Trump’s Legal Escape From ‘Stormy’ Weather

Rudy Giuliani’s supposedly unhinged and indisciplined rant on the Sean Hannity show opened up a legal path for Donald Trump to extricate himself from La Affaire Stormy Daniels with minimal legal jeopardy. By admitting that he recompensed Michael Cohen, and thus admitting knowledge of the contract, Trump makes the non-disclosure agreement with Stormy Daniels valid, and thus ensures she is still bound by its non-disclosure terms–even as he simultaneously denies ever  having had an affair with her. Moreover, even if his recompensing Cohen can be viewed as a violation of campaign finance laws, Trump may get off with merely a misdemeanor violation and not suffer a felony conviction.

Two ugly facts conspire to make such an escape for Trump possible: it has been assumed thus far that Trump would not ‘fess up to knowledge of the contract with Stormy Daniels because to do so would be to submit to the embarrassment of having to admit that he had an affair, or at least a sexual encounter with her, which he then sought to cover up with a pay-off and a non-disclosure agreement, but in point of fact, Trump and his team have realized that there is no embarrassment in simply denying any such ‘contact’ took place. They can call Stormy Daniels a liar and rely on their usual obfuscations to do the rest of the work; for the Republican base, the misogynistic assessment of her as ‘only a porn star’ is enough. The claim that a non-disclosure agreement was the best way to get a ‘hustler’ or a ‘shyster’ to ‘shut up’ will find favor with the Republican ‘base’ quite easily. So the ‘escape’ picture emerges: the non-disclosure agreement was made ‘legally’ to silence a nuisance; the president did speak falsely on occasion, but never under oath in a court of law; his conversations with reporters are like his other lie-ridden interactions with the media, that is, nothing distinctive. Moreover, we can rely on the legal system to deliver the lightest slap on the wrist possible to Trump when it comes to violations of campaign finance law; the rigorous conditions of ‘knowingly and willingly’ required for a felony violation will be hard to meet. The payments Trump made to Cohen can be ‘contextualized’ in some fashion to make them ever so more ‘appropriate’ and not transgressive of legality; they can be made to look less like flagrant violations of campaign finance law if dressed up with the right kinds of  language.

No matter what the political costs, Trump’s legal team has at least devised a scheme for reducing their client’s legal jeopardy; it ‘works’ in conjunction with a particular social setting in which he can also rely on his sentencing on any possible violations of campaign finance laws to be rather gentle. Embarrassment as a social force only works when the subject responds to it accordingly or sees it working as intended; in the current  media setting and in the current psycho-political mood no embarrassment is enough. All will be tolerated in the name of inducing liberal rage. Fuck your feelings indeed.

Nice Try NSA-Defenders (Not!)

There are two very bad arguments and one rather illiterate confusion making the rounds in the wake of the NSA surveillance scandal. I’ll consider each of them briefly.

First, we have the ‘it was legal’ argument: the surveillance was sanctioned by the Patriot Act, approved by FISA courts, and Congress was in the loop etc. Now, the elementary distinction between legality and morality, between what the law permits and proscribes and what we might consider the right thing to do is just that: elementary. The undergraduates in my Philosophy of Law classes don’t need to be introduced to the distinction between natural law and positive law or to the assigned readings which inquire into our supposed obligations to the law to understand and know this difference. Their lived lives have given them ample proof of this gap as have the most basic history lessons. (Slavery is everyone’s favorite example but many more can be found rather easily.) Indeed, why would we ever have impassioned debates about ‘bad laws’ that need to be revised if the ‘it’s legal’ argument was such a clincher?

Furthermore, the folks complaining about the NSA surveillance are not just complaining about the legality of this eavesdropping and surveillance: they are suggesting the application of some laws is an onerous imposition on them, one that grants the government too much power. They are suggesting this is a moment when the laws of the land require revisitation. This is especially true of the obnoxious Patriot Act. (In another context, consider the draconian Digital Millenium Copyright Act.) Or consider that FISA courts routinely approve all requests made to them, and that the NSA has seven days in which to mine data before it applies for a warrant. All of this is legal. Is it problematic? We could talk about it so long as we aren’t shut up by the ‘its legal’ argument.

Second, we have the vampire ‘if you have nothing to hide, then what do you have to worry about’ argument – it simply refuses to die. No matter how many times it is explained that privacy is not about the hiding of secrets but about the creation of a space within which a certain kind of human flourishing can take place, this hoary nonsequitur is dragged out and flogged for all it is worth. But let me try real quick: we need privacy because without it, very basic forms of life would not be possible. An important example of this is the personal relationship. For these to be built, maintained and enriched, privacy is required. We do not generate and sustain intimacy–emotional and sexual–under observation and analysis; we do so far away from the madding crowd. I am not doing anything illegal or secretive in the maintenance of my personal relationships but I would still like their details to be private. Hopefully, that’s clear. (Who am I kidding?)

Lastly, there is a dangerous conflation between paper records and electronic records. For instance, David Simon, the latest to join the ‘relax, its legal and being done to protect us’ brigade, runs an analogy with the Baltimore wiretaps carried out by the local police and concludes:

Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual.

Except that it doesn’t. Those ‘sheets and sheets’ do not correspond to the billions of digital records obtained from Verizon, which can be stored indefinitely and subjected to data analysis in a way that the hard-copy data cannot.

These arguments will be made again and again in this context; might as well get some brief refutations out there.