The Great Surveillance Controversy FISA and Its Origins by APRIL DOSS

OUR

MOMENT CONSTITUTIONALADAM J. WHITE

AUGUST 6, 2018 • $5.99

The Great Surveillance Controversy FISA and its origins by APRIL DOSS

WEEKLYSTANDARD.COM Contents August 6, 2018 • Volume 23, Number 45

2 The Scrapbook The pay you deserve, the naked public square, & more 5 Casual Joseph Epstein on verbal inanity 6 Editorials Farm Aid • CNN Derangement Syndrome 8 Comment

He drives them crazy by Fred Barnes

2 A novel defense of bad social psychology studies by Andrew Ferguson

The one historical sin that’s always forgiven by Philip Terzian Articles

14 Hacking the Hackers by Haley Byrd The former British spy who fingered the Russians

16 Spare the Rod (Rosenstein) by Jack Goldsmith The articles of impeachment are a shameful attack on the rule of law

16 17 The Helsinki Crossroads by David Byler Did Trump’s coddling of Putin damage his approval rating?

20 Not Quite Closed by Eric Felten Did the FBI really sever its relationship with Christopher Steele?

22 Saturday in the Park by Mark Hemingway Look at Ozy Fest and despair

Features

24 In Defense of FISA by April Doss Applying checks and balances to our government’s surveillance activities was the right idea. But who will oversee the overseers?

29 29 Our Constitutional Moment by Adam J. White On the special counsel, presidential pardons, and impeachment

Books & Arts

40 Pig and People by Gary Saul Morson The rise and fall of the first Russian populists

45 Bodies of Work by Amy Henderson The case for warts-and-all biographies

46 No Dress Rehearsal by Michael Taube Farewell to the Tragically Hip, rockers who helped Canada see itself anew

48 Parody The mistranscribed Trump audiotape 40

COVER: BETTMANN / GETTY THE SCRAPBOOK Comedian-Americans aily Show host Trevor Noah Trevor Noah, whom we regard D has expressed the novel view as an unfunny philistine, and it’s that France’s recent victory in true that the ambassador rather the World Cup is an “African vic- unfairly overstates the degree to tory,” since most of the players on which French society is governed the team are of African descent. by fraternité. But Araud has a point. This didn’t go over well with the A man born and raised in France French ambassador to the United is French, full stop. States, Gérard Araud, who wrote One other note. Of the current a terse letter to Noah. “As many crop of left-wing, explicitly politi- players have already stated them- cal comedians with late-night talk selves,” Araud wrote, “their par- show gigs, Noah is South African, ents may have come from another French—no, really—players celebrate, July 15. HBO’s John Oliver is British, and country but a great majority of TBS’s Samantha Bee is Canadian. them (all but two of 23) were born “Unlike in the United States of Amer- Not one of these people who make a in France; they were educated in ica, France does not refer to citizens living mocking American politics was France; they learned to play soccer based on their race, religion or origin. raised in the United States. We won- in France; they are French citizens.” To us there is no hyphenated identity, der how many foreign-born come- That’s well stated. Then the ambas- roots are an individual reality.” dians make a living in France by sador takes a shot at his host country: We have no interest in defending mocking French politics. ♦

The Mindless Menace a job-seeker’s market out there and he wracked by street violence, Kennedy may wish to look around. said, but there was of Entry-Level Pay It was the statement that “low wages another kind of violence, slower but he left-wing organization are violence” that had people spewing just as deadly, destructive as the shot T MoveOn subjected itself to coffee onto their laptops. If low wages or the bomb in the night. This is the ridicule this week by posting a mes- are violence, then there is no such violence of institutions; indifference sage to its social media thing as violence, and and inaction and slow decay. This accounts: “Low wages words have no meaning. is the violence that afflicts the poor, are violence. Knowingly In MoveOn’s defense, that poisons relations between men letting people suffer is though, it has to be said because their skin has different colors. This is a slow destruction of a child violence. It must end.” that this use of the word by hunger, and schools without books The attached graphic had violence didn’t come from and homes without heat in the winter. to do with the minimum nowhere. James Bowman, wage, which the staff at in his fine book Honor: RFK spoke these words just as news MoveOn in their infinite A History, attributes the spread of Martin Luther King’s assas- wisdom believe should be generic use of the word sination, and the speech is moving in $15. A young man holds a to the decline of what he its way. But it played a role in making placard bearing the words calls cultural (as distinct the word violence synonymous with “I’m doing the job of 3 from reflexive) honor. any lamentable social ill. If schools people: cashier, baker, “Originally it referred without books are a form of violence, and running the store. Nah. only to criminal violence, so are low wages. But if that’s true, Thats lot [sic] of work as its relation to ‘violate’ how do we describe actual violence— just minimum wage. I deserve $15 and reminds us. But its modern sense muggings, murder, rape? These, we union rights.” makes it difficult if not impossible assume, are now called statistics. ♦ We’ll leave it to readers to decide for us any longer to express the dis- what kind of store-owner lets his or tinction, so central to cultural honor, A Little Something her minimum-wage employee “run” between good and bad, right and the place. We’ll also leave aside that wrong, just and unjust fighting.” to Take the Edge Off word “deserve” and suggest to the suf- We recall, for instance, Robert Ken- ne of the annoyances of modern fering employee that, with the unem- nedy’s 1968 speech on the “mindless O life is the way in which highly

TOP: FEI MAOHUA / XINHUA / GETTY; BOTTOM: SEAN RAYFORD / GETTY BOTTOM: / GETTY; / XINHUA SEAN RAYFORD FEI MAOHUA TOP: ployment rate just over 4 percent, it’s menace of violence.” The nation was technical studies in medical journals

2 / The Weekly Standard August 6, 2018 are reported in the media as though their practical relevance were immediate. Journalists who don’t grasp the nuances of the study’s conclusions and qualifications report that white wine may cause bladder cancer or too much oregano contributes to Alzheimer’s or newborns should always sleep facing down (or is it facing up?). We can’t pin all the blame on journalists, either. As Richard Harris recently showed in his terrific book Rigor Mortis: How Sloppy Science Cre- ates Worthless Cures, Crushes Hope, and Wastes Billions, scientists themselves often use faulty reasoning and sloppy experimentation to come up with what sound like headline-making dis- coveries that, on further examination, don’t mean a thing. With all that in view, we pass along this item from NBC News: A mind-controlling parasite found in cat feces may give people the courage they need to become entrepreneurs, researchers reported Tuesday. They found that people who have been infected with the Toxoplasma gondii parasite are more likely to major in business and to have started their own businesses than non-infected people. The parasite, which makes rodents unafraid of cats, may be reducing the fear of failure in people, Stefanie John- son of the University of Colorado and satirical cartoons about Donald Censored? Evidently the Post- colleagues said. Trump. It follows, at least in the Gazette doesn’t have the right to can Maybe there’s minds of the #resistance, that an artist whose work no longer pleases something to it. he was fired because he was anti- the paper’s readers or management. Of But if you’re ner- Trump. The Scrapbook knows about course, newspapers all over the coun- vous about that this ruckus only because the Corco- try have fired so many people in recent upcoming inter- ran School of the Arts in Washing- years we wonder how some of them view or boardroom ton has showcased a new exhibition still manage to bring out a paper every presentation, we’d of 18 Rogers drawings, “Spiked: The day, but perhaps, we reflected, Rogers’s caution not to Unpublished Political Cartoons of cartoons were so profoundly affecting prep by ingesting cat poop. Or if it’s Rob Rogers.” anxiety that’s keeping you from per- “This exhibition should forming well or taking healthy risks, have never happened,” the try a glass of wine. Not white wine, Corcoran’s Sanjit Sethi told though. We hear that causes cancer. ♦ the Washington Post, meaning that the cartoons should have run in the newspaper A Talent for Exhibition, instead. “The Corcoran is Anyway stepping in to provide an opportunity for this work. . . . ob Rogers, cartoonist at the It’s dangerous, [as] cultural R Pittsburgh Post-Gazette for institutions see, that work 25 years, was recently fired. Rogers like this is being categori-

was known for drawing acerbically cally censored.” A sample Rogers cartoon ROB ROGERS, REPRINTED WITH PERMISSION (ORIGINAL FIGURE) BIGSTOCK; RIGHT, LEFT:

August 6, 2018 The Weekly Standard / 3 or incisively witty that the Post-Gazette plastered on billboards in Times really had no reason to get rid of him Square. The founder of a “curvy fash- other than that he didn’t like Trump. ion blog,” she is, well, obese. So we took in the show at the Corco- But her zaftig measurements aren’t ran. We’re no great fans of the 45th the problem; her enormous lack of www.weeklystandard.com president ourselves, but we weren’t self-awareness is. Writing about her Stephen F. Hayes, Editor in Chief impressed. Rogers’s work strikes us as experience in Cosmopolitan, O’Brien Richard Starr, Editor Fred Barnes, Robert Messenger, Executive Editors preachy, too dependent on text, and admits she was the one who suggested Christine Rosen, Managing Editor stylistically off-putting. We tend to the Times Square location for her Peter J. Boyer, Christopher Caldwell, Andrew Ferguson, Matt Labash, agree with Sanjit Sethi: This exhibi- photo session, even as she complains National Correspondents tion should have never happened. about the uncharitable attention she Jonathan V. Last, Digital Editor ♦ Barton Swaim, Opinion Editor attracted—several men expressed Adam Keiper, Books & Arts Editor Kelly Jane Torrance, Deputy Managing Editor The Naked their appreciation in less than gentle- Eric Felten, Mark Hemingway, manly terms. O’Brien notes, peev John McCormack, Tony Mecia, Philip Terzian, Michael Warren, Senior Writers Public Square ishly, that the infamously half-naked, David Byler, Jenna Lifhits, Alice B. Lloyd, Staff Writers hat do most people do when painted desnudas prowling around Rachael Larimore, Online Managing Editor they see a naked or nearly nearby weren’t being targeted with Hannah Yoest, Social Media Editor W Ethan Epstein, Associate Editor naked person in public? Most probably inappropriate remarks. Then again, Chris Deaton, Jim Swift, Deputy Online Editors Priscilla M. Jensen, Assistant Editor experience a moment of shock, point they make a meager living taking Adam Rubenstein, Assistant Opinion Editor and laugh, call the police, or all of the smiling pictures with lecherous tour- Andrew Egger, Haley Byrd, Reporters Holmes Lybrand, Fact Checker above. Ask Eric Stagno. After seeing ists, not whining about their lives on Sophia Buono, Philip Jeffery, Editorial Assistants Philip Chalk, Design Director him parade around naked in a Planet a curvy fashion blog. Spying someone Barbara Kyttle, Design Assistant Fitness gym doing “yoga-like” exer- filming her while she posed, she says, Contributing Editors Claudia Anderson, Max Boot, Joseph Bottum, cises, alarmed gym members called the “I was just a body he wanted to exploit Tucker Carlson, Matthew Continetti, Jay Cost, Terry Eastland, Noemie Emery, Joseph Epstein, police, who carted him away in hand- and use. My feelings didn’t matter.” David Frum, David Gelernter, cuffs despite his claims that he thought The agony continues: “Tears began to Reuel Marc Gerecht, Michael Goldfarb, Daniel Halper, Mary Katharine Ham, Brit Hume, Planet Fitness was a “judgment-free well up. I was prepared to be pointed Thomas Joscelyn, Frederick W. Kagan, Yuval Levin, Tod Lindberg, Micah Mattix, Victorino Matus, zone.” The phrase “judgment-free zone” at, shamed, and called fat. I didn’t P. J. O’Rourke, John Podhoretz, Irwin M. Stelzer, shouldn’t be taken too literally. expect to be fetishized.” Charles J. Sykes, Stuart Taylor Jr. This bit of common sense comes What did she expect? To be offered William Kristol, Editor at Large as a surprise to Anna O’Brien. She’s a MacArthur genius grant? “I wanted MediaDC Ryan McKibben, Chairman the woman who recently stepped onto to make a statement and I wanted to Stephen R. Sparks, President & Chief Operating Officer a platform in the middle of Times be seen,” O’Brien admits. To be sure, Kathy Schaffhauser, Chief Financial Officer Mark Walters, Chief Revenue Officer Square in New York City, shouted dropping trou in Times Square is Jennifer Yingling, Audience Development Officer David Lindsey, Chief Digital Officer “Let’s do this!”—and stripped down indeed likely to get you “seen.” Which Matthew Curry, Director, Email Marketing to a pink bikini for a photo shoot. is why her complaint—“I’m more Alex Rosenwald, Senior Director of Strategic Communications Nicholas H. B. Swezey, Vice President, Advertising Not surprisingly, she was sub- than my body and I deserve respect T. Barry Davis, Senior Director, Advertising Jason Roberts, Digital Director, Advertising jected to an impromptu public com- and human decency”—rings a bit hol- Andrew Kaumeier, Advertising Operations Manager ment period, with remarks ranging low. What of the respect and decency Brooke McIngvale, Manager, Marketing Services Advertising inquiries: 202-293-4900 from the bemused to the supportive O’Brien owed to the public? And Subscriptions: 1-800-274-7293 to the downright creepy. O’Brien does imagine if no one had reacted at all. The Weekly Standard (ISSN 1083-3013), a division of Clarity Media Group, not look like the Forever 21 models Would O’Brien then have complained is published weekly (except one week in March, one week in June, one that she was being marginalized and week in August, and one week in December) at 1152 15th St., NW, Suite 200, Washington, DC 20005. Periodicals postage paid at Washington, ignored—not fat-shamed, nor fat- DC, and additional mailing offices. Postmaster: Send address changes to The Weekly Standard, P.O. Box 85409, Big Sandy, TX 75755-9612. For fetishized, but fat-silenced? subscription customer service in the United States, call 1-800-274-7293. O’Brien only recovers her poise For new subscription orders, please call 1-800-274-7293. Subscribers: Please send new subscription orders and changes of address to The when a little girl tells her she looks Weekly Standard, P.O. Box 85409, Big Sandy, TX 75755-9612. Please include your latest magazine mailing label. Allow 3 to 5 weeks for pretty, unwittingly endorsing the arrival of first copy and address changes. Canadian/foreign orders require hegemonic appearance-based stan- additional postage and must be paid in full prior to commencement of service. Canadian/foreign subscribers may call 1-386-597-4378 for dards she thought she was rebelling subscription inquiries. American Express, Visa/MasterCard payments accepted. Cover price, $5.99. Back issues, $5.99 (includes postage and against. “I realized in that moment, it handling). Send letters to the editor to The Weekly Standard, 1152 15th had all been worth it. I had been seen.” Street, NW, Suite 200, Washington, DC 20005-4617. For a copy of The Weekly Standard Privacy Policy, visit www.weeklystandard.com or write to Note to other would-be Times Customer Service, The Weekly Standard, 1152 15th St., NW, Suite 200, Square exhibitionists: If you strip Washington, DC 20005. Copyright 2018, Clarity Media Group. All rights reserved. No material in The Weekly down in public, you will be “seen.” But Standard may be reprinted without permission of the copyright owner. you don’t get to decide what the people The Weekly Standard is a registered trademark of Clarity Media Group. Anna O’Brien in Times Square who are “seeing” you think about it. ♦ ANNA O’BRIEN, VIA INSTAGRAM

4 / The Weekly Standard August 6, 2018 CASUAL

man Podhoretz. When someone very Your Thoughts and Prayers dear to me died, he sent me a note saying that the only recompense I could take from this death was that nothing as sad was likely to happen to me for ifficult to determine the an organ directly caused the person’s the remainder of my life. Turns out he exact point when a word death. To mention that you will miss was right. or phrase departs reality him seems trivial next to the effect of The Irish have their wakes, the Jews and becomes weightless, his loss on his family. To claim one their shivas, but even with the lubri- Dperfunctory, without the least credi- loved him and will miss him sorely is cants of whiskey or the comforts of bility. When, for example, was the last likely to call for the suspension of dis- religious ritual, condolence remains time you took seriously anyone’s—a belief on the part of the bereaved. awkward for nearly everyone. It friend’s, a sales clerk’s, a begging Candor, on the other hand, though should be more awkward for those homeless person’s—exhortation to tempting, is never an alternative. “He public figures who have fastened on “Have a nice day”? Some pump it up never really got it, did he?” is not to that useless gurgle—“thoughts to “a nice weekend,” “hol- and prayers,” sometimes iday,” “summer,” “fiscal “prayers and thoughts”—a quarter,” but all to little formulation unconvinc- avail. Such pure verbal ing at best, never less than rubbish has the phrase glib. How much time did become that “Have a nice an Obama or does a Trump day” is now included as take to devote thought (for- one of the country’s three get about prayer) to the most common lies: The death of a Navy SEAL in other two are “The check Afghanistan or a Marine is in the mail” and “Don’t in Iraq? Less, no doubt, worry, sweetie, I’ve had than a nanosecond, which, a vasectomy.” at last calculation, is a bil- Another phrase about lionth of a second. Out of to enter the status of ver- the mouth of a politician, bal inanity is the response, that “thoughts and prayers” when a death is reported, that runs, likely to go down well with a man’s shibboleth has all the resonant sincer- “Our thoughts and prayers go out to the grieving wife. “He really could be ity of the sound made by compressing family.” The phrase is usually uttered— a bit of a bore, especially toward the a whoopee cushion. often “muttered” is closer to it—by end” doesn’t sound quite the right The larger problem, of course, is public officials. President Obama used note, either. Nor “I never understood big D, not Dallas but Death itself. it quite often, never very convinc- what you saw in him.” Nor, again, “I Everyone may know that he or she is ingly. When President Trump uses it, was always impressed by the extent to going to die, yet, as Turgenev some- it is, somehow, even less convincing. I which he overestimated his charm.” where says, death, that most demo- have heard sports broadcasters spray Best, too, to hold back on “He died cratic of events, is itself an old joke it around when a famous athlete pegs owing me $500, but no hurry in repay- that strikes each of us afresh. All but out. I should imagine it is big in show ing it.” Perhaps the rule for paying the most carefully chosen, the most business, possibly, among actors, with condolence is that which W. H. Auden heartfelt, words in its presence are a tear added at no extra charge. lay down for Catholic confession: “Be rendered otiose. Unspeakable in its The only thing more difficult than brief, be blunt, be gone,” but without profundity, it is scarcely a surprise paying condolences, in my experi- the blunt part. that death renders us speechless. ence, is receiving them. Easily the Most of the condolence paid me May anyone who is reading this most awkward moment at any funeral at the death of family has been less not be in need of condolence for years service is when one has to pass before than memorable. I had remarkable to come. But should the need arise, if and greet the family of the deceased. parents, but I cannot recall, at either anyone tells you that you are in his A few words of comfort, some expres- of their funerals, anyone comforting thoughts and prayers, my advice is to sion of sympathy, is expected, indeed me by saying anything remarkable look that person straight in the eye required. To say one is sorry won’t do, about either of them. The one piece and tell him to have a nice day. and besides it is inaccurate, unless of memorable condolence I have ever

BIGSTOCK your failure to supply blood or donate received came from my friend Nor- Joseph Epstein

August 6, 2018 The Weekly Standard / 5 EDITORIALS Farm Aid ne of the ironies of welfare-state policymaking is producers. Many of the agricultural products singled out that governments often feel obliged to create pro- for help are already among the most heavily subsidized O grams to offset the ill effects of other programs. in the American economy—corn, wheat, soybeans, rice, Lotteries, for instance, lead to public-service campaigns cotton. The spending will only intensify farming’s depen- warning people about the addiction to gambling fostered dence on federal aid. But Washington is to blame for that, by lotteries. The U.S. government spends money on public not farmers. We’re confident that if American soybean television children’s programs that air alongside public-ser- farmers were given the choice, they’d choose the rescis- vice messages that discourage kids from spending too much sion of tariffs on Chinese goods over another complicated time in front of the television. If government programs program of governmental largesse. encourage unhealthy behavior, As Nebraska senator Ben wouldn’t it be wiser and easier Sasse put it: “This trade war is just to get rid of the programs? cutting the legs out from under But government expendi- farmers and the White House’s tures often exist outside the ‘plan’ is to spend $12 billion on world of ordinary logic, and in gold crutches. America’s farmers any case the dollar amounts are don’t want to be paid to lose; they usually too small for most peo- want to win by feeding the world. ple to get exercised about. On This administration’s tariffs and July 24, however, the Trump bailouts aren’t going to make administration announced a America great again, they’re just breathtakingly expensive ver- If China won’t buy it, Uncle Sam will. going to make it 1929 again.” sion of this perverse offset Agriculture secretary Sonny dynamic: a $12 billion aid package for farmers harmed Perdue downplayed the financial significance of the aid by retaliatory tariffs imposed by foreign governments in program by saying it’s a “short-term solution that will give response to Trump’s trade barriers. Got that? A problem President Trump and his administration the time to work caused by bigger government (tariffs) will be solved by on long-term trade deals.” We are aware of few government expanding government further (bailouts for farmers). measures issued on a “short-term” basis that did not settle Retaliation for the various tariffs Trump has imposed in for the long haul. Mexico, China, and the E.U. could lift and his administration implemented since January was their sanctions next week, and this executive-branch spend- entirely predictable. Mexico, feeling the pain of U.S. levies ing would carry on. Other nations will see this “short-term” on steel and aluminum, hit American pork. The E.U. put program for what it is—a domestic subsidy—and they will tariffs on a host of American products, including rice, cran- impose countervailing duties: i.e., tariffs. The band-aid mea- berry juice, and corn. China announced retaliatory tariffs sure intended to counteract the negative effects of retaliatory on more than 500 American products. Already, the Chinese tariffs itself becomes a protectionist act against which other have begun to curtail importation of American soybeans— nations retaliate. Such is the Pyrrhic logic of trade wars. a trade valued at around $14 billion a year. President Trump believes such wars are necessary. “Tar- All of this apparently came as a surprise to Trump’s top iffs are the greatest!” he tweeted. “Either a country which trade adviser, Peter Navarro. “I don’t believe any country is has treated the United States unfairly on Trade negotiates a going to retaliate for the simple reason that we are the most fair deal, or it gets hit with Tariffs. It’s as simple as that— lucrative and biggest market in the world,” Navarro said in and everybody’s talking! Remember, we are the ‘piggy bank’ a Fox Business interview in March. It’s hard to understand that’s being robbed. All will be Great!” why he’d make an argument that could so easily be falsified “He sees himself as a free trader,” Larry Kudlow, the by events—and make it so confidently—so we’re inclined to president’s top economic adviser, said on July 18. Kudlow think he’s clueless rather than dishonest. has had a long career touting the virtues of free trade and The federal government will now buy select surplus limited government. But he’s now borrowing the language agricultural products; “promote” American farm goods of protectionism and insisting that Trump’s tariffs and sub-

