Depois de chocar no Brasil o ovo da serpente, ou do fascismo, o ano de 2018 partiu para o esculacho antes de se despedir. Chocou os ovos de uma espécie que, em sua versão com violência além das palavras, a história supunha extinta: a dos galinhas-verdes. Na virada de novembro para dezembro, militantes autoproclamados integralistas afanaram e queimaram bandeiras antifascistas. Regozijaram-se com a aventura que propagandearam como “ação revolucionária”.
No dia 10, começou a circular um vídeo que mostra 11 homens, aparentemente brancos, encapuzados. Eles se apresentam com o nome fantasia “Comando de Insurgência Popular Nacionalista”, componente de uma certa “grande família integralista brasileira”. Contam que surrupiaram três bandeiras com mensagens contra o fascismo afixadas na fachada do casarão onde funciona o Centro de Ciências Jurídicas e Políticas da UniRio (Universidade Federal do Estado do Rio de Janeiro).
Pisam as bandeiras “Antifascismo”, do curso de administração pública, e “Não ao fascismo”, do direito. Um porta-voz lê o manifesto com a denúncia de que “nossa juventude é ensinada a se insurgir contra a pátria”. A consequência das alegadas lições seriam “drogados”, “homossexuais militantes”, “ateus materialistas”, “pedófilos”, “comunistas” e “escravos do banqueirismo internacional”. Na parede do local da gravação, coabitam uma bandeira do Brasil e uma com o sigma, letra do alfabeto grego que foi símbolo da Ação Integralista Brasileira (AIB). O vídeo se encerra com o “ritual de queima das bandeiras”, num simulacro tropical de encenações da Ku Klux Klan.
“Faixa com mensagem contra o fascismo afixada no Centro de Ciências Jurídicas e Políticas da UniRio, depois de três bandeiras serem furtadas e queimadas.
Foto: Foto: Mário Magalhães
Os direitistas fanáticos se inspiram na AIB, organização de massas que, na década de 1930, mobilizou 400 mil militantes em 1.123 núcleos. Seus simpatizantes somavam milhões. Fascinada com o nazifascismo europeu, mimetizava-o em ideias, alegorias e adereços. Em vez da suástica, desenhou o sigma. Os extremistas alemães gritavam “Heil, Hitler!”; os integralistas adotaram o tupi “Anauê!”
Os fascistas italianos trajavam camisas pretas, como um afamado magistrado-político brasileiro faria no século vindouro; os da AIB escolheram outra cor, por isso eram conhecidos como “camisas-verdes” – seus antagonistas os esculhambavam como “galinhas-verdes”.
Depois de uma batalha a pólvora e porrada entre sigmoides e uma frente antifascista, em outubro de 1934, o humorista Barão de Itararé tripudiou: “Um integralista não corre; voa”. Os ladrões das bandeiras repetiram no vídeo a velha saudação galinácea, com o braço estendido para o alto e para a frente. É cópia quase idêntica da saudação romana, horizontal, dos adeptos de Mussolini.
“Avessos ao liberalismo econômico, os integralistas desde sempre se alinham aos liberais no essencial.”Os grupúsculos integralistas em atividade no Brasil apoiaram Jair Bolsonaro contra Fernando Haddad. Na manifestação de 21 de outubro na avenida Paulista, o líder de uma tal Frente Integralista Brasileira ecoou a antiga divisa “Deus, Pátria e Família”. Em seu discurso, Victor Emanuel Vilela Barbuy disse que o integralismo “não se confunde com o fascismo italiano”. Deve ser por isso que seus correligionários ideológicos queimaram bandeiras anti… fascistas.
Ao elogiar a indicação do professor Ricardo Vélez Rodríguez para o Ministério da Educação do próximo governo, o escritor Olavo de Carvalho derreteu-se: “Se você falar de integralismo brasileiro, ele sabe tudo”.
Avessos ao liberalismo econômico, os integralistas desde sempre se alinham aos liberais no essencial: a defesa da propriedade privada dos meios de produção (nos anos 1930, o caráter da propriedade era questão cara à esquerda no Brasil e no mundo). A racista AIB cultivava o antissemitismo, sobretudo o chefe de suas milícias, o escritor Gustavo Barroso. Idem o dirigente número um, Plínio Salgado, também escritor.
Pouco depois da batalha da praça da Sé, que provocou ao menos seis mortes em 1934, Plínio demonizou, no jornal A Offensiva: “Declarei solenemente a guerra contra o judaísmo organizado. É o judeu o autor de tudo. (…) Fomos agora atacados, dentro de São Paulo, por uma horda de assassinos, manobrados por intelectuais covardes e judeus. Lituanos, polacos, russos, todos semitas, estão contra nós”.
Nova faixa antifascistaA crise do liberalismo estimulou a multiplicação dessa gente oito, nove décadas atrás. A AIB influenciou de modo decisivo a história ao fornecer a Getulio Vargas um pretexto, o falso “Plano Cohen”, para o presidente dar um golpe de Estado em 1937 e sacramentar sua condição de ditador.
Foram integralistas personagens de destaque da República que anos mais tarde romperiam com seus valores do passado e rumariam para o centro e a esquerda, como o bispo dom Hélder Câmara, o jurista Goffredo da Silva Telles Junior e o estadista San Tiago Dantas.
Em reedição histórica, os torvelinhos econômicos do final da primeira década do século 21 propulsionaram a ascensão de movimentos aparentados com o fascismo em vários recantos do mundo. A eleição de Bolsonaro se vincula a esse cenário.
As bandeiras foram levadas da UniRio, no bairro carioca de Botafogo, em 30 de novembro. Haviam sido desfraldadas em outubro, como protesto contra decisões judiciais que proibiram iniciativas semelhantes em outras instituições de ensino superior. Depois do vídeo com a incineração, a comunidade universitária abriu uma nova faixa antifascista.
A volta dos ditos integralistas comprometidos com “ações revolucionárias” é mais um episódio grotesco da temporada. O Brasil caminha, como de costume, entre a tragédia e a comédia. O ano foi impiedoso. Já deu para a bolinha dele. Vaza, 2018!
The post A volta dos integralistas: até os ovos dos galinhas-verdes este ano chocou. Vaza, 2018! appeared first on The Intercept.
Noivas costumam atrasar em casamentos. Mas a noiva do PRTB, o general Hamilton Mourão, não é assim. Ele chegou pontualmente às 20h, o horário marcado no convite, para o jantar em comemoração aos 25 anos do partido – ao qual se filiou em março deste ano e se tornou a principal aposta ao se eleger vice-presidente ao lado de Jair Bolsonaro.
Tal qual uma noiva, o vice-presidente eleito foi conduzido mesa a mesa para saudar os convidados ao lado de dois companheiros orgulhosos: Levy Fidélix, o presidente do PRTB, e Alvaro Dias, senador do Podemos derrotado na corrida presidencial deste ano.
No ápice da noite, o general foi levado ao palco montado no centro da Casa Petra, luxuoso salão de festas de Moema, bairro de classe média alta em São Paulo. Estava em frente a uma tela com sua foto, uma bandeira do Brasil e a frase “Meus heróis NÃO morreram de overdose”, referência à música que, sem a negativa, se tornou famosa na voz de Cazuza. Discursou por sete minutos. Neste tempo, foi fotografado, filmado e ovacionado por deputados e senadores eleitos, militares, empresários e ruralistas, todos ávidos para se aproximar e tirar uma selfie.
No discurso, ele agradeceu por ter sido acolhido na “família do PRTB” e falou sobre a necessidade de aprovar reformas da previdência e tributária, “senão em 2022 o governo fecha”. Encerrou com uma frase de efeito: “Vai ser difícil. Mas, aos melhores, as missões mais difíceis”. Aplausos. O casamento foi selado.
Nenhum dos cerca de 200 convidados do jantar tinha dúvidas de que estava perto do próximo presidente do Brasil. E esta pessoa era Mourão. Bolsonaro mal foi citado durante toda a festa.
Foto: Amanda Audi
Em uma mesa ao lado do palco estava sentado o general Paulo Assis, ex-comandante de Mourão no Exército em duas ocasiões e amigo de longa data. Bebericando latinhas de Heineken, o militar da reserva acenava com orgulho todas as vezes em que era mencionado nos discursos. Estava sendo celebrado por ser o responsável por duas façanhas: levar Mourão para a política, filiando-o ao PRTB; e fazer a ponte para que ele se tornasse vice de Bolsonaro.
Venerado pelos convidados da festa, Mourão prestou reverência apenas a Assis e Fidélix, em sinal de lealdade. Com Assis, comportou-se com o respeito e a intimidade de um filho para com o pai.
Fui levada até Assis, seu mentor, por Fidélix – ambos são amigos de longa data. Eu havia perguntado como foi a negociação para que Mourão, disputado por vários partidos, escolhesse a sua legenda, pequena e pouco expressiva – nas eleições deste ano não conseguiu eleger nenhum deputado, nem mesmo o criador do partido. “O culpado é aquele senhor ali”, me disse Fidélix, o característico bigode preto tremendo de orgulho.
General Assis demonstrou animação para contar a história. Ao longo da conversa, ia me mostrando fotos e mensagens no celular, de modo a provar o que dizia. Eram imagens dele e de Mourão servindo juntos. “Veja, que jovem”, me apontava o rosto de um Mourão aos 30 e poucos anos, de óculos de sol, em meio a um grupo de militares. Em outra, os dois estavam lado a lado na selva amazônica. As fotos haviam sido enviadas a ele pelo próprio vice-presidente por WhatsApp.
Quando perguntei o que esperava de Mourão no governo, a resposta veio firme: “o Mourão vai ser presidente da República”. Em 2022 ou antes – caso “algo” aconteça com Bolsonaro. “Tudo pode acontecer. Ele é o vice, é o único que foi eleito. Os ministros todos podem sair, ele não. Vai ficar até o último dia”, vaticinou.
Assis ocupa posição de destaque na equipe de transição do governo, que vem se reunindo em Brasília, para tomar pé da situação atual e planejar os próximos quatro anos. Foi indicado da cota pessoal de Mourão, assim como Fidélix. Ele se considera “conselheiro” do vice-presidente. “Quando ele me perguntar ‘qual será a sua posição [no novo governo]?’, eu vou falar que sou conselheiro”.
Aos gritos – pois estávamos ao lado da banda country que animava o jantar –, o ex-comandante me contou que Bolsonaro sondou Mourão para ser o seu vice há dois anos, na época em que o militar passou à reserva e se tornou conhecido por suas falas corrosivas contra o PT e semi-intervencionistas.
A frase que ficou mais famosa era sobre uma possível intervenção do Exército na política brasileira: “Ou as instituições solucionam o problema político pela ação do Judiciário, retirando da vida pública esses elementos envolvidos em todos os ilícitos, ou então nós teremos que impor isso”. Isso ocorreu em 2017, quando o presidente Michel Temer estava às voltas com denúncias no Congresso. Mourão foi chamado a se explicar e, cinco meses depois, passou à reserva.
Mourão se mostrou interessado, mas o convite acabou ficando em banho-maria. Em abril deste ano, Fidélix procurou Assis para que convencesse Mourão a se lançar presidente pelo PRTB. Disse que iria abrir mão da própria candidatura porque acreditava na força do general.
Em uma reunião a três, Mourão negou o convite porque já havia se comprometido com Bolsonaro. Foi convencido por Assis a seguir um caminho alternativo: se filiaria ao PRTB para ficar na chamada ‘regra três’. Estavam contando que a candidatura de Bolsonaro não iria decolar, ou ele seria impedido de concorrer, e então Mourão poderia assumir o espaço deixado por ele.
“Falei [pra Mourão]: ‘eu acho que o Bolsonaro não vai se eleger, por causa do caso da Maria do Rosário e tal’ [o presidente eleito responde a dois processos no Supremo Tribunal Federal por ter dito à deputada gaúcha que que não a estupraria porque ela “não merecia”]. Falei pra ele: ‘Mourão, dispute a presidência se o Bolsonaro não concorrer. Porque não é bom ter dois candidatos a presidente militares. Se o Bolsonaro cair, nós apoiamos você’”, disse Assis. No dia seguinte, ele e Mourão se filiaram juntos ao PRTB.
Foto: Amanda Audi
Pouco tempo depois, Assis encontrou Bolsonaro em um aeroporto. Ele também foi comandante do presidente eleito durante um curto período de tempo. Perguntou a ele se o convite a Mourão ainda estava de pé. “Ah, não, chefe, eu não posso abrir mão de 45 milhões de evangélicos, que é o Magno Malta”, Bolsonaro teria respondido a ele, citando o senador pelo Espírito Santo, íntimo de líderes evangélicos como Silas Malafaia. Informou que iria chamar Mourão para ser ministro da Defesa.
Malta, que chegou a ser chamado por Mourão de ‘elefante branco na sala’, acabou não aceitando o convite para ser vice. Também minguaram as tratativas com o general Augusto Heleno, com a advogada responsável pelo impeachment da presidente Dilma Rousseff, Janaína Paschoal, e com o “príncipe” Luiz Philippe de Orleans e Bragança, parte do que restou da família real no Brasil. O nome de Mourão foi tirado novamente da cartola na véspera da convenção do PSL, em que a chapa de Bolsonaro deveria ser oficializada. Mas ainda havia resistência dentro do PSL.
“O PSL não queria o Mourão”, disse Assis. “O Mourão é estrela.” Perguntei três vezes o que ele queria dizer com isso, mas ele se esquivou: “Ah, não importa”. Depois mudou de assunto.
Ainda de acordo com ele, Bolsonaro teve que ameaçar renunciar à candidatura caso seu partido não aceitasse o general como vice. Acabou dando certo no último momento para o registro da chapa.
“O Mourão me ligou 7h da manhã no dia da convenção. ‘Chefe, acabei de ser convidado para ser o vice do Bolsonaro. E não consigo falar com o Levy’. Eu falei: “se o Bolsonaro ou o [Gustavo] Bebianno não falarem com ele, não vai fechar’”, contou. Mesmo como civil, o dever de hierarquia militar mandava que a negociação fosse feita com o presidente do partido. Sem isso, Mourão estaria desrespeitando a autoridade.
Bolsonaro estava desde cedo tentando formalizar o acordo com Fidélix, mas o celular dele estava desligado. Conseguiu localizá-lo no telefone da esposa. Isso aconteceu pouco antes do início da convenção, às 9h do dia 5 de agosto. Na festa, Assis aparece no palco ao lado de Mourão, Bolsonaro, Bebianno e Fidélix.
Em seu discurso durante a festa de sexta passada, o vice-presidente eleito também falou sobre a costura do acordo com o PRTB. “Meu amigo Paulo Assis, meu comandante, me apresentou o Levy. E aí estabelecemos um pacto. Muito bem, Levy, eu entro no seu partido. Seu partido é de retidão, de honestidade. O Levy diz: ‘é limpo’. E a nossa única visão é que caso o Bolsonaro necessitasse do nosso apoio, nós estaríamos juntos”.
Durante todo o tempo em que conversamos, ficou claro que Assis não confia na capacidade de Bolsonaro de resistir até o último dia de governo. Quanto mais disputar a reeleição em 2022. Ele diz que o seu pensamento reproduz o da classe militar, que apoia Bolsonaro, mas com reservas, por causa de seu temperamento belicoso.
Foto: Arquivo Pessoal/Paulo Assis
Ao chegar ao jantar, Mourão participou de uma reunião com lideranças por cerca de 20 minutos. Depois não teve mais sossego. Não conseguiu sentar-se à mesa e nem comer os aperitivos que estavam sendo servidos (ceviche de peixe branco, tapioca com mel e canudinho de carpaccio).
Consegui conversar com ele por alguns minutos, de pé, no meio do salão. Perguntei quais seriam seus primeiros atos como presidente, já que irá ocupar o lugar de Bolsonaro ainda em janeiro, quando o presidente deverá se ausentar para fazer uma cirurgia. “Vou manter as ordens em vigor. Nada mais do que isso. Não vou fazer nada de minha iniciativa. Vou manter aquilo que ele tiver determinado”, disse, em tom respeitoso.
