beings can be downright horrifying. People kill each other for dumb reasons or no reason at all and a lot of people believe that some sorts of people are inherently inferior to others and act accordingly, often with force. Leaders let their populations starve while they themselves live like kings. Corporations calculate the acceptable number of people who should be allowed to die before going through the expense of fixing a defect in a product. There are a small handful of people who love and care about you, a great many who don’t give a shit and a select few who would cut your throat if there was something in it for them.
I’m not one of those folks who scream “wake up sheeple!!” and demand action against such horrors. Mostly because I think the horror of humanity is a feature, not a bug, and there’s not much we can do to fix it. Also because I do believe it’s possible for people to still get on with life in spite of these horrors and find a bit of happiness in our short time here even if the horror still exists. We’ve actually come a long way in learning to coexist with horror. It’s certainly better now than it was even 100 years ago.
But the horror does still exist and, I suspect, most people couldn’t get through the day if they were constantly reminded of that. No one is gonna brew the coffee, stock the shelves or analyze last quarter’s financials if they acknowledge that life, for many if not most people on this earth is nasty, brutish and short. Society works much better if they assume that everything happens for a reason and that reason is benevolent.
But then something horrifying happens that they can’t ignore. Say, a 12-year-old child is shot dead while playing with a toy.
When that happens, people have a choice:
Knowing what we know about how people respond to horror, it’s not at all surprising that, generally speaking, they are quick to believe a cop who killed an unarmed black teenager, even if his story strains credulity. Or that police truly warned the 12-year-old boy three times before they shot him yet he still acted menacingly, all in the space of two seconds. They’ll believe that, in part, because it fits in with a lot of things they’ve been taught about how police are heroes and young black men are “thugs.”
But more so, I think, they’ll believe it because not to believe it upends their pleasant, orderly and just universe. It reminds them – or maybe informs them for the first time in their lives – that not everyone in a position of authority is there to protect you, that anyone can be a killer and that anyone, even a child, can be gunned down for no reason. And that, often, the killer can get away with it.
They deny that which is horrifying because to accept it is to negate everything they think and believe about how the universe works. And no one wants to accept such a thing.