(presumably through advertising); and directly subsidize sidies are meant to . . . eliminate tariffs and subsidies. “Let’s ROBERT NICKELSBERG / GETTY

6 / The Weekly Standard August 6, 2018 have no tariff barriers,” Kudlow said, characterizing the Act. Majority Leader Mitch McConnell, in particular, is not president’s view. “Let’s have no subsidies. Let’s have a tar- keen on the idea for fear of jeopardizing his narrow margin iff-free trade system.” in the Senate. Politicking over principle, again. But that is not Trump’s view. The president is a protec- Donald Trump won the presidency with the support of tionist true believer, a longtime America Firster who sees Americans who believed he would bring an end to the inan- global trade as a zero-sum proposition and obsesses about ity and insanity of Washington. An expensive program to off- trade deficits. set the ill effects of a bad policy that could easily be revoked? All of this is made worse by the fact that the Republi- A top trade adviser who didn’t think there would be retalia- can party, once full of articulate defenders of free trade and tion for a trade war launched by his boss? A longtime free- opponents of government bailouts, can’t summon the will trader now defending tariffs? A Republican Congress that to oppose this command-economy madness. The GOP con- sits idly by as global trade is undermined? More protection- trols both the House and Senate and could easily pass leg- ism to end protectionism? islation giving Congress oversight of the president’s tariff As Trump asked when he announced his presidential measures—which have been enacted under authority Con- campaign, “How stupid are our leaders? How stupid are these gress loaned the president in 1962 with the Trade Expansion politicians to allow this to happen? How stupid are they?” ♦ CNN Derangement Syndrome n July 25, White House staff informed a CNN but numerous journalistic crackpots and weirdos attend- reporter, Kaitlan Collins, that she would not be ing White House press events. It’s part of the job. O permitted to attend an open-press availability We have not seen video of the disputed press pool with President Donald Trump and European Commis- encounter, but we don’t need to. Collins’s questions sion president Jean-Claude Juncker. Her offense? While weren’t the reason for her disinvitation; her employer working as pool reporter at an earlier meeting (a small was. It’s true that Barack Obama regarded Fox News number of “pool” reporters stand in for the wider press with open contempt and that in one instance his staff corps at some events and share the information gath- attempted to exclude Fox from a press availability with ered), Collins didn’t ask questions pertaining to the a Treasury official. Fox News anchor Bret Baier remem- Trump-Juncker meeting but about Vladimir Putin and bers it well and remembers also that other networks— the president’s former attorney Michael Cohen. including CNN—refused to attend the availability unless The president’s hostility to CNN is well known, and Fox was included. it has intensified recently. Last month, he refused to take But Obama’s disdain doesn’t compare with Trump’s a question from the network’s reporter in London, and abhorrence of CNN. The network’s programming—from the New York Times recently obtained a White House the early morning straight through prime time—is habit- email that mentioned Trump’s anger at finding an Air ually hostile to Trump. And some of its reporters and Force One television tuned to CNN. anchors—Jim Acosta and Chris Cuomo, in particular— Press secretary Sarah Huckabee Sanders offered the have become caricatures of the kind of unthinking bias White House’s version of the kerfuffle: “At the conclu- that contributes to the widespread distrust of the main- sion of a press event in the Oval Office a reporter shouted stream media. But Trump’s obsession with CNN is irra- questions and refused to leave despite repeatedly being tional, and his constant and frequently personal attacks asked to do so. Subsequently, our staff informed her she on the organization and its employees are regrettable. was not welcome to participate in the next event, but Every elected official gets some bad press. No one in the made clear that any other journalist from her network world receives more critical scrutiny than an American could attend.” According to other reporters in the press president. This is true particularly if the American presi- pool, Collins spoke neither disrespectfully nor loudly. dent makes a habit of saying things that are demonstra- Banning a reporter from an open-press White House bly false or deliberately provocative. It’s paranoid and event is virtually unheard of. We can recall only one— puerile to treat one media organization as uniquely guilty Robert Sherrill, correspondent for the Nation, who was of all that’s wrong with society. denied a security clearance by the Secret Service dur- The president of Fox News, Jay Wallace, said in a state- ing the Johnson administration because he had once ment: “We stand in strong solidarity with CNN for the punched the press secretary for the governor of Florida. right to full access for our journalists as part of a free and Presidents of both parties suffer not just hostile reporters unfettered press.” We’re glad he said it. We do, too. ♦

August 6, 2018 The Weekly Standard / 7 COMMENT

FRED BARNES He drives them crazy

evin Nunes (R-Calif.), the “Trump’s stooge.” It relies on the favor- The submission was a deceptive chair of the House Intel- ite claims by Democrats to poison the document. It masked the fact that the D ligence Committee, is an public’s view of what Nunes is doing. Democratic National Committee and exception to the rule that committee “He certainly isn’t representing his Hillary Clinton’s presidential cam- chairs, male or female, are allowed Central Valley constituents or Cali- paign had paid for the dossier—the to run things as they choose. Demo- fornians, who care much more about tab was $168,000—making it a parti- crats, left-wing groups, and those who health care, jobs, and, yes, protect- san document. This was improper as obsess about Trump won’t let him. ing Dreamers than about the latest grounds for a wiretap of an American Were Democrats in charge, Nunes conspiracy theory,” the paper wrote citizen, a blatant one. would probably be their Target No. 1. in January. “Instead, he’s doing dirty When the Nunes memo was His sin was switching the released, House minority leader Nancy committee’s focus from Pelosi was joined by Chuck Schumer, collusion between the Democrats and their the Senate Democratic leader, in Trump campaign and Rus- allies have waged freaking out. The memo said the sian operatives in the 2016 Steele dossier was the key document presidential election to a war of abuse, cited to justify the wiretap of Page. finding out why the Trump slander, and name- But what was Schumer doing campaign was being inves- there? He has enough trouble in the tigated in the first place. calling against Senate. Did he make a wrong turn in Nunes would like to the Capitol? No. The dossier matter know why one volunteer Devin Nunes, who was just getting too hot for Democrats. adviser to Trump, Carter has to be protected House speaker Paul Ryan backed Page, was wiretapped for Nunes, as he has consistently. a year and another minor by a security detail And it got hotter when the actual aide was sought out by an when he leaves FISA application was released in FBI informant. And a fair mid-July, revealing just how much question is whether these his office. had depended on the hearsay col- cases were less a search for lected by Steele. Nunes and his evidence of Trump-Russia collusion work for House Republican leaders memo were vindicated. than a covert way of looking inside trying to protect President Donald The mainstream press disagreed, the Trump campaign—illegally. Trump in the Russia investigation.” but they’re obsessed with driving In any case, Democrats are still furi- With that, the Bee was just warm- Trump out of office. Giving credit to ous at the committee’s change of direc- ing up. Nunes aims “to discredit the Nunes for uncovering alarming holes tion, though it occurred more than a FBI and distract the public.” And he in the FBI probe and exposing the year ago. They’d like to deep-six the is pursuing this “at the same time spe- pro-Democratic tilt of its investigation investigation entirely. At one time or cial counsel Robert Mueller’s probe might help Trump. Can’t have that. another, they’ve called for Nunes to appears to be picking up steam and Vindication won’t spare Nunes step down as chairman or resign from focusing on possible obstruction of harassment by the left. This is what Congress or just clear out of town. justice by the president.” those folks do in their spare time. Since Nunes refuses to back down, When Nunes put out a memo with And complaints to the House Ethics Democrats and their allies have been preliminary findings last winter, Dem- Committee against Nunes are piling waging a war of abuse, slander, and ocrats went crazy. It raised questions up. Three left-wing groups acccused name-calling. They’ve tried with occa- about the legitimacy of the “Steele dos- Nunes of making classified informa- sional success to make his life miser- sier,” the collection of negative (but tion public last year, causing him able. Nunes has to be protected by a unverified) information about Trump to step down as chairman for eight security detail when he leaves his office. that was put together by former British months while the ethics committee The mainstream press is no less spy Christopher Steele. It was submit- dawdled before ruling in his favor. unfriendly. Even the Fresno Bee, his ted to the Foreign Intelligence Surveil- Meanwhile, responses to his tweets hometown paper, has been harshly lance Court to justify the wiretapping pour in. It turns out the anti-Nunes

critical of Nunes, referring to him as of Carter Page. forces are far from witty and a good CLEGG LIKENESSES: DAVE

8 / The Weekly Standard August 6, 2018 number of them think he ought to be had talking points that were made in The second dilemma has to do in prison. Nunes isn’t fazed by dumb America not Russia.” with the first, though it is less often tweets or mean charges. But here’s why we should be grate- discussed. The great bulk of journal- Last week he tweeted this when ful to Nunes and wise members of ism—what used to constitute the stuff CNN asked him for a comment: the intelligence committee like Chris of a large metropolitan daily newspa- “ ‘CNN’s slavish adherence to the Stewart from Salt Lake City. We per—involves only a handful of gen- Democrats’ comical talking points is wouldn’t know these things if they eral subjects. We read sports, politics, an amazing sight to behold.’ . . . Guess hadn’t dug them up. (1) Hillary and weather, celebrity doings, and pop sci- what? They refused to run the state- the DNC paid for the still-unverified ence. Without them the trade would ment. . . . This is another great exam- Steele dossier from his Russian sources. collapse. Readers and editors alike ple of ‘Fake and fraudulent news.’ ” (2) The Steele dossier was largely especially love stories that begin “A It wasn’t easy to pick the best responsible for approval of the Page new study finds . . . ” or “Scientists response. The quality was so low. But wiretap. Well worth knowing, don’t have discovered . . . ” This last sort of here it is: “It would be helpful if DN you think? ♦ news—easily digested findings that scientifically explain the mysteries of human behavior—is fed and con- COMMENT ♦ ANDREW FERGUSON stantly replenished by the same social science whose elemental assumptions are withering before our eyes. This is A novel defense of bad social bad news for the news. The circle is vicious indeed. Jour- psychology studies—they may nalism craves pop-science stories from researchers, who like publicity and must get their work into print, not be true, but they feel true according to the pitiless mandate ormally a mini-essay by a “implicit bias,” “stereotype threat,” of publish or perish. The research- journeyman reporter for the “priming,” “ego depletion” and many ers’ urgency encourages corner-cut- N New York Times would not others known to every student of ting and conclusion-jumping, which be worth rebutting with another mini- introductory psychology. At the root conveniently tend to produce flashy essay. We can all agree that findings, which are inhaled by news the world has quite enough outlets, which publish them under mini-essays as it is. But The only reason the headline “Researchers find!” and the recent piece by science anyone pays then turn back to the researchers to writer Benedict Carey is a demand more, more, more. landmark in its own small attention to social The growing realization of this way. It demonstrates two unhealthy co-dependency is the related cultural dilemmas— psychology is that its kind of thing that can ruin a science a crisis in social science, findings are supposed writer’s day—his livelihood, too. For usually called “the replica- Benedict Carey, the Times science tion crisis,” and a crisis in to be widely writer, the collapse of social psychol- the news business, as yet applicable. Otherwise ogy is an understandably painful unnamed. And it shows subject. The tone of his mini-essay is how our “thought leaders” it’s unlikely news mournful, as if he’s watching an old hope to evade both of them. outlets would write friend walk to the electric chair. The crisis in the social He opens his article by mention- sciences has grown so about social science. ing the 50-year-old Stanford Prison obvious that even main- Experiment, a simulation designed to stream social scientists have begun to of the failure are errors of methodol- prove that people in positions of power acknowledge it. In the past five years ogy and execution that should have are more likely to behave cruelly than or so, disinterested researchers have been obvious from the start. Sample the Dorothy Gales among us, the small reexamined many of the most crucial sizes are small and poorly selected; sta- and meek. The prison experiment, experiments and findings in social tistical manipulations are misunder- which required psychology students psychology and related fields. A very stood and ill-performed; experiments to play-act as prisoners and prison large percentage of them—as many as lack control groups and are poorly guards, launched a thousand other two-thirds, by some counts—crumble designed; data are cherry-picked; and experiments that used its findings as on close examination. These include safeguards against researcher bias are an unquestioned premise. The unique such supposedly settled science as ignored. It’s a long list. dangers of power disparities—as

August 6, 2018 The Weekly Standard / 9 found, for example, in capitalist societ- taught the ability to delay gratifica- it seems, another established truth of ies—became a theme of social science, tion would, thanks to this single trait, social science comes a cropper. But confirming the leftish, class-based pol- grow up to have happier and more Carey is a man of faith, as believers itics of social psychologists. successful lives. On the basis of the in social science must be. He doesn’t In the last 10 years, thanks to several marshmallow experiment, policymak- want to let go. He is wounded by crit- whistle-blowing researchers working ers over the next generation devel- ics who think the replication crisis independently, the prison experiment oped character-building programs that somehow undermines social psychol- and its findings have been largely dis- became all the rage in the fad factories ogy’s standing as science. “On the credited. The editor of at least one of public education. Teach a kid self- contrary,” he writes. The crisis proves popular textbook has removed men- control when he’s 5, went the think- social science is self-correcting, just tions of it. It turns out that the behav- ing, and 20 years later you’ll have a the way real sciences are. ior of college students in role-playing college graduate on your hands. “Housecleaning is a crucial correc- exercises under the watchful eye of Anyone uncontaminated by social tive in science,” Carey writes. This is their professors doesn’t tell us much science would understand this prop- true. He also says “psychology has led about the behavior of ordinary people osition to be laughably mechanical by example.” This is not true. A sci- in the real world, no matter how pow- and simplistic. And even social scien- ence cannot correct itself unless its erful or powerless they are. This has tists are now seeing that the study was findings are subjected to replication, surprised social psychologists. Many severely limited in application. Almost but even now such self-examination of them still refuse to believe it. all the kids in the test were white and is rare in social science—indeed, it is Carey also mentions another well-to-do; the results didn’t take into often deemed seditious. Reformers famous, and much cuter, experiment account family stability, the level of par- and revisionists who question famous called the Marshmallow Test. It, too, ents’ education, the behavior of peers, findings are subjected to personal and he notes glumly, has been subverted or any of the other infinite factors that professional abuse from colleagues by further examination. In the marsh- form a child’s character. For nearly online and elsewhere. mallow test, young and adorable chil- 30 years the “marshmallow effect” was Still, Carey insists, psychology is a dren were filmed as they tried not to science. Now it’s folklore. science. It’s just not a science in the eat marshmallows. The researchers Carey could have picked dozens way that other, fussier sciences are sci- concluded that children who were of other examples. Every few weeks, ence. “The study of human behavior

10 / The Weekly Standard August 6, 2018 will never be as clean as physics or COMMENT ♦ PHILIP TERZIAN cardiology,” he writes. “How could it be?” And of course those farfetched experiments aren’t like real experiments. “Psychology’s elaborate simu- The one historical sin lations are just that.” These are large concessions, but that’s always forgiven Carey doesn’t seem to realize how subversive they are. Those “elaborate here’s a Frida Kahlo exhibi- the same time, she was a notably suc- simulations” are held up by social sci- tion at London’s Victoria and cessful female artist-rebel in a hostile entists as experiments on a par with the T Albert Museum, and as such time and place, and as a fervent Mexi- controlled experiments of real science. things often do, “Frida Kahlo: Mak- can nationalist, an equally successful We are told they re-create the various ing Her Self Up” (through Novem- and self-dramatizing character. circumstances that human beings find ber 4) tells us something about the Kahlo is probably best remembered themselves in and react to. The only culture we inhabit that the curators for her exuberant dress and accessoriz- reason anyone pays attention to social hadn’t intended. ing, based in colorfully retrograde psychology is that its findings are sup- Kahlo (1907-1954) was of course the Mexican peasant garb, along with her posed to be widely, even universally, arch-bohemian Mexi- applicable, as the findings of the physi- can painter and some- cal sciences are. Otherwise it’s unlikely time wife of muralist Frida Kahlo’s news outlets would hire reporters to Diego Rivera who came write about social science. back into fashion some unrepentant Carey’s defense of social psychol- decades after her death Stalinism is treated ogy fits the current age. It is post- and has remained there truth, as our public intellectuals like since. You can mea- by chroniclers not to say. “[Social psychology’s] findings sure her current stat- as an uncomfortable are far more accessible and person- ure either by citing ally relevant to the public than those this blockbuster exhi- truth, or disturbing in most other scientific fields,” Carey bition at the Victoria moral failure, but writes. “The public’s judgments mat- and Albert or, more ter to the field, too.” pointedly, with the as a mild, endearing Okay, but are the findings true? 2002 hagiographical Carey’s answer is: Who cares? The film (Frida), directed by eccentricity. headline over his piece summarizes Julie Taymor, in which the point. “Many famous studies of Kahlo was played by Salma Hayek. undisguised facial hair and a famous human behavior cannot be repro- I should declare, at the outset, my unibrow. All this has made her not duced. Even so, they revealed aspects own bias on the subject. Kahlo’s only a posthumous feminist hero but of our inner lives that feel true.” deliberately primitive style is not serial inspiration for modern fashion Feeling true is what’s important. “It much to my taste, and her paint- designers—Givenchy, Gaultier, Gucci, is one thing,” Carey goes on, “to frisk erly output was comparatively mod- etc.—whose clothing lines, needless the studies appearing almost daily in est. Indeed, as is often the case with to say, are priced beyond the means of journals that form the current back- cultural icons, much of her appeal to most indigenous Mexicans. and-forth of behavior research. It is modern enthusiasts has more to do In that sense, it is worth noting that somewhat different to call out experi- with her own flamboyant self than the Victoria and Albert’s “Making Her ments that became classics—and her merits as an artist. Still, while Self Up” is not a showcase for Kahlo’s world-famous outside of psychology— Kahlo’s artistic and personal styles art—although there are some paint- because they dramatized something leave me cold, it’s not hard to see how ings—but a display of personal objects people recognized in themselves and others find her appealing. that helped to form her image: half- in others.” Kahlo’s life was tragic and tri- empty flasks of makeup, clothing, jew- The public likes them. They’re umphant: Sexually ambiguous in elry, embroidery, her steel prosthetic famous. They’re classics! And they machismo-ridden Mexico, she con- leg shod in a red leather boot. feel true. tracted polio as a child, was gravely In another age, this assortment Or true-ish, anyway. This is good injured as a student in a traffic acci- of homely possessions and intimate enough for the New York Times and dent, and suffered from lifelong spi- items would be seen as a standard its guardians of science. They have nal pain and assorted disorders. Her collection of saint’s relics, reverently adapted the scientific method to the gangrenous right leg was amputated displayed for instruction to the faith- Trump era. ♦ a year before her premature death. At ful. I note also that reviews of the

August 6, 2018 The Weekly Standard / 11 exhibition, while resolutely secular the murder (in Coyoacán near Mex- The Washington Post’s feature in tone, are careful to pay homage ico City) of Stalin’s nemesis Leon story about the Victoria and Albert to Kahlo’s status as political icon Trotsky, whose assassin she knew. exhibition is typical, in that respect, and social inspiration: A product of Whatever one may think of Frida mentioning her devotion to Stalin’s Mexico’s upper-middle class, her out- Kahlo’s art and habits, it’s hard to regime in fleeting, even sympatheti- ward identification with that coun- avoid the fact that her long and dili- cally contextual, terms: try’s mestizo population and disdain gent political allegiance was sworn to [Kahlo] looked to fashion to conceal for her own comfortable origins are the service of one of history’s most the deformities on her body wrought described in what amount to reli- frightening tyrants and mass murder- by polio and gangrene, as well as to gious terms. Like any suitable saint, ers. The irony, of course, is that if she express her allegiance to communism, she suffered for her life and works, and Rivera had lived and worked not as in the case of a hammer-and-sickle- which inspire the worshipful. in Mexico or California or New York, adorned corset, one of many she had What is not described, in any as they did, but in the Soviet Union of to wear as a result of a near-fatal accident at 18 involving a bus. detail, are her very specific and fer- their dreams, they would both likely vent political beliefs—and therein have been arrested, tortured, and Like her crypto-peasant dresses lies a tale. For Frida Kahlo, along killed—as some 20 million subjects and shadowy moustache, Frida Kah- with Diego Rivera, was a lifelong and of Stalin were dispatched—at their lo’s unrepentant Stalinism is treated pointedly unapologetic left-wing rad- hero’s whim. by chroniclers not as an uncomfort- ical and, at various intervals, member Yet a curious double standard comes able truth, or disturbing moral failure, of Mexico’s Communist party. One of into play here. If Kahlo had been an but as a mild, endearing eccentric- her last works, Self Portrait with Stalin Italian Fascist and not a Mexican ity. To be sure, it’s always difficult to (1954), depicts the recently deceased Communist, or an admirer of National separate artists and their work from Soviet dictator with the artist mod- Socialism, or anything else on the rad- personal misbehavior or distasteful estly arrayed in the foreground. So ical-right spectrum, it’s impossible to opinions. But if one set of historic close, in fact, was Kahlo’s identifica- imagine that such a pertinent detail loyalties—to Franco’s Spain, say, or tion with communism and so reso- would be politely dismissed, or casu- the Confederacy—is enough to toss lute her devotion to Stalin that in ally overlooked, or briefly mentioned certain figures beyond the pale, why 1940 she was briefly suspected by in the neutral terms invariably applied should another, and considerably Mexican authorities of complicity in to Kahlo’s politics. more lethal, allegiance be exempt? ♦

Worth Repeating from WeeklyStandard.com:

s for the Russians, NATO was designed after World War II with Germany and Japan. A to counter Soviet expansion. It was Russia experts can also reasonably debate the the teeth in a program that included the wisdom of expanding NATO eastward and even financial and economic pillars of the Bretton seek to understand the historical importance of Woods institutions and the Marshall Crimea to Moscow. Plan. By organizing and galvanizing a But the moment when Russia was not consortium of like-minded nations, NATO seeking to destabilize our way of life has accomplished one of the greatest achievements passed. And just as during the Cold War, the in geopolitical history: the resolution of a NATO alliance under American leadership major conflict with neither of the primary is the most important institution we have adversaries firing on one another. for countering Russian adventurism and We have sadly arrived at a moment when revanchism and its desire to once again be a Russia appears to be a geopolitical adversary hegemonic power in Europe. . . . once again. There are real questions to be asked NATO has served us well. It is, by any of whether the West missed a vital opportunity reckoning, a bargain: By any reasonable to help Russia get back on its feet and regain its measure, the cost of war dwarfs all else. rightful place as a great power—much as we did —Richard Hurowitz, ‘What Is NATO For?’