Também lhe perguntei se ele defende punição caso algum integrante do governo esteja envolvido em escândalos de corrupção. “O presidente já disse isso, que defende a punição. E eu também já disse”, respondeu. Perguntei se isso valia mesmo se os envolvidos fossem o filho do presidente, ou o próprio, como vem se anunciando o caso do motorista Fabrício Queiroz – a convenção aconteceu oito dias depois de uma reportagem do jornal o Estado de S.Paulo ter revelado que o ex-funcionário de Flávio Bolsonaro fez movimentações suspeitas de R$ 1,2 milhão, em um ano, e depositou parte para a primeira-dama Michele Bolsonaro. “O presidente já disse isso”, repetiu.
Mourão disse ainda não saber quem do círculo pessoal do presidente deseja vê-lo morto, como foi dito por Carlos Bolsonaro. “Sinceramente, não sei. Tem que perguntar pro filho dele”, irritou-se. Logo foi puxado para tirar fotos com apoiadores. Foi embora da festa cedo, sem comer nem beber. Nem mesmo chope, que gosta de tomar em momentos festivos.
Foto: Amanda Audi
A ambição dos perretebistas se tornou palpável. Fidélix afirma que, pela primeira vez, ele e sua equipe estão sendo ouvidos pelos integrantes do novo governo. Acredita que desta vez suas ideias sairão do papel. Uma delas, a mais famosa, é a do aerotrem. O trem-bala que vai ligar várias capitais do país é o mote de campanha de Fidélix desde que formalizou o PRTB, em 1994. “Eu não vou te dar uma frase para você colocar na manchete, mas estamos discutindo mobilidade urbana, sim.”
Com a boa popularidade de Mourão, o presidente do partido estima que conseguirá a adesão de pelo menos mais 10 deputados eleitos. Com isso, acredita que irá superar as limitações da cláusula de barreira, norma que restringe a atuação de partidos que não atingiram um índice mínimo dos votos nacionais, e com isso voltar a ter acesso a recursos do fundo partidário e de tempo de propaganda na TV – até novembro o partido arrecadou R$ 4.192.229,20, segundo dados do Tribunal Superior Eleitoral.
No fundo, este era o real motivo do evento: paparicar Mourão para atrair possíveis pretendentes à legenda. Ao lado do vice-presidente eleito no palco do salão de festas, Fidélix mal continha as lágrimas de emoção.
No jantar dos 25 anos do partido, um vídeo mostrou a trajetória da sigla: do começo apoiando Jânio Quadros, ainda como Movimento Trabalhista Renovador, à participação na campanha de Fernando Collor, da qual Fidélix foi assessor. Jânio e Collor são os grandes ídolos do político.
Mesmo contente com o presente de sucessos inesperados, O PRTB olha para o futuro: seu novo trunfo é um recauchutado Alvaro Dias. O senador deve formalizar a adesão ao partido – o 9º de sua carreira – em breve. Ele foi apresentado no evento como “a voz do partido no Senado” e recebeu o boas-vindas de parte dos convidados.
No que depender de Dias, será um embarque silencioso. Durante a campanha, ele atacou Jair Bolsonaro duramente. Foi flagrado em um vídeo chamando o adversário de “bandido”. Quando me aproximei para falar sobre os novos ares, ele se negou a me receber. “Não estou falando com ninguém desde a eleição e não vou falar até fevereiro. O silêncio fala mais alto. O silêncio é retumbante.”
The post ‘O Mourão vai ser presidente da República’. Um drink com o mentor do vice de Bolsonaro appeared first on The Intercept.
If I told you that there are two major efforts on the left to reform the pharmaceutical industry, and one relies on market competition while the other establishes a publicly run office to manufacture prescription drugs — to control the means of production, so to speak — you might assume that the first comes from capitalist-to-her-toes Sen. Elizabeth Warren and the second from honeymooned-in-the-USSR Sen. Bernie Sanders.
It’s actually the opposite.
Warren introduced legislation on Tuesday with Rep. Jan Schakowsky, D-Ill., that would create an Office of Drug Manufacturing within the Department of Health and Human Services. That office would have the authority to manufacture generic versions of any drug for which the U.S. government has licensed a patent, whenever there is little or no competition, critical shortages, or exorbitant prices that restrict patient access.
Last month, Sanders and Rep. Ro Khanna, D-Calif., released their own bill to tackle high drug prices, which would require the government to identify any excessively priced drugs (relative to an international index of list prices) and grant a license to private companies to provide competition with a generic version.
The two bills from Warren and Sanders, who are both likely running for president, are actually complementary efforts that deal with different elements of a system that results in Americans paying more for medications than anywhere in the industrialized world. And they reflect a broader attack on the industry from multiple angles.
“Sanders-Khanna and Warren-Schakowsky are two absolutely complementary bills,” said Alex Lawson of Social Security Works, who has worked extensively on drug prices and was involved in both efforts. “It’s important that you’re seeing multiple, transformative big ideas.”
The Sanders-led legislation seeks to reform the monopoly patent system for prescription drugs, which virtually assures high prices and incentivizes the exclusive drugmaker to restrict competition. But the bill relies on a functioning generic drug market that can drive down prices by mass-producing alternatives that steal customers from brand-name treatments.
About 90 percent of all prescription drugs filled are for generic medications. But recent events have revealed that the generic market is also broken. A 2017 National Bureau of Economics Research paper found that generic competition has weakened over time, as fewer firms compete to make alternatives. By 2016, 40 percent of all generics were made by a single manufacturer.
A Government Accountability Office report identified price spikes of 100 percent or more in the generic drug market in one out of every five drugs studied between 2010 and 2015. There is even an active investigation into cartel behavior among 16 different generic drug manufacturers, which allegedly divvied up the market and fixed prices for more than 300 drugs.
This trend toward monopoly providers of generics creates fragile supply chains that can lead to widespread drug shortages in the event of a disruption, something that almost never happens in a well-functioning, wealthy market economy.
Even with multiple generic options, the effect on prices can be illusory. Last month, Teva Pharmaceuticals, a powerful generic drug company, released a generic version of the EpiPen, the price spirals of which have angered patients. But the Teva-made generic costs the exact same amount as a generic EpiPen released by Mylan, maker of the brand-name drug.
Warren’s bill, the Affordable Drug Manufacturing Act, attempts to address that market failure by having the government pick up the slack. The Office of Drug Manufacturing would acquire rights to manufacture generic drugs or contract them to be manufactured by an outside entity. The legislation explicitly states that those generic drugs must be offered at a “fair price” that covers manufacturing and administrative costs while ensuring patient access. The office could strip a contractor of its ability to make and sell the drug if the price point is too high. Proceeds for these sales would go back to covering agency costs, making it a self-sustaining entity.
The government would also be authorized to manufacture active ingredients for medications. This has become a problem, as major drug companies routinely deny rivals samples of their products, which are used in testing to determine whether the generic is an equivalent treatment.
One drug is listed specifically: Generic insulin treatments would have to be produced within the first year of the legislation’s passage. Prices for insulin have skyrocketed in recent years and shortages are common.
“In market after market, competition is dying as a handful of giant companies spend millions to rig the rules,” Warren said in a statement. “The solution here is not to replace markets, but to fix them.”
Except the means to fix those markets is a government-directed option that puts the Department of Health and Human Services into the pharmaceutical manufacturing business. That’s the primary action in the legislation that allows competition to take root and prices to fall. In this sense, competition policy can work hand in hand with targeted nationalizations or public options.
Another section of the bill highlights Warren’s preoccupation with the notion that personnel matters as much as policy. Former drug company lobbyists would be banned from holding the position of director of the Office of Drug Manufacturing under the proposed legislation, as would any senior executive of a drug company subject to regulatory enforcement for wrongdoing.
Advocates generally welcomed the concept of a public drug manufacturer. “Anyone who is serious about controlling costs and ensuring more patients have access to life-saving drugs should be supporting this legislation,” said Richard Master, chair of the Business Initiative for Health Policy, in a statement.
But some experts believe that more work must be done to reform the entire supply chain for prescription drugs. Phil Zweig, a former journalist who works with Physicians Against Drug Shortages, believes that group purchasing organizations, or GPOs — collections of hospitals that contract to provide medical supplies and medications — are at the heart of the exorbitant pricing and shortages. GPOs are a key gatekeeper for drugs administered at hospitals. “Generic drugmakers simply stop making the drugs if they don’t get a sole-source contract,” Zweig said. “It’s a winner-take-all game.”
GPOs have an exception to the anti-kickback statute that allows them to give exclusive contracts to drug companies in exchange for cash, some of which flows back to hospital executives and administrators. Zweig wants to remove the safe harbor. “All we’re trying to do is remove obstacles to competition,” he said.
Pharmacy benefit managers, or PBMs, which negotiate prices for drugs sold in pharmacies on behalf of health plans, have also been accused of skimming off the top and artificially creating higher drug prices. The Trump administration has proposed taking away the anti-kickback safe harbor for PBMs.
Warren spokesperson Ashley Woolheater agreed that “there is bad behavior up and down the supply chain,” adding that this bill specifically focuses on the generics and active pharmaceutical ingredients markets.
“It’s going to take a multi-pronged effort,” said Lawson. “This is not a silver bullet, it’s just one piece of it.”
The post Elizabeth Warren Plan Would Allow the Government to Manufacture Its Own Generic Drugs appeared first on The Intercept.
GAP, FRANCE—In a wood-paneled courtroom in this small town in the French Alps, a local judge dealt a hefty setback last week to the European Union’s treasured principle of open borders, one that has underpinned the bloc. And to do it, she fell back on a law that dates back to one of the darkest periods in European history.
In sentencing two immigrants’-rights activists to jail time and handing suspended sentences to five others, Isabelle Defarge, the judge, concluded a case that has pitted volunteers from a shelter for immigrants and asylum seekers against an anti-immigration group. To do so, she relied on a provision of French immigration law—based on a 1938 decree on “the policing of foreigners”—that makes it a crime to help a foreigner enter, circulate, or reside in France illegally. In the process, the case has come to symbolize a wider tension across the continent between advocates of open borders and far-right populists pushing countries to close in on themselves.
The story began in April, when the anti-immigrant group Génération Identitaire kicked off “Defend Europe,” a protracted effort to police France’s border with Italy and prevent immigrants from crossing the frontier. Wearing matching blue windbreakers with Defend Europe written on the back, around 100 activists patrolled mountain trails in trucks, surveilled the woods via helicopter, and placed a massive banner on the mountains that read, in English, Closed border. You will not make Europe your home. No way. Back to your homeland.
[Read: It’s the right wing’s Italy now]
Local residents said Génération Identitaire activists posed as police officers to intimidate and forcibly return immigrants to Italy—which could constitute a violation of the law criminalizing “interference with a state function.” Five asylum seekers interviewed by a researcher with La Cimade, an advocacy group, even claimed that police had collaborated with Génération Identitaire. An investigation into the allegations against the group is underway, but no charges have yet been filed. The police have denied all of the claims made against them.
When volunteers at a shelter for immigrants and refugees in Claviere, a small Italian city on the border with France, caught wind of Génération Identitaire’s plans, they decided to act. The day after Defend Europe began, at least 100 pro-immigrant activists, some of whom were shelter volunteers, marched across the border to Briançon, a critical entry point for the more than 7,000 immigrants and refugees who have arrived from Italy since July 2017, according to Refuge Solidaire, the only welcome center in Briançon. “We’re going to liberate the border!” they yelled as they headed past a police post in a peaceful rally.
Soon afterward, French police and the local prosecutor in Gap opened an investigation into the demonstration; the prosecutor charged seven of the volunteers, who would become known as the “Briançon Seven,” with violating the ban on helping foreigners enter the country illegally.
By upholding an antiquated law and pursuing legal action premised on the idea of a closed border between France and Italy, officials are sending a signal that “it’s legitimate to, in a situation on the border where fundamental rights are being violated, side against the people trying to defend those rights,” Vincent Brengarth, one of the defense attorneys for the Briançon Seven, told me. More broadly, he said, the case hints at the idea that Europe can “reestablish border [controls] in order to undermine solidarity with migrants.”
[Read: A stranded migrant rescue boat reveals the depths of the EU’s crisis]
The very fact that the trial took place at all is a victory for the popular far-right political movements that have used migration and, critics allege, systematic racial profiling to further their cause across the Europe Union. Far-right parties have been vaulted into governing coalitions in Austria, Hungary, and Italy, while centrist governments elsewhere have moved to the right. This has been the case in France, where many on the left fear that President Emmanuel Macron, despite his image as a guarantor of liberalism, is advancing a rightward agenda on migration.
In the courtroom in Gap, those anxieties—over the widening gap between French law and values and the mainstreaming of far-right views in Europe—were palpable.
In April, the prosecutor, working with the police, opened an investigation into whether the Briançon Seven had used the rally to help immigrants enter France illegally. Although during the trial he alleged that they had shepherded in approximately 20 people—a number based on media reports from the march and videos taken by locals—his own investigation did not corroborate that number. The police were only able to confirm that one of the participants had entered the country illegally under the shield of the protestors. The defense argued that the allegation and the inflated estimate were grounded in racially profiling the demonstrators.
The defendants argued that Defend Europe was part of an ongoing hardening of police practices around the border, notably in Briançon, where officers regularly conduct identity checks at the train station, on public transportation, and around town. They maintained that their goal was not to facilitate the illegal entry of undocumented immigrants, but to protest the growing militarization of the border. “We couldn’t just let Génération Identitaire parade like that in our mountains,” Benoît Ducos, one of the defendants, testified.
The Briançon Seven are not the first to face criminal charges for assisting immigrants under the provision based on the 1938 law. In February 2017, a court convicted a farmer, Cédric Herrou, for allegedly helping immigrants reside in France illegally. But in July, France’s highest constitutional court ruled that because Herrou had acted for humanitarian purposes, charging him—even for an illegal act—would violate the French constitutional principle of “fraternity.” On December 12, additional charges against him were dropped on this basis.
Although Herrou was originally prosecuted under the same law as the Briançon Seven, the dropped charges were limited to facilitating residency and circulation; the humanitarian exemption does not yet apply to helping someone enter the country. In the case of the Briançon Seven, the defense argued that the progressive softening of the law should influence their sentencing, and that even if the prosecutor could prove they used the rally to bring in immigrants, the situation on both sides of the French-Italian border would have given them humanitarian reasons to do so.
Much of the increased enforcement the Briançon Seven were protesting was spurred by the terrorist attacks on the Bataclan music hall, a soccer stadium, and bars around Paris in November 2015. Following those assaults, the government declared a state of emergency and reintroduced border controls. Although the state of emergency has since been lifted, border controls have remained in place, and were in place during Defend Europe. But those enhanced security measures, which were recently extended through April 2019, were a response to terrorism—not a measure to control migration. Absent a clear link between migration and terrorism, the defense argued, recent border controls should not justify a strict application of the law penalizing those who help immigrants enter illegally, particularly in light of the constitutional court’s decree on humanitarian exemptions earlier this year. (European citizens, not immigrants or refugees, were behind the majority of attacks committed on French soil since 2015, including the recent attack in Strasbourg.)
Much of this tightened border enforcement, however, has impacted immigrants and asylum seekers. The Briançon Seven’s attorneys referenced a report published by Amnesty International in October that documents routine violations of immigrants’ rights by French police at the border. This includes the theft of valuables from immigrants, high-speed chases on dangerous mountain roads that often lead to serious injuries or even death, and a practice known as “migrant dumping,” in which French police routinely return immigrants to Italy, including minors, without examining individual cases. This can undermine an individual’s right to seek asylum or access child-protection services.
[Read: A nonbinding migration pact is roiling politics in Europe]
Immigrant and refugee advocates fear that Macron is fostering a political environment conducive to these practices. A controversial new immigration law, which takes effect in January, will make it tougher to apply for asylum and curb rights to appeal rejected claims—provisions the far-right National Rally party (previously the National Front) supported. The law is among other moves on migration that have earned Macron, who defeated the far-right firebrand Marine Le Pen in last year’s election, few friends in the disillusioned left. This year, the center-left magazine L’Obs published a controversial cover showing the president behind barbed wire, with the caption “Welcome to the country of human rights.” The issue featured prominent writers and intellectuals denouncing the government’s asylum policy.
By upholding the charges against the activists, Génération Identitaire, for its part, considers Defend Europe a success. Romain Espino, the group’s spokesman, said it is considering a similar operation on the southern border with Spain—now the preferred route for immigrants into France, with Italy’s border all but walled off and winter compounding the risks of a journey through the Alps.
