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Joe Biden’s Opening Statement

With so much of the 2020 election season (primaries, selection of running mate, conventions) in the rear-view mirror, next up are the debates.

In case you were wondering what to do with your upcoming Tuesday nights, the first presidential debate is September 29; the other two are October 15 and 22. Mike Pence and Kamala Harris will square off on October 7. All are scheduled for 90 minutes, starting at 9 PM ET. (The end of daylight savings, with clocks “falling back”, is not until November 1.)

Other than Donald Trump in 2016, there has never been a candidate for president remotely like Donald Trump. Preparing to debate him presents unique, bizarre challenges. A standard opening statement just won’t do, for instance.

Here, then, is an approach Joe Biden might take with his opening statement next Tuesday night:

Good evening

“Good evening. I would prefer to use this time to make a traditional opening statement for a presidential debate. For reasons I believe are obvious, however, I need to explain what my approach to all the debates will be – as to both content and tone – and why.

After nearly four years of this presidency, we all know what to expect from Donald Trump in a debate: name-calling, bluster, bullying, coarseness, insults, rudeness, and above all a blizzard of dishonesty.

Content

There will be every kind of dishonesty: denial of obvious truth, fabrication, projection, misrepresentation, distortion of context, and outright lies. Gross exaggeration is as close to the truth as Donald Trump ever seems to get.

I speak of Donald Trump’s dishonesty from personal experience; nearly everything said about me and my positions in his campaign ads, for example, has been false.

Spending too much precious time in these debates reacting to an avalanche of lies would be a disservice. You deserve to know how I plan to serve as President. (And note: there is a plan. We actually have a platform. Not everyone is going to agree with every word of it, but that’s OK.)

You deserve to have the issues discussed on the merits; I will do that.

Therefore, I have directed that several policy experts on my campaign staff devote their time during and immediately following the debates to fact-checking. To keep the debates moving as smoothly as possible, I will generally just point out falsehoods without dwelling on their details. Within 48 hours of the conclusion to each debate, however, we will issue an explanation of what was false, how it was false, and why it matters.

I reserve the right, of course, to address a particular falsehood in some depth. This might be where the discussion requires immediate correction and failure to do so would leave a misimpression. On the other hand, there may be so many falsehoods that I won’t have time even to mention them all.

If that happens, my silence on a given falsehood will not mean acquiescence.

Meanwhile, if I get a fact wrong, it will be inadvertent; it will be corrected, with apologies, as soon as possible.

Tone

As to the tone of the debate – the name-calling, the belligerence, the coarseness, the bullying he will undoubtedly attempt – I will do my level best not to be drawn in by Donald Trump’s tactics, or to sink to his level.  I will not take the bait; then we will see what else he has to offer.

For the rest of these debates, I hope there is no need to address this topic again.

One (More Standard) Opening Statement Point

In the few moments left for this opening, here’s a brief overview of the choice involved in this election. The differences between Donald Trump and me couldn’t be more numerous or profound. For now, please note one important distinction.

In attacking our nation’s crises and challenges as President, I will: (1) surround myself with the best available experts; (2) direct them to tell me the truth, rather than what I wish were true; (3) listen to the experts; and then (4) do my very best for the country and all its people.

Donald Trump, on the other hand, will do what he always does – his very best for the benefit of Donald Trump – for as long as we let him. There’s no need for a President to bother with expertise, facts, careful deliberation, skillful implementation, or diplomacy when he cares nothing for anyone or anything but himself.

Please never lose sight of this basic, overriding distinction as we get into questions of public policy, character, and fitness for the office of President.

Thank you.”

This approach probably will not prevent the train-wreck the debates promise to be, but it might reduce the force of impact. At this point, any step lessening the ongoing damage to our democracy is worth taking.

Ken Bossong

© 2020 Kenneth J. Bossong

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Post Scripts #3: Of False Dichotomies, the Police, Whose Lives Matter – and a Correction

Thanks to contributions by readers (greatly appreciated), this post became a Post Scripts. That is, comments to Other Aspects spur revisits or supplementation of past posts.

I. “Good News About Lawyers: Client Protection Funds” (April 21, 2020)

With reference to this post – and after the killing of George Floyd – a reader wrote:

How about a policeman’s fund for innocent victims of police violence, paid out of dues or if necessary the police pension fund?

The reader was taking me up on my suggestion that professions besides law also consider creating remedies to protect victims of their bad actors. This got me thinking not only about that intriguing specific suggestion but also a much broader aspect: false dichotomies created in confronting wrongdoing. The amount of time and effort we waste fighting over foolish fallacies boggles the mind.

A. The Specific Suggestion: A Police Misconduct Fund?

It is intriguing. Any opportunity to right a wrong has appeal. While not saying it couldn’t be done, there are reasons a fund for victims of police misconduct would be more difficult to do well than a lawyers’ fund for client protection. Among them:

Relief anticipated from a fund: Lawyers’ funds replace clients’ money taken by a dishonest lawyer. The amount is usually clear. For police, would it be money damages? Who would decide and how would they arrive at a figure?

Threshold jurisdiction: A lawyer must be suspended, disbarred, or convicted of a crime for most funds to have jurisdiction. Requiring the equivalent for police officers would preclude many potential claims, including valid ones. This is one of the main reasons for protest, and what most needs to be fixed.

Contributory behavior: Where a lawyer steals, the client’s conduct seldom gives pause. While the victim’s innocence will be equally clear in some police tragedies, many cases will have difficult, contentious issues regarding facts and fault. The kind of fact finding done in litigation, including cross-examination, seems better equipped to deal with such issues than more informal claims.

The need for a fund: Civil suits against broke, disbarred lawyers are throwing good money after bad; without the fund, no remedy exists for victims. Not so against police departments.

In sum: where they exist, the problems with police misconduct – the need for prevention, accountability and consequences – require fixing before you even get to damages for victims. While state and federal law may need tweaking, civil remedies exist, if you can get to them. In both law and law enforcement, prevention of misconduct must be of paramount concern. Failing that, accountability must reign.

B. The Broader Issue – the Trap of False Dichotomies – When Members of Good Professions Go Bad

When either lawyers or cops go bad, the good ones must decide how to react. In both professions, generally, the good ones vastly outnumber the bad and abhor their serious misconduct. It doesn’t follow that the repercussions of such misconduct are always appropriate.

Lawyers

All the honest lawyers make the lawyers’ fund possible, but every now and then, there’s a bar leader who doesn’t get it. Invariably, this is a good lawyer who just HATES to admit there are bad lawyers. It would be nice if denial erased misdeeds, but if the denier is, say, a prosecutor disinterested in white collar crime, public outrage is justified.

Police Officers

The stakes are even higher – often life-or-death – in tragic encounters with police. Also different from lawyers is the layer of protection, and spirit of solidarity, afforded officers by unionization. As with any individual in our system, accused cops (and lawyers) are entitled to constitutional protections, like due process and the presumption of innocence. Sometimes, however, despite clear facts that are very bad, crimes are undercharged, aren’t brought at all, or are prosecuted indifferently. It doesn’t help at all when the following message emerges:

“You either support the Police, no matter what, or you don’t support the Police.”

This is a false dichotomy, a common tactic of those arguing a flawed or weak position. According to them, you have only two choices: agree with them or take a position you completely reject.

Beyond just support, one can respect and admire the police, of course, without endorsing rare instances of horrendous acts. Their job is hard, requiring much skill and courage to do well, and very important. That is why accountability is essential. Like lawyers, most cops are good to very good, but there are some really bad actors. Also like lawyers, no one should be more passionate about bringing bad officers to justice than the good ones.

Lumping all officers together and saying you’re either with them or against them in the context of horrendous misconduct is a terrible disservice to those whose dedication, hard work, and scruples make them above reproach. Taking the false dichotomy bait is a mistake for anyone, whether to countenance criminal behavior or to condemn all cops.

Ancient History

Two slogans from the 60s and 70s make clear that these foolish, false dichotomy arguments are nothing new: “America – Love it or leave it!” and “My Country, Right or Wrong!”

“Love it” meant unquestioning acceptance of what current governmental leaders did, it being said by someone who liked what the leaders were doing. Which, if you didn’t like, you had to leave. Expressing a contrary opinion wasn’t an option. Even as a young guy, I rejected this out of hand. Sez who, I gotta leave?

The second saying was clearer about the unfortunate message intended. Either you support a position espoused by your country’s current leaders, even when wrong, or you’re a traitor. But what if an elected official is the traitor? The more that true patriots love their country, the more they want it to be right – and the more they’re willing to do to help their beloved country get it right. The false dichotomies in use now may be slightly more subtle or disguised, but they’re the same old ridiculous attempts at intellectual bullying.

Another Current Example: Response to BLM

The common reply to “Black Lives Matter” never ceases to amaze me. It’s reflexive, almost automatic: “ALL lives matter!” And there’s indignation, at least – often outright anger, even rage.  

I’ve never seen a sign that says “Only Black Lives Matter” or “Black Lives Matter More Than White Lives”. Never. Nor is it implied. The clear meaning is more like “Black Lives Matter, Too” or “Black Lives Matter As Much As Anyone Else’s”.

As a matter of pure, simple logic, of course, it cannot be that All Lives Matter, unless and until Black Lives Matter. After centuries of we Caucasians – not every one of us, but as a group – seldom missing an opportunity to make clear that lives of color matter less, if at all, the response to “Black Lives Matter” is “How dare you!”?

The indignation and anger comes from two pernicious fallacies: (1) Lives mattering is a zero-sum game (see post of 4/2/19); (2) therefore, for Black lives to matter, Blue (or White) lives can’t, or must matter less – as false a dichotomy as there is.

Some people are earnest and sincere in saying “All lives matter.” More importantly, they live like they mean it, the anger and resentment missing. Indeed, for them, the saying BLM is a truism.

After John Lewis passed recently, a nun recalled how he’d been brought to Samaritan Hospital with a broken skull on Bloody Sunday in 1965. Run by the Sisters of St. Joseph, Samaritan was the only hospital in nine counties that would take Black patients. In the 8/7 piece for New England Public Media, Sr. Patricia Byrne closed with this: “All the questions of Selma are with us again. Sisters, much older and fewer, are asking ourselves just how we can be there now.”

That BLM needs to be said at all in 2020 is mortifying. That it is controversial is disgraceful, unfathomable. Has there been any progress? Yes, there has been glacial, begrudging progress. Once we behave as if All Lives really do Matter, though, genuine problem solving can begin. It’s a better use of our time, effort and energy to actually implement the “self evident truths” of 1776 than argue over false dichotomies.

Others

Here are a couple other false dichotomies that have been around a long time:

Sacred music vs. the Devil’s music – “If you love God, you can’t sing secular music.” It’s hardly surprising that some listeners find aspects of popular music off-putting, but strict adherence to this one can be tragic. One of the greatest singers of the Blues (or any genre, really) Chester Burnett, the Howlin’ Wolf, was disowned by his mother for singing the Devil’s music. Wolf didn’t write “Goin’ Down Slow” but he sang it with more conviction than anyone: Please write my mother/Tell her the shape I’m in/Tell her to pray for me/ Forgive me for my sins. (It’s said the Wolf’s mother declined to come to his deathbed.)

Science vs. Religion – This one is a double-header: (1) “Real scientists don’t, or even can’t, believe in God; (2) meanwhile, “if you believe in God, you can’t accept the findings of science.” As to the latter, God doesn’t want us to learn the details of His creation, and live accordingly? Sez who? Why? Regarding (1), science explains everything that matters? So, the beginning was the Big Bang – Nothingness exploded and then there was something: energy, which evolved into matter, and so forth. This is the intellectual explanation – nothingness exploded – but Thomas Aquinas’s God as the Uncaused Cause is foolish superstition? There can’t be a God who chose to utilize the Big Bang? Or evolution, or countless wonders we haven’t discovered yet?