12 / The Weekly Standard August 6, 2018 security consultants, and journalists—descended on the hastily leaked Hacking the Hackers data,” Rid wrote. “The result was an unprecedented open-source counterintelligence operation: Never in his- The former British spy who fingered the Russians. tory was intelligence analysis done so fast, so publicly, and by so many.” Rid by Haley Byrd noted that Tait’s work on the issue was “particularly prolific,” pointing specif- n Friday, July 13, the Jus- were carried out over several months ically to Tait’s astute observations that tice Department charged by two Russian intelligence groups the username found in the metadata of O 12 Russian military intel- known as Cozy Bear and Fancy Bear. one document referenced the founder ligence officials with hacking Demo- Tait tells me that a foreign adversary of the Soviet secret police and that the cratic National Committee (DNC) and hacking the DNC at first appeared files had been edited on a computer Democratic Congressional Campaign to be routine intelligence-gathering. with Russian language settings. Committee email servers, as well as “They want to know who the next Tait tweeted at the time that who- leaking stolen documents to outlets president of the United States might ever had conducted the DNC hack was such as WikiLeaks, in an effort to be and who’s around her and what doing so in support of Trump, adding influence the 2016 presidential elec- her policies are going to be. That’s just that the apparent influence operation. Among those least surprised tion marked “another data point by the charges was former British in Russian [signals intelligence] spy Matt Tait. I first met Tait in the strategically leaking data to push fall of 2017, when he was in Wash- a particular narrative.” Rid tells ington to be interviewed by spe- me that many in the intelligence cial counsel Robert Mueller. The community reached the same con- cheerful, lanky 29-year-old does clusions, but Tait was one of only not look or act like someone who a few people in a position to share is being carefully watched by both the facts with the general pub- U.S. and Russian intelligence com- lic. “We had still one foot in the munities, nor like someone who infosec community, but we could has traveled the world as a consul- also talk publicly without caus- tant for technology companies and ing any trouble for ourselves with spent four years working at the Matt ‘@pwnallthethings’ Tait our employers,” Rid says. U.S. U.K.’s digital intelligence agency. officials, by contrast, were tight- Despite his modest demeanor, Tait ordinary espionage.” But the dynamic lipped, waiting until October 2017 to was a key player in deciphering Rus- shifted dramatically within a few share the intelligence community’s sian election interference: On June 15, hours when the Russians, posing as assessment that the Russian GRU had 2016, when the first trove of stolen a Romanian hacker, began dumping been behind the cyberattacks. documents from the DNC was leaked the documents online. “That was the Tait recalls being surprised that online under the pseudonym Guccifer point where it conspicuously changed the hackers didn’t simply call it quits, 2.0, before the FBI launched an inves- from being ‘This might be about given how quickly they were exposed. tigation into election interference, and espionage’ to being ‘This is clearly an “We kind of expected they would just before the U.S. intelligence commu- influence campaign,’ ” Tait says. go away,” says Tait. “Like, they would nity attributed the cyber attacks to the Using his Twitter account, @pwn- say, ‘We screwed up. We got caught. Russian government, Tait used pub- allthethings, Tait worked alongside a This is dreadful. We’ll just pretend licly available information to compile small group of experts to closely exam- that this didn’t happen and go away incriminating evidence against the ine the dump and shed light on the back into the night.’ ” Instead, the GRU (Russian military intelligence), motives of its perpetrators. One expert, Russians doubled down and started concluding that the attack bore the Thomas Rid, then a professor of war to release more documents, only this hallmarks of a classic Russian influ- studies at King’s College London, time they manipulated the metadata in ence campaign. wrote an article for Esquire detailing ways specifically designed to discredit The previous day, the Washington how the ragtag group collaborated to Tait’s observations. “They intention- Post had reported that the security firm piece together identifying information ally started editing these documents Crowdstrike claimed the cyberattacks about the Russian hackers. “As soon as in multiple languages of Microsoft Guccifer’s files hit the open Internet, Word,” says Tait. Suddenly, files Haley Byrd is a reporter an army of investigators—including cropped up pointing to countries like

at The Weekly Standard. old-school hackers, former spooks, China and Cuba instead of Russia. “It STANDARD / THE WEEKLY HANNAH YOEST

14 / The Weekly Standard August 6, 2018 was very interesting, because what that Asked which computers he targeted, In June 2017, he published a bomb- showed was they were, in real time, Tait smiles wryly. “Foreign ones.” shell account, “The Time I Got responding to people doing analysis.” He spent four years at the agency Recruited to Collude with the Rus- Tait’s efforts earned him special before moving to the private sector, sians,” detailing his interactions with attention from the Russian govern- where he worked at Google Project Republican activist Peter Smith, who ment. First, the Guccifer 2.0 account Zero and as a consultant for compa- wanted Tait to verify allegedly deleted followed him on Twitter. Then, it nies such as Amazon and Microsoft. In emails from Hillary Clinton’s per- became clear the Russians were keep- 2013, Tait started a Twitter account to sonal server that Smith had learned ing tabs on what he wrote. “You could counter false information during the about on “the dark web.” see the changes to the documents fierce online privacy debate sparked Tait believed that Smith, who that they were doing were not generic by the leak of top-secret documents touted his relationship with former changes, but specifically targeted at stolen from the National Security national security advisor Michael my personal analysis,” he says. At one Agency by former contractor Edward Flynn, was coordinating with the point, he came to the realization that Snowden. At the time, Tait was frus- Trump campaign. “In my conversa- “they’re actually reading the stuff trated by reports that made sensation- tions with Smith and his colleague, I that I’m writing, and they’re inter- alistic claims contrary to what some tried to stress this point: If this dark ested in discrediting it.” of the leaked documents showed. “It web contact is a front for the Russian Russian spies weren’t the only ones was very upsetting to see people I had government, you really don’t want to who started following Tait. His Twit- worked with both in government, play this game,” wrote Tait. “But they ter account, previously popular only but also technology companies, being were not discouraged.” among a niche audience, took off. He accused of things that they couldn’t Tait’s story sparked intense media made new connections with people in respond to,” Tait says. His quickly attention. “My inbox basically blew the cybersecurity field, like Rid, who became “the one Twitter account up,” he says, and he was invited to says the two met for coffee when they on the entire Internet daring to take appear on nearly every cable news realized they were both living in Lon- the government’s side.” He kept the show (requests he declined). “People don. “He’s very funny and extremely account anonymous. “My view was met with my accountant. People tried quick on his feet,” Rid says. “Intimi- that, in the event that I put my name to contact my family,” Tait says. Sev- datingly smart. It’s just good fun to on it, I would get hounded out of my eral reporters even showed up at his hang out with him, because he’s the job in Silicon Valley,” Tait says. house in London. Tait’s account also best kind of a nerd you can find.” Today, he has nearly 130,000 fol- caught the attention of Robert Muel- lowers and uses his platform to offer ler. According to Business Insider, ait grew up in the English city intelligence community insights, Mueller’s team interviewed Tait dur- T of Chester. After graduating in humorous comments and obser- ing the fall of 2017 about his dealings 2008 from Imperial College London, vations about the news of the day, with Smith, and he answered ques- where he studied computer science and in-depth legal commentary; his tions from the House Intelligence and math, Tait joined the U.K.’s top passion for sharing interesting tid- Committee in October. During our digital intelligence agency, the Gov- bits from official documents also interview, Tait declines to discuss ernment Communications Head- remains. When he first opened the details of the ongoing investigation. quarters. He worked in the computer account, he shared quirky Freedom Today, Tait is a professor at the network exploitation division, which of Information Act requests, such as University of Texas at Austin’s was tasked with hacking operations. Central Intelligence Agency cafeteria Strauss Center for International His team was only six people, but it complaints, and he combed through Security and Law, where he teaches was responsible for a large part of the the many emails from Hillary Clin- a graduate course, “Cybersecurity agency’s portfolio. Tait recalls work- ton’s personal server, offering his fol- Foundations: Introduction to the ing extraordinarily long hours on lowers glimpses into how she ran the Relevant Technology for Law and operations that were “just completely State Department. Policy.” He describes the class as “a insane. … You can’t even imagine In the spring of 2016, Tait started technical course for students who are the level of planning and precision contributing to Lawfare, an online not technical” that tackles questions and sheer mad schemes that they national security publication founded including why cybersecurity vulner- were putting together. And some of by Benjamin Wittes of the Brookings abilities exist, why developers create them wouldn’t work, but some of them Institution and law professors Jack vulnerabilities, how software can be would, and it was amazing to see Goldsmith of Harvard and Robert defended, and how to clean up after them come to fruition.” What kinds Chesney of the University of Texas at someone has broken into a system. of operations? “All operations,” Tait Austin. As a contributing editor, Tait Tait notes that his material does not answers, sidestepping the question. often wrote about the intersection of make moral judgments—“It’s not say- “Most days I was developing software technology and law enforcement, the ing hackers are good and defenders exploits, breaking into computers.” DNC hack, and election interference. are bad, because, of course, depending

August 6, 2018 The Weekly Standard / 15 on the context, it might be the other way round.” The objective is for students to become better prepared if Spare the Rod and when they encounter cybersecurity issues in the professional world. “Matt Tait is almost unique in (Rosenstein) his ability to speak to all of these audiences very intelligently,” says Chesney, who also serves as director of the Strauss Center. “Maybe it’s The articles of impeachment are a shameful attack his wonderful accent, maybe it’s the on the rule of law. by Jack Goldsmith personal charm. He’s a very friendly, funny, and positive person, and those he July 25 resolution by basis for alleging ‘collusion’ between are qualities that make for great 11 House Republicans intro- the Trump campaign and Russia, and teaching on any subject.” Chesney T ducing articles of impeach- whether these allegations resulted in says there’s a need for students to gain ment against deputy attorney potential crimes warranting investiga- a firm grasp of the fundamentals of general Rod Rosenstein is not a seri- tion.” The Justice Department has not cybersecurity. “They need literacy, ous legal document. yet alleged anything about the Trump not fluency. Fluency is great, but we It is filled with embarrassing factual campaign and Russia, much less any- just need lawyers and policymakers to errors. Most notably, the fifth article thing about “collusion.” Rather, Rosen- be literate,” he says. charges Rosenstein with stein appointed Mueller to Chesney discovered Tait the same responsibility for the Jus- investigate the possibility way everyone else did: online. “He tice Department’s sup- of “links and/or coordina- was becoming somebody you would posed obfuscation of the tion between the Russian see as a commentator. It was clear Steele dossier’s origins as government and individu- he has a good grasp not just on the opposition research on als associated with the cam- technology but on the relevant legal behalf of the DNC and paign of President Donald and policy aspects.” He thought Tait Hillary Clinton’s presiden- Trump.” There is plenty of would be a natural teacher and invited tial campaign: “Under Mr. information in the public him to join the faculty in 2016. Rosenstein’s supervision, record to support the estab- Nina Guidice, a technology policy Christopher Steele’s politi- Rod Rosenstein lishment of such an inves- student at the LBJ School of Pub- cal opposition research tigation, which despite the lic Affairs at U.T. Austin, took Tait’s was neither vetted before it was used articles of impeachment has the sup- seminar course in the spring of 2018. in October 2016 nor fully revealed to port of many Republicans in Congress. She says Tait “taught everything with the FISC.” The problem is that Rosen- Another indication of the lack of a sense of humor” and was accessible stein became deputy attorney general seriousness in the articles of impeach- to students. Another one of Tait’s for- in April 2017, long after the Steele dos- ment is the flimsy legal basis for the mer students, Justin Laden, a J.D. sier was used in the Carter Page FISA charges against Rosenstein. There is candidate, enjoyed learning key inter- application. He was not, and could not uncertainty at the margins about what disciplinary skills from someone with have been, responsible for the alleged constitutes “high Crimes and Misde- real-world experience in cybersecu- obfuscation—an allegation that the meanors” under the Constitution, but rity. Tait is “extremely well-versed in recent release of the Carter Page appli- that uncertainty does not extend to the the law,” despite not having earned a cation revealed is baseless. House charges. Most of the charges law degree, he notes. The fourth article also contains a against Rosenstein concern the Jus- Asked whether Tait’s students were factual error. The charge here con- tice Department’s supposed failure to aware of their professor’s Twitter fame cerns Rosenstein’s failure to give respond fully to congressional subpoe- and involvement in the Russia investi- Congress in unredacted form his nas related to the Mueller investiga- gation, Chesney laughs. “A few knew, August 2, 2017, memorandum on the tion. Any notion that the constitutional and some others figured it out along scope of the Mueller investigation. In phrase is meant to apply to a dispute the way, but not everyone really did,” this context, the article avers: “Mr. about congressional oversight of an he says. “A few were keenly aware Rosenstein’s memo raises fundamental ongoing counterintelligence or related what a unique opportunity it is. But concerns related to the government’s criminal law-enforcement investiga- especially since he’s not ‘Professor tion by the executive branch is absurd. Pwn All the Things,’ he’s just plain ol’ Jack Goldsmith, a professor at Harvard Law The idea is especially absurd because Professor Tait, it’s easy to miss.” Tait, School and a senior fellow at the Hoover the Justice Department has been more content to remain in obscurity, says Institution, served as assistant attorney general forthcoming to Congress about the

that’s probably for the best. ♦ in the George W. Bush administration. Mueller investigation than it has been / GETTY ROBERTS / BLOOMBERG JOSHUA

16 / The Weekly Standard August 6, 2018 about any similar ongoing investiga- deputy attorney general for his part in that the Senate would then convict tion in American history. Such a sen- the Mueller investigation. But Trump him. But the charges and the threat of sitive investigation would typically has not removed Rosenstein, since proceedings further muddy the waters be closely held inside the executive doing so would invite political disas- about the legitimacy of what Mueller is branch. The Justice Department would ter—especially before the midterms. doing and thus the legitimacy of what- at most turn over to congressional intel- The president’s attacks on Rosenstein ever Mueller discloses in the end about ligence committees summaries and and others seek to discredit the Muel- the president and his closest advisers. conclusions about the investigation ler investigation in advance of what the The articles of impeachment are a and, in an extreme case, perhaps a very president fears will be damaging revela- shameful, cynical attack on the rule few primary documents. And it would tions down the road. of law. They are all the worse since do so in strict secrecy. Under enormous The sloppy articles of impeachment they come in the context of our gov- pressure and in a politically impossible serve the same aim. There is no chance ernment’s trying to figure out the situation, trapped between the over- that the House will impeach Rosen- undoubted efforts by the Russians to demanding House Republicans and a stein over these allegations, much less manipulate our democracy in 2016. ♦ railing president, Rosenstein has been generous and transparent in what he has authorized the Department of Jus- tice to disclose. If anything, he has gone too far in compromising traditional The Helsinki executive-branch prerogatives. Impeachment, moreover, is not an appropriate remedy for Rosenstein’s Crossroads alleged transgression of insufficient transparency. He, after all, works for the president, who is ultimately responsible for the information the Justice Did Trump’s coddling of Putin damage Department gives to Congress and who his approval rating? by David Byler can order Rosenstein to disclose more on threat of removal. Congress is over- n July 16, Donald Trump and Washington (understandably) spent stepping its authority in micromanag- Vladimir Putin held a joint the rest of the week reacting and re- ing the executive branch by seeking O press conference in Helsinki, reacting to the news. to impeach an official for refusing to where the American president sided What do the voters think? Is this turn over information that the presi- with the Russian dictator over the U.S. incident just more of what they’ve dent has not ordered him to turn over. intelligence community. Asked about already seen from Trump, or could his Congress appears to have only once Russian hacks of the Democratic coddling of Putin damage his overall used the impeachment tool against an National Committee’s server in 2016, approval rating? YouGov, Ipsos, Sur- executive-branch official other than the Trump said, “My people came to me, veyMonkey, Marist, Quinnipiac, the president—in 1876, when it impeached Dan Coats and some others, they said Washington Post, and CBS News have Secretary of War William Belknap after they think it’s Russia. I have Presi- all released polls that asked respon- he resigned for accepting bribes and dent Putin, he just said it’s not Russia. dents directly about the Helsinki kickbacks in office. I will say this, I don’t see any reason summit. These show Trump getting When Congress is unhappy with why it would be.” middling to low marks. the executive branch’s refusal to Trump caught widespread flak for His best results were in the Huffing- comply fully with a broad subpoena his statements, from both his usual ton Post/YouGov and Axios/SurveyMon- requesting documents about an ongo- opponents and some of his usual allies, key polls. YouGov found that 41 percent ing investigation, and when negotia- and he tried to walk back his state- of Americans approve of Trump’s meet- tions about proper accommodations ments a day later—claiming that he’d ing with Putin, 35 percent disapprove, break down, the usual remedy is to meant to say “wouldn’t” instead of and the rest are unsure. SurveyMonkey seek to enforce the subpoena in court. “would” and affirming that he believes found that 40 percent of respondents The House Republicans have not gone Russia did interfere with the election. approve of the way Trump handled the this route, since they would almost He still insisted, though, that it “could press conference and that 79 percent of certainly lose in court. Their political be other people” and that “there Republicans approve. aims are better served by articles of was no collusion at all” between his The Washington Post, Ipsos, Marist, impeachment than by judicial process. presidential campaign and Moscow. Quinnipiac, and CBS News num- Which brings us to what is really bers were all much less favorable for going on here. The president has David Byler is a staff writer Trump. According to an ABC News/ been hounding and threatening his at The Weekly Standard. Washington Post poll, only 33 percent

August 6, 2018 The Weekly Standard / 17 of adults approve of Trump’s han- These are not good numbers, but these have all been part of the news for dling of the meeting with Putin, and they’re not catastrophic. extended periods of time. 50 percent disapprove. More impor- Trump’s approval rating on Hel- Trump and the GOP, for example, tantly, only 66 percent of Republicans sinki is low, and it lags his overall tried to repeal and replace the Afford- and 58 percent of ideological conser- approval rating (which has been hov- able Care Act for months in the spring vatives approve of Trump’s handling ering at 43 percent for about a month and summer of 2017. Those bills gen- of the meeting. Those numbers might in the Real Clear Politics average). But erally polled poorly, and the constant seem fine at first glance (they’re above his issue-specific approval ratings have media focus on their failures dragged 50 percent, after all). But we live in a often been lower than his overall rating. down Trump’s approval rating. Simi- polarized, hyperpartisan era in which According to an Economist/YouGov larly, the GOP tax-reform bill was the 80 to 90 percent of the GOP approves poll taken before the Helsinki sum- subject of a shorter but still notable of Trump’s overall job performance. mit, Trump’s job approval among reg- public debate. The bill seems to have So slipping into the 60s or 70s with istered voters was just 43 percent. But depressed Trump’s approval rating at Republicans is not a great number for his approval ratings on gay rights, abor- first—though it became significantly the president. more popular after it was passed The CBS News numbers were into law. similar—only 32 percent of its The president’s approval rat- respondents approve of Trump’s ing hit its low point in Decem- handling of the meeting, with 68 ber 2017—right around the time percent of Republicans approving. when Republican Roy Moore An NPR/PBS NewsHour/ (who was credibly accused of hav- Marist post-Helsinki poll showed ing improper sexual contact with further discontent with Trump— teenagers while he was in his 30s) 65 percent of registered voters (and was defeated by Democrat Doug 47 percent of Republicans) say Jones in the Alabama special elec- Trump was “not tough enough” on tion. Moore was the biggest story Russia at the sumit. According to a in politics for at least two months, Quinnipiac poll, 52 percent of vot- and Trump’s association with him ers see the meeting as a failure for likely hurt the president’s ratings. the United States. Trump also took a hit when he The Daily Beast/Ipsos poll had the tion, the environment, Medicare, Social fired FBI director James Comey. But greatest warning signs: 49 percent say Security, women’s rights, the budget it’s hard to disentangle the longer- Trump was “too deferential” to Putin deficit, education, civil rights, health term effects of the Comey firing from and only 26 percent believe the Trump care, gun control, and foreign policy those of other ongoing stories like the administration could prevent future were all under 43 percent. Put simply, health care fight. The Comey storyline, attacks from Russia. Trump’s Helsinki numbers were bad, like the others, stayed in the headlines Despite these tough numbers, the but they were in the neighborhood of for weeks and seemed to measurably president’s overall rating hasn’t moved his numbers on other important issues. lower Trump’s poll numbers. much. Gallup’s weekly poll (which ran The polls that allow us to do clean In each of these cases, Trump’s from Monday the 16th through the before-and-after comparisons of approval rating seems to have 22nd) shows Trump’s approval rating at Trump’s approval rating, moreover, responded to sustained negative press 42 percent. A week earlier Gallup had don’t yet show any big movement for coverage. These events hung over him at 43 percent. Rasmussen Reports Trump. It’s possible that future polls Trump throughout most of 2017. And had Trump’s approval at 45 percent will. But it’s just as possible that his much of the increase in his approval before Helsinki, and in their first fully showing in Helsinki isn’t making much rating since then can be chalked up to post-Helsinki poll they have him at of a dent in Trump’s overall approval. their leaving the headlines. 44 percent. Reuters/Ipsos had Trump’s And that is the biggest limitation in If the Helsinki story sticks around, it approval rating going slightly up post- this sort of empirical, poll-based anal- could have a similar effect on Trump’s Helsinki poll (44 percent among reg- ysis: We don’t yet know how long the numbers. His performance at the istered voters vs. 41 percent), though a broader Helsinki story (e.g., reactions summit made him look weak and cut small movement like that could just be to Trump’s performance, continued against the perception that Trump is a noise. YouGov had Trump at 38 percent discussion about it in the press and strong, intelligent leader. More signifi- right after Helsinki (which isn’t a great Congress, etc.) is going to run. Only cantly, Helsinki could be another straw number), but he’s bounced around in a few news stories (the health-care on the camel’s back: something that the surveys YouGov has released since fights of 2017, the tax reform bill, Roy doesn’t change Trump’s approval rat- then (its online panel allows it to collect Moore, and James Comey) have really ing now but inches the broader Russia data and publish quickly). damaged Trump’s approval rating, and story closer to a breaking point. ♦