“When the state sees a group of young people who have the courage to block the border and prevent illegals from passing,” Espino told me proudly, “they see what’s possible.” By the end of Generation Identitaire’s two-month operation, he recalled, border police had received more robust reinforcements that they had been requesting for months, and “thanked” Génération Identitaire for its assistance. “We successfully pressured the government,” he beamed. “For us, that’s a victory.”
Former National Security Advisor Michael Flynn on Tuesday got an unpleasant lesson on the difference between politically effective arguments and legally astute ones. Backed by an array of well-wishers including President Trump, and buoyed by widespread conservative arguments that the FBI had violated his rights, Flynn walked into a federal courtroom in Washington hoping for the probationary sentence that Special Counsel Robert Mueller had recommended. Instead he was threatened with jail by a furious United States District Judge Emmet Sullivan, who accused him of selling America out and forced him to retreat from his evasions. Flynn’s lawyers hastily agreed to delay the sentencing until March 2019 so that he might strive to cooperate further with the Special Counsel and perhaps work off the custodial sentence that Sullivan was clearly contemplating.
This may have been a shock to Flynn, but it was predictable to everyone who understands that federal court is neither Twitter nor a cable news show.
Nobody wants to be charged with a federal crime, but if you must, you want the deal Flynn got. He was the first to cooperate in the Special Counsel investigation in December 2017, and got the first cooperator’s prize: a plea to a single count of lying to the FBI, an offense usually resulting in a sentence of probation. He worked hard to earn the trust and even respect of the Special Counsel’s Office, submitting to 19 interviews that were “particularly valuable” because he was the first in the door, and likely inducing others to plead guilty through his cooperation. Mueller’s team recommended that he get probation, a permissible sentence under the applicable United States Sentencing Guidelines. The prosecutor recommended the same. Every defendant’s ideal sentence was his to lose.
And he lost it. He now has until March to win it back.
Flynn and his lawyers faced the same problem that has bedeviled Trump and Michael Cohen and Michael Avenatti and Paul Manafort and several other figures in this circus we call life after 2016: a muscular public relations strategy is often a terrible litigation strategy. Time and again, these players have heard their public statements quoted back at them in court to undermine their legal positions. But Flynn’s error was even more grievous – he incorporated media spin into a sentencing brief.
Flynn’s lawyers argued in his brief that the FBI wronged him: wronged him by discouraging him from having an attorney present during his interview, by failing to warn him that false statements during the interview would be a crime, and by not telling him that his answers were inconsistent with their evidence so that he could correct himself. The Flynn-as-Deep-State-victim narrative was pleasing to Trump partisans and Mueller foes, but suicidally provocative to a federal judge at sentencing.
Federal judges demand sincere acceptance of responsibility from people pleading guilty, especially when they’re cooperating with the government, and especially when they’re asking for a lenient sentence. Flynn’s sentencing arguments effectively told Sullivan that Flynn saw himself as a victim, rather than a contrite wrongdoer. Sullivan seized ominously on that issue from the start of the hearing, interrogating Flynn’s attorneys about how their argument could be consistent with acceptance of responsibility. Eventually he forced Flynn and his attorneys to concede that they were not arguing that Flynn was entrapped or that his rights were violated, and made Flynn repeat several times that he had pled guilty because he was, in fact, guilty. Flynn was surprised, but criminal defense attorneys weren’t: That’s what happens when you deflect blame at your own sentencing.
Flynn’s tactical error was compounded by unfortunate timing. On Monday, federal prosecutors in Virginia indicted two Flynn associates for violating the Foreign Agents Registration Act; and the indictment clearly demonstrated Flynn’s central role in the crime. Sullivan pounced on this fact. He implied that Flynn, by being allowed to plead to the single false statement charge, has already escaped more punishment than he should.
Sullivan’s anger was palpable. He openly expressed what he termed “disgust” for Flynn’s actions and asserted “arguably, you sold your country out.” He noted that Flynn lied both to the FBI and to members of the Trump administration. In an intemperate moment for which he later apologized, he asked if Flynn had committed treason. Flynn had not — nobody thought he had — but it’s a bad sign when your judge used the T-word at your false statements sentencing hearing. If Flynn’s lawyers had not agreed to postpone the sentencing, it’s probable Sullivan would have given him time in jail.
For a year online conspiracy theorists and marginal publications have argued that Sullivan would dismiss the case because the government failed to turn over exculpatory material, or because his interview was conducted incorrectly. Since Flynn filed his sentencing brief, more mainstream outlets – including Fox News and the Wall Street Journal’s editorial page – have taken up the cause, proclaiming that the FBI broke the law in its interview. Those arguments are, and have always been, errant nonsense, as any legal professional should know. Could it be that Flynn and his lawyers included the disastrous Flynn-as-victim pitch in their brief because they came to accept the partisan din – because they forgot that federal judges don’t react like people on Twitter? That would be a very 2018 way to go to federal prison.
Huawei in the World: In a rare and critical moment since the arrest in Canada of Huawei’s chief financial officer, whom the U.S. is accusing of violating American sanctions on Iran, an official from the Chinese telecoms giant is publicly engaging with foreign reporters. Huawei is a key player in China’s quest to become a technology powerhouse, as well as in growing economic and industrial tensions between China and the U.S., given a lack of clarity about the relationship the company may have with the Chinese government. China, of course, is playing a global influence game, including outstripping other countries in financing critical infrastructure projects across the African continent.
Flynn, Interrupted: Michael Flynn, the former prominent campaign surrogate to Donald Trump, is cooperating with multiple investigations, from the Russia probe to a third investigation of unknown nature. The sentencing judge wasn’t moved by a request for leniency, postponing a status hearing on Flynn’s cooperation until March of next year. Did Flynn’s lawyers badly miscalculate the defense strategy? Or was a pardon on their minds? Natasha Bertrand and Madeleine Carlisle look at what we now know (and what we still don’t).
Supercalifragilisticexpialidocious: Disney’s remake machine ramps up once again tomorrow evening with the opening of Mary Poppins Returns, the ambitious follow-up to the 1964 classic, which recasts Emily Blunt as the titular aerodynamic nanny. Though the film is a cheerful sequel, writes Christopher Orr, it echoes the original in ways that read either clever or lazy, depending on how large a spoonful of sugar you’re willing to take it with.
— Haley Weiss and Shan Wang
Snapshot
Instagram is a feeding ground for people with wildly varying followings jostling to get paid by a brand to promote its stuff. But sponsorship deals beget more sponsorship deals, and now influencer wannabes on the platform are posting fake ads, reports Taylor Lorenz. Confusion ensues. (Image: Shutterstock)Evening ReadPresident Trump’s school-safety commission, established following the February Parkland school shooting, released a set of recommendations Tuesday, including one to do away with a federal policy urging schools not to punish minority students at a higher rate than white students:
The commission’s recommendation to roll back the Obama administration’s school-discipline guidance does not come as a surprise. Republicans have decried the policy as government overreach since it was released in 2014. The policy advocated “constructive approaches” to school discipline, such as victim-offender mediation, as opposed to harsher penalties such as suspensions or expulsions.
The Trump administration’s discipline recommendation comes alongside several bipartisan common-sense measures in the report, including encouraging teachers, administrators, and parents to be vigilant about reporting information to the FBI; improving access to school mental-health services and counseling; and implementing best practices to curb cyberbullying. The report also advocates that districts create a “media plan” to disseminate information in the event of a shooting, alongside a suggestion to follow “No Notoriety” guidelines to keep the focus in the aftermath of an incident on the victims rather than on the shooter.
What Do You Know … About Family?1. In a discomfiting scene, the rapper Offset recently interrupted the concert of this artist—his estranged wife—asking for her forgiveness.
Scroll down for the answer, or find it here.
2. Now a popular holiday gift item, these types of blankets have been used as sleep or calming aids for people in the special-needs community since at least 1999.
Scroll down for the answer, or find it here.
Answers: Cardi B / weighted blanket
Urban DevelopmentsOur partner site CityLab explores the cities of the future and investigates the biggest ideas and issues facing city dwellers around the world. Gracie McKenzie shares their top stories:
We asked readers to grade America’s cities on two critical, unrelated metrics: tacos and transit. Now we’re sharing the results. For good Mexican food and public transportation, move here.
The tech giant Apple recently revealed a plan for nationwide job expansion and announced that Austin, Texas, will host its new 133-acre campus. Here’s the problem with that decision.
Researchers from Northeastern University have made a visualization that depicts 200 years of granular immigration data as the colorful cross section of a tree that thickens over time. “I wanted to portray the United States like an organism that’s alive and that took a long time to grow,” one says.
For more updates like these from the urban world, subscribe to CityLab’s Daily newsletter.
Looking for our daily mini crossword? Try your hand at it here—the puzzle gets more difficult through the week.
Concerns, comments, questions, typos? Email Shan Wang at swang@theatlantic.com
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In 1989, the aspiring filmmaker Rolfe Kanefsky, who was then 19 years old, cobbled together $100,000 to make his dream movie. Thus, the first self-aware, meta-textual horror film was born. Although There's Nothing Out There was groundbreaking and garnered the attention of high-ranking studio executives, due to a series of unfortunate events, it tanked at the box office. It was dead on arrival.
Charlie Lyne, a documentary filmmaker, first saw There's Nothing Out There as a horror-obsessed teenager. “It really stuck with me,” he told The Atlantic. “Here was this oddball forerunner to [Wes Craven’s] Scream.” And yet There’s Nothing Out There preceded it by at least five years. Why wasn’t this film internationally renowned?
When Lyne looked into it, he encountered a book published by Kanefsky, in which he describes showing his screenplay to Craven’s son, who had promised to show it to his father. That’s when Lyne realized he’d stumbled upon the largely untold story of what could be a major Hollywood rip-off.
In Lyne’s short documentary Copycat, Kanefsky tells the story of his disillusionment. His voice is heard while images from his own film, Craven’s, and other Hollywood horror classics play on-screen.
“I went to interview Rolfe at his apartment in North Hollywood, and the place was like a horror-movie museum, absolutely stuffed with DVDs, books, and memorabilia,” Lyne said. “Once Rolfe started talking, I realized his conversational style was exactly the same: wall-to-wall references to obscure horror films and exploitation movies.” When it came time to edit the film, it felt natural for Lyne to adopt this patchwork, reference-heavy style. “After all, that's the way Rolfe thinks,” he said.
It’s clear from the film that despite his misfortune, Kanefsky isn’t bitter; he’s just happy that his film is now remembered as being ahead of its time. Lyne said that the filmmaker never attempted to contact the Cravens about Scream, either. “I think that’s partly because he knows how complicated and messy these things are,” said Lyne. “Was There's Nothing Out There an influence on Scream? It's possible, maybe even probable. But at the same time, they were both responding to the same set of well-worn horror tropes, so it's entirely possible they just arrived at the same idea independently.”
Besides, Lyne said, everyone has a story about an idea they had first that later went on to become successful in a different form. “I remember, in the taxi over to Rolfe’s apartment, telling the driver what I was working on,” he said, “and he proceeded to tell me that he had originally come up with the idea for the film Tooth Fairy, years before they made it into a movie with The Rock.”
Written by Olivia Paschal (@oliviacpaschal) and Elaine Godfrey (@elainejgodfrey)
Today in 5 LinesA federal judge agreed to delay former National Security Advisor Michael Flynn’s sentencing for lying to the FBI. Flynn requested the delay, signaling his fear that he might serve prison time despite his cooperation with three separate investigations.
Democrats rejected an offer from Senate Majority Leader Mitch McConnell that would have kept the federal government open in exchange for Congress reprogramming $1 billion in unspent funds to implement Trump’s immigration policies. Funding for roughly one-quarter of the federal government runs out on Friday at midnight.
Arizona Governor Doug Ducey appointed Republican Representative Martha McSally to fill the Senate seat being vacated by Senator Jon Kyl. McSally lost the November election for Arizona’s other Senate seat to Democrat Kyrsten Sinema.
The New York Attorney General’s office said that the Trump Foundation will dissolve amid allegations that Trump and his children engaged in “persistently illegal conduct” and used the foundation for personal and political gain.
The Trump administration’s school-safety commission released long-anticipated recommendations for improving school safety, including one that would scrap a federal policy urging schools not to punish minority students at a higher rate than white students.
Today on The AtlanticDeluded: Paul Ryan’s account of his tenure as Speaker of the House is drastically disconnected from reality, argues David Frum.
Bankrolled: Big donors are shunning Senator Kirsten Gillibrand’s potential presidential campaign because she urged former Senator Al Franken to resign. But Gillibrand’s got millions in the bank. (Edward-Isaac Dovere)
On Whose Authority?: A Supreme Court decision could reclassify nearly half of Oklahoma as “Indian country”—and result in new trials for nearly 2,000 Native American inmates. (Garrett Epps)
A New Purity Test: Former Texas Senate candidate Beto O’Rourke was criticized by progressives for taking money from fossil-fuel corporations, demonstrating how significant portions of the Democratic Party are starting to view corporations as the enemy, argues Peter Beinart.
Snapshot
Former national security adviser Michael Flynn arrives for his sentencing hearing at U.S. District Court in Washington, D.C. Jonathan Ernst / ReutersWhat We’re ReadingAn Epidemic in the Nation’s Capital: The rate of fatal drug overdoses has increased among black Americans twice as fast as it has among white Americans—and nobody’s talking about it. (Peter Jamison, Whitney Shefte, and André Chung, The Washington Post)
Uncle Joe’s Platform: Former Vice President Joe Biden could very well be the Democratic nominee for president. But where does he actually stand on policy? (Matthew Yglesias, Vox)
What Regulators Missed: An investigation from NPR and Frontline found that thousands of coal miners are suffering from advanced-stage black lung disease, and federal regulators failed to respond to signs of danger.
We’re always looking for ways to improve The Politics & Policy Daily. Concerns, comments, questions, typos? Let us know anytime here.
Lawyers for retired General Michael Flynn had every reason to celebrate. They managed to get their client—who lobbied against U.S. interests while serving as a top Donald Trump–campaign surrogate; tried to undermine the Barack Obama administration’s Russia policy while still a private citizen; and, as a sitting national-security adviser, worked to conceal it all from the Justice Department—a recommendation of no jail time from the government. But they appeared to have made a last-minute miscalculation that put Flynn’s potential lenient sentence in doubt.
Special Counsel Robert Mueller, who is investigating a potential conspiracy between the Trump campaign and Russia, appeared to let Flynn off the hook for his crimes in exchange for his cooperation in the Russia probe and an investigation into illegal lobbying for the Turkish government that is being conducted out of the Eastern District of Virginia. Flynn is also cooperating in a third investigation, the nature of which remains unknown. Indeed, before Tuesday’s hearing, it had appeared all but certain that Flynn’s decision to assist the government early and fully would spare him jail time. But that leniency apparently wasn’t enough for Flynn’s lawyers.
[Read: A surge in foreign-influence prosecutions]
In a sentencing memo filed last week, Flynn’s lawyers, Robert Kelner and Stephen Anthony, indicated that the FBI agents who interviewed the former national-security adviser in January 2017 about his conversations with the former Russian ambassador Sergey Kislyak had entrapped him, lulled him into a false sense of security, and failed to insist that he have a lawyer present for the interview.
Judge Emmet Sullivan, however, who was set to issue Flynn’s sentence on Monday, was not sympathetic. “How is raising these points consistent with accepting responsibility?” he asked Flynn and his lawyers as they stood before him at the lectern on Tuesday. He then lambasted Flynn for lying to federal agents on White House grounds while serving as the president’s top national-security adviser in January 2017, and for lying about his lobbying work for the Turkish government. “Arguably, you sold out your country,” Sullivan said. He added that while he would take Flynn’s 33-year public-service career and cooperation into account when sentencing him, he would not try to hide his “disdain” and “disgust” for Flynn’s crimes, and asked the government at one point whether Flynn’s conduct rose to the level of treason.
Flynn’s lies to the FBI were brazen, according to a summary of the agents’ interview with him last January that was released on Monday night. The summary, known as a 302, reveals that Flynn falsely stated that he did not recall discussing with Kislyak the Obama administration’s new sanctions, expulsion of diplomats, and shuttering of Russian compounds in response to Moscow’s election interference. Flynn also falsely claimed that he did not learn about the Obama administration’s actions against Russia until later, because he was vacationing in the Dominican Republic on December 28 when the executive order was signed.
