Coyote Blog

Last week I spent a bit of time looking at the indictment of James Comey (not hard, it's barely a page long).  At first I thought I must be missing some pages.  The indictment is for lying when Comey told Congress that he had not "authorized" an employee to leak the Hillary Clinton investigation to the WSJ.  But everyone agrees, apparently even the prosecutors, that Comey did not even know about the leak or intention to leak before it happened.  It looked to me like the whole case was built on the argument that Comey "authorized" the leak by not opposing it after he found out about it.  Could that really be the case? Seriously, that is flimsier than even some of the NY prosecutions of Trump.  As it turns out, to their credit, a number of prominent Conservatives are rallying to mock the indictment.

I get it that Trump and his supporters have some reasons to be frustrated by events over the past 8 years or so.  The Russian collusion charges that turned out to be complete inventions of the opposition party.  The prosecutions by the NY AG for (at best) borderline victimless crimes for which no one in history had ever been previously prosecuted.  The over-prosecution of rank-and-file January 6 protestor-rioters. The "election denier" prosecutions in multiple states that look a lot like attacks on political speech (particularly when similar statements made by Democrats in 2016 went un-prosecuted).

But there are two possible responses to this frustration:

1. Hold public hearings to publicize the evidence of any wrongdoing.  Fire people in law enforcement who violated the rules or abused their position.  Work hard to change the rules, controls, and accountability mechanisms so it is much harder for such abuses to be duplicated in the future.  And trust the process to work (after all, Trump overcame most all the various legal proceedings against him).
2. Go the opposition one better by doing all the same stuff, just harder

Approach number 1 holds out some hope of de-escalating abusive practices in the system and prevent further degeneration into banana-republic style political retribution after every election.  Approach number 2 is fraught with risks of spiraling out of control and creating precedents that Democrats will gleefully use when inevitably back in power.

Of course, Trump and his FAFO (f*ck around, find out) crowd have chosen #2.  They strongly believe that the far Left is violent and lawless and that Republicans have historically been far too genteel in how they play politics and that only by extreme responses can they get, uh... I don't know what.   Do they expect the Left to back down?  If Trump's supporters are characterizing the Left accurately, by Trump's own assumptions it is unlikely the Left will back down.  Republicans are risking a further devolution of the American polity -- is it for revenge only?  For the feelz of it?  What is the endgame they envision, or do they even have goal here other than watching the other side burn?

Postscript:  All of the above is also true in the realm of speech and cancel culture.  Conservatives have clearly born the brunt of cancel culture and speech limitations over the last 10-20 years (just as the Left bore the brunt in the 1950s and 1960s).  The Kimmel firing was a great example of Trump's ability to score an own-goal when he has the lead.  The initial reaction to Kimmel's reality-defying statement created sympathy for the Conservative cause, at least until Trump's FCC head lawlessly issued threats to ABC's broadcast licenses, threats echoed later by Trump himself.  Suddenly a story that that should have been about Kimmel's absurd statement and falling ratings became about the Trump Administration's lawlessness.  Had this Administration just STFU, the Leftish late night hosts would have continued their downward spiral and been an object lesson to programmers that maybe they do not want to program for just 30% of their audience.

I am sure Republicans want to send a message about cancel culture but Executive threats are just not going to work.  Of the hundreds of media articles on the whole Kimmel mess, I did not see a single one (excepting the explicitly Conservative press) that mentions Roseanne Barr or Gina Carano.  Using retribution to highlight past injustices is not going to work when the media will not acknowledge or mention past injustices -- in the media Republican retribution is portrayed instead as a first strike.

I will leave the last words on this to Ted Cruz, someone I think is very smart but with whom I often disagree.  This is from the WSJ

Mr. Carr “says, ‘We can do this the easy way or we can do this the hard way,’” Mr. Cruz told his listeners, quoting Mr. Carr. “That’s right out of ‘Goodfellas.’ That’s right out of a mafioso coming into a bar going, ‘Nice bar you have here. It’d be a shame if something happened to it.’”

The Senator added that he’s no fan of Mr. Kimmel, but he warned conservatives that government power abused in this way won’t hurt only the left. “What [Mr. Carr] said there is dangerous as hell,” Mr. Cruz continued. “It might feel good right now to threaten Jimmy Kimmel, but when it is used to silence every conservative in America, we will regret it.”