If readers have false dichotomies they’d like to share, please do. There are also false equivalencies that can be equally galling, but that’s a topic for another day.

II. A Correction on “Senate Republicans, I Know What You Did Last Summer” (June 23, 2020)

Speaking of the police, thanks to the reader who wrote:

It was not the “police” (in the sense that we commonly use the term) that cleared Lafayette Square; rather, it was the federal forces over which Trump had authority–the DC National Guard (which he federalized), US Marshal’s Service, National Park Service Police, and several other agency “troops.” The DC police were not involved. Neither were [the] Arlington PD, which had been there in response to a request from DC Mayor Bowser, then abruptly came back home when Trump launched his assault.

Correct, of course. I should have caught my sloppy, incorrect use of the term ”police”. The fact that those clearing the square of peaceful protesters were unmarked, unidentified federal agents was one of the episode’s most troubling aspects.

While we’re at it, the federal statute mentioned in the post that could have and should have been effectively utilized in response to the pandemic is the Defense Production Act, not the Defense Procurement Act, as originally indicated.

III. “(Y)Our [Expletive]” (August 8, 2020)

In recommending A Warning by Anonymous, I meant to make this point: Isn’t it remarkable that the author right there in the White House is still anonymous? The desire of the president to identify this person and use the phrase that made him famous (YOU’RE FIRED!) must be extraordinary. Considering the detail in the book and the perspective of the devastating content, how can the author not be obvious?

There’s a simple reason – anyone could have written it. Let that sink in. Anyone in the administration could have written how shockingly and disastrously unprincipled and unhinged Donald Trump is. It’s the simple truth and everyone there knows it. Accounts from those departing the White House (the scene of last week’s spectacular RNC Hatch Act violations) continue to be clear, consistent and ever more disturbing.

According to recent escapee Miles Taylor, the great majority of professionals in the administration are beyond appalled and trying to decide what to do. If he’s correct, there might come a point before November 3 when Anonymous and dozens of colleagues resign together and hold a press conference no one will ever forget.

Again, thank you for reading – and writing to me at KenBossong@gmail.com.

Ken Bossong

© 2020 Kenneth J. Bossong


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(Y)Our [Expletive]

A True Little Story

As a young lawyer – therefore, a long time ago – I was the first associate for an established lawyer with a general practice. One day, he sent me to my first settlement conference in a civil case. Handing me the file, my boss gave me an idea what to expect – including the welcome news that the assigned judge tended to be favorable to the side we were on in this case.

Most of the details don’t matter, which is a good thing, since I don’t remember who the judge or the other three lawyers in the case were. I do recall that the other lawyers were well-known veterans and that two of the three were on the same side I was. That is, our clients had been in the same car, now plaintiffs suing the defendant, the driver of the other car in the accident.

The judge had each of us give our theory of the case before grilling us about our positions’ strengths and weaknesses. As predicted, he was noticeably tougher on the defense lawyer, with parting words urging him to have his insurance company find some real money to settle the case. After the session, I was pleased to accept an invitation from the veteran plaintiffs’ lawyers to join them for lunch.

Talk at lunch turned to what had just occurred, and I got a lesson on reading between the lines toward settling cases. At a pause, one experienced lawyer turned to the other, lowered his voice and referring to the judge said, “I’m glad he’s tough on the defense, of course, but you know, he is kind of an [expletive].” To which the other replied, “Yeah, but he’s OUR [expletive].”

Although I don’t remember who said it, I’ll never forget the line. That’s because it is (far too often, unfortunately) the only way to make sense of the otherwise inexplicable. Embracing our [expletives], no matter what they do, is an outgrowth of our seeming need for “Us vs. Them” conflict (see post of 2/19/19). It comes up in many settings, two of the most obvious being sports and partisan politics.

Sports

An obvious example from sports is the player on a rival team you love to hate. Ask sports fans to give an example, and be prepared for lengthy, passionate responses. Yet, those same fans usually have a player on their team they love all the more because rival teams’ fans hate him or her. That player is “our [expletive]”.

When our [expletive] does it, it’s daring, ingenious one-upmanship; when their [expletive] does it, it’s an OUTRAGE! Yours plays dirty; ours plays hard.

Ty Cobb and Honus Wagner

A famous story from baseball’s early days involves a time two of its greatest players met in a World Series. Shortstop Honus Wagner led his Pirates against outfielder Ty Cobb’s Tigers in 1909. Both are on almost everybody’s list of the best ten players ever, indeed on most top-five lists. While Wagner (he of the most valuable baseball card) was well respected and liked, Cobb was infamous on a number of fronts. One of the on-the-field reasons was his practice of sharpening his spikes in plain view before games and then sliding into bases with spikes high.

In the fifth inning of the Series’ first game, Cobb got on first base and yelled at Wagner. He was stealing second and coming for him. Wagner took the catcher’s throw, eluded Cobb’s flashing spikes, and tagged him in the mouth. It had to be especially satisfying for Pirates fans, and correspondingly bitter for Tigers fans: Not only was Cobb’s attempted intimidation reversed, but Wagner outplayed him as the Pirates won the Series 4-3.

Yours Becomes Ours

The transience of such perceptions is clear when [expletives] change teams. Len Dykstra was an irritant, a wacko, and an excellent player for the Mets before becoming a Phillie. He was all that and more for the Phils. “More” is meant literally, by the way. When I pointed out to fellow fans that Len seemed about twice the size he had been for the Mets (this being the steroid era, after all), the general reaction was “Shhhh!” He was our [expletive] now.

Partisan Politics

The phenomenon is not limited to fun and games, of course.

Gerrymandering is clever if it benefits your party, disgusting when the other guys do it. Lines designating voting districts have to be drawn somewhere; sometimes, where they should go is a legitimately close call. I’d like to think that gerrymandering started with officials figuring they might as well benefit their party in making the choice between two sensible boundaries.

In any event, there’s no defending the grotesque voting districts that have been created by both parties over the years to provide safe havens for candidates based not on performance but demographics. The maps for such districts can resemble spaghetti on a plate or the splotches of Rorschach tests. It’s part of the cynical spoils of having your [expletive] be in charge of redistricting.

Congress

Prior posts have taken Congress to task for dereliction of duty in various areas – among them judicial appointments (1/25/19), immigration reform (5/10/19 and 8/21/19), and impeachment (6/23/20). No abuse of power is shameful enough to elicit a response. Other than to mourn the obliteration of statesmanship by partisanship, I won’t belabor here.

The President

Then there is you-know-who, the man for whom “He can’t possibly go any lower” is the one challenge gleefully accepted and always met.

As pointed out by Anonymous in A Warning (highly recommended, by the way; a much better read than expected), Trump is neither a true conservative nor much of a Republican. He IS what some left wingers have falsely accused all conservative Republicans of being (see below).

So, the question to conservative Republicans who’ve been giving Trump a pass is this: Is he really your [expletive]? Granted, he has the [expletive] part down pat. But how is he yours? He could not be clearer that he cares nothing about anyone or anything but himself. That includes you and almost everything you believe in.

Embracing those in power because they’re in power rather than on the merits of their ideas, character, or actions entails costs and risks, including to one’s sense of integrity and judgement. What does it say about you if this [expletive] is “yours”?

This is of genuine concern for two reasons:

  • Some good, well-meaning Americans are going to rue the day they supported this man when the gravity and extent of his wrongdoing come fully into focus. Many already do, given the overwhelming evidence right out in the open, but the feeling we haven’t seen anything yet is inescapable.
  • Needless, long-lasting damage has been done to both the Republican Party and the conservative movement in this country by acquiescence in extensive criminal activity. As someone in neither camp, I can speak to the need for two viable parties and competing points of view. It’s going to be a long time before a large number of moderates vote for Republicans again after their disgraceful enabling of this wretched, embarrassing man.

The mythology surrounding delta blues icon Robert Johnson includes the legend that he sold his soul to the devil at the “Crossroads” for his astounding musical talent. It’s understandable that people had difficulty explaining Johnson’s otherworldly singing, composing, and guitar playing in more conventional ways. Why anyone would sell their soul to the devil, acquiescing in harmful, abhorrent behavior, for the likes of a Donald J. Trump – now that’s inexplicable.

The Boy Who Cried “Wolf”

My father loved the fable of the Boy Who Cried “Wolf”. I know this because he told me the story at least three times as I was growing up. As is often the case, the Donald Trump nightmare is the most extreme real-life example of the fable in memory.

For decades, those creating the orthodoxy of the Left in America have assigned anyone not in complete agreement with every detail of that orthodoxy a series of damning attributes. Question a current belief or policy, or even simply use verbiage no longer in favor, and out came the “-ists” and the “-phobics”. You were racist, fascist, xenophobic, misogynist, sexist, etc.

One day, a guy who actually is all of the above – and more – somehow (incredibly) becomes President of the United States. This time, when all the old “-ists” and “-phobics” are trotted out to condemn him, guess how a number of conservatives react: “Yeah, we know – he’s racist, he’s fascist, he’s xenophobic , he’s misogynist, he’s sexist, blah, blah, blah. Sure. Everybody not on the far left is. You’ve been telling us for decades.”

This matters. In seeking refuge from what they perceive as unrelenting political correctness, many conservatives who don’t like Trump a little bit have been contorting themselves into philosophical pretzels to reluctantly back him. (Yeah, I know there’s also a contingent who believes the wrong side won the Civil War. Trump’s their hero. They’re not the folks being addressed here.)

Thus, a remarkable phenomenon occurs: Some wonderful people – who  love their spouses and families, work hard, help others generously, tell the truth, seek knowledge, behave honorably, and serve their country and communities selflessly – find themselves supporting someone who is their exact polar opposite in every way. For all that matters most – character, morals, work ethic, respect, honesty, fair dealing, empathy – they would detest this man if they had any dealings with him.

A Suggestion

It must be exhausting and disheartening to concoct rationales under which Trump’s torrential outrages “aren’t so bad” – or at least “aren’t as bad as the alternative”. Here’s a suggestion: Do yourself a favor and give it up. Not your conservative principles. Give up the liar and his lies.

The country’s leading conservative columnist, George F. Will, who does believe deeply in conservative principles, has much insight to offer. His column is published by the Washington Post and appears in other major outlets. Among recent worthwhile pieces are those dated June 1 and July 29. The latter decimates some myths about Joe Biden the Trump campaign would have you believe, to consider Trump somehow not as bad as the alternative.

When the veteran plaintiffs’ lawyer delivered his memorable line at that long-ago lunch, it was with more of a world-weary sigh than a triumphant boast. We chuckled a bit, the mirth offset by unease. The conversation quickly turned to other topics, but the insight has been helpful ever since, especially in cases of truly bad behavior rather than simply a judge’s tendencies.

A recent reverie involved citizens filing a class-action civil lawsuit against Donald Trump under RICO (the Racketeer Influenced and Corrupt Organizations Act), for conducting an ongoing criminal enterprise out of the White House. In sharing the idea with a close friend, I wasn’t completely kidding. (Establishing standing for citizens to seek damages might be a challenge, though.) Those thinking Trump is worth supporting because he’s their [expletive] are both deluding and demeaning themselves

Therefore, the Merits

Let’s go back to considering the facts and the merits of our important issues. Gerrymandering ill serves us, no matter whose [expletive] is doing it. One would think the Constitution forbids it in all but relatively benign manifestations. However, in June of 2019, the US Supreme Court ruled 5-4 that the flagrant examples before it were matters of politics into which the Court should not intrude. So it’s left to us not to put up with this nonsense. We better be vigilant. One-party redistricting authorities now have a green light; worse, there’s now extra incentive to attain such mapping power.

The same goes for legislators whose gamesmanship precludes serious deliberation on important congressional business. It doesn’t matter whose judicial appointments or meritorious bills never even get discussed. Wrong is wrong; the country suffers.  We’ll find out soon enough if Kentuckians are proud to have had their very own Mitch McConnell the senate’s majority leader and the president’s enabler-in-chief. Maybe it’s time to consider term limits.