What he did not tell the agents, however, was that when he and Kislyak spoke on December 29, it was after Flynn had already discussed how to respond to the new sanctions with his deputy, K. T. McFarland, who was at Mar-a-Lago with Trump at the time. The transition team determined that the sanctions could have a negative effect on the incoming Trump administration’s foreign-policy goals, so Flynn asked Kislyak to refrain from escalating the situation until Trump took office. Flynn also failed to tell the FBI that Kislyak called again on December 31 to inform him that Russia had decided not to retaliate at Flynn’s request.
Additionally, Flynn falsely stated that he had called Russia, along with other countries, on December 22, 2016, only as part of a drill “to see who the administration could reach in a crisis” and to “get a sense” of where they stood on an impending United Nations vote on Israeli settlements, rather than to swing those votes. He did not tell the FBI, moreover, that Kislyak called Flynn on December 23 and told him that Russia would indeed vote the way the U.S. wanted them to.
[Read: Michael Flynn is worse than a liar]
Sullivan’s disdain stood in stark contrast to the government’s characterization of Flynn in its sentencing memo as a star witness who had provided “substantial” assistance to at least three ongoing investigations. Prosecutor Brandon Van Grack said in court on Tuesday that the government believed Flynn had fully accepted responsibility for his conduct. But the implication by Flynn’s lawyers that Flynn had been entrapped by the bureau hung in Sullivan’s mind.
“I don’t know what his lawyers were thinking,” says Nick Akerman, a former assistant U.S. attorney, a former assistant special Watergate prosecutor, and a partner at Dorsey & Whitney. As a defense lawyer, “you really ought to be in the position of complete contrition and saying, ‘Look, my client did something that was wrong, he made up for it, he’s cooperated,’” he says. “To take the tack that somehow the government was at fault here is completely absurd.” There is “no question whatsoever” that Flynn’s lawyers miscalculated, says the former federal prosecutor Renato Mariotti. “The judge rightly saw that there was no misconduct by the government and appropriately criticized Flynn’s apparent failure to accept responsibility for his criminal activity,” he adds.
Mimi Rocah, a former federal prosecutor in the Southern District of New York, agrees that Flynn’s lawyers had clearly made a “very misguided appeal” to Sullivan. But she notes that it may also have been a play for a pardon from President Trump. “Maybe on some level, this was an appeal to Trump and his base,” Rocah says. Mark Zaid, a national-security attorney in Washington, D.C., says that if the defense’s strategy was to send a message to the president, only “time will tell” whether that strategy was sound. “But that’s more a long-term political strategy, and I would imagine in the short term Flynn is far more interested in knowing whether or not he can avoid jail,” he says.
Kelner, Flynn’s lawyer, asked that the judge not hold the sentencing memo against their client. “General Flynn recognizes the obligations that came with higher office, and that this is a serious offense,” he said. “We don’t mean to dispute that.” The president has not tried to hide his continued support for Flynn, and has lamented that Flynn was treated unfairly by the FBI. “Good luck today in court to General Michael Flynn,” Trump tweeted on Tuesday. White House Press Secretary Sarah Sanders said on Tuesday that Flynn had been “manipulated” by the bureau. Mueller’s office shot back at any claim of wrongdoing by the FBI in a response to Flynn’s lawyers released last week. “A sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33 year veteran of the armed forces knows he should not lie to federal agents,” they wrote.
Sullivan’s harsh words nearly an hour into his sentencing hearing seemed to unnerve Flynn, who had appeared confident up until that point in his decision to proceed with sentencing before all his cooperation with the government was over. “Yes,” he responded loudly, when the judge asked for the third time whether he would like to meet with his lawyers to reconsider moving forward. Ultimately, Sullivan postponed a status hearing on Flynn’s cooperation until March 13.
Flynn is still cooperating with prosecutors in the Eastern District of Virginia in an investigation into Turkish lobbying, according to Kelner, and will “likely” have to testify in that case. Flynn’s former associates Bijan Kian and Ekim Alptekin were indicted in the Eastern District on Monday as part of a conspiracy they allegedly concocted with Flynn in 2016 to “covertly and unlawfully” influence U.S. public opinion as it relates to the exiled Turkish cleric Fethullah Gulen.
Sullivan said that while he can’t guarantee that Flynn will receive a lighter sentence after his cooperation is fully over, it would at least allow the court to take everything into consideration with regard to Flynn’s assistance to prosecutors. “I can’t consider the full extent of your cooperation in this case,” Sullivan said, noting that Flynn’s crime of lying about his conversations with the Kislyak was “very serious” and resulted in top White House officials—including the vice president and press secretary—lying to the public. “You can’t minimize that,” he said. “If you want to postpone this, that’s fine with me.”
Flynn’s downfall from revered three-star general to convicted felon was rapid, beginning after President Barack Obama fired him as head of the Defense Intelligence Agency in 2014 following a chaotic, “disruptive” tenure, and accelerating with Trump’s political rise. In his January 2017 interview with the FBI, a redacted summary of which was made available by the special counsel’s office on Monday night, Flynn acknowledged that he had been friendly with his Russian counterpart, former GRU Director Igor Sergun, when he was head of the DIA. But by the end of 2015, Flynn was sitting next to Russian President Vladimir Putin at an awards dinner for the state-sponsored Russian news agency RT. By December 2016, he was working with both Turkish officials for cash and Russian officials for political capital. And by February 2017, he was ousted from the White House and under FBI investigation.
When a prominent YouTuber named Lewis Hilsenteger (aka “Unbox Therapy”) was testing out this fall’s new iPhone model, the XS, he noticed something: His skin was extra smooth in the device’s front-facing selfie cam, especially compared with older iPhone models. Hilsenteger compared it to a kind of digital makeup. “I do not look like that,” he said in a video demonstrating the phenomenon. “That’s weird … I look like I’m wearing foundation.”
He’s not the only one who has noticed the effect, either, though Apple has not acknowledged that it’s doing anything different than it has before. Speaking as a longtime iPhone user and amateur photographer, I find it undeniable that Portrait mode—a marquee technology in the latest edition of the most popular phones in the world—has gotten glowed up. Over weeks of taking photos with the device, I realized that the camera had crossed a threshold between photograph and fauxtograph. I wasn’t so much “taking pictures” as the phone was synthesizing them.
This isn’t a totally new phenomenon: Every digital camera uses algorithms to transform the different wavelengths of light that hit its sensor into an actual image. People have always sought out good light. In the smartphone era, apps from Snapchat to FaceApp to Beauty Plus have offered to upgrade your face. Other phones have a flaw-eliminating “beauty mode” you can turn on or off, too. What makes the iPhone XS’s skin-smoothing remarkable is that it is simply the default for the camera. Snap a selfie, and that’s what you get.
FaceApp adding substantially more George Clooney to my face than actually exists (Alexis Madrigal / FaceApp)These images are not fake, exactly. But they are also not pictures as they were understood in the days before you took photographs with a computer.
What’s changed is this: The cameras know too much. All cameras capture information about the world—in the past, it was recorded by chemicals interacting with photons, and by definition, a photograph was one exposure, short or long, of a sensor to light. Now, under the hood, phone cameras pull information from multiple image inputs into one picture output, along with drawing on neural networks trained to understand the scenes they’re being pointed at. Using this other information as well as an individual exposure, the computer synthesizes the final image, ever more automatically and invisibly.
The stakes can be high: Artificial intelligence makes it easy to synthesize videos into new, fictitious ones often called “deepfakes.” “We’ll shortly live in a world where our eyes routinely deceive us,” wrote my colleague Franklin Foer. “Put differently, we’re not so far from the collapse of reality.” Deepfakes are one way of melting reality; another is changing the simple phone photograph from a decent approximation of the reality we see with our eyes to something much different. It is ubiquitous and low temperature, but no less effective. And probably a lot more important to the future of technology companies.
In How to See the World, the media scholar Nicholas Mirzoeff calls photography “a way to see the world enabled by machines.” We’re talking about not only the use of machines, but the “network society” in which they produce images. And to Mirzoeff, there is no better example of the “new networked, urban global youth culture” than the selfie.
The phone manufacturers and app makers seem to agree that selfies drive their business ecosystems. They’ve dedicated enormous resources to taking pictures of faces. Apple has literally created new silicon chips to be able to, as the company promises, consider your face “even before you shoot.” First, there’s facial detection. Then, the phone fixes on the face’s “landmarks” to know where the eyes and mouth and other features are. Finally, the face and rest of the foreground are depth mapped, so that a face can pop out from the background. All these data are available to app developers, which is one reason for the proliferation of apps to manipulate the face, such as Mug Life, which takes single photos and turns them into quasi-realistic fake videos on command.
Nothing creepy about this Mug Life image at all (Alexis Madrigal / Mug Life)All this work, which was incredibly difficult a decade ago, and possible only on cloud servers very recently, now runs right on the phone, as Apple has described. The company trained one machine-learning model to find faces in an enormous number of pieces of images. The model was too big, though, so they trained a smaller version on the outputs of the first. That trick made running it on a phone possible. Every photo every iPhone takes is thanks, in some small part, to these millions of images, filtered twice through an enormous machine-learning system.
But it’s not just that the camera knows there’s a face and where the eyes are. Cameras also now capture multiple images in the moment to synthesize new ones. Night Sight, a new feature for the Google Pixel, is the best-explained example of how this works. Google developed new techniques for combining multiple inferior (noisy, dark) images into one superior (cleaner, brighter) image. Any photo is really a blend of a bunch of photos captured around the central exposure. But then, as with Apple, Google deploys machine-learning algorithms over the top of these images. The one the company has described publicly helps with white balancing—which helps deliver realistic color in a picture—in low light. It also told the Verge that “its machine learning detects what objects are in the frame, and the camera is smart enough to know what color they are supposed to have.” Consider how different that is from a normal photograph. Google’s camera is not capturing what is, but what, statistically, is likely.
Google shows off its Night Sight performance (right), relative to the iPhone XS on the left (Google).Picture-taking has become ever more automatic. It’s like commercial pilots flying planes: They are in manual control for only a tiny percentage of a given trip. Our phone-computer-cameras seamlessly, invisibly blur the distinctions between things a camera can do and things a computer can do. There are continuities with pre-existing techniques, of course, but only if you plot the progress of digital photography on some kind of logarithmic scale.
High-dynamic range, or HDR, photography became popular in the 2000s, dominating the early photo-sharing site Flickr. Photographers captured multiple (usually three) images of the same scene at different exposures. Then, they stacked the images on top of one another and took the information about the shadows from the brightest photo and the information about the highlights from the darkest photo. Put them all together, and they could generate beautiful surreality. In the right hands, an HDR photo could create a scene that is much more like what our eyes see than what most cameras normally produce.
A good example of the intense surreality of some HDR photos (Jimmy McIntyre / Flickr)Our eyes, especially under conditions of variable brightness, can compensate dynamically. Try taking a picture of the moon, for example. The moon itself is very bright, and if you try to take a photo of it, you have to expose it as if it were high noon. But the night is dark, obviously, and so to get a picture of the moon with detail, the rest of the scene is essentially black. Our eyes can see both the moon and the earthly landscape with no problem.
Google and Apple both want to make the HDR process as automatic as our eyes’ adjustments. They’ve incorporated HDR into their default cameras, drawing from a burst of images (Google uses up to 15). HDR has become simply how pictures are taken for most people. As with the skin-smoothing, it no longer really matters if that’s what our eyes would see. Some new products’ goal is to surpass our own bodies’ impressive visual abilities. “The goal of Night Sight is to make photographs of scenes so dark that you can’t see them clearly with your own eyes — almost like a super-power!” Google writes.
Since the 19th century, cameras have been able to capture images at different speeds, wavelengths, and magnifications, which reveal previously hidden worlds. What’s fascinating about the current changes in phone photography is that they are as much about revealing what we want to look like as they are investigations of the world. It’s as if we’ve discovered a probe for finding and sharing versions of our faces—or even ourselves—and it’s this process that now drives the behavior of the most innovative, most profitable companies in the world.
Amazon demonstrates the capabilities of its facial-recognition technology (Amazon).Meanwhile, companies and governments can do something else with your face: create facial-recognition technologies that turn any camera into a surveillance machine. Google has pledged not to sell a “general-purpose facial recognition” product until the ethical issues with the technology have been resolved, but Amazon Rekognition is available now, as is Microsoft’s Face API, to say nothing of Chinese internet companies’ even more extensive efforts.
The global economy is wired up to your face. And it is willing to move heaven and Earth to let you see what you want to see.
Not necessarily the top photos of the year, nor the most heart-wrenching or emotional images, but a collection of photographs that are just so 2018. From Gritty the Philadelphia Flyers mascot to Fortnite tournaments, from the airplane taken for a tragic joyride at SeaTac Airport to a caravan of thousands journeying through Mexico to the United States, from Mandarin Duck to Knickers the steer, and much more. This is 2018.
In their efforts to influence the 2016 election, Russian operatives targeted every major social platform, but one demographic group, black Americans, got special treatment, according to two reports made public by the Senate Intelligence Committee yesterday.
The reports—one published by New Knowledge, a new disinformation-monitoring group, and the other by the Computational Propaganda Project at the University of Oxford—both tally large numbers of posts across social media that generated millions of interactions with unsuspecting Americans. New Knowledge counted up 77 million engagements on Facebook, 187 million on Instagram, and 73 million on Twitter. The think tank divvied up the activity into three buckets: content that targeted the left, the right, and … African Americans.
[Read: What Facebook did to American democracy]
Partially in response to the reports, the NAACP has called for a one-day boycott of Facebook and Instagram. The NAACP president, Derrick Johnson, hit the company for allowing “the utilization of Facebook for propaganda promoting disingenuous portrayals of the African American community.”
The way politicians and journalists usually describe these Russian posts is to say that they sought to “heighten tensions between groups already wary of one another” or “exploit racial divides” by “exploiting existing political and racial divisions in American society.”
While right-leaning political posts were often explicitly racist, and both types of political posts surely tried to stoke polarization, the posts that targeted black people were different. They promoted a generally Afrocentric worldview, celebrated the freedom of black people, and called for equality. Take the following image post, which New Knowledge said generated the most likes of any Instagram post in its data set. While it was posted by a Russian-linked account, it was originally created by a black-owned leather-goods company, Kahmune.
(New Knowledge’s The Tactics and Tropes of the Internet Research Agency)Is this really “exploiting” racial divides or “heightening tensions”? At most, this post points out something obvious about the nature of American popular culture (calling a certain shade of beige “nude” is dumb) that makes white people mildly uncomfortable.
In another case, an IRA-controlled Facebook page reposted video footage of police brutality, garnering more than half a million shares. If that heightens racial tensions in America, it seems hard to blame the Russians for that.
The IRA operatives were able to deeply interpenetrate real black media. They became part of the meme soup of online black life, sharing and being reshared by real people, as seen below. These posts, then, created the audience that they targeted with posts arguing “that Mrs. Clinton was hostile to African American interests, or that black voters should boycott the election,” as The New York Times put it.
(New Knowledge’s The Tactics and Tropes of the Internet Research Agency)These posts targeting black people provide the most intense examples of the problem that Facebook faces from foreign actors. Facebook has taken down these posts, but explicitly not because of their content. Instead, the company backed into a way of targeting behavior by foreign actors. According to Facebook, these posts are bad only because they are inauthentic.
Facebook has long promoted the idea that users and posts on the service should be “authentic.” “Representing yourself with your authentic identity online encourages you to behave with the same norms that foster trust and respect in your daily life offline,” the company wrote in a letter to shareholders ahead of its IPO in February 2012. “Authentic identity is core to the Facebook experience, and we believe that it is central to the future of the web.”
[Read: The secretive organization quietly spending millions on Facebook political ads]
For several years, the company emphasized the need to maintain “authentic relationships,” but primarily in the context of people and companies buying “fake likes” for their pages. Authenticity was a business principle, not a political one. “Businesses won’t achieve results and could end up doing less business on Facebook if the people they’re connected to aren’t real,” the company explained in 2014. “It’s in our best interest to make sure that interactions are authentic.”
