Monthly Archives: October 2016

Show Me the Body


Article One, Section 9, clause 2 of the United States Constitution decrees, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  This protection against unlawful arrest and detention is derived from English common law first documented in the “Assize of Clarendon,” a re-statement of rights during the reign of Henry II (1154-1189).  Inclusion in the U.S. Constitution is often attributed to similar language in the Magna Carta.

Habeas corpus (literally “produce the body”) was at the center of cases filed by Guantanamo Bay detainees following the September 11, 2001 terrorist attacks.  In Boumediene v. Bush (2008), the U.S. Supreme Court affirmed the right of foreign combatants to petition for a writ of habeas corpus with some limitations (e.g. the number of petitions allowed).  In the majority opinion for the Court, Justice Anthony Kennedy wrote that an executive suspension of habeas corpus suggests the political branches of government have the ability to “switch the Constitution on or off and would lead to a regime in which they, not this court, ‘say what the law is’.”

In the United States, the length of time a suspect can be held without being charged is covered under state law.  In most jurisdictions, the time frame for either charging or releasing a prisoner is 72 hours.  In a few states, including California, uncharged suspects can only be held for 48 hours.

My exploration of this topic was triggered by FBI Director James Comey’s letter to the chairmen of several congressional committees, informing them of “the existence of emails that appear to be pertinent to the investigation [of Secretary Clinton’s personal email server].”  There was no indication of the nature or extent of the discovery.  In a (non-public) follow-up memorandum to FBI employees justifying the letter to Congress, Comey says, “I also think it would be misleading to the American people were we not to supplement the record.”  Yet in the same paragraph, he gives more information for internal consumption than he does in the public correspondence.

At the same time, however, given that we don’t know the significance of this newly discovered collection of emails, I don’t want to create a misleading impression.  In trying to strike that balance, in a brief letter and in the middle of an election season, there is significant risk of being misunderstood, but I wanted you to hear directly from me about it.

What does this have to do with the writ of habeas corpus?  While Secretary Clinton has not been physically detained, her reputation and standing as a presidential candidate has been indefinitely “put on hold” by the FBI.  Late yesterday, the Clinton campaign issued what, in effect, is a writ of habeas corpus. It demanded that, within the next two days, the FBI explain the nature of the evidence which the Director felt warranted the letter to Congress.  For different reasons, the Trump campaign has echoed this sentiment.

I have no idea whether the information discovered during an investigation of former Congressman Anthony Wiener’s alleged sexting with an underage female is the smoking gun that will derail Secretary Clinton’s chances of becoming the next president. However, as of this morning, there are several reports which suggest the FBI Director acted more on speculation than evidence.  Newsweek and the Los Angeles Times report “none of the emails were to or from Clinton.”  And some or all may be duplicates of emails already in the FBI’s possession.  Director Comey is also reported as saying he has not personally looked at any of the emails.

The Clinton campaign is rightfully demanding Director Comey “show me the body.”  My question is, “Shouldn’t the head of the FBI be held to the same standard under the Constitution as every other law enforcement officer in the United States?”

For what it’s worth.


Catch Them If You Can


SPOILER ALERT: At the end of the movie Catch Me If You Can, Leonardo di Caprio’s character Frank Abagnale, Jr., a master forger, ends up working for the FBI.  Why?  Because he knew the counterfeit game better than most of the other criminals the FBI pursued.

I’ve been thinking about this movie a lot lately.  Last August, organizers conducted DEF CON 24, the oldest and largest hackers convention in the U.S.  On their FAQ page, there is the following question, “Do criminals go to DEF CON?”  The response?

Yes. They also go to high school, college, work in your workplace, and the government. There are also lawyers, law enforcement agents, civil libertarians, cryptographers, and hackers in attendance. Ssshhh. Don’t tell anyone.

Guess who else goes to DEF CON.  Every major technology company and the U.S. military.  Many are sponsors and host lavish parties where they wine and dine the best of the best among the attendees. Why?  They are recruiting new hires. Surprised?  You shouldn’t be.  As Michael Carleone tells a confidante in Godfather II,  “My father taught me many things. He taught me — keep your friends close but your enemies closer.”