Exactly right.  I am not sure that Trump's supporters understand the damage they may be doing to our political environment (and if you are reading this and saying "the other side started it", then you don't get it either), but they are also damaging their future selves.  Remember Coyote's Law.

Postscript #2:  I will offer Republicans a piece of advice I often give to other business people: If you are in a dispute with another person or entity, be satisfied if you get what you want.  Do not hold out for sorrow or contrition because you are never, ever going to get them to feel guilt or honestly admit error.

Postscript #3: In thinking about it, the Comey prosecution is similar to some of the Trump prosecutions in that in both cases, I think the prosecutions are effectively acting as proxies for suspected real crimes committed that no one could prove.  Almost everyone discuss this with (depending on if they are Red or Blue team) will say about one or the other that a certain prosecution may be weak but the person is clearly dirty.  Sorry, but this is not how the US legal system is supposed to work.  I grew up in the South when it was still possible that a cop who killed/arrested/prosecuted/jailed a black man for something they did not do could argue that "yeah, but I am sure he was guilty of something."

Postscript #4:  I will remind everyone that both parties equally think the other party is lawless and their own party is too genteel. I have many times seen writers of the Left and Right lament this about their sides in writing on the same day.   I guarantee anyone from the Left reading what I wrote above about Republicans thinking themselves too genteel are saying "Republicans are the violent, lawless ones, not us!"

For a few halcyon days after the tragic murder of Charlie Kirk, Trump and Republicans were actually getting a bit of sympathy and probably had an opening to reframe some of the political discourse.  But in true Trumpian style, the Administration has gone to 11 in their over-reaction to some Lefties being, let's say, less than sad at Kirk's death.  I get it that Trump and his followers are (probably rightly) grouchy about some of the BS prosecutions of Trump and his supporters over the last 8 years, not to mention the mostly fabricated Russia collusion impeachment.  But Trump seems to have found his moment for vengeance and anyone who calls for him to turn the other cheek on some of this stuff gets labelled a cuck.

Here is what I have catalogued so far:

• AG Pam Bondi fans the flames of public confusion by reinforcing the myth that there is somehow a First Amendment exception for hate speech
• After years of defending cake-bakers who get prosecuted for not making a cake for a gay wedding, Republicans are getting their revenge by threatening prosecution of (and getting fired) an Office Depot employee (also here)  who wouldn't print some Charlie Kirk memorial material
• Sec. of State Marco Rubio announced that they were revoking Visas of immigrants who said bad things about Charlie Kirk
• Under pressure from the FTC (really outright threats), ABC has suspended Jimmy Kimmel for what were admittedly incorrect and inflammatory statements about Kirk's killer.  ABC probably was on a path to axing Kimmel over ratings anyway, but the FTC pressure is absolutely unethical
• Trump is ready to name Antifa a terrorist organization.  I can't stand the Antifa thugs but this is a really slippery slope where it is easy to start naming opposition groups as terrorists.  Besides, is Antifa even an organization, or a label that people adopt?
• Unrelated to Kirk, Trump also launched another large and looney defamation suit.  Note that in my view this was not written to win, but to force a settlement.  Being sued personally by the man who is also your chief regulator is a brutal position to be in, just ask CBS who had to knuckle under previously.
• I am almost sure there was something else, but it is late.  I will update when I remember.

I will say again what I have said before -- Republicans are acting like they will be in power forever -- but they won't.  Remember Coyote's Law.  At some point their political opposition will be in power and all these precedents will come back to bite them.  Particularly in this case because almost every one of these is an authoritarian power that Republicans fought under Democratic administrations.  As mentioned before, Republican's defended cake bakers (and pharmacists and many others) against laws mandating they provide services against their conscience.  Republicans have fought against laws based on making hate speech illegal, laws that are dragging the Brits down the toilet as we speak.  It was Republicans who fought to get rid of equal time in broadcasting and stopped the FTC from bludgeoning Conservative talk radio hosts.  Republicans have fought for years against having their mainstream groups labelled as white supremacist terrorists by the SPLC (I believe the SPLC so designated Charlie Kirk's organization).   Not sure if they have had same issues with Visas, but they sure as hell will as Democrats will find a way to evict Conservative immigrants in retribution (looking at you Elon).