When the Russian influence operation began to be excavated in the wake of the 2016 election, Facebook began to use the phrase “coordinated inauthentic behavior.” Facebook cleverly adapted a policy that was designed to fight spam to fight the activities of foreign actors. It’s an understandable policy shift meant to connect the specific fight around electoral interference to this core Facebook value of “authenticity.”
At the same time, the entire enterprise of “influencer” marketing sure seems like coordinated inauthentic behavior. But financial motivations are automatically deemed authentic and legitimate. Teams of people are recruited from across the world to promote products and ideas that may be dubious.
Also, there are plenty of businesses that use racial-solidarity themes to sell products. Many others drive much more directly at polarizing issues—like gun control—to do the same. One large political-action group spawned a flock of disguised pages to promote candidates and issues, yet they were also seen by Facebook as playing by the rules.
If the Russians had simply been regular businesses with products to sell or a media empire to build, what they did, in the vast majority of cases, would have been fine. Even American political actors working on behalf of global oil companies to, say, thwart climate-change action would be deemed authentic.
All of which should make the next step for Russian operatives obvious: Simply create a consulting business and do exactly what they did before, but this time with a profit motive.
On the other hand, as some skeptics of Russian influence have pointed out, their posts represent a tiny, tiny, tiny fraction of all the polarizing content—let alone total political content—flowing through these massive social platforms. A “legitimate” media business with their results probably would be considered no big deal. Their main influence on American elections may have resulted from the revelation that they’d been involved at all, not from any actual effect that they had on the election.
They paid for ads in rubles. They did not want Americans to know what they’d done. And the reaction to their campaign on social media likely destabilized political discourse far more than any of their actual efforts.
That also helps explain what’s going on with the posts targeting black people. Russian governments have long enjoyed poking the United States about the country’s treatment of African Americans. If celebrating equality for black people or protesting black people’s treatment by police is seen as exploiting American racial divisions, that says a lot about the country, in and of itself.
Not since Abraham Lincoln has a Republican scored a better consolation prize for losing a Senate race.
Last month, Arizona voters rejected Martha McSally in favor of Democrat Kyrsten Sinema after the two waged a hard-fought battle for the Senate seat vacated by the retiring Senator Jeff Flake. Come January, McSally will take a seat in the Senate anyway, serving right alongside the woman who defeated her.
Arizona Governor Doug Ducey on Tuesday said that he will appoint McSally, a former Air Force fighter pilot and two-term member of the House, to serve out the remainder of the late Senator John McCain’s term in Washington. Ducey’s first appointed replacement for McCain, former Senator Jon Kyl, informed the governor that he would be resigning on December 31, reopening the vacancy he filled in September.
Ducey’s selection of McSally was not entirely a surprise—the possibility that she would take McCain’s seat had been a source of speculation in Arizona throughout the final months of the late senator’s life, even as McSally campaigned to win a spot in the upper chamber in her own right. But the appointment so soon after what became an ugly and razor-close election will set up one of the most awkward pairings of senators from the same state in modern history. The Senate Historical Office was searching its records on Tuesday morning to see if two members have ever served together after campaigning against each other the year before. (Lincoln never served in the Senate after losing successive 1856 and 1858 campaigns in Illinois; instead, he ran for—and won—the presidency in 1860.)
The closest example found was from three decades ago in Washington State, where the Republican Slade Gorton lost to the Democrat Brock Adams in 1986, only to win the state’s other Senate seat two years later, says Daniel Holt, an assistant Senate historian. Gorton and Adams served together until 1993. And in 1974, Ohio Democratic Senator Howard Metzenbaum and the Republican Robert Taft Jr. briefly served together four years after they ran against each other.
McSally and Sinema have each served in the state’s congressional delegation for the past four years. But they fought bitterly at times this fall as both sought to become the first woman elected to the Senate from Arizona. During their lone televised debate in October, McSally accused Sinema of “treason” for comments she made during a radio interview in 2003, when she answered a hypothetical question about whether the host should join the Taliban. Sinema “scarcely looked” at McSally during that debate or a second, untelevised matchup the two held days later at the Arizona Republic, the newspaper reported. In November, Sinema defeated McSally by 2.4 percentage points and will become Arizona’s first Democratic senator in more than 20 years.
Adding to the awkwardness on Tuesday was the possibility that McSally would actually be sworn in before Sinema, thereby leapfrogging her in seniority and making history as the state’s first woman senator. Under the Constitution, Sinema will be sworn in on January 3 along with other newly elected members at the start of the 116th Congress. Kyl’s resignation on December 31 leaves open the option for McSally to take office first. Sinema, whose extra two years in the House would give her a tiebreaker in seniority, probably doesn’t need to worry, however. “Since we are unlikely to be in session between the 31st and the day the new Congress convenes on the 3rd, that question is moot,” says Don Stewart, the spokesman for Senate Majority Leader Mitch McConnell. Ducey told reporters on Tuesday that Sinema would be sworn in first and be Arizona’s senior senator.
McSally and Sinema wouldn’t be the first tandem of same-state senators to have a chilly relationship. Though there’s a perception that senators set aside partisan—and personal—beefs for the good of the state they collectively represent, “that’s a great myth,” said Jim Manley, a former longtime aide to former Democratic Senators Edward Kennedy and Harry Reid. “That’s not always the case by any stretch of the imagination,” he told me, citing examples where even long-serving members of the same party, such as Kennedy and John Kerry in Massachusetts and Chris Dodd and Joe Lieberman in Connecticut, didn’t particularly get along.
While Sinema won a full six-year term, McSally will have to face the voters again in 2020. Her appointment will give her the advantage of incumbency, but Democrats immediately attacked Ducey’s decision to elevate a defeated candidate as following a pattern of Republican legislators and governors flouting the will of voters. “Why appoint a loser when you could find a fresh face with a better shot in 2020?” asks Lauren Passalacqua, a spokeswoman for the Democratic Senatorial Campaign Committee. “That’s the question that will haunt Governor Ducey and the Washington Republicans who installed Martha McSally to a seat she couldn’t earn.”
“Voters rejected her once, and will do so again,” Passalacqua predicts.
McSally stuck close to the political center during her first term in Congress, but she veered right to win her Senate primary and then hugged President Trump during the general-election campaign. The shift irritated McCain allies who were looking for a Republican to honor the late senator’s legacy as a maverick willing, at times, to stand up to his party. Cindy McCain tweeted on Tuesday that she “respected” Ducey’s decision to appoint McSally. “Arizonans will be pulling for her,” she wrote, “hoping that she will follow his example of selfless leadership.”
At a press conference with Ducey on Tuesday, McSally said she looked forward to serving with Sinema. “There’s a lot of common ground between us, and I’m ready to hit it running,” she said. “We had a very spirited campaign, but it’s over.”
Both soon-to-be senators likely have a political incentive to move beyond this year’s campaign. Sinema ran as a moderate despite her past as a liberal Green Party activist, and collaborating with her former rival could be a way to demonstrate that she was sincere.
But after such a bitterly fought campaign and with another election right around the corner, a quick turn to bipartisan bonhomie might be easier said than done. “The politics of the moment are going to demand they try and work together,” Manley told me, before quickly adding: “Having said that, the Senate is going to be nothing but a partisan killing field for the next two years.”
On Tuesday, President Donald Trump’s school-safety commission, which was established following the school shooting in Parkland, Florida, released its much-anticipated recommendations “to advance safety” in schools, including one that would scrap a federal policy urging schools not to punish minority students at a higher rate than white students.
The commission’s recommendation to roll back the Obama administration’s school-discipline guidance does not come as a surprise. Republicans have decried the policy as government overreach since it was released in 2014. The policy advocated “constructive approaches” to school discipline, such as victim-offender mediation, as opposed to harsher penalties such as suspensions or expulsions.
The Trump administration’s discipline recommendation comes alongside several bipartisan common-sense measures in the report, including encouraging teachers, administrators, and parents to be vigilant about reporting information to the FBI; improving access to school mental-health services and counseling; and implementing best practices to curb cyberbullying. The report also advocates that districts create a “media plan” to disseminate information in the event of a shooting, alongside a suggestion to follow “No Notoriety” guidelines to keep the focus in the aftermath of an incident on the victims rather than on the shooter.
The school-safety commission’s recommendations are just that: recommendations. As the report notes, “Implementation of the practices identified in this guide is purely voluntary, and no federal agency will take any action against schools that do not adopt them.” School districts have been slow to respond to such nonbinding recommendations in the past—including school-safety recommendations in the wake of school shootings during both the George W. Bush and Barack Obama administrations.
Given the broad mandate of developing recommendations to address school violence, the administration took to addressing the school-discipline guidelines remarkably quickly. The commission argues that the guidance left schools unable—or at least afraid to—take action against potentially dangerous students. “Policy guidance issued under the Obama Administration placed an emphasis on tracking school disciplinary actions by race,” the report says. “The Guidance sent the unfortunate message that the federal government, rather than teachers and local administrators, best handles school discipline.” The commission argued that the emphasis on avoiding a disparity in which students are disciplined may lead school leaders to let their school-discipline policies be driven by numbers, rather than by teacher input.
[Read: The Trump administration’s approach to school violence is more style than substance]
Education Secretary Betsy DeVos, who chairs the commission, argued that a one-size-fits-all approach to school safety would not work. “Through the Commission’s work, it has become even clearer there is no single policy that will make our schools safer,” she said in a statement. “What will work for schools in Montana will be different than what will work for schools in Manhattan.”
Still, the administration’s focus on school discipline has been highly contested—primarily because it seems disconnected from the broader issue of preventing the next school shooting. “It is unconscionable to use the very real horror of the shooting at Parkland to advance a preexisting agenda that encourages the criminalization of children and undermines their civil rights,” Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights, said in a statement following the report’s release. Gupta’s statement tracks with months of criticism of the proposal to scrap the school-discipline guidance. Supporters of the Obama guidance argue that it is necessary to counteract the effects of the inequitable doling out of discipline.
Both Obama-era education secretaries, Arne Duncan and John B. King Jr., released a joint statement on the committee’s recommendation on Tuesday. “We put this guidance in place to start a conversation about these harmful practices and encourage advocates and policymakers to look more deeply into why these disparities exist and to intervene when necessary,” they said. In April, the Department of Education released its annual Civil Rights Data Collection report, which showed that black students made up 15 percent of K–12 enrollments nationwide, but 31 percent of expulsions.
Bobby Scott, the top Democrat on the U.S. House Committee on Education and the Workforce—who will become the committee chair next year—put the sentiment of those who prefer to keep the guidance plainly. “Rather than confronting the role of guns in gun violence, the Trump administration blames school shootings on civil rights enforcement,” he said in a statement. “This guidance has no connection to school shootings.”
While advocates and experts of all political stripes are likely to agree with several of the recommendations of the report, the recommendation on school discipline delves, perhaps unnecessarily, into one of the most politically contentious issues in education. As my colleague Alia Wong wrote in March, “For Washington policymakers to give outsized attention to student-discipline reform is to succumb to ideological precepts that lack empirical support. It is to waste the lessons gleaned from the growing tally of school shootings while reinforcing racial disparities.”
In so many ways, Paul Ryan and Donald Trump have little in common. Ryan is affable and well mannered; Trump, not so much. Ryan holds strong, consistent ideological beliefs; Trump, not so much. Paul Ryan is in splendid physical shape …
But there is one thing they do share: a sense of personal achievement strangely disconnected from their real-world records.
Over the past 24 hours, the @SpeakerRyan Twitter account has blasted to 3.6 million followers a startlingly self-congratulatory sequence of images and videos, detailing his career over the past 20 years. Their theme: Ryan is a man of destiny, committed to reform, steeled in his “wilderness years” (yes, the sequence actually applies that Churchillian label), to deliver a triumphant victory for the American people over grubby-minded special interests.
[Read: Paul Ryan’s compromised legacy]
It’s hard to reconcile this story with the world we see out our windows: a world of soaring deficits even at the top of the business cycle; a world of corporate tax cuts that have failed to deliver the promised investment boom; a world of trade wars and crashing financial markets—the worst December for U.S. equities since 1931, at the end of a year in which not one of the 15 asset classes measured by JP Morgan outperformed the consumer price index.
Yet that is the story Ryan is asking you to believe.
For example, on Tuesday morning, the account tweeted:
It was 2007. House Republicans had just lost the majority, and I was sitting in a deer hunting tree stand one Saturday morning. That’s when I decided to go big and put together a completely comprehensive plan to update the nation’s entitlement system and reform the tax code.
The fiscal conservatives out there will ask, “Hey, whatever happened to that update of the entitlement system?” Short answer: As soon as the Republicans regained the presidency in 2017, it was jettisoned entirely. Medicare, Medicaid, and Social Security continue unchanged.
Paul Ryan became speaker of the House of Representatives in October 2015, the first month of the 2016 fiscal year. In the last fiscal year before Ryan’s speakership, the federal government ran a deficit of $438 billion. In the fiscal year that ended September 30, 2018, the last of his speakership and a year of general prosperity, that deficit rose to $779 billion. In the current fiscal year, the deficit is expected to amount to $981 billion. In fiscal 2020, the deficit will exceed $1 trillion—even assuming there is no recession that year.
[Read: The man who killed Republican reform]
Later on Tuesday morning, the account tweeted:
Once in a generation, you can convince politicians that the need for reform outweighs the needs of the special interests. That’s exactly what happened when we passed the Tax Cuts and Jobs Act, one year ago this week.
Tax reform as passed in 1986 was revenue-neutral; it replaced inefficient revenues with new sources. What passed in 2017 was not tax “reform”—it was a series of tax cuts. Perhaps investor awareness that those tax cuts cannot last in their present shape for very long explains why the corporate tax cuts in 2017 have not sparked a rise in corporate investment. Nonresidential fixed investment spiked in the immediate aftermath of the tax cut, but then promptly crashed, slipping to nearly zero growth in the third quarter of 2018.
Nearly half of recent economic growth has been driven by higher levels of government spending in the Trump years—the very opposite of the promise of Ryan’s tax reform.
You may wonder: Is it not tone-deaf to release this video while the financial markets are in the throes of their worst December since 1931, at the end of a year in which all economic indicators point to recession ahead? You may wonder: Is it not bizarrely unaware to salute yourself for an accomplishment that you manifestly failed to accomplish? Yes, you probably do wonder all that. But then you are not a man or woman of destiny. You do not have faith. You do not have vision. You have just a Google search function, a calculator on your phone, and an IRA that is worth less today than it was a year ago.
“I want white folks to understand that some of us are doing the best we can. And we can’t help but get pissed off when we see situations where it’s clear that black life didn’t matter.” The opening scene of the HBO documentary Say Her Name: The Life and Death of Sandra Bland features video of Bland herself eerily foreshadowing the sentiments surrounding her own tragic loss of life.
The film follows her family and friends in the weeks following Bland’s suspicious death in a Waller County, Texas, jail. Her mother, Geneva Reed-Veal, and sister, Shante Needham, are recorded at her grave site, promising to find out: What happened to Sandra Bland? The question ultimately became a rallying cry when the 28-year-old woman’s story spread across the news and social media three years ago. By its end, the documentary seems to harken back: What didn’t happen to Sandra Bland?
The timeline is short. On July 8, 2015, Bland drove to Texas from Illinois to follow up on a job opportunity. On July 10, she was pulled over by the state trooper Brian Encinia for failing to signal a lane change. Trooper Encinia arrested her for allegedly assaulting an officer. On July 11, Bland made a phone call to her sister from jail asking for help to pay her $515 bond. Two days later, as her family worked to put together the money, Bland was found dead in her cell, hanging from a noose made of a plastic garbage bag. Shortly thereafter, bystander footage of her arrest went viral, thrusting Bland and Waller County, Texas, into the national spotlight.
Say Her Name does a good job of illuminating who Sandra Bland was. Known as Sandy to friends and family, Bland was deeply concerned with injustices against black people. A Chicago native, she was a high-school cheerleader who later attended the historically black Prairie View A&M University. She worked for Cook’s, a food-service equipment company, but ultimately resigned after feeling conflicted about its business relationships with correctional institutions. Clips from her Facebook video series, Sandy Speaks, documenting her thoughts on subjects such as police violence and black history are interspersed throughout Say Her Name.