As I read excerpts from the WikiLeaks alledged transcripts of Hillary Clinton’s speeches, I was reminded of Frank Abagnale and Michael Corleone.  Below is an excerpt of a speech at a Goldman Sachs symposium, which has come under attacks from both the far right and far left.

 There’s nothing magic about regulations, too much is bad, too little is bad. How do you get to the golden key, how do we figure out what works? And the people that know the industry better than anybody are the people who work in the industry.  [Goldman Sachs AIMS Alternative Investments Symposium, 10/24/13]

As I did in my last post, I again have to draw on personal experience.  In 1996, I was named lead staff for the National Governors Association to recommend the rules and regulations to implement the Hazardous Materials Transportation Uniform Safety Act (HMTUSA).  The trucking industry had petitioned Congress to preempt state regulation of the movement of hazardous materials because the administration burden of keeping track of and complying with 48 different standards within the mainland states was overly burdensome.

And they were right.  I needed no more proof than seeing the multiple loose-leaf binders of state and local regulations submitted as evidence by a lobbyist for the American Trucking Associations.  In lieu of preempting state authority, HMTUSA charged the states with developing a uniform set of standards.

The staff was assisted by a steering committee consisting of representatives from several state executive and legislative branches.  In addition, representatives of the trucking industry and environmental community were invited to all of the working sessions.  Unexpectedly, many of the staff recommendations which led to the final agreement among the states began as private conversations with the trucking industry.  For example, the uniform safety standards approved by the steering committee were more stringent than those imposed by the federal government and the overwhelming majority of states prior to the Act’s passage.  This would not have happened without communications with the trucking representatives outside of regular committee meetings. As Secretary Clinton suggests above, the “golden key” to finding common ground came partially from those who knew their industry best.

There was one other industry concession which sealed the deal.  The trucking companies acknowledged the individual states had the right to set the penalties for violation of the uniform standards when a vehicle traveled on their respective highways.  In other words, leaders in the trucking industry recognized their role and responsibility to ensure the safe transportation of dangerous substances. Furthermore, they expected their drivers and companies would be punished for violations and assessed damages.

So, there is value in having representatives of the banking industry at the table to address some of the legitimate issues which have been raised about Dodd-Frank.  IF AND ONLY IF, they agree they are bound to the new standards and are liable personally and organizationally for criminal and civil violations.

For what it’s worth.


WikiLeaks and Executive Privilege


On numerous occasions, U.S. presidents have claimed executive privilege to avoid releasing what they considered private conversations.  They provide the following justification for their position.  Without executive privilege, staff and associates will be unwilling to share candid thoughts with the boss.

While many of you may disagree, personal experience tells me this stance is valid.  In 1984, I served as director of operations for South Carolina Senator Fritz Holling’s short-lived presidential campaign.  Fortunately, we were still some years away from broad use of email and the internet.  Most internal communication took place within the confines of our offices at 444 North Capitol Street in Washington, DC.  But I do recall two types of conversations I would never want to become public.  Some involved the candidate’s performance.  After personal appearances, we would assess what worked and didn’t work. We often focused on the negatives with the goal of avoiding the same mistakes twice or honing the Senator’s message.

In an October 24, 2016 Real Clear Politics article about John Podesta’s emails released through WikiLeaks, the writer Alexis Simendinger states, “In the chatter, she (HRC) is relentlessly interpreted and swaddled by handlers, dissected (sometimes unflatteringly) by allies and stakeholders, and heard from directly only rarely.” THAT IS EXACTLY WHAT GOOD STAFF AND ADVISERS SHOULD DO.  Without that honest assessment of her performance, I doubt Secretary Clinton’s performance over the course of the campaign would have improved as much as many pundits believe it has.  Does anyone question whether her opponent would have been equally well served by a similar level of dissection by his confidantes?

The second reason involves campaign conversations around hypotheticals.  Almost every strategy discussion includes the phrase, “What if we…”  In the interest of levity or to vent frustrations when things did not go according to plan, we sometimes threw out a range of options, some bordering on illegal or just plain crazy, which I’m glad never saw the light of day.  The relevance of these conversations becomes important ONLY if we had chosen to execute them.