18 / The Weekly Standard August 6, 2018 Those materials have yet to be released. Not Quite Closed But what we do know is that Ohr passed the details of his conversa- Did the FBI really sever its relationship tions with Steele on to the FBI. Ohr’s communica- with Christopher Steele? by Eric Felten tions with the bureau weren’t merely informal chats. They hat exactly does it mean renewal, “Source #1 were formal FBI interviews, each for the FBI to suspend independently, and subsequently written up in a W its relationship with a against the prior “302” summary memo. We know source? What does it mean when that admonishment from this from a detailed letter sent by relationship has been “closed”? The the FBI to speak only with the FBI Senate Judiciary Committee chairman answers to those questions may pro- on this matter, released the reporting Chuck Grassley to deputy attorney vide insight into whether the FBI discussed herein to an identified news general Rod Rosenstein and FBI direc- and Department of Justice, in their organization.” Steele had actually been tor Christopher Wray in early July. applications for surveillance warrants briefing multiple news outlets on his The FBI conducted at least a dozen against Carter Page, were fully forth- dossier since September 2016, but it such interviews with Ohr. The first we coming with the secret federal court was this late October conversation with know about took place November 22, that considers such requests. Mother Jones that got him into trouble. 2016—just weeks after Steele was The Federal Intelligence Surveil “Although the FBI continues to caught breaking FBI rules regarding lance Act documents released on assess Source #1’s reporting is reli- the press. That was followed by inter- July 21 after a FOIA lawsuit from USA able,” the bureau states in the January views December 5 and 12. Those three Today show the government informing renewal, “the FBI has suspended its interviews were summarized by the the court that the FBI had “suspended relationship with Source #1 because FBI in a 302 produced December 19. its relationship” with Christopher of this disclosure.” And that’s that for The FBI interviewed Ohr about Steele. Steele is the former British spy the warrant application’s discussion Steele’s stories again the next day, who was the Justice Department’s of Steele. December 20, an interview memorial- “Source #1” for its warrant applica- One might think from this that ized in a 302 dated December 27. And tions targeting Carter Page. FISA war- Steele was a spy left out in the cold. it went on into 2017, with the FBI lis- rants must be renewed every 90 days, But he wasn’t quite the non-grata tening to Steele allegations by way of and in the first such renewal filing persona that the warrant application Ohr three times in January (the 23rd, with the court in January 2017, it was suggests. Indeed, Steele continued to 25th, and 27th), twice in February (the revealed that the suspension came after feed his allegations to the FBI—just 6th and 14th), and then three times in Steele was caught talking to the press, not directly. The bureau continued to May (the 8th, 12th, and 15th). which the FBI had told him not to do. consume those allegations and went In April 2017, Justice filed a sec- The FISA filing explains at length to great lengths to deal with Steele ond renewal of its warrant applica- why Steele felt driven to break his without directly talking with him. tion against Page. This time, the FBI word: In late October, FBI direc- Steele found a go-between through claimed something more definitive tor James Comey had “sent a letter whom to maintain contact with the about its relationship with Steele: to the U.S. Congress, which stated FBI: senior Justice Department offi- He hadn’t just been “suspended.” that the FBI had learned of new infor- cial Bruce Ohr, whose wife Nellie Ohr, After repeating the detail about mation that might be pertinent to an a Fusion GPS employee, was work- “Source #1’s unauthorized disclosure investigation that the FBI was conducting with Steele on his dossier. (The of information to the press” (which ing of Candidate #2.” That would be dossier work had been contracted by had happened back in October), the the inquiry into Hillary Clinton and Fusion GPS, which in turn was paid FBI makes this unequivocal state- her emails. Comey’s action made Steele by law firm Perkins Coie; the law firm ment in the second renewal applica- mad: “Source #1 told the FBI that he/ has acknowledged that the money tion (the emphatic underlining is in she was frustrated with this action and came from the DNC and the Hillary the original): “Subsequently, the FBI believed it would likely influence the Clinton campaign.) closed Source #1 as an FBI source.” 2016 U.S. Presidential election.” Bruce Ohr met repeatedly with And yet all the while, the FBI was “In response to Source #1’s con- Steele. The Justice Department has using an interlocutor (one with a seri- cerns,” reads the January 2017 FISA already turned over to Senate inves- ous conflict of interest) to continue its tigators “63 pages of unclassified conversations with Steele. Eric Felten is a senior writer emails and notes documenting Mr. Asked about Steele’s suspension

at The Weekly Standard. Ohr’s interactions with Mr. Steele.” and subsequent “closure” as a source, GARY LOCKE

20 / The Weekly Standard August 6, 2018 a spokesman for the FBI said that the declassify the Ohr 302s and produce Handler on stage yelling “Who gives a bureau has no comment. them to the Judiciary Committee by s—?” at Karl Rove seems like a fiend- In the spirit of transparency, Grass- July 20. ish plan to make even a crowd full of ley asked in his letter that Justice The senator is still waiting. ♦ liberals sympathize with the Repub- lican uber-operative (believed by left-conspiracists to have personally reprogrammed all of Ohio’s voting machines in the 2004 election). At one Saturday in the Park point on Saturday afternoon, there’s even an all-GOP panel featuting anti- tax activist Grover Norquist and soon- Look at Ozy Fest and despair. to-be-ex-congressman Mark Sanford. Norquist is a veteran of the festival by Mark Hemingway circuit, having gained notoriety as one of the few prominent right-wingers to New York afford the $79 admission. That’s just be a regular at the Burning Man gath- here have been a lot of jokes the start, though. There are two fur- erings in the Nevada desert. A former about Ozy Fest, due to its ther tiers of more expensive VIP tick- NRA board member, Norquist has Tname being oddly similar to ets, with perks ranging from roving carefully honed his pitch to liberal Ozzfest, the long-running heavy metal masseuses to what appears to be a table crowds, knowing full well his mes- festival founded by Ozzy Osbourne. sage of more guns and lower taxes But maybe it’s not entirely a joke—it’s goes down easier if it’s paired with his easy to imagine crowds like the one emphatic support of legal weed. in Central Park last Saturday coming But with Norquist and Sanford’s together a generation ago, Bic lighters panel sandwiched between a drag held aloft, to hear their favorite bands, queen dating game and an interview to be entertained, to commune with with the DNC’s Tom Perez, the lib- their fellow fans. eral crowd grows restless. Moderator To clear up any confusion, Ozy is an Fay Schlesinger, Ozy Media’s man- online publication in Mountain View, aging editor, gamely tries to engage Calif., just five miles from Google the crowd by getting Norquist to headquarters. Ozy Media, somewhat Jobs and Clinton at Ozy Fest 2018 bash Trump’s protectionist trade bizarrely, took its name from the Shel- policies. It’s not that Norquist isn’t ley poem “Ozymandias.” If you’ve for- in one of the restricted tents full of a staunch free trade advocate, but he gotten, the poem is about stumbling consumer electronics handed out as expends considerable effort correcting across the wreck of a fallen empire in party favors. It can safely be assumed Schlesinger’s misapprehension of how a desert (Look on my Works, ye Mighty, that dwellers in the ritzy apartment Trump’s tariffs are supposed to work and despair!). It’s bizarrely incongru- buildings lining the park were all too before he can explain what’s wrong ous with the shameless Silicon Valley happy to pay top dollar to see the top with them. Sanford shouldn’t, in the- optimism that permeates everything speaker, Hillary Clinton. ory, have to prove his bona fides with Ozy does. Not that the optimism is Ozy Fest has been described by the crowd. His principled opposition entirely unwarranted. The day before Ozy Media founder Carlos Watson to Trump meant that he lost a Repub- Ozy Fest, the old-school New York as “TED meets Coachella,” which is lican primary election earlier this year. Daily News announced mass layoffs. a sunny way of describing this cul- However, as the talk turns to Trump’s Ozy, on the other hand, seems to go tural hell of our own making. Aside irresponsible fiscal policy of increased from strength to strength, having set- from Clinton, such notable figures spending paired with tax cuts, you can tled on the only foolproof model left as the actress and #MeToo icon see the line at the dragonfruit juice for funding journalism: hoovering up Rose McGowan, Karl Rove, come- stand quickly grow longer. New York venture capital from our politically dian Chelsea Handler, Democratic liberals don’t want to hear Republicans, liberal tech overlords. National Committee head Tom Perez, no matter how critical of Trump they This year’s Ozy Fest was the third and a contestant from RuPaul’s Drag are, tell them that spending restraint such gathering. It promised all the Race will grace the dais, along with is of the utmost importance. The very political and intellectual engagement hipster bands Passion Pit and Young notion prompts an indignant rant from you can handle—provided you could the Giant and the rapper Common. moderator Schlesinger in the form of a Ozy, to its credit, isn’t content to question. Mark Hemingway is a senior writer exist entirely in a liberal bubble. In “So what would you cut?” she says

at The Weekly Standard. fact, watching the unbalanced Chelsea to Sanford and Norquist. “Because I BRAD BARKET / GETTY

22 / The Weekly Standard August 6, 2018 think that’s where the solutions really Ukraine, whether it’s the interference interviewed by Laurene Powell Jobs, lie. And I’m really curious to see what in our democracy,” says an impas- the stunning billionaire widow of the you think because I agree there is a lot sioned Perez. Without letting Trump late iPhone inventor and, not coin- of government spending in the form of off the hook for the troubling tongue cidentally, an investor in Ozy Media. contracts for private military contrac- baths he’s given Putin, in terms of Mrs. Jobs has no intention of getting tors and in the form of subsidies for oil actual policy, the lack of action on all Mrs. Clinton to bare her soul. companies . . . and there seems to be a of these issues is a big indictment of the When someone from the crowd lot of emphasis on cutting social pro- previous administration as well, never yells something about the popular vote grams that Americans have paid into. I mind the irony of Obama’s secretary of winner being prevented from becom- look at my checks every two weeks, and Labor repeating Mitt Romney’s 2012 ing president, Jobs stops and addresses I pay a lot of money into Social Secu- foreign policy talking points. the point directly. “We should talk rity and Medicare, and when you have But ultimately, the workaday parti- later about changing the Electoral Col- lawmakers specifically targeting those san concerns of Perez and some token lege. I appreciate it, and as a Califor- issues . . . that message is something Republicans can’t begin to generate nian I would like my vote to count,” very negative to the American people.” the enthusiasm the crowd has for Rose she says to cheers, though it’s hard Norquist, perhaps not wanting to McGowan. The former star of Charmed to imagine finding much nationwide completely alienate the crowd, cheer- and Grindhouse has become a figure of sympathy for the fact that the Consti- fully stumbles through an answer about cultural importance in the wake of her tution is limiting the political influ- the difficulty of entitlement reform, but battle against accused Hollywood rap- ence of rich Californians. doesn’t get at the fundamental feeble- ist Harvey Weinstein. She speaks with Perhaps because Jobs is lobbing ness of Schlesinger’s premise. Credible the passion of a woman who has been them slow and over the middle, Clinton estimates of the unfunded liabilities of liberated, and nearly every remark is lets the political mask drop a bit. Once America’s entitlement programs range greeted by whoops and hollers. she gets through the predictable com- from about $30 trillion to $130 tril- Her story is a bracing one. Long plaints about Russia, she speaks with lion. No other line of federal spending, before she was abused in Hollywood, disarming warmth, particularly about let alone comparatively trifling spend- she was raised in a cult that sexual- the effects of Trump’s immigration ing on oil subsidies and Pizza Huts at ized children. She pulls no punches, policy. “We have decades and decades military installations in Afghanistan, telling the crowd flatly that Weinstein of proof that absorbing immigrants, represents more than a drop in this was hard to bring to justice because creating opportunities . . . and opening bucket. Further, this crushing debt “Democrats protected him.” She also the doors has been to our advantage,” is the result of Americans not paying spins a conspiracy theory (featur- she says. And when she appeals for help into these programs nearly as much ing ex-Mossad agents) about her bust in her efforts to get airline flights to as they take out. Schlesinger gets loud for cocaine possession on a flight to reunite families separated by Trump’s applause nonetheless. appear at the Women’s March in D.C. immigration enforcement policies, the Sanford and Norquist clear the stage last year. McGowan is received as a crowd seems genuinely moved. for the DNC’s Tom Perez, who’s being hero, however imperfect. But if it’s unclear what the point of interviewed by CNN’s Dana Bash. Coming not long after McGowan’s all this is, at the end of the panel the Bash asks Perez a series of tough ques- testimony, however, there’s also a stage opens up behind Jobs and Clin- tions about the electoral viability of hero’s welcome for the day’s headliner, ton and a carefully edited video pre- the sharp ideological turn to the left Hillary Clinton. If you sense a jarring sentation highlights and tallies the among certain Democratic candidates juxtaposition between the expres- thousands of #resistance efforts and and voters. Perez deftly dodges them. sions of support for McGowan and a marches in states across the country. On the one hand, the math behind the woman who was involved in shutting Many people have paid good money to “Medicare for All” that the left keeps up women who accused her power- attend what is ultimately an elaborate demanding is impossible. On the other, ful husband of sexual harassment and attempt to make Clinton feel better all of the organizing energy for Demo- worse—well, shut up and enjoy your about failing to campaign in Wiscon- crats is among people who buy into this free massage and dragonfruit juice. sin. Though not everyone is part of the fantasy. Fortunately for Perez, he can Clinton seems happy and relaxed support group: A heckler can be heard find common ground on another topic. and is no doubt comfortable, wear- bellowing, “Lock her up!” Russia has gone from a place on the ing an exceedingly billowy outfit that If outdoor political gatherings map to a sort of political incantation. sparks a lot of chatter because no one and intellectual-ish panel discus- “Russia is our most serious adver- can quite describe it. Caftan? Muu- sions are becoming the arena rock sary. [Trump] should be up there muu? She cut a hole for her head in of the 21st century, the guy in the demanding action. [Trump] should the expensive top sheet from wher- back of the crowd yelling “lock her have handed the indictments to Putin. ever she slept in the Hamptons the up” is the drunk fan at every concert He should be holding them account- previous night? Of course, she has no demanding a replay of the Lynyrd able, whether it’s Crimea, whether it’s reason not to be at ease. She’s being Skynyrd classic: “Free Bird!” ♦

August 6, 2018 The Weekly Standard / 23 In Defense of FISA Applying checks and balances to our government’s surveillance activities was the right idea. But who will oversee the overseers?

By April Doss volumes still are today. Read these, then read the FISA [For- eign Intelligence Surveillance Act] statute and the FISA n September 2005, I sat in a small, windowless minimization procedures. Then we’ll put you to work.” office with musty carpeting on the eighth floor of As I sat at my desk thumbing through the six volumes the Ops2B building at the National Security Agen- of the report and seven volumes of hearings, I was struck cy’s headquarters in Fort Meade, Maryland. I’d by just how significant the Church Committee findings still been working at the agency for two years, a career were in 2005. And as news reports unfolded in July 2018 Ishift that I, like so many others, made after the terrorist about the release of the Carter Page FISA documents— attacks of September 11, 2001. Although I had a law degree, the first-ever declassification of this kind of government my first job at the agency had been in the office of policy. application—I couldn’t help but think about the enduring Two years later, I’d switched to this new role at the NSA lessons of the Church Committee: what the committee’s Office of General Counsel as an operations attorney, part proceedings explained about the creation of FISA, how the of a group of lawyers that advised the NSA’s analysts and law has evolved, and how politics has always played a role in information collectors on the authorities and restrictions shaping electronic surveillance law, albeit in different ways that governed their work. We were also responsible for all during different decades. of the filings with the Foreign Intelligence Surveillance Historical comparisons are fraught with opportunities Court (FISC) and worked closely with the Department of for inaccuracy, but by all accounts the late 1960s and early Justice drafting the pleadings requesting authority to carry 1970s were an era in which there was as much social divi- out electronic surveillance. sion as there has been from 2016 to the present. The cul- “Here,” my boss said that morning. He gestured to a ture wars then were shaped by antiwar protests and the civil stack of books on a particle-board bookshelf. “Start here.” rights movement, and more than a few government agen- The books he pointed to were Government Printing Office cies mistook internal protest for national security threats. volumes of the proceedings of the Church Committee, By the late 1970s, there had been a flood of allegations that which in 1975 had investigated the U.S. intelligence com- led to the formation of a Senate committee (and a parallel munity’s surveillance of Americans. one in the House) to investigate “the extent, if any, to which I had a top-secret clearance already; I’d been working illegal, improper, or unethical activities were engaged in closely with the NSA’s operational units for two years; and by any agency of the Federal Government,” all with an eye I was generally familiar with what I would come to think of toward the critical principle that “the preservation of lib- as the NSA’s bedtime stories: the stories that were repeated erty requires the restraint of laws, and not simply the good every single year in our required intelligence oversight intentions of men.” In its investigation of NSA activities in training, the stories of intelligence community excesses, like particular, the committee noted: the NSA’s own participation in Operation SHAMROCK, It has the capacity to monitor the private communications which had intercepted and read telegrams to and from indi- of American citizens without the use of a “bug” or “tap.” viduals in the United States for 30 years, from World War II The interception of international communications signals through the 1970s. Against that backdrop, I wasn’t sure why sent through the air is the job of NSA; and, thanks to mod- he wanted me to read these dog-eared, decades-old reports. ern technological developments, it does its job very well. The danger lies in the ability of the NSA to turn its awe- “You’d be surprised,” he said, “how relevant these some technology against domestic communications.

April Doss has served as senior minority counsel for the Senate The committee delved into abuses by the Federal Select Committee on Intelligence and head of intelligence law at the Bureau of Investigation (FBI), the Central Inteligence National Security Agency. She currently chairs the cybersecurity Agency (CIA), and the Defense Intelligence Agency (DIA). and privacy practice at Saul Ewing Arnstein & Lehr. And—relevant to the later FISA legislation—the committee

24 / The Weekly Standard August 6, 2018 noted that it was deeply concerned about interception of surveillance legislation might take. In the end, what Con- domestic communications by the NSA and by the fact that, gress devised was a law as complicated as the questions it at the time, the NSA operated under an executive branch was trying to address, and as flawed as any legal structure charter, without a statutory authorization or framework for with a limited ability to keep pace with changes in tech- its intelligence activities. nology. Congress’s aim was to strike a balance between As the lengthy public hearings of the Church Commit- national security and privacy and to ensure that electronic tee wore on, a consensus began to form that, while it was surveillance could be carried out when the need for intel- necessary to implement reforms within the intelligence ligence outweighed privacy concerns. A number of dissent- community, executive branch changes alone wouldn’t be ers expressed concern about whether it was appropriate for enough. President Gerald Ford signed the executive order judges to have any role in national security at all—it fell that would serve as the predecessor to the current EO 12333, defining the lanes in the road traveled by various agents of the intelligence community and, for the first time, requiring attorney-general-approved guidelines for the collection, retention, and dis- semination of information involving U.S. persons. Shortly afterwards, Congress debated new legislation titled the For- eign Intelligence Surveillance Act, designed to constrain electronic surveillance in ways that would protect the privacy interests of U.S. persons, restrict the government’s ability to surveil U.S. persons for intelligence A meeting of the Senate’s Church Committee, February 6, 1975 (clockwise from lower left): purposes, comport with the principles Gary Hart (D-Colo.), an unidentified stenographer, Richard Schweiker (R-Pa.), Robert Morgan (D-N.C., partly hidden), Walter Mondale (D-Minn.), of the Fourth Amendment, and gener- Charles Mathias (R-Md.), Barry Goldwater (R-Ariz.), Howard Baker (R-Tenn.), ally raise the bar for wiretapping car- John Tower (R-Texas), and committee chairman Frank Church (D-Idaho) ried out for intelligence purposes to a level of scrutiny and rigor that was closer to the set of stan- outside the Article III remit, and judges would not be as dards that the government had to meet for criminal wire- familiar with intelligence techniques as Congress. However, taps under Supreme Court case law. HPSCI’s report concluded, “Whenever an electronic sur- The legislative history of the House Permanent Select veillance for foreign intelligence purposes may involve the Committee on Intelligence’s (HPSCI) FISA hearings con- fourth amendment rights of any U.S. person, approval for tained a lengthy exploration of the history of wiretapping such a surveillance should come from a neutral and impar- in the United States, with a particular focus on the activities tial magistrate.” HPSCI noted the benefits to this approach of the Federal Bureau of Investigation. It was clear that the and even anticipated the potential problem that a court HPSCI considered the FBI’s latitude too broad, whether it might merely serve as a rubber stamp: was acting on its own initiative or instituting wiretaps at the president’s behest. At the same time, the HPSCI pointed to By requiring a judge ultimately to approve foreign intelligence electronic surveillances, the bill would require the the mere existence of the CIA and other intelligence agen- responsible officials in the executive branch to consider and cies as proof of Congress’s authority to legislate electronic articulate the facts and their appraisal of the facts. If the surveillance for national security purposes. In the view of executive officials were the approving authority, the same the House report, while the president’s Article II powers consideration and articulation would not be as likely to occur. The experience under [the Wiretap Act] is instruc- previously had been (and would continue to be) invoked to tive. While few orders for law enforcement electronic sur- justify intelligence-gathering activities of all kinds, the fact veillance have been denied, the committee believes that that Congress authorized and appropriated funds for agen- the reason is the care and scrutiny which applications cies like the CIA led to the logical conclusion that it, too, receive before they ever go to a judge. The institutional response to an outside approval authority, then, is to make had authority over foreign intelligence matters. every effort that only good applications should go to the

HENRY GRIFFIN / AP There was robust debate over what shape electronic approval authority.