[Read more: Sandra Bland and the long history of racism in Waller County, Texas]
The documentary goes on to highlight what remains unknown, and it asks more questions than it answers. For instance, Waller County Sheriff R. Glenn Smith appears, stating that the legal operation of the jail had nothing to do with her death, but also that the jail had a moral responsibility to check on her and failed (how Bland ended up alone in a cell with access to a large trash bag remains unclear). The film shows that Waller County officials are sure Bland died of suicide, but that they also timidly ponder their culpability in her death.
Explaining how Bland died is a complicated process that the documentary simply doesn’t have the time to unpack. It certainly makes an honorable attempt: Bland’s sorority sister LaToya Smith mentions that the small city of Prairie View, where Bland was arrested, is policed by five different law-enforcement agencies, making stops like Bland’s commonplace, and the pastor and activist Hannah Bonner says decisively that racism is what killed her. Bland’s mother affirms unequivocally that she does not believe her daughter died of suicide.
But in just threading together those statements, the film doesn’t fully interrogate the systems of oppression that made Bland’s death possible: the over-policing that heightened the probability of Bland’s arrest by Trooper Encinia, the $515 bond that Bland and her family could not afford, and the lack of appropriate process by Waller County officials during her detention.
For instance, no mention is made of efforts across the country to end the use of money bail, a practice that disproportionately affects low-income people of color who can’t cover the fees. And the film doesn’t discuss what the 2018 book Suspect Citizens might call discriminatory policing. The book tracked data on traffic stops in North Carolina from 2002 to 2016 and found that compared with their share in the population, black drivers are almost twice as likely to be pulled over as their white counterparts—even though the latter drive more on average. (North Carolina was the first state in the country to mandate the collection of data on traffic stops, offering the most comprehensive look to date on the demographics of people stopped by police.)
[Read: No indictment in the death of Sandra Bland]
Still, the documentary aptly portrays the family’s pursuit of justice for Bland as a complicated tug of war. Trooper Encinia was indicted for perjury and fired in 2016, but all charges against him were dismissed last year. Bland’s family ultimately settled with Waller County and the Texas Department of Public Safety in September 2016 for $1.9 million and a promise of jail reform, which included mandating that county jails divert people with mental-health and substance-abuse issues toward treatment, and that they hold police de-escalation training. And though provisions such as requiring police officers with a history of racial profiling to undergo training were struck, the Sandra Bland Act was signed into law last year and includes the aforementioned changes.
The circumstances of Bland’s death don’t exist in a vacuum. And while it’s easy to imagine racism as theoretical, Bland’s story marks the many ways racism can not only disrupt lives, but also end them. Viewers may understand why her loved ones don’t believe Bland was suicidal, and likely will also understand why her arrest and its aftermath could have left Bland feeling hopeless enough to end her life.
Bland’s legacy is similar in many ways to those of other African Americans whose deaths have sparked discussions about policing, racism, and criminal justice in America. When such stories go viral, critical details can be missed and misinformation can spread. As the stories fade out of the 24-hour news cycle and the hashtags disappear, families, friends, and oftentimes attorneys are left navigating complicated legal battles and struggling with tangible grief and inexplicable loss.
Documentaries such as Time: The Kalief Browder Story, Rest in Power: The Trayvon Martin Story, and now Say Her Name take on the heavy lifting of providing fuller, more nuanced narratives about ordinary people catapulted into the public spotlight after suffering unjust deaths. The families sharing their stories knew all along that the victims’ lives had meaning, and the filmmakers chronicle the ways these relatives ensure that the deaths of their loved ones have meaning, too. The films also contribute to the work of teaching society about racial profiling, harmful bail laws, and mass incarceration. But not all documentaries are created equal. Because many of these subjects are complicated and difficult to understand, a film like Say Her Name, with a run time of 103 minutes, only scratches the surface.
The family’s heartbreak after learning that Bland died alone, bruised, and in pain is palpable. It is clear that her life should not have ended. The film doesn’t get close to showing how discriminatory systems contributed to Bland’s death, but it tries to articulate the broader impact by showing her family’s fight for reform. Sandra Bland was a woman who thought deeply about broader issues of racial justice and offered plans to address them. It’s unfortunate that this documentary could not do the same. Despite that, it is worth watching—if only to learn the details of just how unnecessary Bland’s passing was.
“Imagine this,” says an advertising consultant named Barry Lowenthal. “I’m a smart toaster, and I’m collecting data on how many times the toaster is used.”
I’ve just asked Lowenthal what he, as an advertiser, would be able to do with data transmitted from an internet-connected appliance, and I happened to mention a toaster. He thought through the possibility of an appliance that can detect what it’s being asked to brown: “If I’m toasting rye bread, a bagel company might be interested in knowing that, because they can re-target that household with bagel advertising because they already know it’s a household that eats bread, toasts bread, is open to carbs. Maybe they would also be open to bagels. And then they can probably cross that with credit-card data and know that this is a household that hasn’t bought bagels in the last year. I mean, it’s going to be amazing, from a targeting perspective.”
The thought experiment I put to Lowenthal—the CEO of The Media Kitchen, an advertising consulting firm—wasn’t some far-off hypothetical. Over the past several years, the American home has seen a proliferation of “smart,” or internet-connected, devices and appliances. There are, of course, smart speakers (which roughly a quarter of American homes have) and smart thermostats, as well as smart thermometers, smart mattress covers, smart coffee makers, smart doorbells, and even, yes, smart toasters. After Amazon recently announced the release of a slew of products compatible with its Alexa voice assistant, including a smart microwave and a smart wall clock, an executive for the company said he could imagine “a future with thousands of devices like this.”
These thousands of devices, or even just hundreds or tens, would capture an unprecedented amount of data about domestic life. They present a possible future in which the experience of doing stuff at home converges with the experience of being online, in which a company can catalog people’s daily habits and present them with more of what it thinks they’ll like—the transformation of the home into just another tech platform.
[Read: Alexa, should we trust you?]
Ellen Goodman, a law professor at Rutgers University who studies information-privacy law, expects that the data accumulated in smart homes will primarily be of interest not to advertisers like Lowenthal, but to the device makers. If the milk is running low in a smart fridge, maybe the manufacturer has a partnership with a grocery-delivery service that would make sure the dairy is replenished. Or perhaps an internet-connected sound system could beam back data that would help the device maker sell various accoutrements; electronic-music fans might be prime candidates for subwoofers.
Goodman sees a number of ways in which smart appliances could make the consumer’s life better. For one, because the devices are connected to the internet, their manufacturers could observe failures or glitches before a frustrated customer even notices them and calls for help. More broadly, companies could start to get a lot more visibility into how people use their stuff, which might help them improve their products in a way customers like.
But Goodman focused on two main dangers when considering homes full of internet-connected devices. The first was, as she puts it, “the monetization of every move you make.” In an environment where every sip of milk, every hour of TV watched, and every board game played could be used to try to sell you something else—to say nothing of the potential bombardment of hyper-specific ads—people’s behavior might change. Maybe I want a glass of whiskey before going to bed, but I don’t want any systems logging it—would I pour one anyway? It’s not hard to imagine a “private drinking mode” or some sort of open-source app that could be used to conceal one’s true behavior from watchful devices.
These systems could have a more active role in shaping behavior, too. Tech companies specialize in serving up things that are like the things people have preferred in the past, which generally means that “what we do, we get more of it,” Goodman says. “Can we imagine that in terms of our real-life behaviors in our home?” Even if the effects are salutary—maybe the smart showerhead learns its user’s preferred water temperature, or the smart fridge discourages its owner from eating junk food late at night—“I think there’s just a kind of compromise of one’s freedom, to have anything replicated, reified, reinforced in ways that you’re not choosing,” Goodman says. This is already happening with the media and entertainment that people encounter on YouTube or Spotify, but smart homes could transpose this dynamic into physical space.
Goodman’s second larger concern is that big tech companies—Amazon, Google, and the like—might be able to use the data they collect to gain advantages in various markets. A transportation start-up, for example, would have a hard time competing with a much bigger company that has data, thanks to its smart devices, on when people are leaving home each morning to commute to work. And a household whose smart fridge has come to know its most granular food preferences might hesitate to switch to another brand, because the new fridge would need to be trained from scratch.
As useful as all this information would be to manufacturers, there would be no shortage of applications for it in the advertising world.“It’s one of those things we’ve [as an industry] been talking about for years—it’s coming, it’s coming, it’s coming,” Lowenthal told me. “It just hasn’t come yet.” He said that an internet-connected toothbrush could yield a cache of valuable data—how many times people brush a day, what toothpaste they use—that would appeal to, say, toothpaste companies. It’s just that smart toothbrushes aren’t common enough yet in any given bathroom.
Even if they do catch on, Lowenthal said it’s not clear whether people will want a toothbrush that transmits their data to advertisers (or to anyone). But he can imagine people coming around. Even if many Americans are currently wary of what big tech companies are doing with their data, Lowenthal thinks that they nonetheless adore something that lets them turn on the lights without using their hands or adjust the temperature of their living room from the other side of the world. And if they’re thrilled with the product, they’ll be more comfortable being monitored by it.
The squeamishness that some may have about their data led Lowenthal to speculate, though, that two tiers of products could emerge. “It wouldn’t surprise me if there are some companies that wind up costing more and positioning themselves as premium because they tell consumers that they’ll never sell their data—it almost becomes a differentiator,” he said.
For instance, iRobot, the maker of the Roomba, has access to a trove of floor-plan data that marketers would be eager to use. But the company doesn’t sell it. “Our customers invite us into their most personal spaces—their homes—because they trust that our products will help them do more,” a company spokesperson wrote in an email. “iRobot takes that trust seriously. And we believe that our customers have a right to privacy in their homes.”
Companies that are more willing to share users’ data introduce a variety of privacy concerns. “Many of these [smart devices], when taken by themselves, do not represent significant privacy risks,” says Pam Dixon, the executive director of the World Privacy Forum, a nonprofit research group. The larger concern is where data goes once it’s stored on a company’s servers. How long is it kept? Can users delete it? Will a third-party company have access to it, and if so, what will it be used for? If the answers to these questions aren’t clear, people’s personal data might be accessible to all sorts of businesses—advertisers, insurers—without their knowledge.
Dixon says that these questions are particularly relevant when it comes to the biggest tech companies: “If there’s a single platform that knows where you’re driving and your thermostat [temperature] and your security-cam installation and other aspects of your life, I do think that warrants a higher degree of scrutiny.” When I asked Amazon how it would respond to critics who argue that it is accumulating too much data on people’s daily lives, a spokesperson said in part that user data “helps us build and deliver better customer experiences,” including helping the Alexa platform better anticipate its users’ needs. The spokesperson also noted that users have the ability to delete the data that their Alexa-compatible devices record. (Google did not respond to a request for an interview.)
No general law in the U.S. dictates how personal data may be used, so for the most part, it’s up to companies to decide how to use personal data and how much to disclose about their data usage. Dixon would like to see companies be more transparent about that information.
It’s not clear when or if the smart home of the future will arrive. “In some ways, we’re already there,” Goodman said at one point in our conversation. “This is not super futuristic.” But in other ways, we aren’t. My toothbrush is still a piece of plastic that can’t commune with the cloud. It seems the main obstacle to the realization of the fully smart home doesn’t have to do with unease about data collection, but rather with convincing people that a microwave that can take voice commands is better than a microwave that can’t. And then, the data collection will follow.
If there were two big upcoming movies I spent most of 2018 semi-dreading, they were A Star Is Born and Mary Poppins Returns. The former had already been dramatized four (!) times—at least if you include a Bollywood adaptation titled Aashiqui 2—and I wasn’t a particular fan of either the Judy Garland or the Barbra Streisand version. But to my surprise, Bradley Cooper’s remake was superb on almost every level.
As for Mary Poppins Returns, it pains me to watch how ceaselessly Disney is cannibalizing its back catalog. The past few years have featured live-action reimaginings of Cinderella, The Jungle Book, and Beauty and the Beast—with Dumbo, Aladdin, The Lion King, The Little Mermaid, and Pinocchio all coursing down the pipeline behind them. An updated Mary Poppins may have been an inevitability, but is it something that anyone actually wanted?
Still, any commercial intentions behind it notwithstanding, Mary Poppins Returns turns out to be a highly likable diversion, at least for fans of the 1964 film, starring Julie Andrews. Begin with the fact that this is a sequel rather than a remake, and that it does a solid job of balancing the familiar and the new. The premise of the movie is that it is now the 1930s, 20 years after the events of the original film, and Jane and Michael Banks—the London imps whom nanny-sorceress Mary Poppins shepherded in the first movie—have grown into adulthood. Jane (Emily Mortimer) is still single, but Michael (Ben Whishaw) has a family of his own, ensconced comfortably in the hereditary manse at 17 Cherry Tree Lane.
Though comfortably is perhaps an exaggeration: Michael’s wife and the mother of his three young kids passed away in the previous year, and the family is still reeling emotionally and financially. (Yes, this is yet another Disney addition to the cinema of dead mothers.) Like his father before him, Michael is a Mr. Banks very much in need of saving. Also like his father, he is a Mr. Banks who works at the bank—specifically, Fidelity Fiduciary Bank. Unlike his father, however, Michael merely has a low-level job as a teller. Worse, he has taken out a loan with the house as collateral. The bank intends to repossess 17 Cherry Tree Lane, at least unless Jane and Michael can locate some valuable bank shares that had accrued to their father. But where could the shares be hidden? Clearly this is a job for—well, you know perfectly well who. It’s right up there in the title.
Now played by Emily Blunt, Mary Poppins arrives, as always, from the sky. But this time she doesn’t come via your typical flying-umbrella transit. Rather, on an afternoon of heavy wind—one presumes it is blowing from the east—Michael’s youngest, Georgie, takes the battered family kite from the attic for a spin in the park. And what should happen but, as Georgie explains, “I was flying a kite, and it got caught on a nanny!” Mary Poppins is reeled down to the ground like a fish on a line, and she is reacquainted with Jane and Michael. (Michael: “It is wonderful to see you.” Mary Poppins: “Yes it is, isn’t it?”)
To quote Dick Van Dyke’s Bert from the original film: Can’t put me finger on what lies in store / But I fear what’s to happen all happened before.
And indeed, though the particular notes are altered, Mary Poppins Returns follows the melodies of its predecessor with conspicuous precision. Bert’s role as cockney co-conspirator is taken up by Lin-Manuel Miranda as Jack, Bert’s former apprentice, who has decided against a career in chimney sweeping in favor of one igniting the gaslights of London. In return for these efforts, Jack is given a big song-and-dance number with his fellow lamplighters, “Trip a Little Light Fantastic,” that apes Bert’s own “Steppin’ Time” so closely that it could easily provoke a lawsuit. Like the other songs in the film, all written by Marc Shaiman and Scott Wittman of Hairspray fame, it is an appealing effort, even if it lacks the ineffable magic of the numbers that longtime Disney songsmiths Robert and Richard Sherman sprinkled throughout the original. (The best of the new bunch is probably a big stage number on the difference between appearance and reality, titled “A Cover Is Not the Book.”)
The Banks children’s adventures with Mary Poppins also echo their father and aunt’s in ways that will seem either cunning homage or shameless rip-off, according to taste. After a notably pelagic bath time, the kids and their nanny leap into the illustration on a piece of china, much as their forebears leaped into a sidewalk chalk drawing. In place of a visit to the free-floating Uncle Albert, the children meet a cousin, Topsy (played by Meryl Streep), whose house has a tendency to turn itself upside down. Mary Poppins continues to glide effortlessly up the banister, and the other special effects are deliberately retro in keeping with the mood of the original. And, of course, it all ends once again in the park, though this time with balloons rather than kites.
Rob Marshall directs with vigor and fondness for his source material—a fondness clearly shared by his screenwriter David Magee. The cast is strong, in particular the charming Miranda and Mortimer, who ultimately develop a touch of romantic chemistry. The always welcome Colin Firth even makes an appearance as the nefarious new manager of Fidelity Fiduciary.
In the central role of Mary Poppins, Blunt is excellent, offering a somewhat different take than Andrews did, a little chillier and more austere. But though the performance is perhaps truer to the spirit of the heroine of P. L. Travers’s eight Mary Poppins books, I’m hard-pressed to say it is an improvement—this is a character who probably benefited from a little warming up onscreen. And while Blunt accords herself well vocally, she is unsurprisingly not the singer Andrews was.