Above all, let’s not have any [expletive] – yours, mine, or anyone’s – be president again. Ever.

Ken Bossong

© 2020 Kenneth J. Bossong

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Senate Republicans, I Know What You Did Last Winter

Dear Senate Republicans not named Mitt Romney,

You did this. You did this to us. Your craven dereliction of duty enabled the nightmare to continue and, predictably, get worse. We have almost four and a half more months before the voters pick up after you and seven months of peril to endure. Whatever evil Donald Trump perpetrates as a desperate candidate and then as a bitter lame duck is on you. This will be on top of the immeasurable harm he has done since you emboldened him with your vote on February 5 not to remove him.

It was right there before you: a lock-tight, unassailable two-article impeachment. It could have been twenty-two articles or two hundred and twenty, of course. Was the House’s inclination to keep it a simple, manageable, straight forward two articles understandable? Yes. I would have included more, the Mueller stuff at least, however, because it too was right there – fully developed, consistent, and equally compelling.

The Articles of Impeachment

The second article, for obstruction of justice, was particularly straight-forward. President Trump flatly and publicly forbade anyone in his administration from cooperating at all – with documents or testimony. Indeed, he boasted about obstructing justice. Retaliation for anyone who properly responded to lawful subpoenas was swift and severe. That these witnesses undoubtedly knew what the consequences would be for telling the truth not only makes their devotion to duty more laudable, but bolsters their credibility.

There were no material facts in issue. The obstruction was a blanket refusal to cooperate, or permit anyone else to cooperate, with the Congress in fulfilling its oversight duties. Nixon’s cover-up in Watergate, which Republican congressional leaders assured him was indefensible, was trifling by comparison. Your failure to convict weakened the Congress as a co-equal branch.

The first article was no less compelling.  The backdrop was a new president of the Ukraine, Volodymyr Zelensky, desperately seeking US assistance in fending off Russian aggression. Official US policy to provide it was clear; an appropriation was in place. Zelensky was most anxious for two things, a meeting with President Trump to affirm to Russia and the rest of the world America’s support, and disbursement of the military aid. Each was withheld by a President Trump bent on benefiting himself.

Quid Pro Quo

The two main defenses, if they can be called that, seem to be that (1) There was no real quid pro quo and (2) Trump was concerned about corruption in Ukraine. Which of these is more laughable is a close contest, but I vote for (2). In fact, the depiction of Donald Trump as a crusader against corruption may be the single funniest thing ever said about him – unintentionally funny though it may be.

That is to take nothing away from the absurdity of the quid pro quo argument. In the infamous phone call of July 25, 2019, there comes a point where Ukraine’s President Zelensky brings up the topic of US military assistance for Ukraine. He refers specifically to the need to acquire more Javelin anti-tank missiles. President Trump’s reply is “I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it.”

The favor sought by President Trump: Zelensky was to announce and conduct investigations of two preposterous notions: (1) Ukraine, not Russia, interfered in the 2016 presidential election and (2) Joe Biden sought the removal of Ukraine’s Prosecutor General Victor Shokin because he posed a threat to a company (Burisma) whose board included Biden’s son, Hunter.

Anyone in Trump’s administration could have told him how ridiculous and thoroughly discredited these theories were; many in fact did. Russia’s massive interference in the 2016 election was a matter of voluminous, detailed record. And the truth regarding Shokin’s removal was exactly the opposite of Trump’s narrative. Biden’s position on Shokin as Vice President was official US policy, and that of America’s allies, precisely because Shokin did NOT prosecute corruption in Ukraine.

Hunter Biden may have been guilty of attempting to ride the coattails of a well-known father. This is something Donald Trump knows more than a little about – as both a son and a father.

When I hear that asking for a “favor” in return for desperately needed aid is not quid pro quo, a reverie comes to me. It’s a mashup of scenes from old gangster movies: [An Edward G. Robinson-like figure has a rival gangster tied up in a chair.] “Yeah, listen here, you, see? I unnerstand you got a pretty little daughter. If ya ever wanna see her again, you’re gonna do me a little favor, see?” For some reason, the point is clear without needing to add, “That’s the quid pro quo, see?”

Briefly, on Some Legalities

The hold itself was illegal under two federal statutes, regardless of reason, as increasingly frantic emails between OMB and DOD make clear. The Department of Defense realized it was becoming impossible to properly spend the money appropriated in the fiscal year ending on September 30. The Office of Management and Budget knew this, of course. They also knew the legislature holds the “purse strings” and the executive branch can’t just say “screw it”, but was not in a position to explain the hold or to comply with the law’s formal requirements to rescind. (See the Appropriation Act and the Impoundment Act of 1974.)

The reason for the hold was much worse; no wonder no one wanted to explain it in writing. It is a serious violation of federal law for (a) a person to (b) solicit, accept or receive (c) a contribution or donation of money or other thing of value, (d) in connection with a Federal election (e) from a foreign national. (52 USC 30121) If it’s illegal for anyone to receive anything of value from a foreign national in connection with any election, what is it for a president to solicit dirt on a political rival in an upcoming presidential election from a foreign nation – all in return for release of aid to which that nation is already entitled?

On Mens Rea, or “Guilty Mind”

I’ve heard it argued that Donald Trump could not have committed high crimes and misdemeanors because he is too dopey to form the requisite criminal intent. Among the serious problems with this, three stand out. First, being stupid and being evil are not mutually exclusive; one can be both. Second, what kind of defense is this for a president? Third, Mr. Trump has many serious flaws on constant display, but stupidity is not one of them. He is colossally and willfully ignorant, but not stupid. For years, he has said and done any number of stupid things – not because he doesn’t know any better, but because he wants to say and do them. The fact that he has gotten away with them so far makes him one of the greatest con men of our time.

Trump knew exactly what he was doing with Zelensky, alright. We all know exactly what he was doing. So did Zelensky, of course, who was loathe to becoming a pawn in US politics. In the build-up to the phone call of July 25, the single biggest point made by Trump’s people to Zelensky and his people was this: If he ever wanted the aid disbursed or his White House visit, he had to convince Trump in this phone call that Trump would get his investigations. In fact, it was critical that Zelensky make clear he was about to publicly announce the Biden investigation. The announcement mattered  more than an investigation everyone knew would yield nothing.

Another reverie: I find myself wondering whether Vladimir Putin was miffed to learn that his favorite protégé believed Russia alone wouldn’t be enough to overcome Biden in 2020. After all Russia did for him in 2016? While that weird Putin/Trump thing undoubtedly endures, it had to rankle a bit that Trump resorted to asking Ukraine.  Then again, Trump even asked China to investigate Biden. (Didn’t need Bolton for that; we saw Trump say it on TV.) When all is known, countries Trump has not asked to investigate Biden may feel left out.

Consequences of Your Vote

There will be many books, but it will take a treatise, someday, to adequately recount the harm that has resulted from your vote to acquit. For now, this brief summary will have to suffice.

Balance of Power

President Trump’s relentless attacks on checks and balances, and any restraint on his power whatever, have intensified. Two of the many troubling examples are letting inspectors general go when needed most and the ongoing politization of the Department of Justice.

An agency has an inspector general to have someone relatively independent of politics ensure that the agency conducts its affairs properly. They are on the lookout for the proverbial fraud, waste, and mismanagement. Honest leadership welcomes such overview. Firing IGs for looking into matters uncomfortable to those doing the firing is more than a bad look.

Trump said while letting intelligence IG Michael Atkinson go, “He took this terrible, inaccurate whistleblower report and he brought it to Congress”, thus setting in motion the impeachment. In other words, he did his job – one of two unforgivable sins in this administration. (The other is telling the truth.) The removal of Glenn Fine, Christi Grimm, Steve Linick, and Mitchell Behm all make for interesting reading, especially given what they were working on, including (for Fine and Behm)  oversight of the largest stimulus package in American history. 

The politization of the Department of Justice famously includes interference in actual cases (Michael Flynn and Roger Stone). Hot off the press, the firing of US Attorney Geoffrey Berman was a typical Trump operation. First AG Barr lied that Berman had resigned. Then he said Trump did it. Then Trump said Barr did it. There is no suggestion that Berman was doing a bad or even mediocre job in the Southern District of New York. With the merits nowhere to be found, speculation that Berman was doing too good a job fills the void, with talk of Ruby Giuliani or a state-owned Turkish bank and another international bad-boy buddy of Trump, President Erdogan. This should be great for sales of Bolton’s book.

The American Bar Association for years has been promoting the Rule of Law all over the world. It seems the focus should shift to the United States.

Pandemic

Petrified by what a pandemic might do to the economy and his prospects for re-election, President Trump resorted to denial and an absolute refusal to lead in any respect when it mattered most. The mind boggles at what might have been accomplished by way of coordination, information exchange, adroit use of the Defense Production Act, and so forth, to maximize an effective response.

Not content with mere inaction and epic mismanagement of the crisis, Trump went out of his way to make up or pass along dangerously false information, undermine medical experts and his own CDC, and “lead” by atrocious example. Just listing by bullet points the examples would take up an entire post on this blog. You knew better when Trump called COVID-19 a hoax by liberal Democrats, then later said the Democrats politicized the pandemic. You, too, had to cringe listening to such pronouncements as it’ll just go away, you could even go to work with it, and you’d benefit from ingesting disinfectant.

For those who find it amusing to have a POTUS say outlandish things, there is a recent CDC poll of 502 Americans representative of the US population. Thirty-nine percent reported intentionally engaging in at least one high-risk practice not recommended by CDC… including application of bleach to food items (e.g., fruits and vegetables) (19%); use of household cleaning and disinfectant products on hands or skin (18%); misting the body with a cleaning or disinfectant spray (10%); inhalation of vapors from household cleaners or disinfectants (6%); and drinking or gargling diluted bleach solutions, soapy water, and other cleaning and disinfectant solutions (4% each).

As mystifying as it is how anyone could believe a word President Trump says about anything at this point, you know as well as I that thousands more have died in the pandemic than needed to. From bemoaning cruise passengers docking to get treatment because it would “hurt his numbers” months ago, to creating a perfect pandemic storm with Saturday’s rally in Tulsa, Trump couldn’t be clearer. His only interest is in himself and his numbers. The irony is that doing the right thing right away would have lessened the economic carnage, as well.

The Economy

Ah yes, the economy. Donald Trump says he created the greatest economy ever, but COVID-19 ruined it. Unfortunately, there is good reason to believe that his policies had the economy heading for a downturn before the pandemic hit.

One of the cover stories in the December 2019 issue of Fortune magazine, not exactly a leftist rag, was “Why Trump Is Bad For Business”. The piece is a comprehensive analysis of how business’s gains from lower taxes and deregulation had been more than wiped out by two policy disasters. First, Trump’s immigration policies deprived the economy of badly needed workers. Second, his tariff war with China just made everything more expensive, hurting business. As demand dampens, recession ensues. The measurable confidence of CEOs, purchasing managers, and consumers had all hit the skids. Trump is said to have “lost the C-Suite” in 2018.

Similarly, in a 12/23/19 piece by Dan Clark in Law.com’s Corporate Counsel, Altman Weil’s survey of corporations’ top lawyers (general counsel and chief legal officers) indicated widespread planning for recession. Again, this was before the novel coronavirus was a factor.

Then there’s the national debt. What this “conservative” had already done to the national debt before anyone heard of COVID-19 involves truly incomprehensible numbers.

Presidents get too much blame and too much credit for swings in the economy, anyway. But things weren’t nearly as rosy as Trump’s campaign would have you believe.

Racism, the Police, and the Military

This part all but writes itself. It’s hard to imagine a worse person to be POTUS after the horrific killing of George Floyd than Donald Trump. He specializes in divisiveness while appealing to his base’s basest instincts . We all know what MAGA means to some of his followers. Not for nothing do white supremacists love him. Before leaving the topic, though, it’s worth saying something about the police and the military. That’s because the president managed to misuse both with one episode on June 1.