August 6, 2018 The Weekly Standard / 25 On that basis, Congress took the extraordinary step n July 21, 2018, the Department of Justice took of establishing a special federal court, staffed by sit- the unprecedented step of releasing declassified, ting federal judges, that would conduct its proceedings O redacted versions of FISA applications—an ini- based on some of the most highly classified information tiation and three renewals—for electronic surveillance of in the government’s possession and that would exercise the United States person Carter Page. Page had at one time both soft and hard power to keep the government hon- been a foreign-policy adviser to presidential candidate Don- est. The soft power rested in the unwritten assumption ald Trump. Page had also previously lived in Russia, where that the FBI, CIA, NSA, and Justice Department would he worked as an energy consultant. More significantly, in ensure that applications to the FISC were sound, well- terms of potentially sketchy ties to Russia, Page had been supported, well-reasoned, and met the requirements of in contact with two men who were later indicted on charges the statute—and consequently that of being Russian spies. It was these those applications would be worthy interactions that first brought Page of approval, either on their face or Congress has never been to the attention of the FBI—and after some revisions, in nearly all indeed, these interactions were cases. And the hard power would able to get away from the among the facts cited in the FBI’s lie in the FISC’s enforcement abili- original FISA framework, statement of facts alleging probable ties: For every order signed by the even as technology and cause to believe that Page was acting FISC, the court had the author- telecommunications as an agent of a foreign power. ity to require that the government have evolved and the law The Page FISA applications have demonstrate compliance with the been the source of ongoing contro- terms and conditions of the order. has been amended with versy ever since March 4, 2017, when That meant the government would odd appendages, like President Trump first tweeted that have to report any instances of non- ramshackle additions under the Obama administration, compliance with the minimization on a house that weren’t he had his “wires tapped” in Trump procedures, and the court would planned by an architect. Tower. Of course, at the time no one have broad authority to require the outside the national security com- government to undertake correc- munity had any inkling what he was tive measures—even if they were costly ones and even if it talking about. There was lots of speculation about whether meant terminating surveillance. he was referring to phone calls his national security adviser, This complicated statute has a number of features that Mike Flynn, had with Russian ambassador Sergey Kis- merit attention, from the four-part definition of what pre- lyak—a series of communications which Flynn, a retired cisely constitutes “electronic surveillance” under the law Army general, would later lie about, leading to the criminal to the perilous decision to tie that definition to specific charges to which he would plead guilty. In hindsight, as gar- technologies that existed in 1978. Congress has never been bled as Trump’s wiretap tweet was, one has to wonder if he able to get away from that framework, even as technology hadn’t just found out about the surveillance of Carter Page. and telecommunications have evolved and the law has What we now know from the declassified documents is been amended like a house with ramshackle additions that that the FBI submitted the Page application to the FISC in weren’t planned by an architect; they serve their function October 2016, after Page had left the campaign. During the but with odd mismatches that betray them as afterthoughts. summer of 2016, news outlets had reported on a speech that Congress hoped it could curb abuses and restore public Page made in Moscow that was highly critical of the United trust by creating a framework for domestic electronic sur- States and on Page’s ties to prominent Russian figures with veillance in which the Fourth Amendment rights of U.S. connections to the Kremlin. It sounded entirely too remi- persons would be protected and all three branches of gov- niscent of the heat the Trump campaign was taking in the ernment would play vital roles in authorization, operations, press for the ties its campaign chairman, Paul Manafort, and oversight. Congress even thought it had the leak prob- had to shady Russian oligarchs. By September 2016, both lem solved. According to the HPSCI report, “One need only Manafort and Page had left the Trump campaign. read the newspapers to realize that a primary cause of ‘leaks’ In October, the FBI noted a string of activities that is the uncertainty as to the legality and propriety of various raised concerns about Russian interference in the 2016 intelligence activities.” It was HPSCI’s hope that “by elimi- presidential election. These were laid out in the initial nating that uncertainty with respect to foreign intelligence application: The FBI described Russia’s clandestine intel- electronic surveillances, this bill will go a long way to stem- ligence activities; its historical attempts to interfere in ming ‘leaks.’ ” U.S. elections; its particular efforts to interfere in the 2016

26 / The Weekly Standard August 6, 2018 election—including the cyberattack on the DNC and the recused himself, although it was unclear just how distant release of hacked emails by WikiLeaks—and the intel- he remained from the HPSCI majority’s efforts during the ligence community’s joint assessment, a version of which investigation. Despite the constant sense that this once- was released to the public on October 7, 2016, concluding sober committee was on the verge of running off the rails, it that the intelligence community was confident that Russia’s managed to cling to just enough credibility to stay on track senior-most officials directed the targeting of the DNC. until the winter of 2018, when Nunes insisted on releasing Although Page had left the campaign, the FBI feared a memo that endorsed a new conspiracy theory about how a Russia was using him for its own purposes. The applica- Democratic administration had: abused the FISA process tion states that the FBI alleged there was probable cause to by using salacious opposition research (with the implica- believe Page was an agent of a foreign power under a spe- tion that the funding source made the information itself cific provision of FISA that involves knowingly aiding, abetting, or knowingly conspiring to assist a foreign power with clandestine intelligence gathering activities, engage in clandestine intelligence gathering at the behest of a foreign power, or participate in sabotage or international terrorism or planning or preparation therefor. The FBI then laid out its case. Many of the details specific to Page in the initial application are redacted. However, it appears to be a chronological narrative that includes references to Page’s years in Moscow in the early 2000s as well as a discussion of Page’s interactions with three intelligence officers of the Russian SVR (the country’s CIA equivalent), all of whom were indicted in the United States for various crimes that amounted to spying for Rus- sia. Two of the SVR agents fled the country, and Republicans Devin Nunes, right, and Peter King leave the House the third was convicted of conspiracy to act as an Intelligence Committee’s secure meeting rooms, February 6, 2018. unregistered agent of a foreign government and sentenced to 30 months in prison. (These charges, coinci- suspect), incorporated that suspect research into a FISA dentally, are the same ones leveled against Maria Butina, application, and sent the application to the secret proceed- who is in custody and awaiting further criminal proceedings of the FISC without telling the court there could be bias ings in the U.S. district court in Washington.) in the information. Through this complicated string of sub- At this point in the application, the narrative shifts to terfuges, Nunes claims, the Democrats managed to pervert Page’s actions during the campaign, in particular his July justice in order to spy on the Trump campaign. 2016 trip to Moscow to speak at the New Economic School, Over time, the conspiracy theory would deepen: Since where, according to the FBI application and the now-infa- the dossier included information from sources in Russia, mous Steele dossier, Page met with high-ranking Russian that meant that the Hillary for America campaign had col- government officials. It’s this portion of the application that luded with Russia to provide fake information to Christo- has engendered the greatest controversy. In January and pher Steele, who slipped the fake news to the FBI, which February 2018, the HPSCI—the same committee that had then pulled the wool over the eyes of a succession of four so soberly and thoughtfully laid out a balanced structure FISC judges, each of whom signed off on further surveil- for oversight of electronic surveillance activities—exploded lance against Carter Page. into a chaos of dysfunction. It’s an exhausting theory to contemplate, and yet one The HPSCI had been operating as a bit of a circus from that many people, fueled by conspiracy-mongering rumors the beginning of its Russia investigation in early 2017, on the Internet about the workings of the “deep state,” with Chairman Devin Nunes (R-Calif.) lobbing wild accu- believed. What the newly released documents show is that sations about the unmasking of the identities of U.S. citi- the theory is utterly bunk. zens in intelligence reporting by Obama administration On page 15 of the initial application, the FBI offers a officials—a series of accusations that led Nunes to make lengthy explanation of the sourcing of information about bizarre late-night trips to the White House and convene Page’s 2016 trip to Moscow. In sum, the Steele dossier was

CHIP SOMODEVILLA / GETTY press conferences on the White House lawn. Nunes briefly only one part of the case against Page and only one part of

August 6, 2018 The Weekly Standard / 27 the dossier was cited; it focused on a single event against hen the HPSCI issued its legislative report on a much larger background of Russian activities and Page’s the proposed FISA law, it wrote at length about own activities and interactions with indicted and convicted W the risks of an unchecked, unsupervised execu- Russian spies. Page was, after all, a man who had boasted in tive using surveillance tools against U.S. persons in ways that a 2013 letter that he was an informal adviser to the Kremlin. ran afoul of the Constitution and the values of the nation. It So against this fuller background of facts (not the com- also examined the potential risks of including the judicial plete facts, since the released applications are full of redac- branch in the national security decision-making process. tions, and since there may be other facts that haven’t yet What HPSCI was apparently blind to was the risk to the come to light), it is apparent that the FBI would have been nation posed by a legislative branch that itself has run amok. derelict in its duty if it didn’t at least investigate whether Not all of Congress is dysfunctional, and the Senate there was cause for concern. Page had longstanding ties to Intelligence Committee (the Church Committee’s descen- Russia, including past ties to indicted and convicted Rus- dant) is functioning in a far more robust, bipartisan way sian spies; the intelligence community had concluded that than anything we’ve seen in the House during this Con- Russia was undertaking active measures to influence the gress. Nonetheless, the actions of HPSCI—one commit- 2016 U.S. election; and Page made a trip to Russia, pos- tee in one chamber of a three-branch government—are sibly meeting with Kremlin officials, while he was an doing real harm. The Nunes memo has formed the basis for adviser to Donald Trump’s campaign. Taken together, it talking points that seek to discredit not just these particu- appears to be probable cause. lar FISA applications but the entire FISA process, and it In a tantalizing partial sentence, the FISA application attempts to undermine any notion that Russia tried to inter- states that “the FBI believes that the Russian government’s fere with U.S. elections. efforts are being coordinated with Page and perhaps other In 2005, when I sat at a desk thumbing through the individuals associated with Candidate #1’s campaign”; the pages of the Church Committee report, I had no way of rest of the sentence trails off into a lengthy redaction. knowing how consequential its findings—already a quar- The full 412 pages of the application and its three ter-century old—would be 15 years later. It’s still essential renewals follow much the same pattern. The FBI explains for the intelligence community to be subject to meaningful the context, the foreign power, and why it’s concerned oversight and constraints. And all three branches of govern- about Page in particular. It describes the nature of the ment have an important role to play in that process. source information and the status of the FBI’s relationship In 1976, in his letter of transmittal accompanying his with the source as well as its confidence in his reliability, committee’s report, Frank Church wrote: pointing out that the FBI did indeed tell the FISC about this potential bias in lengthy footnotes in all four appli- The root cause of the excesses which our record amply demonstrates has been failure to apply the wisdom of the cations that explained that a U.S. law firm (now known constitutional system of checks and balances to intelli- to be Perkins Coie) had hired a U.S. person (who we now gence activities. . . . The founding fathers foresaw excess as know is Glenn Simpson) “to conduct research into Candi- the inevitable consequence of granting any part of govern- date #1’s ties to Russia.” Per the footnote, that U.S. person ment unchecked power. This has been demonstrated in the intelligence field where, too often, constitutional principles then hired “Source #1” (Steele). Although the FBI didn’t were subordinated to a pragmatic course of permitting believe Steele was aware of who had originated this request desired ends to dictate and justify improper means. or for precisely what purpose, it noted in the first application, “The FBI speculates that the identified U.S. person There’s ample reason to believe that collateral benefit [who hired Steele] was likely looking for information that will come from the release of the Carter Page application: could be used to discredit Candidate #1’s campaign.” The The public is seeing, for the first time, what a Title I FISA later applications explain that the FBI severed its relation- application looks like, which in many respects is a win ship with Steele because, after giving his information to for transparency. There are downsides as well, of course, the FBI, he had also talked to the press. However, per the including the publication of allegations about an individ- applications, “notwithstanding Source #1’s reason for ual (Carter Page)—even one who seems more than willing conducting the research,” because of Steele’s past reliabil- to discuss these matters publicly himself. Worse still is the ity in providing useful and accurate information, “the FBI damage done by Devin Nunes’s actions, and the hype sur- believes Source #1’s information herein to be credible.” rounding them, to public confidence in the FISA legislative From all of this, somehow, Devin Nunes spun a crazy framework, in the FISC as a body, and in the FISA appli- conspiracy narrative. Now that the underlying FISA docu- cation process as a whole. This time, it isn’t the executive ments have been released, that narrative—along with the branch whose actions need to be checked. It’s Congress that HPSCI—is falling apart. needs to rein itself in. ♦

28 / The Weekly Standard August 6, 2018 Our Constitutional Moment On the special counsel, presidential pardons, and impeachment, the most important decisions will be rendered not by judges or senators but by the American people

By Adam J. White conversation—shouting match, really— over the Court and the Constitution. Of course, every Supreme Court vacancy e are having a “constitutional in the post-Bork era sparks intense argument. The late Jus- moment,” so to speak, in two parts. tice Antonin Scalia warned, in Planned Parenthood v. Casey The first is obvious and momen- (1992), that Supreme Court appointments will necessarily tous; the second is less obvious, but be controversial so long as the Court’s work entails making perhaps even more significant. The value judgments on behalf of the nation: first is Justice Anthony Kennedy’s retirement and the fight W If, indeed, the “liberties” protected by the Constitution to confirm his successor; the second is a slow-motion col- are, as the Court says, undefined and unbounded, then the lision of profound constitutional powers: those of pros- people should demonstrate, to protest that we do not imple- ecution, pardon, and impeachment. For the first, we are ment their values instead of ours. Not only that, but confir- mainly spectators; the second will call ultimately for our mation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through own deliberation and decision. a list of their constituents’ most favored and most disfavored Justice Kennedy’s retirement sparked a national alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after Adam J. White is a Hoover Institution research fellow and director all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme of the C. Boyden Gray Center for the Study of the Administrative Court, at least we can have a sort of plebiscite each time a

State at George Mason University’s Antonin Scalia Law School. new nominee to that body is put forward. JORI BOLTON BY ILLUSTRATIONS

August 6, 2018 The Weekly Standard / 29 But whatever the baseline for Supreme Court confirma- Senate choose the next justice who will, with his colleagues tion acrimony might now be, the fight for Kennedy’s vacant on the Court, have the final word on nearly all of the most seat will surpass it. President Donald Trump is replacing important constitutional issues of our time. We can hope the Court’s longtime “swing justice,” which will shift the that the president and senators approach the task with the Court’s ideological center of gravity on at least some signifi- high-mindedness that it deserves. But in this constitutional cant issues. Even in tranquil times, this nomination would moment, as the Senate weighs the president’s choice, we are be a political knife fight. In the most venomous political little more than spectators . . . year of recent memory, this nomination could become even . . . Unlike the other part of our constitutional moment, bloodier, capable of exceeding in rancor even the attempted in which we won’t have the luxury of watching the game “high-tech lynching” of Clarence Thomas and the success- from the sidelines. Rather, the American people themselves ful character assassination of Robert Bork. will be responsible for rendering the final judgment. Indeed, President Trump had not even announced his For over a year, we have watched three constitutional nomination of Brett Kavanaugh when the New York Times debates slowly unfold. First, there is the investigation by called upon “Democrats and progressives to take a page Robert Mueller, the Justice Department’s special counsel, from ‘The Godfather’ and go to the mattresses on” the not- raising difficult questions of whether the prosecutor can yet-announced nomination. Perhaps the Times deserves subpoena or even indict the president. Second, there is credit for understatement; mob warfare may understate the President Trump’s invocation and use of his constitutional partisan furies that will be unleashed upon Kavanaugh. power to pardon, raising unsettling questions of whether Still, we should not let the worst aspects of the confir- the president can use the pardon power tactically to thwart mation process overshadow its best aspects. Each Supreme an investigation of himself or even to pardon himself. And Court vacancy is an occasion for the nominee, the president, third, there is the specter of impeachment, raised by con- and the senators to look squarely at the Court’s role in our gressmen and activists who hope that Democrats will win constitutional republic. And though each confirmation hear- control of the House of Representatives this fall. ing tends to focus greatly on familiar disputes—as always, Each of these issues—prosecution, pardon, and Roe v. Wade—the senators inevitably invoke current contro- impeachment—is constitutional but not legalistic. Each versies in their rhetorical questions to the nominee. Thus, involves legal authorities that are not defined precisely and each nomination is a product of its time— the John Rob- therefore turns significantly on the relevant actors’ pruden- erts and Samuel Alito hearings raised post-9/11 questions of tial and ethical judgments, not just their legal judgments. presidential powers in wartime; the Elena Kagan and Sonia More and more, we hear these debates described in terms Sotomayor hearings raised questions of campaign-finance of “constitutional crisis.” That term means different things reform; the Neil Gorsuch hearing raised questions of reli- to different people but at its core it reflects public unease gious liberty and, as usual, of Donald Trump. In that respect, with a conflict among government officers or institutions Supreme Court confirmation hearings remind us that our that lacks an obvious mechanism for resolution—which momentary political debates ride atop deeper, timeless con- means, more precisely, a conflict that will not be resolved by stitutional debates; a Supreme Court nomination provides the courts with the acquiescence of the warring parties. the opportunity for the senators and all of us to focus on But what that really means, in turn, is that it is a con- those deeper themes. flict that can be resolved only after the fact, at the ballot And while we may complain that judges play an out- box, by us—a rare opportunity for the people themselves sized role in American politics, the fact remains that we put to make decisive constitutional judgments on questions of them at the center of our constitutional debates. For even consequence. If we see such an opportunity as a constitu- those of us who bristle at the notion of “judicial suprem- tional “crisis,” then this says less about the warring govern- acy” tend to invoke judicial authority in support of our own ment factions than it does about ourselves and our capacity constitutional arguments—we always have. Nearly two to make collective, deliberate constitutional judgments centuries ago, when Alexis de Tocqueville studied Ameri- instead of leaving them to federal judges to decide for us. can democracy, he observed that there is “no political event in which [one] does not hear the authority of the judge have the absolute right to PARDON myself,” invoked.” Yes, nearly all political questions are eventually the president tweeted on June 4. Then he added, resolved into judicial questions, as Tocqueville famously ‘I “but why would I do that when I have done noth- observed. But even before those questions reach the courts, ing wrong?” we invoke the authoritative views of judges. Which, in turn, His caveat offered little assurance to his critics, who vests those judges with political authority. from the outset of his presidency have worried that the And so the public will watch as the president and president will use the pardon power tactically—either

30 / The Weekly Standard August 6, 2018 to advance his political agenda or to insulate him- professor Laurence Tribe argued in the Washington Post that self against investigations by pardoning people close to federal judges should simply nullify the pardon, because him—or perhaps even take the unprecedented step of “pardoning Arpaio for his willful disobedience of a court pardoning himself. order to stop violating Arizonans’ constitutional rights” So far President Trump has granted seven pardons. The was itself a violation of the Fifth Amendment’s right not fifth was of Dinesh D’Souza, the political activist who broke to be deprived of “life, liberty, or property, without due pro- federal campaign-finance laws by funneling $20,000 in cam- cess of law.” paign contributions through other people to a Republican Tribe’s argument got no traction in the real world. Par- Senate candidate. Trump pardoned him ties filed briefs in federal court, just in time for the release of D’Souza’s arguing that the pardon was uncon- latest film,Death of a Nation, which com- More and more, we stitutional, but Judge Susan Bolton, pares Trump to Lincoln. But Trump’s hear these debates who had herself convicted Arpaio first and most controversial pardon was described in terms of for contempt of court, promptly dis- of Joe Arpaio, former sheriff of Arizona’s missed Arpaio’s criminal prosecu- Maricopa County, whose longtime record ‘constitutional crisis.’ tion because of the pardon. of aggressive and abusive actions against That term means Other critics, who focus on Hispanics and immigrants led to his fed- different things to the possibility of Trump’s pardon- eral conviction for contempt of court in different people but ing people being investigated by July 2017. A month after Arpaio’s convic- at its core it reflects Mueller, raise other legal argu- tion, President Trump pardoned him. ments against the pardons. The Trump’s pardons of Arpaio and public unease with most nuanced and careful version D’Souza were unsettling; their convic- a conflict among of this argument was advanced by tions and sentences were well justified, government officers or Benjamin Wittes at the prominent and their pardons seemed to reflect sheer institutions that lacks Lawfare blog. Wittes examined the politicking. But the pardons also raised an obvious mechanism federal obstruction-of-justice stat- concerns that President Trump was par- utes and concluded, “It’s not clear to doning political allies to send a message for resolution. me why a facially valid action taken to friends and former associates, such as in the service of managing the Exec- his campaign chairman Paul Manafort, to “hang utive Branch, taken with specific intent to commit tough” in their own criminal proceedings rather a crime in order to influence a judicial proceeding, than turning against the president. can never violate statutes that endeavor to protect President Trump’s own legal team has done the judicial function.” Wittes carefully avoids a cat- little to dispel such concerns. When asked in June egorical conclusion that Trump pardons would con- whether the president could someday pardon stitute obstruction of justice. But even his argument Manafort if he were to be convicted in the course that a presidential pardon could be criminal is, itself, of the Robert Mueller probe, Rudy Giuliani told a controversial proposition. CNN, “When it’s over, hey, he’s the president of the Others are less nuanced. Jed Shugerman and United States, he retains his pardon power, nobody’s taking Ethan Leib, law professors at Fordham, point to the presi- that away from him. . . . I couldn’t, and I don’t want to take dent’s constitutional duty to “take Care that the Laws be any prerogatives away from him.” This evidently reflected faithfully executed” and assert categorically, “If the presi- the legal team’s longtime position: In June, the New York dent pardons his associates primarily out of a motivation to Times released a January 2018 memo from Trump’s lawyers protect himself, those pardons would also be invalid as dis- to Mueller in which the lawyers asserted that the president loyal, and federal courts should probably allow those pros- “could, if he wished, terminate the inquiry [into former ecutions to proceed notwithstanding the pardon.” national security adviser Michael Flynn], or even exercise Shugerman and Leib offer no support for this asser- his power to pardon if he so desired.” tion, other than the inferences that they draw from the It is a worrisome situation. That, however, does not “take care” clause, because none exists. It is one thing to mean it is a situation easily or properly resolved by courts. argue that the president is duty-bound under the clause But many of the president’s critics leap to that conclusion, not to use his pardon power in service of lawbreaking; it framing their own responses with arguments that the presi- is quite another thing to assert categorically that pardons dent can’t lawfully use pardons in these ways and that courts granted for improper reasons would be null and void and must intervene to stop him. After the Arpaio pardon, law that the courts “probably” would enforce this reading of