And therein lies the difference.  Richard Nixon claimed executive privilege over the Watergate tapes.  But in this case, a crime and cover-up had been committed.  Those conversations were evidence in judicial proceedings (the trials of the Watergate participants and the House impeachment hearings).  Similarly, FBI access to State Department and Clinton’s private emails was valid in determining whether her or her staff had violated the law.

Here is what I find ironic.  WikiLeaks’ own privacy policy includes the following statement.

Wikileaks encourages sources and volunteers to act courageously. Where possible we try and minimize real (as opposed to perceived) risks. WL volunteers face very little risk, but a small fraction may be seen as a useful to observe or befriend in the hope that this will lead to the sources of important political or intelligence leaks.

While Julian Assange and his colleagues offer to protect the privacy of their contributors in the interest of encouraging “sources and volunteers to act courageously,” they see no problem with applying a different standard to their targets.

To this point, I have focused on executive privilege as it relates to sitting presidents or those who seek that high office.  However, doesn’t every American have the same right?  Aren’t we all the executives of our own lives?  How can any of us raise and assess options courageously if we believe a hypothetical discussion, which may be viewed as reckless or even dangerous, becomes public?  Shouldn’t the Watergate standard of presidential executive privilege be applied across the board?  In the investigation of actual criminal behavior, transparency is essential.  But in the absence of an identifiable action, has WikiLeaks become what they often claim to fear the most?  Thought Police!!

For what it’s worth.


Republicans’ Next Campaign


After losing the popular vote in five of the last six presidential elections, the Republican Party conducted what it called the “Growth and Opportunity Project.”  The final report, often referred to as “the autopsy,” included the following assessment.

At the federal level, much of what Republicans are doing is not working beyond the core constituencies that make up the Party… It is time to smartly change course, modernize the Party, and learn once again how to appeal to more people, including those who share some but not all of our conservative principles.

The findings were based, in part, on contacts with over 52,000 individuals through on-line surveys, conference calls, focus groups and interviews.  Here are a few of the recommendations.

  • Our policies must lead people to a better life through a thriving, growing private sector that works for the middle class, and those in need.
  • We have to blow the whistle at corporate malfeasance and attack corporate welfare.
  • America is changing demographically, and unless Republicans are able to grow our appeal the way GOP governors have done, the changes tilt the playing field even more in the Democratic direction.
  • Among the steps Republicans take in the Hispanic community and beyond we must embrace and champion comprehensive immigration reform.
  • When it comes to social issues, the Party must in fact and deed be inclusive and welcoming.

Hard to argue with any of this.  But there is a bigger problem.  During focus groups in Des Moines, Iowa and Columbus, Ohio, populated with former Republican voters who had left the party, the participants used the following words to describe the GOP: scary, narrow minded, out of touch, a party of stuffy old men. In other words, Republicans needed more than new policies.  They also need candidates who could articulate this new message optimistically and without anger a la Ronald Reagan.

There were Republican candidates in 2016 who fit this bill and would probably have made Hillary Clinton’s path to the White House more challenging.  We already hear Republican leaders imagining what the campaign would look like, “if only John Kasich was our nominee.”  So the next “autopsy” needs to focus less on policy and more on why the GOP ended up with a ticket of Donald Trump and Mike Pence who epitomize the negative perceptions voiced by the former Republicans in the Iowa and Ohio focus groups.

Will Paul Ryan or John Kasich become the individual who revitalizes the GOP by embracing the policy recommendations from the Growth and Opportunity Project?  According to an article on Bloomberg News this morning, the probability of such a directional shift is highly questionable.  Bloomberg News asked registered Republicans, “If Clinton wins, which of the following do you want to be the face of the Republican Party nationally?”  The results.