Trump set the police on peaceful protesters exercising the very sort of freedom of assembly and speech rights the First Amendment was created to protect. This for a chance to stand in front of a church and hold aloft the one document he apparently knows and cares even less about than the Constitution of the United States. To recap, the Bible and the First Amendment were abused as the police were misused to violently roust a peaceful protest against race-based police violence.

General  Mark Milley was in Trump’s entourage strolling across the recently-cleared Lafayette Square that day. His apology for participating seemed both deeply felt and carefully considered. As Chairman of the Joint Chiefs of Staff, he knows the dangers of politicizing the military in a free democracy. Anyone in Trump’s vicinity must be prepared for a request or demand to engage in activity that is illegal, immoral, or both.

Trump and some of his wackier supporters refer to the impeachment as an “attempted coup”. Since the impeachment inquiry was brought in accordance with the constitution, due process, and precedent, it was the antithesis of attempted violent or illegal overthrow. There is someone itching to set the military on US citizens, though. At times, he seems almost giddy at the prospect.

Consequences In Sum

Much of what really does make America great is under siege. When considering the many reasons for pride in America, at the top of the list is the Constitution. And among its ingenious virtues, at the top of that long list are these: checks and balances of the three co-equal branches of government; the First Amendment freedoms; Equal Protection of the Law under the Fourteenth Amendment; and Due Process under the Fifth and Fourteenth Amendments.

The president you would not remove has remarkable animus toward each of these first principles, and undermines them at every turn. This is a different kind of coup attempt.

Back To You

Deep down inside, you know as well as we do how despicable Donald Trump is as a person, and how dangerous and unfit he is to be president.

Some of you said these things, and more, publicly when he was merely a candidate, and you were correct. Many more of you have said so privately to your closest confidants – and to yourselves late on a sleepless night – since the 2016 election, as the certainty of such assessments became undeniable.

You also know, deep down inside, how meritorious the impeachment inquiry was.

Despite the compelling case for removal, everyone, literally everyone, knew Trump would be acquitted. The simple reason was the majority you Republicans had in the Senate. It was simply a given that you would not vote in good conscience. The only interesting question was whether any of you would.

Thank you, Mitt Romney.

Perjury?

Senators take office with an oath. Nonetheless, at the start of the impeachment trial, Chief Justice Roberts administered the following specific oath to each senator: “Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?” 

One would think it impossible to overstate the gravity of the duty undertaken. In the weeks leading up to the impeachment trial, though, some of you made it clear you had no intention of doing impartial justice. Senate majority leader Mitch McConnell seemed particularly intent on getting the point across. A December 18, 2019 Vanity Fair article by Alison Durkee contained a gathering of quotes from McConnell – and Lindsay Graham: “I’m not an impartial juror,” McConnell said. “This is a political process. There is not anything judicial about it. Impeachment is a political decision . . . I’m not impartial about this at all.” That wasn’t all. “Everything I do during this, I will be coordinating with White House counsel,” [indicating there would be] “no difference between the president’s position and our position as to how to handle this.”

 “This thing will come to the Senate, and it will die quickly, and I will do everything I can to make it die quickly,” Graham said… “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.”

Clear signal received. Now, under what conceivable argument, Senators Graham and McConnell, was your oath administered by the Chief Justice anything other than perjury? It’s acceptable to take a false oath in a proceeding if it’s not judicial? Lying in a “political process” is a given for you?

How many of you Senate Republicans did the equivalent without being so brazen about it in public? Are you emulating the president you enable?

Meanwhile, the Fallout Is Actually Even Worse

Note that in the high crimes and misdemeanors charged and chargeable, plus the malfeasance since the failure to remove, the facts are generally clear and not in serious dispute. Witnesses are scoffed at and called names, but the facts stand.

Consider that all of the above wrongdoing is limited to what we know about, matters of public record. Imagine what we don’t yet know.

What does all this portend? If THIS wasn’t enough to remove, impeachment is a nullity when either the Senate or the House is controlled by the president’s party. If so, then the president really will be above the law most of the time. Or as The Donald likes to say, “I can do anything I want!”

In Closing

I know what you did last winter. Instead of giving a real-life horror movie the ending it deserved, you made it even worse. Whatever good you may have done in your career, your legacy is now tied inextricably to that of the worst president in history – the most incompetent, the most dishonest, the most hateful, and the most corrupt.

You’d be wrong to dismiss me as from the far left, by the way. Electorally, I’m your worst nightmare these days – a centrist/moderate who considers candidates and issues on the merits, who pays attention, and who votes. Millions of Americans who are more-or-less like me decide elections.

In addition to two special elections, thirty-three Senate seats are up for election in 2020. Twenty-three of them are held by you Republicans.

Whether or not you are up for re-election this year, I have a suggestion. If you’ve died a thousand deaths since February 5, and have come to regret your vote to acquit, you might want to share that sentiment well before November 3. Indeed, you should do it while staunchly and publicly opposing whatever constitutional crisis or other outrage Trump has in store for us next. It won’t be long in coming.

Respectfully,
Kenneth J. Bossong

© 2020 Kenneth J. Bossong

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Post Scripts #2

[Since our first Post Scripts on July 13, 2019, readers have continued to respond to Other Aspects posts with interesting comments. Thank you to all who have written. I’ll periodically gather and share items of general interest in these posts called “Post Scripts”. The headings give the name and date of the most recent post being addressed (some posts build upon previous ones). The readers’ comments are in italics, to distinguish from what I write in reply. I edit only in the interest of space and context. Enjoy, and please keep sending your thoughts to KenBossong@gmail.com. Again, if anyone does not wish to be quoted, even anonymously as I’ll be doing it, please just say so when you email me.]

Missing The Trane (7/18/19)

Really, really enjoyed the Coltrane piece. Well-written and an excellent overview of his career, recordings and influences, as well as those he affected.  One of the best short summaries I’ve read about an artist.

Thanks for saying it was “short”, since I can get carried away – especially with a topic like John Coltrane, who deserves a treatise.

Wow, Ken. I just read your Coltrane piece and was blown away. I saw the email linking it earlier in the week, but wasn’t able to read it because I had one helluva busy week. I’m glad I waited until Saturday morning to read it. I could then savor the flowing prose and insights… Even though I knew most of what you wrote of Trane, I liked the way you methodically went through his recordings and evolution. Great perspective.

Thanks for the kind words, and for subscribing. I finally realized how to make that easily available by placing the button up to the right just below the blog’s header. That way, you get new posts without having to do anything.

I’m still hoping to do an in-person presentation of A Love Supreme before the year of its 55th anniversary is over.

The Flores v. Barr Cringe Fest (8/21/19)

I watched the news snippets of the DOJ’s attorney in front of the judges and listened to the judges chastise her for the Trump Administration’s version of what constitutes “safe and sanitary conditions” for minor immigrants. I also read articles following the case. Your legal knowledge and drill down of the case really helped confirm unfortunately what this administration is doing at the border.

I would like to see money spent on better temporary hospitals, housing and vetting stations at the border instead of a wall. Taking care of those people risking their lives to get here while taking time to decide who gets to stay seems logical and humanitarian. We are better than this and what’s happening now. History is not going to be good to this administration especially on the immigration issues, but we shouldn’t be waiting for history to decide the moral responsibility we have as a democratic nation.

How often do we find ourselves saying, “We are better than this”? If there’s one theme to Other Aspects, it’s this: We better be better; it’s up to us. From the same reader a few days later:

Can Trump get rid of the Flores agreement?

Here’s an edited version of how I responded on August 27:

“There is no easy answer to this. It could play out any number of ways. If the Agreement were simply the settlement of a case, that would be one thing. But it’s incorporated into a court order. The executive branch can’t simply ignore or override a court order. Yet, I don’t think res judicata (the thing’s been adjudicated; can’t reopen) applies in the usual way to a case involving ongoing interactions.
A few scenarios:
1) Congress passes legislation comprehensively addressing the issue and obviating Flores. Not happening, which is the subject of my ire going back to the post of 5/10/19.
2) Appropriate agency in executive branch does formal rule-making and issues regulations, which are litigated. This would also involve a lot of time and work.
3) Trump announces he’s defying the court order. Plaintiffs move to hold him in contempt. Mess ensues.
4) The administration does something akin to a hybrid of 2) and 3) not simply defying, but not issuing formal regs either. Perhaps an executive order or something. Litigation ensues.
Looks like 4) has already begun, as one might expect. Trump has announced a plan to abandon Flores, whatever that means, and 19 states have joined in a suit.”

Here’s an update: Shortly after this post, the Trump Administration announced new policies called the “Final Rules”, tossing out the Flores principles (by providing for indefinite detention, diminished safety standards, etc.). Plaintiffs sought continued enforcement of Flores. On 9/27/19 Judge Gee ordered just that, with an injunction against enforcement of the Final Rules. Appeal by the Trump Administration remains pending with the Ninth Circuit Court of Appeals.

…Your Flores blog is the perfect pitch [for a non-technical book about famous legal cases]. In just a few words, you took a complex matter and made it both clear and interesting to read.

Talent and Success in Sports (Part 1, 9/18/19 and Part 2, 10/2/19)

The following is from a reader from inside the Washington D.C. beltway:

Very well done! I enjoyed your analysis despite its “inside Philly BBall” skewing and skewering. We have a process here in Skins Country, too. It consists of:

  • knowing to a certainty every year that the season is a lost cause before any games are played;
  • understanding that Snyder’s strategy is to lose now and lose later;
  • being too ignorant to understand the grammatical subtleties of terms such as “transitive verb;” and
  • being mindful that there is little to choose between “tanking” and monumental incompetence.
    At least we have Max, Steven, Anthony and Juan.

You do have them, and what a remarkably unprecedented World Series they won with the Nationals! I wasn’t kidding about being grateful as an Eagles fan that Dan Snyder owns the Redskins, by the way. Now, if only the Dallas Cowboys could have retained their head coach even longer…The only real difference between tanking and monumental incompetence is intent.

Consider the Kurds and Weigh (10/31/19)

Well said…[Trump] is a deep insult to every veteran who stood up and served our country. I have spoken to my fellow veteran friends about his betrayal of the Kurds and they are livid.
I have run out of adjectives to describe his behavior and am stunned that his “base” cannot see or understand the harm he is doing, much of it irreparable.

Another reader cited a specific line in the post before commenting:

Abandonment of the Kurds to the Turks in Syria is the single most despicable act of a president in my lifetime.

What about the Abandonment of the Iraqis to isis by the prince of darkness? Or how about the thousands of Coptic Christians left to be slaughtered by isis? No help offered … Wouldn’t even allow asylum to the US for them… ask yourself why… Or how about our own soldiers and ambassador left to be slaughtered in Libya to cover up the running of weapons to Syria. Obama let isis run unopposed throughout North Africa while they offered almost daily videos of their beheadings, burning people alive etc… Or maybe we can remember the abandonment of the South Vietnamese in 75 with untold slaughtered by the North Vietnamese after the dems leveled Nixon, then defunded the south’s ability to hold the truce.
[A]t least the Kurds have hundreds of millions in guns and weapons that you and I paid for.   After 19 years of this Middle East crap, The American People are fed up with it.

Prince of Darkness? I don’t recall Miles Davis or Ozzy Osbourne being President.

I believe Obama’s withdrawal of troops from Iraq in 2011 to have been one of his mistakes, premature at best. Perhaps he felt the American people were fed up with this Middle East crap. It was in accord with a status of forces agreement (SOFA) signed by George W. Bush on December 14, 2008 that all US troops would be out of Iraq by December 31, 2011. (Remember the press conference where W had to dodge a couple of shoes flung at him by an Iraqi journalist? That was the one.) The withdrawal followed painstaking analysis in consultation with experts, and months of unsuccessful negotiations with the Iraqi government to keep 3-5000 there. I wish we had. While it would not have prevented the rise of ISIS, 2014 may not have played out so badly had we maintained a presence.