August 6, 2018 The Weekly Standard / 31 the Constitution. Shugerman and Leib, like so many of the that courts should step in to nullify pardons that are self- president’s critics, see a constitutional issue and leap confi- interested or corrupt, or that “obstruct justice.”) dently toward a judicial solution. Yet the most important part of Federalist 74 is not its In that respect, they exemplify an unfortunate habit of defense of the broad pardon power. It is Hamilton’s jus- too many Americans (and far too many lawyers). But their tification for entrusting that broad and largely unfettered confidence notwithstanding, arguments over the presi- power to the president. As he explains, the pardon power is dent’s constitutional power to pardon are not susceptible of entrusted to the president because we can expect the presi- such easy judicial resolution. dent to temper the criminal laws’ categorical prohibitions The Constitution’s provision committing the pardon with case-by-case mercy. “The criminal code of every coun- power to the president is written with one and only one try partakes so much of necessary severity, that without an exception: “The President . . . shall have Power to grant easy access to exceptions in favor of unfortunate guilt, jus- Reprieves and Pardons for Offences against the United tice would wear a countenance too sanguinary and cruel,” States, except in Cases of Impeachment.” There is no excep- Hamilton writes. By providing this tool of mercy to a single tion for self-interested pardons or corrupt pardons. And the man, who is in turn accountable to the people at large, the fact that the Framers expressly included an exception— Constitution relies not on judicial management but presi- for impeachments— shows that they knew how to include dential judgment; not on the president’s accountability to exceptions. As the Framers chose not to add another judges but his accountability to the people. “The reflection express exception for self-interested pardons or corrupt par- that the fate of a fellow-creature depended on his sole fiat,” dons, their words are best interpreted as intending not to Hamilton argues, “would naturally inspire scrupulousness include any implicit limits along those lines. and caution; the dread of being accused of weakness or con- Moreover, to the extent that the Supreme Court has nivance, would beget equal circumspection.” grappled with the pardon power, it has poured cold water In other words, Hamilton expected that presidents on the suggestion that Congress can pass laws restraining would exercise the pardon power with an eye both to the the president’s constitutional pardon power. “To the execu- interests of the criminal and the expectations of the gen- tive alone is intrusted the power of pardon,” the Court con- eral public. This is an argument not from checks and bal- cluded in United States v. Klein (1871), “and it is granted ances but from presidential character and self-restraint. It without limit.” reflects Hamilton’s earlier argument, inFederalist 68, that In Klein, the Court was rejecting Congress’s efforts to our Constitution “affords a moral certainty, that the office limit the broad use of the pardon power for Confederates, of President will never fall to the lot of any man who is not first by President Abraham Lincoln and then by President in an eminent degree endowed with the requisite qualifica- Andrew Johnson. The Court reiterated its position a cen- tions”—not men with “[t]alents for low intrigue, and the tury later: “A fair reading of” English and American con- little arts of popularity,” but rather “other talents, and a stitutional history, the Court explained in Schick v. Reed different kind of merit, to establish him in the esteem and (1974), “compels the conclusion that the power flows from confidence of the” people, such that “there will be a con- the Constitution alone, not from any legislative enactments, stant probability of seeing the station filled by characters and that it cannot be modified, abridged, or diminished by pre-eminent for ability and virtue.” the Congress.” Most important, this argument about presidential char- So even if Congress had actually intended for the fed- acter is also, by its own terms, an argument about the peo- eral obstruction statutes to limit the president’s pardon ple’s character—or, at least, the character of a coalition of power—which is probably not the best interpretation of voters sufficient to elect a president. those statutes—it lacks the power to impose such limits. At And that is where the question of President Trump’s least according to the Court. pardons should (and almost surely will) fall: to the people And, perhaps more important, according to our Consti- themselves. If President Trump uses his constitutional tution’s most famous expositor. In Federalist 74, Alexander prerogative in the service of rewarding political allies or Hamilton writes that “the benign prerogative of pardon- in service of protecting himself by protecting those who ing should be as little as possible fettered or embarrassed.” might otherwise testify against him, then his conduct will And he emphasizes the Framers’ wisdom in subjecting the be judged by the voters. Courts are ill-suited to the task pardon power to one and only one exception—namely, of deciding whether President Trump’s use of the pardon impeachments, for which the president cannot grant par- power is “constitutional” in legalistic terms—which are, dons. (Indeed, when Hamilton notes that the only other of course, the only constitutional terms that courts can exception that some had sought to add to the Constitution apply. But the people are necessarily well-suited to the was one for treason, he further undercuts any argument task of deciding whether Trump’s use of the pardon power

32 / The Weekly Standard August 6, 2018 is “constitutional” in broader terms of ethical and moral based on the testimony that was presented at the inquiry.” value judgments. Indeed, these are constitutional judg- These were not the words of a partisan Democrat. They ments that only the people, in the long run, can decisively were the words of Rep. Jim Sensenbrenner, a Republican, adjudicate: through elections and the lessons that history in June 2018. Sensenbrenner is no stranger to impeach- draws from those elections. ments—in 1999, he helped lead the House Republicans’ This point is especially acute on the question of presi- prosecution in the Senate impeachment trial of President dential self-pardon. As Harvard’s Jack Goldsmith observed Bill Clinton. And he’s not alone. President Trump’s friend recently at Lawfare, “No president has ever tried to self-par- and adviser Chris Christie agrees. “If the president were to don, constitutional text does not speak overtly to the issue pardon himself, he’ll get impeached,” the former governor and there is no judicial precedent on point.” Despite what told ABC’s George Stephanopoulos in June. confident advocates might assert, “there is Many Democrats agree, to say the no obvious right answer on the validity of least. And pro-impeachment Demo- self-pardons, and if Trump becomes the first The question of crats are not limiting themselves to president to pardon himself, a court will President Trump’s just this one argument. From nearly probably not provide an answer.” pardons should the outset of President Trump’s term Such skepticism of the possibility of a in office, Democrats in and out of judicial resolution surely dissatisfies the pres- (and almost surely Congress have called for impeach- ident’s critics but it may also dissatisfy much will) fall not to the ment. In May 2017, just four months of the public at large. Whatever one thinks of courts but to the into the Trump presidency, Rep. Al this president, most neutral observers would people themselves. Green called for Trump’s impeach- be disconcerted by a president’s using the ment: “President Trump has com- pardon power to immunize himself against mitted an act for which he should be the law and thus to put himself above the law. So charged by the U.S. House of Representatives,” there is a good reason no president has ever attempted Green announced in a press release. “The act is the it. But that is not to say there is good reason for courts obstruction of a lawful investigation of the Presi- to attempt to nullify presidential self-pardons. dent’s campaign ties to Russian influence in his Legal scholars and lawyers can conjure legalistic 2016 Presidential Election.” arguments against self-pardon—such as the general In December 2017, Rep. Green drafted formal notion that “no one may be a judge in his own case,” articles of impeachment against Trump, expand- as the Justice Department’s Office of Legal Counsel ing the justification to include everything from stressed in a cursory 1974 opinion arguing against the president’s executive order limiting entry presidential self-pardon. But that general notion is itself into the United States by persons from specified nations, not actual law but a value judgment being grafted on to the to the president’s weak response to the Charlottesville Constitution’s actual text—and thus it provides little or no white-supremacy riot, to his criticism of former NFL basis on which the Court can adjudicate cases while retain- quarterback Colin Kaepernick. (The House voted over- ing its political legitimacy. Perhaps a single judge would whelmingly to table Green’s resolution, 364 to 58.) be willing to go beyond the constitutional text and invoke Meanwhile, California billionaire Tom Steyer has this nontextual principle against the president (either out undertaken a national media campaign demanding that of conviction or partisanship)— but it seems unlikely, and Congress impeach the president. His website—NeedTo- justifiably so. Impeach.org—lists eight “impeachable offenses” he says The more likely and more appropriate scenario is the Trump has committed, ranging from obstruction of the one envisioned by The Federalist— namely, that the hardest FBI’s investigation of Michael Flynn, to violation of questions of presidential pardoning power will and should the Constitution’s foreign emoluments clause (by mak- be adjudicated, in the end, by the people themselves in ing money from foreign officials staying at his hotels), subsequent elections. Or, in the meantime, by Congress, to “conspiring with others” to facilitate Russian interfer- through impeachment. ence with our election, to even “undermining freedom of Which leads us to the next part of our complicated con- the press.” stitutional moment. As with the pardon power, the Constitution’s impeach- f a president pardoned himself,” a member of ment power is phrased broadly: “The President . . . shall be Congress recently observed, “the [House] Judi- removed from Office on Impeachment for, and Conviction ‘I ciary Committee would probably be bound to hold of, Treason, Bribery, or other high Crimes and Misdemean- an impeachment inquiry on that and decide what to do ors.” The first two terms—“treason” and “bribery”—are

August 6, 2018 The Weekly Standard / 33 familiar and reasonably specific. But we cannot say the same unsuccessful impeachments of Justice Samuel Chase (in for “high crimes and misdemeanors.” As Cass Sunstein 1805) and President Andrew Johnson (1868), the two main writes in Impeachment: A Citizen’s Guide (2017), the phrase is subjects of Rehnquist’s study, and in the impeachments “opaque”— it “does not have a self-evident meaning.” and intended impeachments of other officers, judges, and Madison’s notes from the 1787 constitutional conven- even Presidents Nixon and Clinton. (Rehnquist himself tion recount a brief exchange that offers some guidance, but did believe that, in Nixon’s case, “the counts relating to not much. In September of that year, as the convention came obstruction of justice and to the unlawful use of executive to a close, George Mason invoked Warren Hastings’s scan- power were of the kind that would surely have justified dalous misconduct in managing the East India Company, removal from office.”) for which Hastings had been arrested and faced an impeach- Legal scholars have attempted to translate “high ment trial only months earlier. Reminding his fellow dele- crimes and misdemeanors” into a more precise framework. gates that Hastings’s transgressions fell short of “treason,” In Impeachment: A Handbook (1974), for example, Yale’s Mason objected to the initial version’s limit of impeach- Charles Black argued that the constitutional term must not ment to only cases of “treason” and “bribery,” which “will be taken literally to include only actual “crimes,” because it not reach many great and dangerous would fail to include presidential offenses.” Instead, he urged the conven- impropriety that does not violate tion to add “maladministration” to the ‘The framers were criminal laws—e.g., a hypotheti- list of impeachable offenses. cal president who announces Madison objected, warning “so sufficiently practical to “that he would under no circum- vague a term” would effectively turn know that no charter stances appoint any Roman Cath- the new constitutional system into a of government could olic to office,” in clear violation of parliamentary one, by rendering the possibly anticipate every the Constitution’s prohibition presidency “equivalent to a tenure future contingency,’ Chief of religious tests for office. Nor, during pleasure of the Senate.” Mason according to Black, can impeach- withdrew “maladministration” and Justice Rehnquist wrote, ment be triggered by any and all instead proposed (per Madison’s notes) ‘and they therefore left criminal violations—e.g., it would “other high crimes & misdemeanors.” considerable room for be “preposterous” to suggest that a Hamilton added further insight in “play in the joints.”’ president could be impeached for Federalist 65 on the Senate’s power to merely “assist[ing] a young White try impeachments. Writing, “The sub- House intern in concealing the jects of its jurisdiction are those offenses which latter’s possession of three ounces of marijuana,” proceed from the misconduct of public men, or, even though the president would have been “guilty in other words, from the abuse or violation of of ‘obstruction of justice.’ ” Black argued that some public trust,” Hamilton argued that they impeachment should cover only “serious offenses “are of a nature which may with peculiar pro- against the nation or its governmental and politi- priety be denominated political, as they relate cal processes, obviously wrong, in themselves, to chiefly to injuries done immediately to the soci- any person of honor”—or, “those offenses which ety itself.” are rather obviously wrong, whether or not ‘crimi- In his own history of impeachments (written nal,’ and which so seriously threaten the order of before he presided over President Clinton’s), Chief Justice political society as to make pestilent and dangerous the William Rehnquist characterized the Framers’ choice of continuance in power of their perpetrator.” broad constitutional words as committing the issue to the Black’s account of the Constitution’s impeachment discernment of posterity. “The framers were sufficiently standard may or may not make sense—but it certainly is practical to know that no charter of government could pos- not “law” in any sense. It is the best approximation of a sibly anticipate every future contingency,” Rehnquist wrote constitutional scholar. in Grand Inquests (1992), “and they therefore left consider- There are others. Laurence Tribe and Joshua Matz, in able room for ‘play in the joints.’ Nor did they try to fore- To End a Presidency (2018), argue that impeachable offenses see exactly how each of the many powers and checks and should “involve corruption, betrayal, or an abuse of power balances they conferred and established would work out in that subverts core tenets of the U.S. governmental system. particular situations.” They require proof of intentional, evil deeds that risk grave Rather, Rehnquist wrote, such questions were “of injury to the nation,” and must be “so plainly wrong by necessity left to future generations.” It played out in the current standards that no reasonable official could honestly

34 / The Weekly Standard August 6, 2018 profess surprise at being impeached.” Again, this may well The jurisdiction of a Special Counsel shall be established be a sensible standard. by the Attorney General. The Special Counsel will be pro- But to demand legal precision on this point is, in fact, vided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall to demand too much. This was Hamilton’s key warning in also include the authority to investigate and prosecute fed- Federalist 65. In explaining why the trial of impeachments eral crimes committed in the course of, and with intent to was committed to the Senate instead of the Supreme interfere with, the Special Counsel’s investigation, such as Court, Hamilton stressed that the trial of impeachments perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising would not be a purely legalistic affair—it “can never be out of the matter being investigated and/or prosecuted. tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction Pursuant to that regulation, acting attorney general Rod of it by the judges, as in common cases [in courts].” And, Rosenstein defined Mueller’s jurisdiction as follows: he further added, “There will be no jury to stand between the judges who are to pronounce the sentence of the law, The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in and the party who is to receive or suffer it,” which is to testimony before the House Permanent Select Committee say that the Senate itself must play both roles, reaching on Intelligence on March 20, 2017, including: (i) any links decisions that grapple (as judge) with considerations of and/or coordination between the Russian government and law, and (as jury) with considerations of justice and mercy. individuals associated with the campaign of President Don- ald Trump; and (ii) any matters that arose or may arise Altogether, Hamilton concludes, the Senate must wield a directly from the investigation; and (iii) any other matters truly “awful discretion.” within the scope of 28 C.F.R. § 600.4(a). It wields that discretion, ultimately, subject to the judgments of the people. This, too, was a point that Hamil- Rosenstein’s order to Mueller adds, “If the Special Coun- ton emphasized. Impeachment would be initiated by the sel believes it is necessary and appropriate, the Special House, the people’s “immediate representatives.” The Sen- Counsel is authorized to prosecute federal crimes arising ate, like Britain’s House of Lords, would “decide upon it.” from the investigation of these matters.” Hamilton urged that the Senate, unlike the Court, On its face, Rosenstein’s order seems much more pre- would be capable of “reconciling the people to a decision” cise, and thus much simpler to administer, than the con- at odds with a prosecution brought by their immediate rep- stitutional provisions authorizing the president to grant resentatives in the House. That is the key point: The legiti- pardons and the House and Senate to conduct impeach- macy of an impeachment and trial would ultimately be ment proceedings. But this is illusory. Rosenstein’s speci- judged by the people themselves. The people, not judges or fication of what Muellermay do does not dictate what congressmen or senators or law professors, are the ones ulti- Mueller must do or should do. mately responsible for concluding what constitutes “high This question of discretion is evident in the explicit crimes and misdemeanors,” as the public eventually judges authorization for Mueller to bring prosecutions that he the actions of the House and Senate. believes “necessary and appropriate”—two terms that This does not mean that impeachment does not call for implicate Mueller’s own constitutional, ethical, and pru- legal judgments or that it is an act of sheer politics. Rather, dential judgments. For all the lawyerly ink being spilled impeachment does call for legal judgments, but not legalis- over the question of whether a president “can be” sub- tic judgments. It calls for a decision of what “high crimes poenaed to testify or indicted, none of it can point to the and misdemeanors” rightly means—a decision made not answer of whether a president “should be” subpoenaed or by lawyers and judges, but by the House and Senate, and indicted—or , to phrase it in terms of Mueller’s authoriza- then by the people to whom they answer. tion order, whether it would be “appropriate” for a special But in all likelihood, the House and Senate will not counsel to subpoena or indict a president. even begin to grapple seriously with these issues until In some ways, prosecutors must answer “should” another man concludes his own assigned task. questions all the time. They are not unique to the special counsel order; they inhere in the work of all prosecutors. f those of all the players on the present constitu- The prosecutor’s job is to enforce laws, but the task itself tional stage, Robert Mueller’s directions might requires the prosecutor, in choosing how best to enforce the Oseem to be the most straightforward. His author- laws, to look beyond the law itself for values to guide his ity as special counsel derives exclusively from the Justice own exercise of the vast discretion afforded to prosecutors. Department’s regulations providing for the designation of “Prosecutorial discretion involves carefully weighing the special counsels, set forth in Title 28 of the Code of Federal benefits of a prosecution against the evidence needed to con- Regulations. Specifically, Section 600.4, which provides: vict, the resources of the public fisc, and the public policy of

August 6, 2018 The Weekly Standard / 35 the State,” the Supreme Court emphasized in a 2014 deci- “that the United States Attorney is an officer of the executive sion. Or as the Court put it in 1985, a prosecutor exercises branch responsible primarily to the President, and, through discretion from case to case with an eye to “[s]uch factors as him, to the electorate.” the strength of the case, the prosecution’s general deterrence As a matter of constitutional first principles, the federal value, the Government’s enforcement priorities, and the prosecutor’s ultimate accountability to the president reflects case’s relationship to the Government’s overall enforcement the Constitution’s imposition of a duty on the president plan.” These factors “are not readily susceptible to the kind to “take care that the laws be faithfully executed,” and his of analysis the courts are competent to undertake.” Simply constitutional oath to “faithfully execute the Office of Pres- put, all of these are value judgments, not questions of guilt or ident of the United States.” It also reflects what Hamilton innocence, legality or illegality. identified in Federalist 70 as the need No one has captured this better than for “unity” in the executive branch, attorney general (and later Supreme Court ‘We must bear in which would facilitate the executive’s justice) Robert Jackson, in a 1940 address mind,’ the U.S. “energy,” which was itself “essential to to an annual meeting of U.S. attorneys, Court of Appeals for the steady administration of the laws” aptly titled The Federal Prosecutor. “The and thus “a leading character in the prosecutor has more control over life, lib- the Seventh Circuit definition of good government.” And erty, and reputation than any other person once observed, in the end, Hamilton famously wrote, in America,” Jackson observed. “His dis- ‘that the United the executive branch’s “unity” ensured cretion is tremendous.” States Attorney is its “responsibility”— that is, the presi- The prosecutor can investigate. And, an officer of the dent’s ultimate and singular account- “if he is that kind of person,” he can ruin ability to the people as a whole. a target’s reputation with suggestive pub- executive branch lic statements. He can pursue the tar- responsible primarily or Mueller, however, there is get’s friends and associates; he can haul to the President, at least some relaxation of the them before secret grand juries, where he and, through him, to Fprosecutor’s accountability to can secure indictments with one-sided the electorate.’ the president. Indeed, that is the whole accounts of the facts. “While the prosecu- point. As the Clinton Justice Depart- tor at his best is one of the most beneficent ment explained in the Federal Regis- forces in our society,” Jackson explained, ter announcing a new framework in “when he acts from malice or other base motives, July 1999, the special counsel’s office reflects he is one of the worst.” True, a prosecutor may “a balance between independence and account- find some difficulty in winning the conviction ability in certain sensitive investigations,” such and punishment of an innocent man; but there that the special counsel enjoys “day-to-day inde- is a lot of ruin that he can bring, short of convic- pendence” from the attorney general and presi- tion or indictment. dent, “free to structure the investigation as he or Precisely because of “this immense power to she wishes and to exercise independent prosecu- strike at citizens . . . with all the force of govern- torial discretion to decide whether charges should ment itself,” Jackson continued, the office of U.S. attorney be brought,” subject only to the Justice Department’s gener- “from the very beginning has been safeguarded by presiden- ally applicable standards and procedures. The attorney gen- tial appointment, requiring confirmation of the Senate of eral nonetheless retains “ultimate responsibility,” and thus the United States.” And though a U.S. attorney is afforded there remains the “possibility of review of [the special coun- great leeway in directing the work of his office in his given sel’s] specific decisions” by the attorney general. federal district, there are limits to the amount of discretion These measures of independence fall short of the now- that can rightly be vested in his office. “Experience,” Jack- expired independent counsel statute that governed the con- son explained, “has demonstrated that some measure of cen- troversial investigations of the 1980s and 1990s (including tralized control is necessary.” The attorney general did not Ken Starr’s Whitewater investigation, culminating in Pres- say aloud what that “centralized control” was, but he didn’t ident Clinton’s impeachment) and that passed constitu- need to. He was referring to the Justice Department’s Wash- tional muster with the Supreme Court in Morrison v. Olson ington headquarters, operated under control of the attorney (1988). Indeed, there are open questions about how “bind- general himself, accountable to the president—who is in ing” these regulations actually are: Because they were rules turn accountable to the people. “We must bear in mind,” the applying to agency organization and personnel, they were U.S. Court of Appeals for the Seventh Circuit once observed, exempt from the usual notice-and-comment procedural

36 / The Weekly Standard August 6, 2018 requirements and thus can be rescinded without an oppor- assertions: Stuart Taylor and I outlined the possible consti- tunity for public comment just as they were promulgated tutional limits on Mueller’s subpoena power in these pages without it. And because they are merely an agency’s own (“Privilege and Precedent,” May 11, 2018); the Justice rules, not a law passed by Congress, there is an open ques- Department’s Office of Legal Counsel outlined the possi- tion of whether they can bind the president at all. ble constitutional limits on the indictment power in a 2000 But no matter how thorough the special counsel’s opinion memorandum. independence is, the regulations creating a stand-alone But more immediately, there is reason to expect Muel- office of special counsel for case-specific prosecutions ler himself to stop short of testing those constitutional lim- inherently relax at least some of the institutional forces its. First of all, there is “litigation risk.” But second, and that circumscribe a prosecutor’s exercise of discretion. For more important, he might simply restrain himself from example: Because the special counsel is focused on a nar- fully asserting his powers against the president, except row set of cases, not a broad and active docket of differ- where strictly necessary. ent cases competing for fiscal and personnel resources, he Lawrence Walsh, independent counsel for the can approach his narrow set of targets with a significantly Iran-Contra investigation, suggested such measures of different mindset. Justice Scalia highlighted this in his self-restraint in a 1998 hearing of the House Judiciary Com- famous Morrison dissent: mittee. “[W]‌hat restraint should be expected of a prosecutor investigating the president of the United States?” he asked. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much “Should a president be subjected to the same tactics as a is discretion, is intentionally cut off from the unifying racketeer or a corrupt municipal official?” Walsh, though influence of the Justice Department, and from the perspec- hardly known for self-restraint, conceded the need for pru- tive that multiple responsibilities provide. What would nor- dence. “In the national interest, the president should prob- mally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume ably be entitled to greater protection from longshot efforts the proportions of an indictable offense. What would nor- to prove a minor crime,” he explained. “Should a president, mally be regarded as an investigation that has reached the carrying out the most demanding and important job in the level of pursuing such picayune matters that it should be world, have to guard himself against such tactics”— namely , concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to “sting” operations and “cooperating informer[s]”—“when have your own independent counsel and staff appointed, dealing with his confidants—or with his friends?” with nothing else to do but to investigate you until investi- Perhaps Mueller is grappling with these questions him- gation is no longer worthwhile—with whether it is worth- self. While Trump opponents around the country seem keen while not depending upon what such judgments usually hinge on, competing responsibilities. to condemn every new move by the president as another indictable “obstruction of justice,” will Mueller—the man And so when special counsel Mueller faces the pruden- singly responsible for the investigation and eventual prose- tial choices that any prosecutor must make—including cutions— be similarly eager to press his powers to the fullest? decisions of whether a particular indictment is “necessary No matter what Mueller ultimately decides, we too may and appropriate,” he and his office will make those deci- have to grapple with these questions. If Mueller attempts to sions without the institutional influences and presidential prosecute the president (perhaps leading to an attempted accountability that normally surround and oversee a prose- self-pardon), or if Mueller delivers to Congress a report cution. Again, that’s the point, and the benefits of this inde- that spurs the House to begin impeachment proceedings, pendence in cases implicating the executive branch itself the ultimate judgments will be delivered by the American are freely conceded. But we must not forget that those ben- people through the elections that keep the president and efits come at a cost. members in Congress or cast them out of office. These choices will be made, in the first instance, These issues of constitutional structure and power, according to Mueller’s own legal, ethical, and pruden- like those of pardon and impeachment, will ultimately be tial judgments. And while those cheering him on often adjudicated by the people themselves, within the consti- assume that Mueller can and will press those powers to tution’s structure and powers. That is our true constitu- the greatest possible extent, there is reason to think or tional moment. hope that he will restrain himself and thus embody the same qualities of character that Hamilton ascribed to e rightly think of our courts as the final voice the executive in Federalist 68. in the interpretation of our Constitution,” For example, many of President Trump’s critics argue ‘W Chief Justice Rehnquist observed in the clos- that Mueller can subpoena the president to testify, or even ing lines of Grand Inquests, “and therefore tend to think of indict the president. There is great reason to doubt such constitutional law in terms of cases decided by the courts.”