Mike Pence/27 percent
Donald Trump/24 percent
Ted Cruz/19 percent
Paul Ryan/15 percent
John Kasich/10 percent
Not Sure or None of the Above/5 percent

While the autopsy rightfully calls for the party to expand beyond its core constituency, the current core of the GOP would prefer leadership which is least likely to achieve that goal.  Thus, the next Republican campaign is not against a Democratic opponent, but within the party, no easy task.  Remember, earlier this year, Trump was boasting about the millions of new voter registrants he brought to the party.  The question which determines the future of the GOP may be, “To what extent will these new Republicans remain loyal to Trump’s version of the party and will they still identify as Republicans if the leadership tries to steer them toward a future more in line with the 2013 autopsy?”

For what it’s worth.

Hillary Clinton’s Concession Speech


If the trajectory of the 2016 presidential election remains constant, there is an overwhelming probability (86 percent according to Nate Silver at 538) Hillary Clinton will be declared the next chief executive of the United States.  That announcement is likely to come shortly after the polls close in California, Oregon and Washington.

Claims that the “election is rigged” has many pundits questioning whether Donald Trump will take the stage and concede defeat, ascribing the mantle of legitimacy to the victor.  This is a time-honored traditional.  But as we all know, this election cycle has been anything but traditional.

To uphold this standard of American politics, I would suggest Hillary Clinton deliver a concession speech.  After thanking all of those who have helped her become the next White House occupant, she should consider the following text as she acknowledges her victory.

Voters deserve the opportunity to hear a concession speech at the end of every hard-fought political campaign.  Concession speeches have often been touted as the losing candidate’s finest moment.  And the pundits often wonder why the candidate did not show the same eloquence and grace throughout the campaign.

My opponent has chosen not to use this opportunity to affirm the exceptional nature of the peaceful transfer of power in our democracy.  Therefore, believing a concession speech is still in order, I offer the following.

I concede that I and my campaign too often catered to our base and turned a deaf ear to the concerns of many Americans who have been hurt by past economic policies.  Their concerns must be a addressed by the next president and Congress.

I concede, at times, I and my campaign contributed to the lack of civil discourse during this election cycle.  Voters deserve better and I will ensure those who disagree with our policies and actions are still respected and given the opportunity to voice opposing views.

I concede I could have been more transparent about how my positions were initially formed and evolved over time.  I recognize the public deserves to know where their leaders stand on the important issues which affect their lives.

I concede my error in using a private email server was due in part to my failure to trust those normally responsible for providing this service.  That is not acceptable.  I have learned a lot about myself from the criticism many have made of my actions and will seek and heed the advice of individuals duly authorized to oversee the operations of the executive branch.

I concede my belief in the good being done by our family foundation and the Clinton Global Initiative justified my sometimes being more engaged in its operations than I should have been while Secretary of State.  Although there is no instance in which national policies or actions were influenced by donations to these efforts, I should have held myself and my staff to a more stringent standard.  I pledge to do so during my administration.

In the interest of reversing the deep divisions which emerged and grew during this campaign season, I hope I would have made these same concessions if I had been on the losing end of this election.  I also hope my opponent would agree that Americans deserve better than what we have presented to them over the past 18 months.  And it is incumbent on all of us–candidates, party officials and citizens–to think about how each of us has contributed to the ugly discourse and divisive nature of this election.  Only through trust, mutual respect and appreciation of each other’s aspirations will the next president have a chance to fulfill the desire of every person who has held that office to build “a more perfect union.”

I have always appreciated the fact the preamble to our Constitution refers to “a union,” not “The Union,” a synonym for the United States.  The dictionary defines “union” as “the act of uniting two or more things.”  America has always had factions starting with the revolutionists and the Tories during the earliest days of our nation’s history.  I believe the founders knew the survival of the political and governmental system they created depended on the ability of its leaders to find common purpose among the these factions.  As president, I vow to do my best to fulfill their vision of a nation united in purpose drawing on the diversity of ideology and approach among us.

Thank you again for this humbling opportunity.  Starting tomorrow, I look forward to working with each of you to secure the enduring promise of America for all our citizens. 

I hope Clinton does not have to give this speech.  I hope Donald Trump follows the examples of Richard Nixon in 1960 and Al Gore in 2000, both of whom had reason to challenge the election outcomes.  Each of these losing candidates reminded his supporters there comes a time when we must honor the voters’ choice in defeat as well as in victory.

For what it’s worth.