That includes what happened to the Coptic Christians, who have been the victims of persecution for centuries. While 2014 was the worst recent year, the persecution continues to the present. This is one of the outrages in the world that must be addressed by all as simply unacceptable. Of course, we still have wackos who deny the Holocaust.

Obama has called the Libya debacle his “worst mistake”. Gadhafi deserved to be ousted by the US-led NATO intervention (approved by UN resolution), but a lack of planning for what was to happen next left the violent mess it remains. Unfortunately, we failed to learn from W’s declaration of victory in Iraq after toppling Saddam Hussein. We seem astonished when the locals don’t  celebrate by rushing into the streets and setting up an American-style democracy the next day.

Then there was Benghazi, where inadequate security despite warnings left the embassy vulnerable to a deadly attack. The ambassador and three others were murdered; Obama and Hillary Clinton foolishly denied the attack was a terrorist act when they must have known better. Conspiracy theorists had a field day, especially after American arms found their way into the hands of terrorists in Syria. Altogether, Obama may be right that Libya was his worst mistake. Had I been writing a blog back then, my displeasure with Obama’s handling of Libya, Iraq, and other items would have been clear. That doesn’t change my assessment of Trump’s actions.

The misadventures of Vietnam are a whole other ballgame, well beyond the scope of the post. Mistakes go back at least to the Gulf of Tonkin resolution, yet another lesson that if you must misrepresent the truth, there is something wrong with your position. The democrats did not level Nixon, however; Nixon’s behavior leveled Nixon. Back then, reprehensible behavior had consequences. It was over for Nixon when Barry Goldwater, a conservative’s conservative, and Hugh Scott told him his Watergate position was indefensible, which it was, though nothing much compared to current presidential behavior. Now, Senate republicans are led by the likes of Mitch McConnell. [Sigh]

The point remains: Any president makes mistakes, but not Trump; just ask him. He don’t need no stinking experts. Issues are easy when all you care about is what’s best for you. (In an unsettling way, actually, this was no mistake. The president deliberately sought to create a diversion from the Mueller report and Ukraine.) Trump’s unique blend of ignorance, arrogance, dishonesty, corruption, and narcissism make him as spectacularly ill-suited for the presidency as a person can be. It’s interesting that his grave flaws are finally dawning on some of his fans due to his atrocious handling of COVID-19, the only crisis of his presidency not of his own making.

As we see how much worse the pandemic gets than it had to be, the withering criticism is richly deserved. I’m still concerned, meanwhile, about what an increasingly desperate candidate for re-election will do as he realizes he was correct in wanting to run against Bernie rather than Joe. Will there be any inspector generals left? Will any act of telling the truth in the executive branch go unpunished? Will the Trump campaign simply merge into the Department of Justice? After the Memorial Day we just had, one shudders to consider the distress and harm this one man can cause leading up to November.

I, Citizen (12/15/19)

I found it very interesting. I especially thought the part where you spoke about Hamilton was amusing since the majority of its viewers/fans are actually kids or young adults…I think I’ll share this with my government teacher from last year…

It should be safe to share my post with a former teacher, since he is no longer grading you. Meanwhile, I should probably ask you to explain some parts of Hamilton to me.

Thoughts on Choosing a College (1/25/20)

Thanks for posting this, Ken, as we are in the college application process for my youngest daughter. At this time the things that hit home for me were in your summary: do not believe there is only one perfect place for your child, the option to transfer later if things don’t work out, and the chemistry or subjective feel according to the student (something I believe applies more to the girls than the boys).

We don’t want 17 or 18-year-olds thinking their lives are ruined if they didn’t get in to good ol’ Alma Mater. Or somewhere a couple friends want to attend (for no particular reason). Or…

As to the chemistry or subjective-feel thing, my two favorite stories on this point involve one girl and one boy. Since writing this post, I’ve been feeling badly for high school seniors who were relying on college visits this spring to make their final decisions. Hopefully, the post’s checklist helps.

Ken, two comments:
1. Community colleges merit mention. Some of the most dynamic programs geared to actually achieving rewarding employment upon graduation are centered here, and the cost is very reasonable. Moreover, it is a good maturation ground for those who need some maturity before moving on to a four-year school.
2. Changing majors is not so easy at places like Cornell and Penn. This is key info that students and parents need to know before they hand over the check.

These are two good thoughts. The second point is generally true at some schools, and may depend on which majors are involved at others. If a school is particularly renowned in one field, securing admission to the college may not automatically mean that major is available to all. Some places just seem to make things more bureaucratic than others, though my overall sense is that these issues have improved over the years. When frustrated, we used to call red tape the “RU screw” at Rutgers in the 70s, but it is much better there now.

McCoy Tyner, Philly’s Pianist Supreme (3/9/20)

I read your excellent ode to McCoy Tyner, then listened to some of his work. I’m afraid my tin ear doesn’t get it, but then it took me until maturity (some would argue that’s still in the future) to appreciate Mozart, Beethoven, Patsy Cline, Husker Du and Meatloaf. Keep the good stuff coming.

Give McCoy another listen sometime. He really is all that. By the way, what did Husker Du? 

Tony Allen, Fela’s legendary drummer, died [on 4/30]. He wasn’t as iconic, but he was every bit as important [as Fela Kuti].

Indeed, what is Afrobeat without the beat? The list of greats we’ve lost recently is getting way too long. In addition to McCoy and Tony, RIP: Jimmy Heath, Lyle Mays, Henry Grimes, Jymie Merritt, Bill Withers, Bucky Pizzarelli, Wallace Roney, Ellis Marsallis, Lee Konitz, Little Richard, Lucky Peterson, Jimmy Cobb.

Dynamic Duos (5/10/20)

One reader already had a suggestion for a duo:

Dolphy and Mingus

They are on the list and a compelling pair. Also under consideration was Charles Mingus and his long-time drummer, Dannie Richmond. Given the volcanic temperament that accompanied Mingus’s genius, it’s astonishing how long and how consistently Danny played with him – and how well.

Multi-reed virtuoso Eric Dolphy, like his friend Bobby Hutcherson, was one-half of a dynamic duo with a number of colleagues, including the two of them together (Out To Lunch and Iron Man, among other truly great albums).

Again, thank you for reading – and writing.

Ken Bossong

© 2020 Kenneth J. Bossong

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Dynamic Musical Duos

In the tribute to McCoy Tyner (post of 3/9/20), I referred to him and Bobby Hutcherson as a “dynamic duo”. This got me thinking about other such musical pairings. There are many, and what makes the best collaborations special varies tremendously.

Perhaps they push one another, or enhance each other’s strengths by contrast. It might be a case of talents that mesh so perfectly that they seem to have been born to play together. Maybe it’s just inexplicable. Whatever it is in any given case, the listener knows that when these two artists got together, live or in studio, magic happened.  

Here, then, are five dynamic duos to savor: two Blues, two Jazz, and one where Jazz and Blues meet.

Leroy Carr and Scrapper Blackwell

Already familiar with Leroy Carr? If so, you are (or are on your way to becoming) a Blues aficionado. Yet, he should be better known, as one of the greatest and most important early stars of the Blues. His songs have been covered, in whole or in part, by countless artists. Legendary singer/pianists, from Nat King Cole to Memphis Slim to Charles Brown to Mose Allison to Ray Charles and beyond, are in his debt.

Francis “Scrapper” Blackwell’s single-line runs on the guitar perfectly complemented Carr’s piano and vocals – making them the first duo who simply had to be included here. And what piano and vocals they were! Carr’s voice was a remarkably rich yet supple instrument. It might have been the envy of the smoothest crooners, if not being used to sing unflinching blues. Similarly, his piano playing, while firmly rooted in barrelhouse blues piano (the gut-bucket precursor to boogie-woogie), was somehow suavely sophisticated without giving an inch on grit.

Some call Carr the first urban blues musician. He and Blackwell both moved to Indianapolis as children, Leroy having been born in Nashville and Scrapper in Syracuse, South Carolina. Together, they created a sound less raw than early rural blues of the deep South, and paved the way for the plugged-in city blues that later evolved in Chicago and elsewhere. If not urban, they were certainly urbane.

Carr’s very first record, 1928’s “How Long, How Long Blues”, was a big hit for the time. There followed many songs that would take their place among classics of the Blues canon, and Carr wrote most of what he sang. Among them are “Hurry Down Sunshine”, “Midnight Hour Blues”, “Barrelhouse Woman”, “Southbound Blues”, the dance tune “Bobo Stomp” and “I Believe I’ll Make A Change”.

That last one, recorded 8/14/34, may well have inspired Robert Johnson’s “Dust My Broom” in 1936 (which later evolved into Elmore James’ signature song). It features superb lead guitar by Scrapper Blackwell. In truth, he was always more than an accompanist; every one of Carr’s greatest recordings was enhanced greatly by Blackwell’s telepathic interplay. There is some scholarly support for the notion that Scrapper had significant input in the composing as well.

To my ears, the masterpiece is “Blues Before Sunrise”.  It follows the Blues’ standard AAB format (opening line, repeated, then resolved by a closing line), but the lyricism, set to a majestic melody, is striking:

I have the blues before sunrise, with tears standing in my eyes    (X2)
It’s such a miserable feeling, a feeling I do despise…
Today has been such a long, old lonesome day (X2)
I’ve been sitting here thinking, with my mind a million miles away.

While there is grace, majesty, and poetry to his blues, Carr (like most songwriters) wrote about what he knew. His entire, brief life was spent in the Jim Crow era and his recording career (1928-35) straddled the Great Depression. The menace of violence is often present, sometimes front-and-center, and Carr’s lyrics celebrate his alcoholism. The juxtaposition of such content with his pleasing, skillful delivery can be as jarring as it is understandable.

When Carr sang he’d “rather be sloppy drunk than anything I know”, he apparently meant it. In “Hustler’s Blues” he sang, ”Whiskey is my habit; good women is all I crave” before matter-of-factly predicting “I do believe the two will carry me to my grave”. He was right about the whiskey; it shut his organs down in April of 1935, a month past his 30th birthday.

Buddy Guy and Junior Wells

Although they individually established themselves on the Blues scene, Buddy Guy and Junior Wells spent more time touring and recording together than any other dynamic duo mentioned here – despite periodic breaks. An album cover once referred to them as The Original Blues Brothers – an apt description, considering the dues they paid together through the years. I’ve seen Buddy Guy more often than any other musician or group. Nearly half of those shows were with Junior, even though he died 22 years ago, .

Each was a master of his instrument, and each sang more than well enough to be the lead star in a band. Any group they co-led was automatically an all-star band. On harmonica, most players in the generation following Little Walter Jacobs and Sonny Boy Williamson II (Rice Miller, as opposed to Sonny Boy I, John Lee Williamson) clearly followed one master or the other. Wells was the most intriguing blend of the two, combining Walter’s powerful, saxophone-like attack with Sonny Boy’s plaintive lyricism. Among guitarists, Buddy has no peer. Calling anyone “the greatest guitarist” is looking for trouble, of course. So, let’s just say he’s my favorite, because I’ve seen him play things no one else could conceive of, much less attempt.

Junior always struck me as a real character, and top billing seemed more important to him than to Buddy when they were together. Live, they handled it as Muddy Waters might have suggested: A set would begin with the band playing an instrumental or two. Then: “Are you ready for Star Time? Ladies and gentlemen, BUDDY GUY!” Buddy would make his entrance, sing a couple, and then say something like this: “It’s Star Time again. Put your hands together for JUNIOR WELLS!” Junior would sing three or four and then they’d alternate the rest of the set.