Some follow-up thoughts on this post about the murder of Charlie Kirk.

• Pam Bondi has proven herself unqualified to be America's lead attorney.  First she talks about a hate speech exception to the First Amendments which does not exist.  Then she threatens to prosecute service providers who refuse service to someone she disagrees with.  I understand that there is an enormous gulf between laymen's understanding of the First Amendment and settled law (and her boss is one of the worst offenders, at least in his understanding of libel law), but there is no excuse for the US Attorney General to be reinforcing public myths and misunderstandings on this critical topic.  It is particularly incredible to see a Republican AG take these positions, as Republicans have for years fought Progressive attempts to make hate speech illegal and have defended any number of service providers (eg bakers who won't make a cake for gay weddings) who have refused service over matters of conscience.  I will give her credit though for rallying even Progressive MSNBC to attack the notion of a hate speech exemption.
• I have been critical of Republicans for going overboard on cancellation demands (eg so-and-so should be fired) over reactions to the Charlie Kirk shooting.  But I have to give them kudos for almost as one coming down on their own party and hammering Pam Bondi's ignorance.  I had thought that Republicans seemed ready to eat whatever dog food the Trump Administration served, but it is good to know there is something they will send back to the kitchen.
• For all the over-the-top invective I have seen this week, most people (whether they admit it or not) assume there will be no rioting this weekend as Republicans tend not to riot, loot stores, and burn buildings when they are upset.  To some extent I think January 6 was notable because it was such an exception to this.  I live in Phoenix where the Charlie Kirk funeral is this weekend and -- unlike in some past national explosions on the Left -- no one is boarding up the stores in Scottsdale this week (after the 2020 riots caused millions of dollars of damage in Scottsdale Fashion Square, we had prophylactic boarding up several other times after, including around the 2020 election when store owners feared a violent response on the Left if Trump were to win).  It should go without saying, but violence is not speech and is not First Amendment protected.  Maybe we can get Pam Bondi to say that violence is protected by the First Ammendment to get Progressives to finally accept that it is not.
• With all the words spilled this week over this terrible event, I still think what the Utah governor said was the best:  "We need to learn to disagree better."  Which actually is an initiative he has been pursuing for several years.  I have not looked at his program, but I always have some skepticism on such efforts.  Like tax harmonization which always turns out to have all taxes set to match the highest one, calls for cooperation across political divides often boil down to giving more power to the state on the issues the Right wants and giving more power to the state on issues the Left wants.
• The last time there was some violence against Conservative speakers on campus, many universities responded by instituting onerous security rules and fees on Conservative groups trying to bring their speakers to campus.  I hope universities don't go down this road, but it would be typical of them.  Universities have trained their students and faculty for decades that Conservatives are beyond the pale and thus should not be engaged as doing so would legitimize them.  It's like a 19th century English Duke being encouraged to sit down and share a meal with his long-time butler -- it just is not going to happen.
• My wife really likes the Left-Right-Center podcast / radio show.  I confess I have not listened to it as I don't listen to radio and have mostly eschewed non-history podcasts.  I feel like the information rate in audio is too low for my patience level (I listen to audio books at least at 1.5x and don't even get me started on how much I hate voicemail).  But I do think given how on-point the show's concept is to what I think we need more of, I will have to give a listen.  I have always loved Bryan Caplan's Ideological Turning Test concept and try to force myself through the exercise when I get overly angry about some issue.

Dear Republicans,

I am sorry I have not had time to write sooner, and I only have time for a short missive.  But I want you to know that you are NOT going to like living with the precedents that Trump is setting right now for Presidential power.

I know you have convinced yourselves that you will be in power forever.  Believe me, I know -- the Democrats thought the same thing after 2020 and even more so after the 2022 election.  And I know some of the court challenges at the margin have been nutty -- the injunction against Congress legislatively cutting funding to certain organizations was completely baseless, for example.  These crazy court challenges at the bleeding edge have allowed you to convince yourselves -- wrongly -- that all of Trump's actions are perfectly normal and legal and all the legal actions are unjustified.   You will not like future administrations firing Republican commissioners from typically bipartisan organizations.  You will not like Presidents setting tariff rates (or by extension other tax rates) at will.  You will not like a Federal Reserve that is a lapdog to the current administration (perhaps the only thing that can make the Fed worse than it is already).  You will not like Presidential powers that trump state and local governments on even the smallest details.