But these are largely quibbles—the cover and not the book, to borrow a phrase. Mary Poppins Returns is surely not a movie for everyone. But for those with a deep fondness for the original film, it is a worthy remix. There are even cameos by 93-year-old Van Dyke—who, having played, in addition to his Bert duties, the elder Mr. Dawes in the prior film, plays Dawes Jr. in this one—and fellow nonagenarian (and Disney Legend) Angela Lansbury, who, as the “balloon lady,” sings the movie’s final song. The two appearances serve as a reminder that, for all its global scope and hegemonic ambition, Disney still has a little magic left up its sleeve.
As Ken Hu, the “rotating” chairman at Huawei Technologies, made the case during a briefing in southern China that his company’s telecom equipment was trustworthy and above board, he did something mundane for many global executives, yet remarkable for the embattled Chinese giant: He took questions from foreign journalists.
Hu’s press conference on Tuesday was an all-too-rare attempt by Huawei’s top brass to engage with the world—and it comes at a critical moment. This month, Hu’s colleague and the company’s chief financial officer, Meng Wanzhou, was arrested in Canada, accused by Washington of misleading financial institutions to break U.S. sanctions on Iran. Meng’s arrest is the latest front in a multipronged standoff between Washington and Beijing, one that encompasses disputes over trade, intellectual property, naval lanes, and much else.
In that broader context, focusing on Huawei may appear, at first glance, to be a narrow lens. After all, the company makes telecom gear that its critics can buy elsewhere. But what happens to Huawei matters—for China and the world. One of Beijing’s top goals is transforming China into a technology powerhouse able to innovate and control the vital know-how powering future industries, and to free itself from, and then challenge, the United States. Huawei, as one of China’s most prominent global enterprises, will be a key part of that quest. Hence, its problems are China’s problems, and the fate of the company could foreshadow the fate of the country.
[Read: The Trump administration debates a cold war with China]
Huawei has always insisted that it has never had ties to the Chinese government or military. Still, its critics remain unconvinced. The suspicion that Huawei is a threat to American national security has become—fairly or not—indelibly marked on the minds of many American officials. Sales of its major equipment in the United States have been stymied, its acquisitions of American assets have been blocked, and President Donald Trump’s administration, determined to defend American technology, has taken an especially hostile position on the company.
All of that, to a degree, is Huawei’s own fault. The problem starts with its mysterious corporate culture, which has left policy makers and security experts hazy about its background and intentions.
Huawei markets itself as a miracle of modern entrepreneurship, a rags-to-riches fairy tale of a regular guy who launched a business empire on hard work and chutzpah. In the company’s narrative, its founder, Ren Zhengfei, was a mere soldier-engineer who, after leaving the military, started Huawei in 1987 with no government connections, state aid, personal wealth, or experience in telecommunications. Somehow, despite this lack of expertise and resources, Ren managed to bring a complex technical system to market in a mere handful of years, an impressive achievement in what was then a decidedly low-tech China. Officially, the company is owned by its employees, who vote in their own management team. Ren, whom the company calls its “natural person shareholder,” controls only 1.4 percent of Huawei but has served as its chief executive for 30 years, and his daughter, the arrested Meng, now helps him run the company.
[Read: Africa is the new front in the U.S.-China influence war]
This story could be perfectly true. But Ren has done a miserable job of selling it. As Huawei has risen to worldwide fame, he remains an enigma. Rarely appearing in public, he has made little effort to refute his critics or build confidence in himself and his company. Though other Huawei executives reach out to an international audience here and there—as Hu did on Tuesday—Ren mostly delegates the talking to lobbyists and public-relations officers.
On the rare occasions he has personally tried to influence public opinion, he seems to only reinforce his persona. In 2012, Ren met with members of a U.S. congressional committee, but they came away frustrated with what they considered incomplete answers and information. Based on how he responded to questions during a public interview at the World Economic Forum in 2015, it’s not hard to see why. Asked point-blank if his company had links to the Chinese government or military, Ren never offered the requisite, emphatic “No,” and broke into a roundabout response, saying: “There’s no need to exert ourselves to explain who we are.”
Eric Harwit, an Asian-studies professor at the University of Hawaii at Manoa and the author of the book China’s Telecommunications Revolution, argues that Huawei’s fortunes have been damaged by Ren’s inability to schmooze and sell. “You need a Jack Ma who can stand up with Trump and shake hands, and Trump can say you’re a great guy,” Harwit said, referring to the effusive founder of the Chinese e-commerce firm Alibaba. “They don’t have a Jack Ma.”
Compounding Huawei’s woes is a history of suspicious behavior. American companies, including Cisco Systems, have accused Huawei of pilfering their intellectual property. Now comes the Meng case, which, according to Harwit, “puts Huawei in the headlines.”
“You jump from sanctions violations to what kind of company is Huawei overall,” he said. “Are they some kind of evil company that is doing the bidding of the Chinese government no matter what?”
Huawei says it complies with all regulations wherever it operates. And more broadly, the company has never been discovered spying in any country. To an extent, it is having to defend itself against crimes of which there is no evidence. With nearly $93 billion in revenues in 2017, it has also done business successfully with a wide range of countries. Yet distrust of Huawei is spreading. New Zealand and Australia recently barred it from providing the equipment for cutting-edge 5G cellular networks.
[Read: America is fumbling its most important relationship]
This widening concern about Huawei is representative of increasing wariness of China. The more assertive Beijing has become in pressing its diplomatic and economic goals—from its state-led ambitions to conquer world manufacturing to the sizable expansion of its military capabilities—the more threatening a rising China has appeared. Foreign governments are, in response, standing in China’s path. Both the United States and the European Union have introduced new policies to more carefully scrutinize foreign investments, an effort clearly aimed at keeping high-tech know-how out of Chinese hands. In Malaysia, Prime Minister Mahathir Mohamad recently halted high-profile infrastructure projects backed by Beijing while warning of a new “colonialism.”
In the Huawei case, American security experts fret that in China, where the distinction between state and society is, at best, blurred, intelligence services could and would exploit the company’s equipment, no matter what its executives promise. “Most of it is a China problem, and it’s gotten worse,” William Reinsch, a senior adviser in international business at the Center for Strategic and International Studies in Washington, D.C., said of Huawei’s issues. “If Huawei was an Indian company, I think that the attitude toward it would be very different.”
Thus China and Huawei are in a reinforcing loop of escalating distrust. The difficulties the company is facing in the United States and elsewhere should be a signal to Beijing’s top leadership that it needs to do more to ease fears about its ascent and ambitions. If not, both could find doors closing that they badly need open.
At the two-hour-long press conference at the company’s campus in Dongguan, Hu declined to comment on Meng’s legal situation, instead arguing that Huawei’s sales figures offered proof of how much its customers trusted it. Still, even at the briefing, the company could stomach only so much openness. Though television correspondents were invited, their cameras were not.
It was probably too little, too late anyway.
“They made a huge foray a while back to try to change their image here and it didn’t work,” Reinsch noted, referring to a past Huawei public-relations effort. Now, he added, “I don’t think it is possible.”
Earlier this year, Robert Frese, a 63-year-old living in a mobile-home park in New Hampshire, posted a pseudonymous Facebook comment declaring that a local police chief was too cowardly to do anything about an allegedly corrupt subordinate. The cops treated that post as a crime. Did that violate the Facebook commenter’s constitutional rights?
Defamation is often thought of as a matter for civil court, where a wronged party can seek recompense for many false, injurious statements. Twenty-five states, though, have criminal-defamation statutes. New Hampshire’s declares that “a person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.”
On Tuesday, Frese sued New Hampshire Attorney General Gordon MacDonald in hopes of permanently invalidating that criminal-defamation law. He is represented by the ACLU, which opposes all criminal laws against defamation, and wants to use Frese v. MacDonald as a test case to challenge their validity.
Robert Frese’s strange story is perhaps best begun in 2012. He repeatedly posted comments on Craigslist alleging that a local life-coaching business was “a scam.” That May, the Hudson Police Department charged him with criminal defamation. He pleaded guilty, and a judge ordered him to be fined and to be on good behavior for two years.
According to The Exeter News-Letter, Frese felt mistreated during a 2013 traffic stop with an Exeter policeman, and was “charged and convicted by Exeter police on charges of stalking in 2014 and criminal trespassing in 2017 for rummaging through a private dumpster.”
[Conor Friedersdorf: The ACLU should keep representing deplorables ]
Then, on May 4, 2018, a local newspaper published a soft feature article headlined “Retiring Exeter Officer’s Favorite Role: Mentoring Youth.” Its subject was the same policeman involved in that 2013 traffic stop. The newspaper posted the article to its Facebook page. That’s when Frese commented, calling the subject of the article “the dirtiest most corrupt cop that I have ever had the displeasure of knowing.” He added that the “coward” police chief did nothing about it.
The newspaper quickly removed the comment at the police chief’s request, but Frese persevered, using another pseudonymous account to comment. “The coward Chief Shupe did nothing about it and covered up for this dirty cop,” he wrote. “This is the most corrupt bunch of cops I have ever known and they continue to lie in court and harass people.” This time, the police chief forwarded the Facebook comment to one of his detectives. Together, they decided that Frese should be charged with a crime.
Critics of criminal-defamation laws have long pointed out that society is awash with claims that are technically defamatory under the statutes—the courts would be overwhelmed if even 1 percent were prosecuted—and that a hugely disproportionate share of the rare cases of actual enforcement involve people in power going after their critics. “Everyone has been waiting for a legal challenge like this,” Ken White, a prominent criminal-defense attorney, told me. When you hear about a criminal-defamation case, “you can be pretty sure that it’s being used to harass, either directly by police or by someone who has the police wrapped around their finger,” he said.
In some of those cases, the criminal charges are dubious even assuming that the underlying statutes are constitutionally valid. White once wrote about a case where a Georgia woman was arrested after posting on Facebook, “That moment when everyone in your house has the flu and you ask your kid’s dad to get them (not me) more Motrin and Tylenol and he refuses.” Her ex was a captain in the local sheriff’s department.
[Read: A defamation suit against the president-elect]
In Frese’s case, the charges were dropped after New Hampshire’s attorney general issued a memorandum stating, “The fact that members of the Exeter Police Department think that Frese’s statements are false does not somehow criminalize Frese’s speech,” adding that the cops made no apparent effort to demonstrate actual malice:
The incident report makes clear that the Exeter Police Department failed to consider this requirement when determining whether to arrest and charge Frese. Instead, the department only considered whether there was credible information to support Frese’s statements.
Specifically, Detective Mulholland expressly stated in his report that he brought the charge against Frese because there was no credible information that Frese’s statements were true. But this is not the legal standard. Without probable cause of actual malice, Frese’s arrest and the subsequent charges against him raised First Amendment concerns.
But remember, the ACLU’s argument is not merely that criminal-defamation statutes are bad policy, or that they are often abused by police officers, or that Frese was wrongfully charged given the language of the law. It is arguing that New Hampshire’s statute violates the Constitution.
Weighing against that claim is the fact that defamation is a recognized exception to First Amendment free-speech protections, that criminal-defamation statutes have a long history in the United States, and that many observers, including the First Amendment expert Eugene Volokh, have previously looked at the New Hampshire statute and concluded that it is constitutional.
But the ACLU argues that the statute is impermissibly vague. The background case law that it cites holds a criminal law to be invalid on those grounds if it fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” or if it “may authorize and even encourage arbitrary and discriminatory enforcement.”
Remember, the New Hampshire statute criminalizes oral or written expression that the speaker both “knows to be false” and “knows will tend to expose any other living person to public hatred, contempt or ridicule.” What’s so vague about that?
[Read: Does the First Amendment protect deliberate lies?]
To understand the ACLU’s view, it is useful to take a detour to Alaska, where the state supreme court once issued a ruling in a case involving George Gottschalk, who got his truck towed away one night by a state trooper. When he went to retrieve it, he falsely claimed that $250 was missing from the glove compartment, even filing an inaccurate police report.
That false report was a crime. But a conviction for criminally defaming the state trooper was overturned and the statute was struck down for vagueness.
The majority opinion began by reasoning that “criminal laws must give the ordinary citizen fair notice of what is and what is not prohibited,” and that “people should not be made to guess whether a certain course of conduct is criminal.” For that reason, “where because of its imprecision a vague statute may restrict the exercise of rights guaranteed by the First Amendment,” the court ruled, “it is said to be overbroad.”
Alaska’s criminal-defamation statute did not define what was defamatory, so the court relied on the common-law definition, which it articulated as “any statement which would tend to disgrace or degrade another, to hold him up to public hatred, contempt or ridicule, or to cause him to be shunned or avoided”—not entirely different from New Hampshire’s language. “In our view,” the court ruled, “this falls far short of the reasonable precision necessary to define criminal conduct.”
Here’s the core of the court’s reasoning:
Whether an utterance is defamatory depends on the values of the listener. Even in an ethnically homogeneous culture these values will not be uniform, and it is not always easy to predict what will be taken as defamatory. The confusion is compounded in Alaska, because among the several ethnic groups which reside here there may be divergent views on what is, and what is not, disreputable…
The decision went on to declare that “one evil of a vague statute is that it creates the potential for arbitrary, uneven and selective enforcement.”
In holding the statute unconstitutionally vague, however, the Alaska court added, “we do not decide … whether all conceivable criminal libel statutes are necessarily vague.” Given “a narrowly drawn statutory definition, especially one designed to reach words tending to cause a breach of the peace, then such a statute might well be proper,” it ruled.
The ACLU believes the New Hampshire criminal-defamation statute to be impermissibly vague in much the way that the Alaska court articulated.
It argues that criminal statutes implicating the First Amendment require a greater degree of specificity than usual, as statutes of that sort invariably inhibit the exercise of protected speech when they abut it. And it goes further than Alaska, contending that the line between protected speech and defamation is often so blurry as to be permissible in civil law but inappropriate for criminal law as a general matter, given how prone it is to arbitrary, uneven, and selective enforcement.
I ran the vagueness argument by Volokh, asking if it changed his view of the New Hampshire law and whether it was likely to survive a court challenge. “I agree that the Gottschalk decision is helpful to the ACLU; perhaps it will ultimately carry the day,” he emailed back—but that isn’t the outcome on which he’s betting.
He cited several cases to ground his contrary analysis, including Garrison v. Louisiana, a 1964 case in which New Orleans District Attorney Jim Garrison was convicted of criminal libel for stating that the court system was backed up because a number of state judges were lazy and inefficient.
The Supreme Court declared Louisiana’s criminal-libel law unconstitutional, in part because it restricted the use of truth as a defense and did not require proof that forbidden statements were uttered with malice. But Justice William Brennan wrote that “although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.”
That’s one of several passages that color skepticism of the ACLU’s case. Says Volokh:
I think that the likelier scenario is that the New Hampshire law would be viewed as sufficiently narrow and sufficiently clear to be constitutional, given Herbert v. Lando and Garrison v. Louisiana. This is especially so because the “tends to expose to public hatred, contempt, or ridicule” test has a long history to it, and because there has to be a showing that the speaker actually knew that the statement had that tendency.
“[T]he knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement.” Holder v. Humanitarian Law Project (2010).
Whether or not the ACLU prevails, this case ought to prompt legislators in the 25 states with criminal-defamation statutes to reflect on the wisdom of maintaining them, even if they do pass constitutional muster. “Of course, freedom of speech does not give anyone the absolute right to spread malicious lies about their fellow citizens,” the ACLU argued in a blog post released as it filed the case. “That’s why our laws allow people who have been slandered to file civil lawsuits for money damages.”
“Civil lawsuits are fully capable of addressing the harms caused by defamation, which is why criminal-defamation prosecutions became increasingly rare over the course of the 20th Century,” it added. “But in states that still have criminal-defamation laws on the books, public officials still use them to prosecute their critics or to punish people who don’t have the resources to sue for money damages.”
Actually, that wrinkle about punishing people who have too little money to sue cuts in two directions. Hiring a lawyer and filing a lawsuit is expensive. What’s your remedy in a digitally connected world where there are no criminal penalties for defamation, you’re barely scraping by, your ex-boyfriend doesn’t have a penny to his name, and he keeps going online and falsely asserting that you’re a thief who steals from all her employers and infects all her lovers with STDs?