Here’s the thing: they did not sulk or go through the motions when not singing. Indeed, they each played their best behind the other. This might help explain why some of the best Buddy Guy records are Junior Wells albums. There are plenty; I’ll mention two.

Hoodoo Man Blues on Delmark (1965) is a landmark as the first urban blues album: (a) for Delmark records; (b) for Junior and Buddy; and (c) to capture a working Chicago blues band in studio as they would sound in a club. It’s Delmark’s #1 seller and appears regularly on “best ever” and “dessert island album” lists. Recommended tracks? Yes, all of them. (Amusing sidenote: early pressings list Buddy Guy as “Friendly Chap”, mistakenly thinking Chess would object.)

Some tracks on It’s My Life, Baby! on Vanguard were recorded live at Pepper’s Lounge in Chicago; others in studio. All capture Junior and Buddy at the top of their game. Even the rather silly “Stomach Ache” features phenomenal guitar by Buddy. The title track is Chicago blues as rip roaring jazz. The top highlight, though, is “Look How Baby” with Junior’s impassioned vocal and a remarkable duet between Buddy’s guitar and Fred Below’s drums. It’s avant-garde blues. (BTW, most of the same tracks, with a few others, also appear on Best of the Vanguard Years.)

The first time I saw Buddy after Junior died in 1998, he spoke of him, then said “Damn, I miss him.”

Ella Fitzgerald and Louis Armstrong

On first blush, this might seem an odd pairing. Yes, they were two icons of American music, but…

Ella was the First Lady of Song, a virtuosic singer’s singer. With perfect pitch and an encyclopedic memory for songs, Ella brought a beautiful and personal tone across a huge range.

Louis had brought unprecedented virtuosity to Jazz on cornet and trumpet, but his voice was gruff and gravelly through a limited range. His approach to singing seemed playful, sly, almost casual. Many know Louis as the cute older fella who had a hit with “Hello Dolly”. That misses not only his earlier Hot 5 and Hot 7 masterpieces that were arguably the most important popular recordings of the 20th Century, but also the astounding gifts he brought going forward.

Jazz impresario Norman Granz brought them together on his Verve record label, and provided them with stellar support. Three albums issued: Ella and Louis, Ella and Louis Again, and Porgy and Bess. Each was met with deserved critical acclaim and commercial success. If you love the great American songbook, you’ll want them all. If you don’t, you still might want them all. Other options include compilation and “Best of” albums.

Riches abound; you can’t go wrong as a listener. “Let’s Call The Whole Thing Off” has never been a favorite of mine, but I couldn’t help but smile at their rendition. Virtually everything else is sublime. What Louis creates as counterpoint to Ella’s lead in the first chorus of “Stars Fell On Alabama” must be heard to be believed. Then they switch and Ella returns the favor. There is “Summertime” as you’ve never heard it, and the best version of “Stompin’ At The Savoy” since Chick Webb’s original.

Any notion that this is a questionable pairing fades quickly into other impressions: (1) While it is true that Louis’s vocal instrument lacked the beauty and range of Ella’s, in his own way he was no less the virtuoso vocalist. And, of course, Louis’s trumpet gave him a second voice. (2) Ella could be as sly and playful as Louis. (3) The cliché that “Timing is everything” is true. (4) In the end, these are kindred spirits as well as other-worldly talents. Their contrasting mastery accentuates each other’s genius.

As in sports, the truly great make it look, or sound, easy.

Art Blakey and Thelonious Monk

Again we have two icons. Pianist Thelonious Monk is often and justly called one of the high priests of Bebop. Actually, he is a genre unto himself, a game-changer who re-imagined space and time in music. Art Blakey served as the talent scout, bandleader, and poly-rhythmic drummer extraordinaire of Hard Bop.

Blue Note co-founder Alfred Lion was one of the few who “got” Monk right away. He acted on his convictions by recording him from 1947 to 1952 even though sales were lackluster. By the time fans, critics and even musicians finally caught on, Monk was elsewhere. But the originals of some of Monk’s greatest compositions (e.g. ”Straight, No Chaser”, “Epistrophy”, “Misterioso”, “Evidence”, “I Mean You”, “’Round Midnight” “In Walked Bud” and “Criss Cross”) are on these early Blue Note records. On every one of them, the drummer is Art Blakey.

So, the uncanny chemistry between Monk and Blakey had early origins. It helped that Monk was a particularly percussive pianist and Blakey was (along with Max Roach) the most melodic of drummers. They went their separate, legendary ways, but any recording on which they both appear is a must-have. The early Blue Notes are highly recommended, of course. My favorite, though, and indeed one of my all-time go-to records, is a reunion on Atlantic records (#1278) aptly called Art Blakey’s Jazz Messengers With Thelonious Monk.

Any of the six tracks is a marvel. I use “I Mean You” in presentations to demonstrate all that is possible in Jazz when great players, who are also great listeners, improvise. Never coasting when comping (accompanying a soloist), Blakey and Monk are constant sources of ideas, perfectly fitting whatever the soloist is creating. At one point behind Bill Hardman’s trumpet solo, Monk’s piano and Blakey’s drums have such a call-and-response blizzard going, I can’t imagine how Hardman kept his bearings. Such instantaneous and spontaneous invention leaves one in delighted awe. So does Blakey’s drum solo, a poly-rhythmic tour-de-force.

Big Joe Turner and Pete Johnson

Shortly after Jay McShann passed away on December 7, 2006, a radio station (probably NPR) aired an archived interview with the pianist/bandleader that contained a notable story. The story (paraphrasing it from memory) was of an impressionable young McShann on his first night in Kansas City.

He was a pianist from Oklahoma looking to make a name for himself in the Big City. His first stop was at the largest musical venue in town. When he stepped inside the cavernous space, he saw a piano player on stage banging out furious boogie-woogie. There was also a very large man making his way up to the stage.

McShann wondered what the man clambering up the steps was going to do. He wasn’t carrying an instrument, and there was nothing awaiting him on the stage – not even a microphone. He reached center stage just as the pianist completed one chorus and began the next. Opening his mouth as he turned toward the audience, Big Joe Turner filled the room with sound. Big Joe Turner didn’t need a microphone, no matter how large the room – especially when singing with Pete Johnson.

Jay McShann was transfixed as chorus after chorus washed over him, singer and pianist pushing each other to ever greater heights. He quickly realized two things: (1) He was in the right place; and (2) he had work to do if he was to make his mark in this town.

Any list of the greatest boogie-woogie pianists includes Johnson, along with Albert Ammons, Meade Lux Lewis, and Jimmy Yancey. The form is either bluesy Jazz or jazzy Blues, or both, combining the feel of the Blues with the swing of Jazz. Propelled by insistent bass patterns played with the left hand, boogie-woogie freed pianists to improvise blues-drenched melody endlessly with the right hand. Recordings featuring Johnson, Ammons, and Lewis in various combinations (occasionally all three) in rollicking face-offs make for exhilarating listening, but there’s no better way to hear Pete Johnson than backing Big Joe.

It takes nothing away from the great Jimmy Rushing (“Mr. Five-by-Five”) to call Turner the best of the Kansas City Blues shouters. Those thinking they’re unfamiliar have probably heard him belt out the original “Shake, Rattle and Roll” among other essential precursors to Rock‘n’Roll. These rhythm and blues staples are as entertaining as they are important, but earlier work with Pete Johnson had already long established Big Joe as the Boss of the Blues.

Friends and collaborators since teen years in Kansas City, Turner and Johnson paved the way for a boogie-woogie craze ignited by their appearance at John Hammond’s legendary Carnegie Hall concert From Spirituals To Swing on December 23, 1938. Their seminal work isn’t always easy to come by, but the Atlantic label got them together again in 1956 for Turner’s The Boss of the Blues Sings Kansas City Jazz. Highlights include versions of classics like “Roll ‘Em Pete” (probably the song that first inspired Jay McShann), “Cherry Red”, and one of the greatest covers of Leroy Carr’s “How Long Blues” ever recorded.

Conclusion

There are dynamic duos, presumably, in all musical genres, but those settings in which improvisation is central provide extra room for dynamism to flourish. Thus, we focus here on Jazz and Blues. (That, and the fact that I don’t have anything to say about Simon and Garfunkel you haven’t heard before, or thought yourself.) A long list of pairings to consider immediately came to mind; narrowing down which duos to include was the hard part.

If you’re thinking “How could he not do ________ and ________?” , well, maybe I should have. If this post is well received, it won’t take much persuading to do it again. I also feel the urge to write about unsung heroes: that is, great but relatively unknown or perpetually underappreciated musicians who have made a difference.

Happy listening!

Ken Bossong

© 2020 Kenneth J. Bossong

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Good News About Lawyers: Client Protection Funds

Lawyer joke: What do you call 200 lawyers on the bottom of the sea? Answer: A good start.

As we slog through the shutdown, the need for something positive to contemplate is real. Given all the jokes about lawyers, they might seem an unlikely source of uplift. The truth is that lawyers and judges do something terrific that is little known or understood.

As with any profession, Law is a barrel in which there are a few rotten apples. That’s the bad news. The good news is (1) how few there are and (2) what all the honest lawyers do to address the harm done by the dishonest few.

What they do is maintain a Client Protection Fund. (By way of full disclosure, I served as director and counsel to New Jersey’s Fund for thirty years.)

The Basic Concept

Each state disciplines unethical lawyers. The rules (of professional conduct, or RPCs) tend to be similar across various jurisdictions, but not identical. Generally, a lawyer who has done something terrible, like stealing from a client, can expect to be disbarred.

All of which is good and necessary to prevent harm to future clients. But what happens to the clients already harmed? What happens to them, hopefully, is a remedy provided by the bench and bar of the state. Among the remedy’s names are Lawyers’ Fund for Client Protection, Client Security Fund, or Client Protection Fund. We’ll just use “Fund”.

Whatever it’s called, the concept is simple: a trust fund paid for by the state’s lawyers and judges to reimburse clients of dishonest lawyers. The Supreme Court appoints a cream-of-the-crop board of trustees to run every aspect of the Fund’s operation. This includes deciding claims, hiring and firing staff, safeguarding and investing the Fund’s assets, and proposing rule changes to the Supreme Court to which it reports.

The mission is to pay claims based on dishonest conduct (not malpractice) by a lawyer within an attorney-client or fiduciary relationship. The American Bar Association has a model rule for Funds (https://www.americanbar.org/groups/professional_responsibility/resources/client_protection/), and the National Client Protection Organization has a set of Standards (under “Resources” at www.ncpo.org).

Together, the Model Rule and the Standards lay out the characteristics of a Fund that matter most.

Most Important: the Fund’s Nature as a Trust

It’s hard to believe anything could be more important to a Fund than adequate resources, but something is – an independent organizational structure as a trust. To put it bluntly, being well funded doesn’t matter if those assets or income can be taken away for any other purpose. If the Fund is anything but a trust, and beholden to those who don’t “get” client protection, there is ultimately no Fund.

The threat is no mere hypothetical. When Fund Trustees and their staff do their jobs well, the Fund grows a reserve even while paying all valid claims. Others inevitably find that reserve irresistible. If a Fund is just another committee among many, or a mere line item in a vast bureaucracy’s budget, the risk can range from outright taking of the Fund’s money to simply diverting needed income elsewhere.

Recognizing the Fund’s nature as a trust exposes a delicious irony in threats against it: taking from it is a theft, the very sort of behavior that gets lawyers disbarred. That doesn’t mean it can’t happen, unfortunately.

So, the term “trustee” is not used lightly here. The role goes well beyond that of “committee member”. Trustees of a Fund have fiduciary duties with respect to the trust: to the Supreme Court as grantor; to the state’s lawyers as benefactors; and to the public as potential beneficiaries.

Financial Health

What is a Fund without steady, secure, and adequate funding? Well, nothing. If underfunded enough, it actually may be worse than nothing – an embarrassing sham.