August 6, 2018 The Weekly Standard / 37 But the actual history of impeachments, he wrote, especially recent episode: “The Chase impeachment, though unsuc- those of Justice Chase and President Johnson, should teach cessful, may have had an effect on the federal judiciary us otherwise: “These two ‘cases’—decided not by the courts similar to the one that the 1936 election and Franklin D. but by the United States Senate—surely contributed as Roosevelt’s court-packing proposal may have had on the much to the maintenance of our tripartite federal system of Supreme Court.” Which is to say, FDR’s court-packing government as any case decided by any court.” plan, after being overwhelmingly rebuffed by voters in Rehnquist was right to focus our attention beyond 1936, was a moment that in hindsight entrenched a con- the courts. But we should look further still—beyond the stitutional norm against partisan gamesmanship with the Senate, to the American people who Court’s own structure. received the Senate’s decisions in those We can think of other mod- cases and ratified them. In the Federalist ern examples in the same vein. If the American people had loudly The Supreme Court declared rejected the Senate’s choices in the Papers, we find the the independent counsel stat- Chase and Johnson impeachments, crucial but overlooked ute constitutional in Morrison v. by punishing the senators in subse- key to preserving a Olson, over Scalia’s vocal dissent, quent elections and pressing their genuinely republican but the subsequent experience of replacements to continue the attacks Constitution: namely, an independent counsel investiga- on Federalist judges (in Chase’s tions, culminating with the failed time) or to continue the attacks on acceptance that in some impeachment of President Clin- President Johnson and other impedi- constitutional disputes, ton, seemed to deliver a much ments to the Radical Republicans’ the best meaning of more consequential political Reconstruction, history would have constitutional text will be verdict against the independent drawn very different lessons from the found not in the lawyerly counsel. So Congress allowed the two impeachments. statute to expire. The Indepen- Instead, after Justice Chase’s failed forensics of Supreme dent Counsel Act may have been impeachment, the public did not pun- Court arguments alone declared “constitutional” by the ish the moderate Republicans, and the but through the lived Supreme Court, but its impri- lack of appetite to use impeachment as experience of politics. matur seems much less credible a tool to punish Federalist judges soon today. Congress, with the assent became evident, as Richard K. Neu- of the people, effectively sided mann Jr. found in his 2007 study of impeachments. with Scalia’s dissent. And this effectively settled the constitutional ques- We do not often think of political showdowns tion; in an 1822 letter, Jefferson would complain that in terms of constitutional “precedents”; we tend to life-appointed judges were “responsible to no author- focus on constitutional questions that are “settled” ity . . . for impeachment is not even a scarecrow.” by the Supreme Court. Perhaps we think we lack Rehnquist emphasizes the point. “The impor- a vocabulary or framework for this sort of reso- tance of these acquittals,” he wrote, “can hardly lution. But this is a mistake. We need to think of be overstated.” They firmly established that these things in the way that James Madison did in “[i]mpeachment would not be a referendum on the pub- Federalist 37, that of “liquidation.” lic official’s performance in office,” but a more focused and Madison, writing of the then-proposed Constitution’s formal inquiry. And for the Senate to remove an impeached vague, ambiguous, and otherwise unclear terms, warned judge or president would require not just “any technical that there is only so much precision to be attained in any violation of the law,” but something much more significant. written law—at some point, we must rely on lived experi- Chase’s impeachment trial had further, subtler consti- ence to clarify the rest. “All new laws, though penned with tutional ramifications. As Neumann explains, Federalist the greatest technical skill, and passed on the fullest and judges recalibrated their own judicial behavior after sur- most mature deliberation, are considered as more or less viving the Chase impeachment’s near-death experience obscure and equivocal,” Madison explained, “until their (because Chase, if removed from office, would not have been meaning be liquidated and ascertained by a series of par- the last of them to go). “Although the judiciary remained ticular discussions and adjudications.” vaguely Federalist in its outlook, it abandoned much of the Here we find the crucial but overlooked key to preserv- partisan behavior that so incited the Jeffersonians.” ing a genuinely republican Constitution: namely, an accep- Neumann then helpfully compares this to a more tance that in some constitutional disputes, the best meaning

38 / The Weekly Standard August 6, 2018 of constitutional text will be found not in the lawyerly self-pardon; or whether “the executive power” and the obli- forensics of Supreme Court arguments alone but through gation to “take care that the laws be faithfully executed,” the lived experience of politics. We ascertain the best mean- both committed to the president, should serve to limit ing of some constitutional terms through the constitutional prosecution of the president himself. These are all ques- processes themselves. And this is a process that ultimately tions that political actors—Congress, the president, and is resolved by the voters, as illustrated in Larry Kramer’s special counsel Mueller—will answer in the first instance seminal and suitably titled work The People Themselves but that we the people, in our own debates and subsequent (2004), as well as by University of Chicago professor Will elections, will settle in the end. Baude in a major forthcoming law review article. The problem with the settlement of constitutional Another significant legal scholar, Yale’s Bruce Acker- moments, however, is that we do not know precisely man, dedicated multiple volumes of study, in We The Peo- when the moment has started, or when it has ended, or ple, to what he called “constitutional moments.” Ackerman what the actual settlement was, until much later. Those carried the theory too far, arguing that the political settle- are distinctions that history draws in retrospect. If Mueller ment of a constitutional dispute, through public debate ris- tries to subpoena the president’s testimony or even pros- ing above the usual partisan fray and focusing deliberately ecute him, or if the president pardons himself, or if the on higher constitutional principle, should be accepted as a House impeaches the president and the Senate adjudicates de facto “amendment” to the Constitution. But the term it, then history will draw lessons of constitutional import Ackerman coined— “constitutional moment”—is apt. from the political resolution that follows, just as it has done It captures well the moment in which political events from past impeachments, and court-packing plans, and settle disputed constitutional territory, liquidating ambigu- other constitutional moments. But only in time. ous terms. Including, perhaps, such terms as “high crimes For us the challenge is not to treat these issues as mat- and misdemeanors,” and such questions as whether the ters left to courts alone but to engage these deliberations president’s power “to grant reprieves and pardons for as genuine constitutional decision-makers—which we offences against the United States” is best understood may turn out to be in hindsight, once the constitutional as incorporating principles of justice that stop short of moment has passed. ♦

A Brighter Future in the Indo-Pacific

THOMAS J. DONOHUE opportunity—it’s a requirement for multifront trade war will likely undo PRESIDENT AND CEO any country hoping to be a leader the remarkable economic resurgence U.S. CHAMBER OF COMMERCE in the global economy. The business that the administration has unleashed community has several priorities that with tax and regulatory reform. As tariffs and trade wars continue we believe are critical to regaining The U.S. Chamber of Commerce to make headlines, it’s clear that there U.S. market share in the Indo-Pacific. will outline these priorities as we is disagreement over the strategies The first priority is openness. convene top Trump administration and tactics that govern trade policy. America cannot afford to close itself off officials and other leaders at an event There are, however, certain facts from the region. We need smart, tough, today on America’s future in the that everyone can agree on. One is and fair trade agreements to strengthen Indo-Pacific. This will provide an that the Indo-Pacific region, which our existing partnerships and overcome important opportunity for business encompasses India, Asia, and the unfair barriers to trade in key markets. and government to listen to each other Pacific Rim, is currently the fastest- Unfortunately, the U.S. is falling and work together toward a brighter growing and most dynamic region behind in the global race to ink new future for America in the Indo-Pacific. on earth. Another is that American trade deals—and it’s costing us. It’s true that the administration and companies are steadily losing market The second priority is to ensure that the business community don’t agree share in the region. Every stakeholder bedrock American principles, such as on every aspect of trade policy. But in business and government can free enterprise, innovation, and rule what matters most is that we remain agree that this is a problem. The only of law, remain at the heart of our trade committed to working together to question is how to solve it. efforts. Adherence to these principles find solutions to the challenges we The stakes couldn’t be higher. is the best way to confront state share. Today’s event proves that By the end of the next decade, the capitalism in other countries. we share that commitment. The Indo-Pacific will represent 66% of the The third priority is to remember Chamber looks forward to hearing the global middle class population and the lessons of history, which remind administration’s ideas. 59% of middle class consumption of us that protectionism leads to goods and services. This means that economic hardship and even outright Learn more at trade with the region isn’t just an conflict. History warns us that today’s uschamber.com/abovethefold.

August 6, 2018 The Weekly Standard / 39 Books&Arts

Ilya Repin’s painting Barge Haulers on the Volga (1870-73) became for the Russian populists an iconic depiction of the people’s suffering. Pig and People

The rise and fall of the first Russian populists. by Gary Saul Morson

mericans trace the term and composers all reflected on, if they their reverence for the Russian people’s “populism” to the 1890s, did not participate in, what one histo- innate wisdom. To argue for a policy it but Russian “populism” rian called “the agony of populist art.” was common not to demonstrate its (narodnichestvo, from narod, “Agony” is the right word to describe a effectiveness but to show that it was sup- theA people) began in the 1870s. The movement whose greatest artists drank ported by “the people,” as if the people “narodniks” dominated Russian thought themselves to death, committed sui- could not be wrong. In Anna Karenina, for two decades, and their successors, cide, or went insane. Russians’ natural everyone is shocked when Levin, Tol- the Socialist Revolutionaries, became extremism makes the problems inher- stoy’s hero, rejects this whole way of the country’s most influential political ent in all idealistic movements espe- thinking. “That word ‘people,’ ” he says, party until the Bolshevik coup. The cially visible. “is so vague.” importance of Russian populism lies Jolting from one panacea for evil to Any ideal worth adopting had to less in its programs than in its ethos, a another, Russian intellectuals at last explain the meaning of life. In one guilty idealism that can teach us a lot arrived at worship of “the people,” a of his best stories, “On the Road,” today—not only about populism itself term usually meaning the peasants, who Chekhov reflected on such idealism by but also about the clash of any idealism constituted the overwhelming majority telling the story of Grigory Likharev, with recalcitrant reality. of the population. Today, the word “pop- who finds himself snowed in at an inn Russia’s greatest writers, painters, ulist” is often used as a term of abuse on Christmas Eve. There he encounters disparaging boorish, mindless followers a noblewoman, Madame Ilovaiskaya, Gary Saul Morson is the Lawrence B. of a demagogue, but “narodnik,” though on her way to her father and brother, Dumas professor of the arts and humanities originally pejorative, was soon adopted who without her wouldn’t take basic at Northwestern University. by the populists themselves to indicate care of themselves. She listens with rapt

40 / The Weekly Standard August 6, 2018 attention to the charismatic Likharev’s ing of the 19th century, Ilya Repin’s all of Pushkin’s verse. The nihilists at account of his lifelong embrace of one heartrending Barge Haulers on the Volga least worshiped science—like Bazarov set of beliefs after another. (1870-73), depicts a group of men har- in Turgenev’s Fathers and Sons, who Likharev always lives “on the nessed together to haul riverboats. In dissects a frog to show that people are road,” journeying from place to place a widely read article on contemporary nothing but complex amphibians— to preach idea after idea. Some people, Russian painting, “Apropos of the Exhi- but the populists rejected science as he explains, possess a talent for faith, bition,” Dostoyevsky explains that he well. A story about the writer Vsevolod a special faculty of the spirit that com- anticipated a depiction of barge haulers Garshin as a boy tells how he too dis- pels them to believe totally in one thing wearing ideological “uniforms” with sected a frog, only to take pity on it, sew or another. “This faculty is present in “the usual labels stuck to their fore- it up, and let it go. Not knowledge but Russians in its highest degree. Russian heads,” but to his delight found noth- pity became the moral touchstone. The life presents us with an uninterrupted ing of the kind. To be sure, he opined, populist argument about “the justifica- succession of convictions and aspira- rags like the ones these workers wear tion of culture” became part of what tions and, if you care to know, it has not would immediately fall off, and one philosopher Nikolai Berdyaev called yet the faintest notion of lack of faith of the shirts “must have accidentally “the Russian Idea” and, so far as I know, or skepticism. If a Russian does not fallen into a bowl where meat was being marks Russian culture as unique. (To believe in God, it means he believes in chopped for cutlets.” But the people are be sure, it is common today to convict something else.” real. Two are almost laughing, a little the Western tradition as the product of There has never been an hour, soldier is concealing his attempt to fill imperialism and dead white males, but Likharev explains, when he did not his pipe, and none is thinking about that is still different from rejecting high believe in something. When his mother oppression. You love these defenseless culture per se.) told him, “Eat! Soup is the great thing creatures, Dostoyevsky explains, and If populism fit Likharev’s guilty in life!” he ate soup 10 times a day “till can’t help thinking that you are indeed conscience so well, why did he give I was disgusted and stupefied.” When indebted to “the people.” it up? Out of guilt, of course. Having his nurse scared him with stories about Populism fed on guilt, and every- run through his fortune and his wife’s, goblins, he left poisoned cakes for thing about Likharev, down to his very and impoverished their children, them. To achieve Christian martyrdom gestures, expressed a consciousness of he grasped a truth dear to skeptical he hired other boys to torture him. guilt about something. The populist Chekhov’s heart. Ideologies of all sorts Whatever the faith, he always inspired ideologists insisted that all high cul- undervalue real people of the present someone else to join him. ture depends on wealth stolen from the moment and, in pursuit of some super- At the university, he “gave [him- common people and is therefore tainted human goals, neglect the everyday pro- self] up to science, heart and soul, by a sort of original sin. As Russia’s cesses that truly make a life good or passionately, as to the woman one greatest autobiographer Alexander Her- bad. “I have lived,” Likharev explains, loves.” He went around preaching the zen lamented, “All our education, our “but in my fever I have not even been truth that white light really consists of literary and scientific development, conscious of the process of life itself. seven colors, and “glowed with hatred our love of beauty, our occupations, Would you believe it, I don’t remember for anyone who saw in white light presuppose an environment constantly a single spring, I never noticed how my nothing but white light.” He made an swept and tended by others . . . somebody’s wife loved me, how my children were ideal of nihilism and accepted materi- labor is essential in order to provide us born. . . . I have been a misfortune to all alism for spiritual reasons. At last he with the leisure necessary for our men- who have loved me. . . . I cannot even arrived at populism, which fit his per- tal development.” Shame and guilt over boast, Madam, that I have no one’s life sonality perfectly. unearned privilege shaped a generation upon my conscience, for my wife died The populists preached “going to the of the “repentant nobleman.” Pyotr before my eyes, worn out by my reck- people,” abandoning corrupt cities to Lavrov’s Historical Letters (1868-69), less activity.” live among the peasants in order to edu- the populist bible, put it this way: On the verge of recognizing the cate them and absorb their inarticulate “Mankind has paid dearly so that a few harm that ideology does, Likharev con- wisdom. “I ‘went to the people,’ worked thinkers sitting in their studies could verts this insight into yet another ideol- in factories, worked as an oiler, as a barge discuss its progress.” ogy. Moved by his wife’s death, he, like hauler,” Likharev explains. “I loved the Perhaps high culture should be abol- other Russian idealists, switches from Russian people with poignant intensity; ished altogether? This urgent question worshiping peasants to worshiping I loved their God and believed in Him, came to be called “the justification of women and their amazing capacity to and in their language, their creative culture,” with many writers contend- sacrifice themselves. More than once, genius. . . . My enthusiasm was endless!” ing that justification was impossible. he explains, women have followed his Likharev worked as a “barge hauler” Since the symbol of Russian culture enthusiasms “without criticism, with- because that horrible occupation was Pushkin, critics, most notably the out question, and done anything I became the populist symbol of the peo- nihilist Dmitri Pisarev, insisted that chose: I have turned a nun into a nihil- ple’s suffering. The most famous paint- any pair of boots is worth more than ist, who, as I heard afterwards, shot a

August 6, 2018 The Weekly Standard / 41 gendarme.” What matters is not what to remember that there is something ter, natural Russian man, unsurpassed women sacrifice themselves for, but called conscience.” And it must do so in virtue. Unlike their foreign coun- their “wonderful mercifulness, for- with single-minded urgency: “Right terparts, Russian peasants still lived in giveness of everything. . . . The mean- away, at this very minute, one had to communes, where people thought more ing of life lies in just that unrepining work, serve in this giant infirmary of the group than of themselves. That martyrdom.” Russians came to idol- and by every means help in bringing was the theory, but Uspensky found ize prostitutes and women terrorists health, in curing the sick, the cripples, reality more and more at odds with as paragons of virtue. the monsters.” ideology. Most of his sketches describe Likharev’s speech mesmerizes The heroes of Uspensky’s sketches, an intellectual like himself who first Madame Ilovaiskaya. Ever unappreci- who keenly sense their “swinish- discovers that the peasants are utterly ated, she is amazed that women like corrupt and then tries to preserve herself are his new enthusiasm “or, his faith in them with one ratio- as he said himself, his new faith!” nalization or another, as Uspensky She is ready to follow him. “With his himself did. gesticulations, with his flashing eyes, In one sketch, the narrator real- he seemed to her mad, frantic, but izes that what the peasants most there was a feeling of such beauty in admire is success in pursuit of the fire of his eyes, in his words, money. A village hero, Mikhail in all the movements of his huge Petrovich, has accumulated capital body, that without noticing what by first selling his wife to travelers she was doing she stood facing him and then cheating an officer out of as though rooted to the spot, and his property. Far from disapproving, gazed into his face with delight.” the peasants elect him their elder, a He sees this, but leaves without her, position he uses to embezzle com- and the story ends with his coach munal funds, which only makes the disappearing into the storm while peasants he robs admire him even “his eyes kept seeking something more. “The whole village knew that in the clouds of snow.” Chekhov saw his wife was consorting with the the populist mentality as emblem- devil, but the very ability, the knowl- atic of all Russian idealisms—dis- edge of how to go about it, how to dainful of everyday experience turn things to one’s own advan- and, however harmful, immune to tage—this conquered everyone.” any disconfirmation. In another sketch, the narrator Gleb Uspensky (painted by Nikolai Yaroshenko discovers that the commune is per- opulism’s two best writers in 1884) feared the populist project was futile. fectly willing to let a widow and her P both resembled Likharev. child starve. When a neighboring Gleb Uspensky (1843-1902) belonged ness,” seem to care more about easing landlord offers to sell the commune to the movement heart and soul, while their souls than helping the people. land on advantageous terms, the peas- Vsevolod Garshin (1855-1888), whom Such idealism, as Dostoyevsky noted, ants cannot agree because each justly Chekhov especially admired, remained is really a form of selfishness. The suspects the others of cheating. They on its outskirts. Known as a “Hamlet oppressed exist to be saved. Anyone brutally beat one of their members to of the heart,” unable to commit him- who thinks this way is “An Incurable,” death. Uspensky had once attributed self unreservedly to anything, Garshin the title of one Uspensky story in which peasant lapses to poverty, but came in could describe the populist ethos sym- a deacon begs a doctor who has treated time to recognize that the problem was pathetically from within and skepti- his bodily pains for something to cure not economic but moral. The popu- cally from without in the same stories. his soul. The deacon has encountered a lists in Petersburg accused Uspensky Uspensky’s personality was made wealthy populist woman who has sacri- of blasphemy. for the populist ethos. From child- ficed everything to “go to the people,” Uspensky did everything he could hood he suffered from paralyzing guilt. an act of selflessness that makes the to justify the people. In his sketches If anxiety is fear seeking an object, we deacon’s life meaningless by compari- about the peasant Ivan Ermolaevich, lack a word for guilt seeking something son. The deacon’s spiritual torment, we who professes complete selfishness in to repent for. Even as a child, Uspensky learn, leads him not to a better life but his pursuit of money, the narrator, at recalled, “I was guilty before the saints, to abandon his family for drink. first appalled by his cruelty, eventually the images, the chandeliers.” One of These sketches record Uspensky’s decides that Ivan Ermolaevich must his heroes claims his generation lives own experience of repeated disappoint- be regarded as an artist devoted to his “in the conscience-stricken epoch of ment. For the populists, the peasant craft. He is, in any case, following “the Russian life. . . . It was time for society was not just natural man but, even bet- course of life that is predetermined”