You all need to relearn Coyote's Law -- never give the government (or particularly the President) powers you do not want your worst enemy to wield, because sure as hell your worst enemy will be in charge some day.  Yes, I know previous administrations pushed the envelope on Presidential power.  Unfortunately, when faced with an opposition party in the prior administration that took a bad precedent from level 4 to an 8, both parties will likely NOT respond by de-escalating but by pushing the 8 up to 11.

Republicans are doing a victory dance in the aftermath of CBS's settling Trump's lawsuit over CBS's editing of their Kamala Harris interview.

I ran a public hospitality business with over 10 million visitors a year, so it is almost inevitable that we would get sued from time to time.  At this point I can't remember the exact numbers but we probably had 10 serious suits in 20 years, all of which were over some injury sustained in a public campground or marina we operated.  You know how many of these I honestly believe we had any liability whatsoever?  0%.  You know how many of these we (or rather the insurance company) settled?  100%.  There are many reasons a company might settle a case in which they feel they have no guilt, but two are:  1)  Lawyers and litigation are expensive -- it costs $500-$2000 just to get an attorney to pick up the phone for the first time; and 2) unlike criminal juries, who I think are pretty fair, civil juries cannot be counted on to give a fair verdict.  In particular, faced with a sympathetic injured plaintiff and a faceless company covered by an insurance policy, certain juries will give an award to the plaintiff almost no matter what the cause and effect.  If you think of it as a "bad outcomes award" rather than a "liability award," you can get closer to the thinking of some juries.  Not all juries mind you, but enough to scare companies from going to trial.

I will give you an example from years and years ago in LA County.  A little girl drowned swimming in a lake we operated and her family sued us for failure to warn of the danger.  The frustrating part was that there was no way to photograph the location of her tragic death without getting the "no swimming" sign in the frame.  Faced with this evidence, the complaint was soon amended to say the girl drowned wading in the lake, not swimming, and that the sign said nothing about wading.   This seems crazy, but our lawyers were adamant that we did not want to try this case in LA County with the sympathetic grieving parents of a little Hispanic girl.  So the insurance company settled for something like $2 million.

I would urge you to consider the CBS settlement in this context.  Because they have these same problems, plus one more.  The cost of litigation would be high, easily in the millions for this kind of case even if they win (there is no loser pays in the US).  And just as Trump often drew juries from hostile pools for some of his civil cases, one could easily imagine the MAGA mirror image in a CBS trial.

But as I said, CBS had one more problem -- Trump is their regulator via multiple agencies.  Not only does he have substantial influence at the FCC, which heavily regulates broadcast TV, but also at the SEC, FTC, and Justice Department who could easily wreck the current buyout and restructuring being undertaken by CBS's parent company.  There are billions of dollars at stake in those deals, and I am positive in this context the lawyers told CBS management to give Trump his $16 million gratuity and move on.

There is a lot that is wrong here on both sides.  CBS was absolutely abdicating its responsibility to help the country understand its candidates for President, and the hiding of Harris's unreadiness for office is of a piece with the same work CBS did in hiding Biden's deteriorating condition.  But their video editing wasn't strictly illegal and really is not much different from what 60 minutes has been doing legally for decades, though usually the editing is the other way around to create a gotcha for some corporate executive.

But given his position as regulator in chief of CBS, this private lawsuit is just wrong, wrong, wrong.  If something was illegal, fine, send in the FCC or FTC (or FEC).   But trying to extract a personal financial settlement over a charge of dubious legal merit from a company he is regulating is barely different from a protection racket or even solicitation of bribery.

update:  this has some interesting backstory.  Don't tell me it does not look like bribery.  Apparently even the participants were worried about it looking like bribery:

The bribery issues arose because Redstone is in desperate need of cash since inheriting the Paramount media empire from her late father, the media mogul Sumner Redstone and the settlement of the lawsuit is inextricably tied to the deal getting completed since Trump’s regulators must approve the merger.

Since Redstone would receive around $2 billion once the deal is done, any sizable payment could be seen as a bribe to get the Federal Communications Commission’s green light.

The (slightly more) ethical approach was to drop the suit the moment he took and hand it off as an investigation to his regulatory agencies.