Decades of national experience show that a Fund can fully reimburse nearly all claimants with an annual assessment of between $25 and $50 per lawyer. (The amount needed depends on cost of living and whether loss prevention mechanisms exist.) Anyone doubting that this is a tremendous bargain need only check the cost of comparable fidelity bonds for all lawyers.

Indeed, how do Funds do it? The first key is to collect the assessment every year, good and bad, growing the reserve when claim payments are mercifully low. The second is to exempt very few attorneys. Every honest lawyer can argue “I don’t contribute to the risk” covered by the Fund.  This misses the whole philosophical foundation of the Fund – see below.

Another key is to pursue recovery from the disbarred lawyer, and anyone else liable from how the theft occurred. It’s hard work, but worth the effort; Jersey has recovered $24M of the $92M paid since 1969.

Finally, Funds must not listen to anyone arguing it has “too much”. Unless a Fund is fully endowed – fully paying each year’s claims and expenses out of the reserve’s income – it doesn’t have too much. The “Murphy’s Law” of Client Protection is this: Any Fund that reduces or eliminates its assessment because it has “too much” will be decimated by catastrophic claims. Soon. Since victims of catastrophic losses are no less deserving, the Trustees have a duty to build a substantial reserve.

Accessibility

A Fund can’t help people who don’t know about it. Law clients who need the Fund must be able to find it. The Fund should not be the Bar’s little secret. If lawyers have been disbarred for theft, but the Fund is getting no claims, something’s amiss.

Some lawyers hate admitting a Fund is needed, but that’s just silly. Human nature being what it is, all professions could use a Fund – more on that later. At least the Law has one; if done well, it’s a source of pride. Robust efforts to get the word out should reflect that pride.

Publicity for a Fund isn’t always easy, though. It’s still bad news that sells. When a lawyer is suspended or disbarred, there are headlines. Indicted, convicted, or sentenced: definitely headlines. When a Fund supported by every lawyer and judge in the state takes care of each victimized client, however – not so much.

One other aspect of accessibility: After they find the Fund, clients must be able to file a claim without experiencing Dante’s nine Circles of Hell. What is required to file a claim should be clear and doable.

Responsiveness to the Need

There are two aspects to responsiveness: the reimbursement’s amount and timing. The only sensible goal for a Fund is to replace every dime stolen as quickly as possible.

What’s the message to a client, and to the public, when a Fund pays 20 cents on the dollar of a valid claim? We kinda, sorta regret what happened? We don’t care enough to make you whole, but we wanted to make a gesture? Lawyers are 20% trustworthy? Other ways to limit claims, like needless disqualifications and limitations in the rules, similarly thwart the purpose of the Fund.

Timeliness matters, too. A claim should not outlive its claimant. Getting the evidence needed can be a chore, but once a claim is proven, relief should be on the way.

Trouble in this area – a Fund paying too little or too slowly – is often a funding problem in disguise.

Philosophical Foundation: the Compact

In submitting ourselves to the rule of law, “We, the People” place special trust in the highest court of the state (often called the Supreme Court). Such courts not only are the last appeal in court cases but run the judicial branch of government under state constitutions. In leading the systems of justice, it sensibly follows, these supreme courts regulate lawyers and the practice of law.

In deciding who may practice law (through bar admissions) and who may not (with discipline), the Supreme Court is telling the public which individuals are worthy of their trust. This is a very big deal.

As New Jersey Chief Justice Robert Wilentz said in a landmark 1979 case, In Re Wilson:

“Whatever the need may be for the lawyer’s handling of clients’ money, the client permits it because he trusts the lawyer.

It is a trust built on centuries of honesty and faithfulness. Sometimes it is reinforced by personal knowledge of a particular lawyer’s integrity or a firm’s reputation. The underlying faith, however, is in the legal profession, the bar as an institution. No other explanation can account for clients’ customary willingness to entrust their funds to relative strangers simply because they are lawyers.” [My emphasis]

Thus, when a client is hurt for trusting a lawyer, “Gee whiz” is not an acceptable response by the bench and bar.

Much better is what a Fund says to clients in replacing all the stolen money: “You were not wrong in trusting your lawyer. Clients need to trust their lawyers for our system to work. The lawyer was wrong in abusing your trust. On behalf of all the state’s honest lawyers and judges who make your award possible by paying into this Fund, we are sorry you had this terrible experience. We hope this award helps you going forward and begins to restore your faith in the profession.”

Restoring public trust vital to the justice system, the Fund is the best response to lawyer wrongdoing in light of the Compact between the People and the Court. It is essential to the rule of law.

Not Without Controversy

The Fund is not really controversial. It generally enjoys wide support. Now and then, though, a lawyer will complain “Am I my brother’s keeper?”  To which there are at least three replies:

  1. The Fund doesn’t do this for the dishonest lawyers, but for their deserving clients. After paying, the Fund goes after the disbarred lawyers to collect.
  2. See Chief Justice Wilentz, above.
  3. Of all the heroes in the Bible available to quote, you chose Cain? Really?

The Fund’s merits are clear enough that it is difficult to oppose publicly, but not everyone gets it. So, the Fund is not without controversy. The corresponding need for education never ends.

How Few Are the Dishonest Lawyers?

Very few. In its 51-year history, the New Jersey Fund has paid claims against 840 lawyers. There are currently about 98,330 lawyers licensed in New Jersey. So, in over a half century the Fund has paid claims against 0.85% of lawyers licensed now. Add in all the lawyers who have passed away (and those disbarred) over these years, and there’s little doubt that the percentage drops at least to one-half of one percent.

Note that 840 respondents in 51 years means that an average of 16 to 17 lawyers “go bad” each year.

Those few can do a lot of damage, however. The 840 have cost the Fund $92,471,845, or an average of $110,086 each. You wouldn’t expect anyone to get disbarred over nickels and dimes, but some do. They balance off the huge claims in the statistics.

One Last Subtle Point

The Fund is a moral imperative, not a legal one. Lawyers are not liable for the misdeeds of total strangers, just because they’re in the same profession. Clients do not have claims of right, but of grace; their claims are not causes of action.

The Fund exists because it’s the right thing to do, not because it is legally compelled. Therein lies its beauty. Deciding claims in their discretion makes it more incumbent on the Trustees to do justice, not less. I’ve known many trustees from all over the country. Almost every one has been passionate about getting claims right and protecting the Fund. Anyone not so inclined should resign, or simply decline the appointment.

For those who argue that Law is no longer a profession but “merely” a business, the Fund is Exhibit A why they’re wrong. The hallmark of true professionals is that they put the interests of clients before their own.

Other professions should consider it. The March 15 Philadelphia Inquirer had a story about a Pennsylvania payroll service that had failed to pay clients’ payroll taxes for years. Not only were the clients’ funds missing, but the IRS was looking for interest and penalties. Losses in the millions apparently have no remedy in that industry.

Conclusion

Law clients facing ruin for having trusted a lawyer, only to have a Fund restore their life’s savings, do not consider 200 lawyers on the bottom of the sea “a good start”. (There may be one ex-lawyer they wouldn’t mind seeing there, though.) Many a claimant has wept with joy and relief upon learning of a Fund award; there are hearings I will never forget. So, is an independent, well-funded, accessible, and responsive Fund good for the legal profession? You bet.

Working on something that is both this good and this prudent is quite a privilege. And, done right, Client Protection Funds are amazingly good for everyone – the bench, the bar, the public, the system. All 50 states plus the District of Columbia have a Fund. None is perfect, but most are quite good and diligently working toward the aspirations not yet attained.

I thought you’d like to know.

Ken Bossong

© 2020 Kenneth J. Bossong

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Superior Forces

Lawyers all over the country are brushing up on a legal doctrine called Force Majeure. Why? Because it is the key lens for viewing deals disrupted by the pandemic. Since COVID-19 is disrupting almost all human interactions, Force Majeure and related doctrines are well worth examining. If you haven’t already, you’ll be hearing the phrase soon – and often.

When the Law names a concept or a doctrine, it usually resorts to Latin. You may have heard phrases like quid pro quo (“this for that”) or res ipsa loquitur (“the thing speaks for itself”) bandied about recently, for example. Force Majeure is French (“superior force”). So, there’s that.

What really makes Force Majeure interesting and not only for lawyers, though, is how aspects of the doctrine relate to our every-day approach in facing adversity. There are lessons for life in considering what matters here. (No, it’s not that hordes of readers are combing the Internet for posts on the law of Contracts. And no, what follows is not legal advice, obviously.) So, what is it?

The Concept

In ordering our affairs, we seek to hold each other, and ourselves, to doing what we promise to do. Courts are not pleased with those who breach contracts, and assess money damages for doing so. We value promise-keeping.

What happens, though, when an abnormal, outside event prevents one or both sides of an agreement from doing what they promised? That is, if a force superior to the parties’ intent intervenes? (Note: we’ll refer to this simply as the “event”. Also, to do what was promised is to “perform”.)

If someone has a contract with a town or a county to fix a road’s potholes (don’t we wish!) and an earthquake destroys the road, what happens to each side’s obligations? Or if one is hired to paint a barn that burns to the ground? The possibilities of events beyond the parties’ control (whether the cause be nature – floods, earthquakes – or mankind – terror attacks, war) are endless. The potential for complexity far exceeding these plain examples is limited only by the scope of our entanglements.

Sophisticated written contracts often contain Force Majeure clauses. In them, a parade of catastrophes is listed with some attempt to agree in advance who gets to skip, change, or delay performance – and under what circumstances. Some clauses include a catch-all provision to deal with events not mentioned.

After The Event

After the event occurs, if everyone agrees what should happen next, there’s no legal problem. (There are always the hardships and heartaches involved in picking up the pieces, unfortunately.) When the parties disagree, however, even after trying mediation, the courts ultimately must decide.  Was the event a Force Majeure? If so, how does it affect what the parties promised to do?

If there is a contract with a Force Majeure clause, the court will interpret and enforce that language. As in many areas of law, state law will govern. While that means the law will vary some, certain kinds of issues generally will matter:

  • If not completely unforeseen, the extent to which the event was unavoidable or not within the control of the parties  
  • Whether the event directly caused the inability to perform
  • To what extent there was a true inability to perform
  • Whether there were any attempts to perform
  • If the doctrine applies, what the appropriate remedy should be

The burden of proof is on any party seeking to invoke Force Majeure. Obviously the cases will depend on their facts, but there’s no doubt that COVID-19 will present numerous, daunting legal problems.

When There Is No Force Majeure Clause

It is possible to have either (a) an enforceable contract that is verbal rather than written, or (b) a written contract that does not contain a Force Majeure clause. Either way, there may still be a remedy. To address this very briefly, two similar doctrines of law have evolved in our so-called “common law”, on a case-by-case basis.

Impracticability is not just impracticality with an extra syllable, so lawyers can have another word nobody else says. It means something is beyond simply not practical to do, even if not quite impossible. If impracticable, it can’t be put into practice under the circumstances. So, parties invoking the doctrine must show the event to have been beyond their control and destructive to one or more of the contract’s essential assumptions.

Then there is Frustration. This is not exactly what Muddy Waters was singing about in “I Can’t Be Satisfied”, later inspiring the Rolling Stones’ “(I Can’t Get No) Satisfaction”. It is frustration of purpose. So, again, if parties reach an agreement based on assuming certain things will or won’t happen, and an event not their fault later shatters their assumption(s), relief may be available. Was the purpose of the contract frustrated?

[For anyone wanting more detail on the three doctrines, a quick search will provide scads of information. Continuing Legal Education is going berserk with courses on all this – all webinars, to be sure.]

Digging Deeper Into What Matters

In the flood of litigation expected in the wake of COVID-19, courts will have much to consider. Whether there are Force Majeure clauses to interpret, or doctrines like impracticability or frustration to apply, judges will find themselves asking similar questions:

Was performance impossible, or so difficult that it might as well have been impossible? Or was it just annoying, inconvenient, or somewhat more difficult or costly than anticipated? How difficult is too difficult?  Did the pandemic cause the impossibility in this case? Was it even relevant?