42 / The Weekly Standard August 6, 2018 for him. “No, he is not guilty. I, the story about the nauseating human con- other. Dedov disparages such work as educated Russian, I am most decidedly dition and the ultimate fate of us all. “looking for the poetic in the mud! . . . guilty.” As the historian Richard Wort- Garshin befriended the Russian All this peasant trend in art, in my man observes: “Unable to reconcile the painters called “Itinerants,” who favored opinion, is sheer ugliness. Who wants real with the ideal, he idealized reality.” scenes of Russian life, including pictures those notorious ‘Volga Bargemen’ of Uspensky gradually lost his grip on of suffering like Repin’s Barge Haul- Repin’s?” Ryabinin, by contrast, paints reality. “ ‘The eternal life’ of the coun- ers. Like so many others, Repin was a canvas supposed to shout to wealthy tryside has . . . aggravated and undone struck by Garshin’s distinctive personal viewers: “I am a festering sore! Smite my nerves,” he remarked. Haunted by beauty—some said he could be a model their hearts, give them no sleep. . . . hallucinations, he spent his last years in for the Savior—and, in his famous Kill their peace of mind, as thou hast an asylum. With unrelieved guilt for killed mine.” his “swinishness,” Uspensky came The closer Ryabinin’s painting to believe he really was a pig and comes to completion, the more it tried to turn his face into a snout. drains him of health until at last he gives up painting to become a arshin, too, experienced men- teacher for peasants. As the story Gtal breakdowns, moved in and closes, the narrator tells us that out of asylums, and eventually com- Ryabinin failed at that profes- mitted suicide by throwing himself sion as well. For all our sympathy down the stairs. When war broke for Ryabinin, we wonder whether out with Turkey, he, like a number empathy taken too far does more of others, joined the Russian Army harm than good. Could it even be a as a private in order to be “with the form of self-indulgence? people.” His story about that expe- Some Garshin stories describe rience, “Reminiscences of Private a prostitute, Nadezhda Nikola Ivanov,” impressed readers as sub- evna, whom one hero regards the tle, understated, and untendentious. way Chekhov’s Likharev might: as If Uspensky’s overriding emotion a martyr taking on all human suf- was guilt, Garshin’s was extreme fering. “An Incident” deals with a sensitivity to others’ pain. “This man who regards her as a superior martyr of the spirit,” one contem- being and wants to rescue her. Psy- porary maintained, “suffered from chology defeats the dream. A truly an illness from which it is morally Dostoyevskian figure, Nadezhda wrong to recover.” His pathologi- Vsevolod Garshin (painted by Ilya Repin would rather hold on to her resent- cal empathy led him to see actual in 1884) wrote with deep compassion ment than join the world that looks human experience as repulsive, and without sentimentality. down on her. You cannot save some- and one of his trademarks was real- one like that, and the hero commits ist descriptions evoking sheer disgust. painting of Tsar Ivan the Terrible right suicide. In “Nadezhda Nikolaevna,” she His first famous story, “Four Days,” after he has murdered his son in a rage, becomes the model for an artist’s paint- describes a Russian soldier who, like Repin gave the dead tsarevich Garshin’s ing of Charlotte Corday, “the fanatic Garshin himself, enlisted without face. His portrait of Garshin shows a champion of good,” who murdered considering he might hurt someone. man afflicted with a deep, almost meta- Marat out of high principle. The paint- “The idea that I too would kill people physical sadness, at his writing desk. ing asks whether violence is ever mor- somehow escaped me. I only saw myself Garshin wrote one of his finest stories ally permitted, even to save sufferers as exposing my breast to the bullets.” about the Itinerants. like Nadezhda herself. As it happens, In the confusion of battle, the hero “Artists” traces the thoughts of two another painter wants to depict a leg- bayonets a Turk and then, severely painters with opposite ideas about art. end about how Russia’s great folk hero wounded, is left for dead next to the The kindly Dedov views art’s goal as Ilya Muromets reads the New Testa- Turk’s corpse. He spends four days beauty that moves “a man’s soul to a ment and discovers that all his glorious witnessing and smelling the decom- mood of gentle tranquil wistfulness.” military deeds violate Christ’s com- position of the Turk’s body, which he His friend Ryabinin, a populist based mands. Am I supposed to let evil happen describes in excruciating detail. “Once on the Itinerants, chooses to paint a without resisting it? Ilya asks. “Leave when I opened my eyes to look at him, I worker whose job is to press his chest them to plunder and kill? Nay, Lord I was appalled. His face was gone. It had against a rivet on the inside of a boiler cannot obey Thee. . . . I understand not slid off the bones,” one such descrip- while another workman hammers it. Thy wisdom; Thou hast given my soul tion begins. Usually read as an antiwar These human anvils represent all the a voice, and I listen to that and not to tale, “Four Days” may also be taken as a suffering that people inflict on each Thee!” The story’s two paintings pose

August 6, 2018 The Weekly Standard / 43 the same question about violence “hated these women and felt noth- in pursuit of justice. Together, they ing but repulsion toward them,” he suggest that art’s goal is to pose, blames himself for seeing them only not answer, great questions. As the as animals, as not human. second painter explains, “You make But he soon sees them as still people think, that’s all. . . . Is it not more repellent: The women do not that which gives meaning to what just lack humanity, they display a you are doing?” All Garshin’s sto- sort of inverse humanity, exhibit- ries end with questions. ing the opposite of the best human Garshin’s two best-known tales qualities. “Everything that is called take the form of parables about ide- human dignity, personal rights, the alism. In “Attalea Princeps”—the Divine image and semblance, were title is the scientific name of a Bra- defiled to their very foundations.” zilian tree—a tree in a greenhouse Vasilev demands that his friends yearns for freedom. Directing all justify the existence of high culture, her energies to growing taller, she of their medicine and art, in the plans to break the greenhouse glass face of such dehumanization. Point- and experience the world outside. ing to Vasilev’s own expression Eventually she succeeds, but this of hatred and repulsion, the artist is Russia and so the Brazilian tree replies that “there’s more vice in realizes she will die. “Is this all?” your expression than in the whole she asks herself. “Is this all I lan- street!” Can too much concern guished and suffered for so much?” make the world worse? Ideals fail not only when unattain- Vasilev descends into near mad- able but, still worse, when attained, ness: Terror grips him until a sense as every revolution shows. Nikolai Yaroshenko’s The Stoker (1878), of repulsion from everything, even Drawing on Garshin’s own sad now at the Tretyakov in Moscow, was noble deeds, leaves him utterly experience, “The Scarlet Flower” partial inspiration for the human anvils incapacitated. Fortunately, Vasilev’s depicts an idealist in an asylum who of Garshin’s story ‘Artists.’ friends return, he begs them to save knows he is mad and yet believes him from suicide, and they tend his insane reasoning. He imagines that had a peculiar talent. A talent for him until the mood passes. Was it only he is called upon “to fulfill a task which humanity. He possessed an extraor- chance that no one saved Garshin? Or is he vaguely envisaged as a gigantic enter- dinarily fine delicate sense for pain the idealist spiritual condition destined in general. As a good actor reflects prise aimed at destroying the evil in the in himself the movements and voice for catastrophe? world.” All evil, he decides, proceeds of others, so Vasilev could reflect in from three red flowers growing in the his soul the sufferings of others. . . . he populists’ efforts to “go to the prison yard. One by one, he contrives If he saw an act of violence, he felt as T people” failed utterly. Far from to pick them, each time holding it to though he himself were the victim of embracing their revolutionary ideol- it. . . . The pain of others worked on his breast all night to defeat its evil by his nerves, excited him, roused him ogy, the peasants turned their wor- absorbing it into himself. He wakes up to a state of frenzy. shipers in to the police. In despair, weaker and thinner. Having picked the many populists—but not Garshin or third flower, he dies convinced that he Vasilev reluctantly accompanies two Uspensky—established the Russian has rid the world of evil. By morning friends, an artist and a medical student, terrorist movement. If Russian history “his face was calm and serene; the ema- on a sort of pub crawl from one bor- demonstrates anything, it is that noth- ciated features . . . expressed a kind of dello to another, sampling the awful ing causes more evil than the attempt proud elation. . . . They tried to unclench music, inspecting the intentionally to abolish it altogether. The scarlet his hand to take the crimson flower out. ugly decoration, and talking with the flower blooms in the Gulag. But his hand had stiffened in death, and prostitutes. Vasilev has always accepted To this day the idea persists that the he carried his trophy away with him to a sentimental picture of prostitutes as Russian people, especially the simple the grave.” Garshin knew that his own “acknowledg[ing] their sin and hop[ing] rural ones, somehow carry the moral utopianism was futile at best. for salvation.” Like a populist going solution to all the world’s ills. Under to the people, he finds they do nothing of what Dostoyevsky called their “alluvial hekhov’s story “A Nervous Break- the sort. He discovers no “guilty smile,” barbarism” lies the purest spirituality. Cdown” appeared in a volume dedi- as he expected, but finds “on every face For Russians, faith in the people’s vir- cated to the memory of Garshin. Like nothing but a blank expression of every- tue is equaled only by another belief: Garshin, its hero, a talented law student day vulgar boredom and complacency.” in the moral glory of Russian literature. named Vasilev, Tormented by the thought that he That belief is warranted. ♦

44 / The Weekly Standard August 6, 2018 his extravagantly furry face atop sim- B A ian bodies in mockery of his theory of & evolution. Men assumed that bristling whiskers conveyed manliness, Hughes argues, while women were disgusted Bodies of Work by beards’ uncleanliness. By the 1870s, a younger generation of men scuttled The case for warts-and-all biographies. the beard fad. by Amy Henderson Hughes, who previously wrote a biography of George Eliot, here dedicates a chapter to the great novelist. Eliot was athryn Hughes has writ- sensitive about her homely appear- ten a veritable freak show Victorians Undone ance—of which Henry James famously of a book. She fluidly and Tales of the Flesh in the Age of Decorum said, “in this vast ugliness resides a most by Kathryn Hughes graphically describes iconic Johns Hopkins, 414 pp., $29.95 powerful beauty which, in a very few KVictorian figures by focusing not on minutes, steals forth and charms the their accomplishments but on vari- mind so you end, as I ended, in fall- ous body parts that had some effect on ing in love with her.” Hughes puts to their lives. rest the rumor that years of churning A professor at the University of butter had made Eliot’s right hand East Anglia, Hughes explains that the larger than her left; Hughes examines genre of “biography”—etymologi- one of Eliot’s right-hand gloves and cally “life writing”—tends to conceal finds it a size 6½—“the nearest thing Fanny Cornforth and her luscious lips or deny the importance of the embod- to a nymph’s.” ied aspects of life. Victorian biogra- ings became the target of surpassing Hughes uses the scandal surrounding phers in particular, she contends, wrote nastiness. In 1839 she grew deathly ill; Dante Gabriel Rossetti’s painting of his “as if their subjects . . . had never pos- Hughes writes that she was “thin as a lover Fanny Cornforth—emphasizing sessed such a thing” as a body. Lytton skeleton,” her “once-elegant neck, now her voluptuous, kissable lips—to explain Strachey’s Eminent Victorians (1918) was stretched like twisted rope,” her scalp “a how working-class women in the 1840s in part a reaction against this tendency; rucked patchwork of bristle and skin.” and ’50s resorted to “sly prostitution” he gleefully exposed not only the moral Most noticeable, though, was her belly, to earn extra money. Hughes believes and psychological but also the physi- which thrust “obscenely from her that Cornforth “behaved exactly as any cal imperfections of his subjects. He sparrow frame.” Was unmarried Lady of us might if we had grown up without wrote, for example, of the saintly Flor- Flora pregnant? The teenaged Victoria any expectation that the world would ence Nightingale’s “peevish” mouth and delighted in “sizing up women’s bodies feed us for free.” A different Fanny—an fat, cushiony old age. Hughes seeks to for evidence of their sexual lives” and 8-year-old murder victim named Fanny restore that kind of “lumpiness” to biog- furthered the rumor that Lady Flora Adams—is the focus of Hughes’s last raphy; she thinks readers will want to was in a scandalous condition. She was chapter. She describes in grisly detail know of the subjects of biographies subjected to grossly ignorant gyneco- how the girl’s dismembered body was logical examinations—and ultimately discovered, piece by piece. How did it feel to catch sight of them across a crowded room, or to died not because she was pregnant but Hughes’s expertise in the Victorian find yourself sitting next to them because of a painful liver disease. The era makes her the perfect pathfinder at dinner? . . . Did they smell (prob- incident, Hughes writes, “stripped bare for a new style of “life writing,” and her ably, most people did)—but of what the realpolitik of women’s sexual lives at warts-and-all approach to forensic biog- exactly? Were they natty or slobbish, court,” where no one—not even Victo- raphy adds another dimension to our a lip-licker or a nose-picker? ria—was spared: “Her reign would not understanding of the past. The mix of Victorians Undone is an experi- be secure until her body had done what flesh and decorum, propriety and pruri- ment aimed at putting “mouths, queens’ bodies are supposed to, which ence is highly readable. But her graphic bellies and beards back into the is produce a male heir.” bodily revelations—lurid and some- nineteenth century.” Hughes turns next to Charles times macabre and bloody—will not Hughes begins with the plight of Darwin. The scientist suffered from be everyone’s cup of tea. In the hands one of Queen Victoria’s ladies-in-wait- painful facial eczema and so he hap- of a lesser scholar, this subject could ing. Court politics were vicious early in pily embraced the post-Crimean War become outright pornographic; as it is, Victoria’s reign, and Lady Flora Hast- mania for facial hair. Darwin’s long, Victorians Undone feels sensationalistic bushy beard became iconic thanks and somewhat voyeuristic—meaning Amy Henderson is historian emerita to photographers like Julia Margaret that it is certainly in keeping with our of the National Portrait Gallery. Cameron and cartoonists who drew own times. ♦

August 6, 2018 The Weekly Standard / 45 “small-town Canucks drawing from the B A American South.”) A gold-paved road & to U.S. success seemed to be laid out in front of them. Yet these “reluctant rock stars” No Dress Rehearsal who were notoriously “suspicious of celebrity” expressed very little interest Farewell to the Tragically Hip, rockers who helped in fame and fortune outside Canada. Canada see itself anew. by Michael Taube Downie said that he and his band- mates were often asked by interviewers “about our success or lack of success ord Downie’s announce- in the States, which I find absurd. . . . ment in May 2016 that he The Never-Ending Present While that is a story of the band, there had been diagnosed with The Story of Gord Downie and are so many other stories.” a terminal brain tumor the Tragically Hip The Hip often “met a wall of resis- by Michael Barclay Gshocked fans of the Tragically Hip, tance when it came to American ECW, 482 pp., $27.95 the Canadian alternative-rock media—and, by exten- band of which he had been the sion, mainstream suc- lead singer since its founding. cess,” notes Barclay. They A farewell tour was quickly were “still a joke to the arranged, complete with a final American press” as late as hometown concert broadcast 2011, seen as an “annoy- live by the CBC—and reporting musical backdrop that edly watched by 11.7 million only surfaced in small-town people, almost a third of the Canada, a band whose country’s population. When only possible audience in Downie died in October 2017, America was expat Cana- Canadians mourned the loss of dians.” The Hip was, he a national hero. writes, “a Cornelius Krieg- Why were the Hip so hoff painting surrounded beloved in the Great White by Picassos and Pollocks.” North? Music journalist Michael Barclay suggests in Gord Downie and the rest of the youthful Tragically Hip in 1993, ne reason the Hip his intriguing new book that years before they were dubbed ‘Canada’s house band’ O achieved the status “the story of the Tragically of Canada’s great house Hip is the story of Canadian music: (rhythm guitarist), Gord Sinclair (bass- band—and one reason they never the people who make it, the people ist), and Johnny Fay (drummer). They clicked with audiences outside their who make it happen, and the fans who played venues large and small in every homeland—is that their discography is celebrate it every day.” Moreover, it’s a corner of the country, released 14 stu- sprinkled with tales of Canadian lore. story of “Canadian culture itself, from dio albums and 2 live albums, and won The 1991 song “Three Pistols” Northrop Frye to Drake, from Jacques many local awards and accolades. mentions painter Tom Thomson, an Cartier to Justin Trudeau, and every- Their Canadianness came at the associate of the Algonquin School (or thing in between.” Downie and the Hip expense of potential non-Canadian audi- Group of Seven) who drowned in a were quintessentially Canadian, and ences. Most Americans are unfamiliar canoeing accident in 1917. Downie’s many of their songs dealt with Cana- with the Tragically Hip’s music, which is haunting lyrics—“Tom Thomson dian history, politics, and sports. The a real shame. Try as it might, the band came paddling past / I’m pretty sure Hip opened a window into the country just couldn’t catch on south of the bor- it was him / And he spoke so softly in they loved—inviting listeners to better der. The Hip performed on Saturday accordance / With the growing of the understand what it was and what it is, Night Live in 1995 (thanks to an assist dim”—are sung with growls against and to imagine what it could be. from Canadian-born former SNL cast a backdrop of pounding guitars. The The band was formed in 1984 in member Dan Aykroyd). They played in critic Northrop Frye described one of Kingston, Ontario, with a nucleus many U.S. venues, like New York’s Bea- Thomson’s paintings as “an emblem of high school friends: Downie, con Theater. They had songs that could of Canada itself, so long apologetic for Rob Baker (guitarist), Paul Langlois have attracted American radio attention, being so big an obstacle on the way including “New Orleans Is Sinking” to somewhere more interesting, yet Michael Taube writes a syndicated column (1989), which has a real country-rock slowly becoming a visible object in its

for Troy Media. feel. (The band started, Barclay says, as own right.” Barclay, who quotes that GIE KNAEPS / GETTY

46 / The Weekly Standard August 6, 2018 passage from Frye, compares “Thom- ory / So I’d know who murdered me”). the horrific 1933 Christie Pits riot in son’s eye as a painter” with “Downie’s There are also songs about the Toronto, in which the appearance of a indirectness as a lyricist.” beauty of Canadian towns, cities, and large swastika during a baseball game The Hip’s “Fifty-Mission Cap” communities the Hip visited over between the Harbord Playground team discusses Canada’s first love: hockey. three decades of touring. Saskatoon is (which was primarily Jewish and Ital- This propulsive song, driven by the discussed in “Wheat Kings,” which ian) and St. Peter’s squad set off the drums, describes the tragic story of Barclay describes as a “campfire acous- largest display of violence the city had Toronto Maple Leafs defenseman Bill tic song about a wrongful conviction, ever seen. From the song: “That night Barilko, who scored the Stanley Cup- with mention of the CBC and prime in Toronto / With its checkerboard winning goal in 1951. He disappeared ministers of the past.” The Athabasca floors / Riding on horseback / And four months later: He and a friend oil sands of Alberta are referenced in keeping order restored / Till the men were flying home from a fishing trip “The Depression Suite.” Speed River they couldn’t hang / Stepped to the mic but their small plane never made it. in Guelph, Ontario, has an entire and sang / And their voices rang / With (Canada, Downie once said, “seems ditty all to itself. A couple of tiny com- that Aryan twang.” to be very famous for its disappear- munities that most Canadians would Barclay interprets the song differ- ances.”) Eleven years went by ently, arguing that “one that before the Leafs won another doesn’t have to reach back cup—and six weeks after that to the 1930s to find police victory, Barilko’s long-lost riots” and pointing out there crash site was found and his were several in the 1990s—at body recovered. a time when neo-Nazis were This story is recounted still walking the streets of in Downie’s lyrics—which Toronto. In his view, “Cana- also note “I stole this from dians like to think their racist a hockey card.” Barclay and / or most brutal incidents reprints the text of the actual are far in the past, but Down- hockey card, which Downie ie’s song is easily set in the had been “carrying around in The Tragically Hip announced what would be their last tour on 1990s—not the 1930s.” his pocket, because he found May 25, 2016, one day after revealing Downie’s cancer diagnosis. Downie, who greatly the story compelling.” Appar- admired and praised Cana- ently, Downie was so fascinated by the have been unfamiliar with—Mistaken dian prime minister Justin Trudeau’s Barilko story that he dug around in Point, Newfoundland, and Moonbeam, progressive political vision, once said, libraries to learn more, but he “didn’t Ontario—make cameos in “Fly.” “I haven’t written too many political use any of his research beyond what Given all the stories and references, lyrics.” For the most part, that was he’d found on the hockey card,” Bar- it is fair to say, as Barclay does, that true for the “everyman band” and its clay writes. The “Fifty-Mission Cap” Downie “elevated Canadian mythol- blue-collar(ish) lead singer. But when of the song title refers to the fact that ogy and geography to the level of the he felt the urge to do so, as in “Bobcay- special hats were given to pilots in mystical.” But, especially in his later geon,” the message was powerful and World War II after 50 successful mis- years, Downie bridled at the sugges- thought-provoking. (And it doesn’t sions—something Downie learned tion that he might have been uncriti- hurt that the song’s melodic line puts during a visit to the National Air and cally mythologizing his country. “That Downie’s sometimes tremulous voice Space Museum in Washington, D.C. we’re this clean, pristine place, that to its best musical use.) In the lyrics, the narrator—whom we know [what’s] best for the world, In a recent interview, some of the Downie described in an interview as “a that there’s nothing anyone can teach members said that the band is now fin- veteran pilot whose ultimate goal is to us—these types of things I want no ished—that they may work on projects stay alive, to fly 50 missions”—is con- part of, and I don’t know anybody who together but after Downie’s death will trasted with Barilko and his “flashing would,” he said in 2009. no longer be the Tragically Hip. The moment—that ‘is it better to burn out Although it is certainly true that band’s loyal fan base, still in mourn- than to fade away’ sort of thing.” the Tragically Hip made songs about ing, will appreciate the interviews The 1992 album with “Fifty-Mis- Canada’s rich history—and in so doing and stories in Barclay’s book as they sion Cap” also had on it “Looking for encouraged small doses of national take stock of the Hip’s legacy. And for a Place to Happen,” a song that men- pride and taught their fans to be non-Canadian listeners who are just tions the 16th-century explorer Jacques proud of being Canadian—it would discovering the band, Barclay’s book Cartier, who discovered the Gulf of St. be unfair to suggest that the Hip provides a treasure trove of informa- Lawrence. The song seems to allude, offered unqualified glorification. Take tion that will help in appreciating the too, to the exploitation of Native Cana- the 1999 song “Bobcaygeon.” The lyr- beautiful music and lyrical genius of

MARCUS OLENIUK / TORONTO STAR / GETTY MARCUS OLENIUK / TORONTO STAR dians (“So I’ll paint a scene from mem- ics are widely believed to allude to one of Canada’s best-kept secrets. ♦

August 6, 2018 The Weekly Standard / 47 “Donald Trump appears to have been caught on tape during the presidential campaign discussing the logistics of making payments PARODY aimed at keeping quiet allegations from a former Playboy model that she had an affair with Trump, according to an audio tape released by an attorney representing Michael Cohen, Trump’s former lawyer. . . . The audio is choppy and difficult to hear at times, and several key sections are open to interpretation.” —Politico, July 24, 2018

August 6, 2018