Did the parties act honestly and in good faith? Try to perform? Seek to limit the harm or avoid the negative consequences? Seek alternative solutions? Communicate?

Is there a way out of the situation that makes sense? Can justice be done? Is one side trying to take advantage? Is the event just an excuse to renege, or an attempt to renegotiate a deal one regrets? Should the contract simply be void? What if some sort of under-performance is possible, and better than nothing?

Equity and the Truly Superior Forces

Like anything else, the Law is not perfect. Limitations and imperfections exist, whether in statutes, common law, rules, or regulations. Inflexibility is therefore problematic. Up steps Equity, the conscience of the Law. Equity does not oppose the Law, but supplements it with an overriding concern for fairness and good sense. By the way, “Equity” (or “Chancery”) sometimes denotes a division in the court system where remedies other than money damages are sought. Equity’s principles or “maxims” are generally available to interweave with the Law, however.

Of all the old Equity maxims, my favorite is this: He who seeks Equity must do Equity. Wise words, those.

Honesty, fair dealing, good faith, reasonableness, decency, concern for the big picture – these are the kinds of things courts will be looking for in deciding Force Majeure (and related) cases. They’re also what we demand of ourselves and each other when we are at our best.

These are the truly superior forces.

The wise among us don’t wait for the courts to tell us so on a case-by-case basis. What the courts decide to do always carries tremendous significance, but is not as important as what we decide to do – every day, in matters large and small.

The current saying is “We’re all in this together.” In a sense that’s always true, not only during a pandemic and not just with respect to health.  Behavior, good and bad, matters. Bad behavior harms not just the victim but the perpetrator as well, and then ripples through the community. The same is true for the benefits of the good.

Our system and our way of life depend upon our embrace of truly superior forces – among them honesty, fair dealing, good faith, reasonableness, decency, and concern for the big picture. Whether our being “all in this together” ends up a blessing or a curse depends on us.

Ken Bossong

© 2020 Kenneth J. Bossong

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Opening Up While Shutting Down

The noise of everyday life is the noise of being perpetually busy. The shutdown imposed by the coronavirus pandemic provides a chance to open ourselves up.

Too Busy – Usually Real, Sometimes Less So

The frenetic pace of our lives is something we all bemoan at times, often with good reason. There is no time to think, or to reflect, plan, organize, or to reach out to neglected friends or family. We know the drill: job(s) leaving us exhausted; clutter that begs to be cleared; sleep deficits; the good book we’ve wanted to read, but don’t start because it’s “too long”; food wolfed down without really sharing a meal. How many marriages or other relationships suffer from inadequate time to really listen and share unvarnished thoughts and feelings?

Being “too busy” isn’t even limited to the employed. Since retiring, one of my pursuits has been to seek a new excuse for being less effective than I should be. That one’s not going well.

Now Comes the Pandemic

It looks like our bluff is being called. For many of us, lack of time will not be a problem for a while.

As one enterprise after another (sports, theaters, museums, businesses, schools) shuts down, all events (games, tournaments, conventions, concerts, cruises, flights, meetings) are cancelled or postponed. For fans who wait all year for March Madness, as an example, no basketball is indeed madness. The list of what’s not happening is mind-numbing. The announcements should be for what still is happening.

This virus is taking away all the good distractions that give us relief from the bad stuff in life – you know, like illness.

That’s not the only irony. It feels unsettling that our normal reaction to adversity – to gather together for support and camaraderie – is the very thing we can’t do in this crisis. Meanwhile, all this shutting down is happening amid weather (in Jersey, at least) that announces Spring’s rebirth.

Here’s a weird thought: What will the nightly news or the newspapers have left to cover? [“And now for the Sports, with Bob Skiffle. Bob?” “Thank you, Allison. Nobody’s playing. Back to you.”] A news broadcast will consist of the three C’s: Commercials , Crime, and Coronavirus, with a bit of weather thrown in at the end.

What Will We Do?

Forget what the reporting will be, though. What will we actually do with our time? How will Americans spend their time in a shut-down country? Even people whose jobs continue unabated during the shut-down will find most normal free-time activities unavailable. Imagine those whose jobs go away temporarily or (please, no) permanently. We sometimes say there’s nothing to do even when there’s everything to do. We know what we really mean at those times; what happens when it’s true?

We can read that good, too-long book or catch up on TV programming that we usually regret missing. Of course, we can also binge watch re-runs and endless drivel. There are other possibilities, some of them good.

To be clear, this is not to downplay the harm. There will be plenty. The worst harm, obviously, is to individuals who contract Covid-19. Beyond that, however, will be damage to people’s confidence and finances. There is no shortage of pundits telling us what all this means for the stock market, jobs, and the economy. The layoffs have already begun. State and federal tax revenues will plummet, even as the need for government assistance spikes. Yet…

Once we’ve cleaned all the stores out of disinfectant and secured more French-toast ingredients (bread, milk, eggs) than we could ever consume, there is opportunity here as well. If we can pause and take a deep breath, it might occur to us that we have time to think. The first thing to think about is Time itself.

Time Not Always On Our Side

Time is an artificial construct invented as a way to order our lives. Generally, it works. Time facilitates coordination of activity in a way similar to money facilitating commerce. It’s “midnight” at midnight because we agree to call it that.

Consider:  The next credit card payment is due (let’s say) April 1, with a ten-day grace period, because that’s the agreement. Investors in the lender expect profits from payment of loans and collection of extra fees when late. All of which is fine, as far as it goes. None of this is cosmically ordained, however.

If furloughed borrowers do their best to make payment but come up short, how could lenders justify waiving late fees to their investors? Well, by saying, “We all know what happened here. Profits will be a bit down this quarter, but we’ll all be fine.” If the investors’ creditors in turn take a similar tack with them, and so forth, we smooth out the path to recovery.

In choosing to share the pain, within reason, we can lessen it to the benefit of all. (Being the creditor to a  debtor in trouble is no fun, either.) This assumes, of course, that those able to meet their obligations will do so, rather than take advantage. Our system always depends on overall good faith. Also, when the economy comes back, we can make a point of hiring those who lost their jobs blamelessly.

All of this is to illustrate the bigger point: We can all give each other a break for a month, or longer if needed, and not just financially.

Wouldn’t it be great if, after this unwanted hiatus, we re-engaged with each other as a better people?

Becoming Better

Which brings us to the second, more important, thing to think about: we, ourselves, as individuals.

Whatever makes us better – introspection, honest self-assessment, meditation, study, prayer – this might be the chance to re-establish some good habits. Perhaps we can open ourselves up to new possibilities, or to abandoned aspirations, while the noise is shut down.

Maybe we acknowledge the good in each other that we take for granted. Say the things that “go without saying”. Learn something new. Bury a stupid grudge. Do some good where it’s needed. Gain insight. Rededicate ourselves to something worthwhile.

Maybe we find ourselves knowing, and liking, who we see in the mirror a little better next month than last.

Ken Bossong

© 2020 Kenneth J. Bossong

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McCoy Tyner, Philly’s Pianist Supreme

Others are doing a good job memorializing McCoy Tyner in widely-available tributes since his passing on Friday, March 6. See, for example, Ben Ratliff’s piece in the New York Times and Dan DeLuca’s in Saturday’s Philadelphia Inquirer. This, then, will not be a comprehensive retrospective of the great pianist’s life or work.

I would be remiss, however, to let the moment pass without expressing appreciation for one of the true masters, and a critical stylistic link between bebop and the avant-garde. Simply put, McCoy Tyner was one of the all-time greats. If you have never heard him, you owe it to yourself.

Among His Influences

Innovation is paramount in Jazz. There are special places of honor reserved for those who create a sound on their instruments that is new, vital, and unmistakably their own. Within a few notes of any recording, there is no doubt when the pianist is McCoy Tyner. He did not come from nowhere, however, and his obvious inspirations constitute a piano Hall of Fame.

Earl Hines is considered an early virtuoso of Jazz piano for his “orchestral” approach to the instrument. That is to say, Hines used unprecedented two-handed skill and facility to unleash all that the keyboard offers. It is no coincidence that Hines is the one pushing a young Louis Armstrong to new heights on some of the latter’s most important early recordings, like “Weather Bird” and the incomparable “West End Blues”.

The Harlem Stride pianists, like James P. Johnson, Willie “The Lion” Smith, and Fats Waller, were so named for the patterns of powerful chords they used to propel their music. Their left hand did the “striding” while belting out the chords that set the foundation for the right hand’s melodic improvisations .

The two high priests of bebop piano were Thelonious Monk and Bud Powell. From Monk, Tyner clearly gleaned the importance of space in music, and the rhythmic and percussive aspects of the instrument. Powell was his hero, though. The Powell influence is unmistakable in the grace, fluidity and melodic majesty of Tyner’s playing. McCoy added to these bop innovations the fullness of his expanded orchestral approach and the propulsive force of his amazing left hand. Thus, he became uniquely capable of creating thrilling tension and beauty.

As explained in an earlier post (“What Makes Jazz So Endearing and Enduring”, 3/4/19), tension and release is one of the most compelling techniques in the music. Tyner’s remarkable ability to build tension, even while creating melodically and harmonically, made him the perfect pianist for a quartet many consider the greatest ever.

The Quartet

John Coltrane made astounding music both before and after his “Classic Quartet”, but there has never been anything like that group – Tyner, Jimmy Garrison on bass, and Elvin Jones on drums. Jones described the group’s interaction as “telepathic”. It’s a good thing they were, too, given the passion, virtuosity, energy, and inventiveness with which they played.

Every Coltrane album on which McCoy plays is a genuine classic. I’ll just mention two. The first of them, My Favorite Things on Atlantic was, as mentioned in a prior post (“Missing The Trane”, 7/18/19), my first Coltrane record. One reason I listened to the title track every day for a year was how often I discovered an idea in Tyner’s solo that developed into something magical in Coltrane’s second turn on the soprano.

It is impossible to present A Love Supreme, as I’m doing in this 55th anniversary year of the iconic Impulse album’s release, without pointing out Tyner’s contributions.

The truth, though, is that you can pick any album from this group’s era in the early Sixties and just sit back in wonder at what is possible in improvised music. In the middle of it all is Tyner’s grounded but relentless attack setting the table for the bristling passion of everyone else’s playing. You can feel Coltrane gearing up for his next solo.

McCoy was the surviving member of The Quartet; his passing will make any presentation of A Love Supreme that much more poignant.

Post ‘Trane

As far as I can tell, there is no such thing as a bad McCoy Tyner recording. Whether leader or sideman, in whatever setting – solo, trio, small group with horns, big band – he guaranteed a level of excellence for the proceedings.

There are Tyner records that will be mentioned by all, like The Real McCoy on Blue Note. (Emails seeking further listening recommendations will be met with enthused reply, by the way.) For now, let’s just mention Time For Tyner, also on Blue Note. As exhilarating as it is beautiful, this is a wonderful example of the special chemistry Tyner had with the extraordinary vibraphonist, Bobby Hutcherson. Other excellent outings feature saxophonists like Gary Bartz, Sonny Fortune, and Azar Lawrence.

Seeing McCoy Tyner live was always a memorable treat, whether as a solo in San Francisco or with a group at the Berks County Jazz Festival. The latter was with a good friend who is a gifted musician in his own right. When the concert was over, we just sat there for a while, speechless. This can happen after experiencing one of the best who ever lived.

Final Note

I have never read or heard a bad word about McCoy Tyner, as a musician or as a person. He has influenced virtually every pianist who has followed him, many profoundly. They have chosen well in selecting a mentor.

The magnitude of such a loss is tempered somewhat by the opportunity (actually, the need) to celebrate the man. And, as always with truly great music, riches await the adventurous listener.

Ken Bossong

© 2020 Kenneth J. Bossong