Criminal defamation may be rarely prosecuted now, and absent in 25 states, but it’s conceivable that the mass-publishing platform that the internet puts in everyone’s hands will make criminal-defamation laws more popular at some point. I’d remain skeptical, given the impossibility of policing the web without destroying much of its value; the rampant political abuses tied to criminal defamation and its cousin, seditious libel, in U.S. history; and the mischief presently done under similar laws by authoritarians abroad.
Put another way, there is a public interest in preventing defamation. But the costs of doing so through criminal law are too high, whether or not it passes constitutional muster.
Are you ever tempted to believe that right-wing judges are just passive umpires who call balls and strikes? That they only “enforce the Constitution” or “read the statute”? Judge Reed O’Connor of Texas should cure you of that misimpression. On Friday, when he declared the entire Affordable Care Act invalid, he said he was only doing what the Constitution requires. But in deciding the case, he violated the very document he claimed to be applying. And he did it without any plausible justification at all, in defiance of basic legal principles.
Article III of the United States Constitution says that the federal courts can hear only “Cases and Controversies.” The Supreme Court has read that to mean that you can’t bring any old political gripe into court. You’ve got to suffer a concrete injury if you want to make a federal case out of it. Otherwise, courts would have the power to resolve abstract disputes that should be left to the political process.
Want the federal government to stop giving a tax break to racially discriminatory schools? Sorry, you don’t have standing. Angry that federal agencies are financing projects that might harm endangered species in foreign countries? Tough luck. You haven’t suffered an injury. Upset that a website has published incorrect information about you? Don’t come to court unless you can show that you’ve suffered some kind of harm.
The plaintiffs in the Texas lawsuit? They also don’t have standing. It’s not even close.
[David Schwartz: Why John Roberts should have listened to John Marshall]
The case was originally brought by a group of 20 red states. According to them, the so-called individual mandate became unconstitutional when Congress eliminated the financial penalty for going without insurance. And if the mandate is unconstitutional, then the entire law is null and void. But the states aren’t subject to the individual mandate. People are. And the states don’t have standing to complain about a mandate that doesn’t even apply to them.
And so, the red states added new plaintiffs—two self-employed Texans, John Nantz and Neill Hurley, who say they have to pay higher prices for insurance because of Obamacare. They may be right about that: If the law were wiped from the books, insurers could refuse to sell insurance to sick people. That would allow insurers to charge healthy people less for their coverage.
But freewheeling complaints about the Affordable Care Act aren’t enough to give Nantz and Hurley standing, any more than they’d be enough for the red states. “Standing is not dispensed in gross,” as the Supreme Court has said. To have standing to sue, Nantz and Hurley have to show that the individual mandate caused them some kind of injury.
And they can’t do that. Remember, the entire basis for this lawsuit is that Congress, in 2017, repealed the tax penalty for going without coverage. That means Nantz and Hurley are free to buy insurance, or free not to. The individual mandate doesn’t force them to do a damn thing.
[Read: What happens to Obamacare now?]
O’Connor, however, really wanted to hear this case. So he stretched. He drew a sharp distinction between the individual mandate—the instruction to buy insurance—and the tax penalty for going without. Although Congress has zeroed out the penalty, the (now unenforceable) mandate is still on the books and “requires [Nantz and Hurley] to purchase and maintain certain health-insurance coverage.”
That’s not true: The ACA requires nothing of the kind. If you don’t believe me, believe the Supreme Court. In the first round of litigation over the individual mandate, the Court held that every person has “a lawful choice” to purchase or not purchase health insurance, “so long as he is willing to pay a tax levied on that choice.” Eliminating the tax penalty eliminates the consequence of that choice, but it doesn’t transform the individual mandate into a legal command.
Or look at the ACA itself. From the moment it was adopted, the ACA has said that “no penalty shall be imposed” on certain people, including American Indian tribal members and those with brief gaps in coverage. The law characterizes them as “exempt.”
In O’Connor’s view, all those people are still nominally compelled to adhere to the (unenforceable) mandate—which means they’re in exactly the same position as Nantz and Hurley, and have been for years. It would follow that these exempt people have been legally required to buy insurance all along, and that they all broke the law if they didn’t. Really?
Nantz and Hurley say they feel “obligated” to buy insurance because they “believe that following the law is the right thing to do.” But, again, the law doesn’t obligate them to do anything. It’s all in their heads. And, as the Supreme Court has said, plaintiffs can’t “manufacture standing merely by inflicting harm on themselves.”
[Read: The GOP is suddenly playing defense on healthcare]
O’Connor rejected that line of argument, saying that it “begs a leading question in the case by assuming that the Plaintiffs need not comply” with the individual mandate. But even assuming that the Texans are right that they’re technically obligated to buy insurance, being subject to an unenforceable legal command doesn’t count as an injury. The Supreme Court has flatly held that “a plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.”
So it’s not enough that you feel compelled; you must actually be compelled. In one D.C. Circuit case, for example, a family-planning group challenged a provision that prohibited recipients of government grants from discriminating against individuals who refuse to provide abortions. The family-planning group said it was laboring under an unconstitutional obligation. That’s not enough for standing, said the court, because there was no reason to think that “good-faith conduct violating a grant condition would trigger an immediate funding cut-off.” No risk of enforcement, no standing. Similar cases led to similar outcomes.
Which is why this case should have been dismissed shortly after it was filed—and why O’Connor’s decision is vulnerable on appeal. Standing doctrine is near and dear to the hearts of the conservative legal establishment. The principal architect of modern standing doctrine was none other than Justice Antonin Scalia. The Fifth Circuit is full of Republican-appointed judges who endorse strict standing rules. Chief Justice John Roberts is a standing hawk, as was Justice Brett Kavanaugh when he served on the D.C. Circuit.
Granted, it’s possible that conservative judges will endorse O’Connor’s slipshod analysis. Standing doctrine is notoriously flexible, and you could be forgiven for thinking that judges sometimes deploy the doctrine to suit their politics.
But there is no good legal argument for thinking that two guys from Texas have standing to challenge a law that doesn’t require them to do anything. O’Connor’s decision is indefensible, and I bet even the conservative judges who hear an appeal will see matters the same way. That is, after all, what the Constitution demands.
Last winter, a recipe for salted chocolate-chunk shortbread cookies spread through my social circle like a carbohydrate epidemic. One of my friends kept seeing the cookies pop up on Instagram and, relenting to digital peer pressure, eventually made them. She brought half the batch to a dinner party, and then it was off to the races. For months, it felt as if every time I showed up to a party, someone else was pulling a Tupperware container out of a tote bag, full of what was eventually known among us as just The Cookies.
The particular look of The Cookies—chunky and squat, with a right-angled edge rolled in Demerara sugar, finished with flaky salt—made them distinctive in a way that few recipes are, which in turn made the recipe, from the chef Alison Roman’s Dining In cookbook, an easy shorthand. As each subsequent friend made and presented their cookies, they’d note how the process went. It was as if everyone I knew had taken up baking. Via the social-media response to her book, Roman noticed the same thing. “It seemed to be a lot of first-time bakers making the cookies, like it was a fun, social art project,” she says. Beyond The Cookies, people I follow on Instagram and Twitter had also started turning out pies, cakes, tarts, and breads.
Millennials’ supposed aversion to daily cooking and lack of kitchen competency is well-worn fodder for concern trolling, but the generation’s actual relationship to food prep appears to be more complicated. Surveys concluding that people in their 20s and 30s cook less usually measure day-to-day meal preparation, which doesn’t tell the whole story. Young Americans’ long work hours might mean they’re less likely to come home every night in time to roast a chicken instead of ordering takeout, but many of them seem to have turned to weekend baking as a salve for the ambient anxiety of being alive in 2018. There’s a good reason for that: Baking actually can be really relaxing.
According to the American Psychiatric Association’s annual poll, 40 percent of Americans report feeling more anxious in 2018 than they did in 2017, which saw a 36 percent increase over 2016. “We’re at a time when people who aren’t used to any self-care practices are having to develop them for the first time in their lives,” Kat Kinsman, a food journalist who’s written a book on her struggles with anxiety, told me. “People are afraid to spend money, and they’re feeling like shit. Baking is cheap, it’s easy, and it’s visceral.”
That combination of attributes brought Kinsman back to baking while in grad school for metalworking, years after she had taken it up as a quiet, nerdy kid in order to offer treats to friends. As an adult, she was broke, stressed out, and in need of something pleasant to do with her hands to contrast what she did in her classes. “You’re digging your hands into something pliable, and with an immediate result to it,” Kinsman said. “Everything else seemed so distant and painful, in a way, and this was something I could whip out and there it was. Instant gratification.” Even when she was too stressed out to eat the result herself, she’d bring her cookies and cakes into school. (Apparently the stress eaters in her program also profited.)
Folu Akinkuotu, a 28-year-old who lives in Boston and works in e-commerce—and someone whose impressive off-hours baking exploits I follow on social media—also started baking more in college as a way to make friends during her freshman year. Now she does it as a foil to the ephemerality of her professional life. “It’s nice to be able to bake and know that I’m creating something that has a beginning and an end and people can enjoy it,” she says. “A lot of people have jobs that traffic in ideas or theoretical things, so it’s nice to make physical things.”
At the beginning of 2018, Akinkuotu took things a step further, challenging herself to make one elaborate cake per month until the end of the year. “I wanted to give myself some structure, because I don’t have a ton of that in my life,” she says. “There’s work, but being a young person who lives alone, my time is always my own, pretty much. It’s nice to have a deadline.”
Alice Medrich, a baking expert and cookbook author, agrees that baking is a particularly effective activity for those whose professional lives exist mostly in the abstract. “People who are educated sometimes think that working with your hands is a lesser thing,” she argues. “They sort of miss what that can do for you—the calming, and the sense of satisfaction.” As jobs for young people become more gig-centric and internet-based, those who do them can easily feel alienated from the product of their labor, and the satisfaction of creating something wholly for yourself and those you love can provide an important mental balance.
In addition to the satisfaction of creating, the process of baking itself can be calming. “Baking is mindful. Mindfulness means paying attention to yourself in the moment and not being in the past or the future, but really being there,” says Philip Muskin, a Columbia University psychiatry professor and the secretary of the American Psychiatry Association. Buzzwords aside, baking does indeed force you to put down your phone, get your hands dirty, and pay close attention to what you’re doing. Muskin says it can have an emotional impact akin to practices that are intended to more directly affect mood, such as meditation or breathing exercises.
If you’re more inclined toward cooking instead of baking, that can have some of the same positive effects, according to Muskin, but there’s something about dessert that’s just a little bit more fun. Most baked goods still taste good even if they’re not perfectly executed, and they have a wide-ranging portability that doesn’t apply to, say, a medium-rare beef tenderloin. Akinkuotu often brings her cakes to parties, including a friend’s recent birthday outing to a bar. “Everyone got drunk, and then we ate it with our hands. It was like 2 a.m. and there’s this half-eaten cake with just, like, giant hand scrapes out of it,” she remembers. “My friend woke up with [the cake] in her bed the next morning. You can’t really do that with a coq au vin. It’d be a little weird.”
If Beale Street Could Talk is a lush, immersive film. It envelops viewers in the dynamic love its characters have for one another, and that its creators have for their work. The Barry Jenkins–directed adaptation of James Baldwin’s 1974 novel follows Tish (played by KiKi Layne) and Fonny (Stephan James), a young black couple who must reorient their relationship after Fonny is arrested for a crime he didn’t commit. Tish and Fonny revel in the euphoria of their union, but their bliss is always haunted. Like Baldwin’s original text, the movie is alternately joyous and mournful.
The film, which opened in limited release December 14, presents a multifaceted vision of the world Baldwin inhabited and the legacy he created. Among Beale Street’s most resonant elements is its evocative score. The meticulously crafted musical backing ties the movie’s emotional milestones together with a deft, empathetic touch. Tish and Fonny’s love crests on sweet notes; their struggles reverberate with jarring rumbles.
Ahead of Beale Street’s release, The Atlantic spoke with the film’s composer, Nicholas Britell, about collaborating with Jenkins, channeling the sound of 1970s Harlem, and capturing “the musical analogue” of joy. This interview has been edited for length and clarity.
Hannah Giorgis: How did you and Jenkins first meet?
Nicholas Britell: One day, [Jeremy Kleiner, a producer on The Big Short, and I] were having dinner, and he got very emotional while talking about this beautiful script called Moonlight. And I remember saying to him, “Could I read that? That sounds amazing.” When I read it, I immediately knew what he was talking about. The script was so profoundly beautiful in an almost inexplicable way. It was this piece of poetry.
I said to Kleiner, “Is there any way I could maybe … meet Jenkins one day or anything?” And Kleiner connected the two of us. [Jenkins and I] met up for coffee in downtown L.A., and we ended up having this multi-hour conversation over some glasses of wine. I think we both felt that there was this real connection of how we were both thinking about things.
Giorgis: What’s your process with Jenkins like? How do you two first start thinking about the role a score will play in the film you’re working on?
Britell: On Beale Street, one of the first things Jenkins said to me was—and this was before he shot the movie, [but] I’d read the book, read the script—he said that he was hearing brass, he was hearing horns, and that was the first intuitive idea of a feeling. I love getting that sort of broad but focused idea. I can say, What does that mean to me based on my feelings and based on what I’m imagining for the film? And this is before I’ve seen any footage. [Laughs.] That’s something that Jenkins and I do a lot: We focus on these feelings and these emotions, and we know we’re gonna learn along the way.
[Read: How Barry Jenkins turned his James Baldwin obsession into his next movie]
So I actually wrote a piece of music—the first thing I wrote for the film—exploring the sound of mixing trumpets and flügelhorns and cornets and French horns. Jenkins really loved it, but when we put it up against some early sequences of the movie, it just felt like it was missing something. It didn’t feel quite right yet for the film. And that led us to, What was it missing? And we realized that the musical landscape was missing strings. For us, the strings became like a musical exploration or expression of love. What’s remarkable about the way Jenkins made the film is that it explores so many different kinds of love. It explores the love of parents for their children, it explores romantic love, it explores this divine, pure kind of love that exists between people. The strings came to symbolize that for us in a lot of ways.
One of the main [musical] themes in the film is the notes from that first piece that I’d written for brass, [even though] that actual brass piece is not in the movie. It’s like the mold of a sculpture. We included it as one of the bonus tracks on the score album—it’s called “Harlem Aria.”
Giorgis: As you read the book and the screenplay, did you find yourself hearing anything?
Britell: I’m from New York, and to me there are certain sounds that feel like mid-20th-century New York. Jenkins and I did talk about the idea of jazz, but, again, as a starting point. There’s Miles Davis, there’s John Coltrane in the film, there’s Nina Simone in the film. [We asked ourselves,] What is the sound of the score gonna be that actually can blend with that, but is also a counterpoint to that?
With Moonlight, early on, Jenkins said he knew he wanted an orchestral sound. We explored the idea of chopped and screwed hip-hop, and then we had this idea of taking the music I was writing, taking my own recordings, and [asking], What if I actually chop and screw my own classical music? I think with Beale Street, though, we’re at a starting point where we know New York in the 1970s, we imagine that world, and Jenkins is feeling brass and horns. When we started incorporating strings, there’s something about the score that is classical as well. It’s very classically written out, but at the same time there are jazz harmonies. I think music is this incredibly fluid space, and sometimes the labels create boundaries that aren’t really there. It was actually very exciting to see the ways that these genres all blur together, and to look at the notes and be like, If I play the same chords with six cellos, all of a sudden I don’t even know what it sounds like.
Giorgis: The score is so gorgeously integrated throughout the film. After those first impulses, did you score primarily to a rough edit of the movie, or was it a more iterative process?
Britell: We get down into the most micro-level details of, Is there music here? Why are we putting music here? Or if there’s a scene that doesn’t have music, Should there be music here? What would we do? And the coolest thing is—let’s say I have an idea. I could say, “Maybe we should try something like this here.” Jenkins always says, “Show me.” And it’s so empowering because you feel safe to try anything out, and even the things that don’t “work,” they tell you what might work. So it’s always this very constructive road that you go down with Jenkins, where you feel like you’re progressing on this path to figuring out what the final emotional musical landscape will be.
Giorgis: How do you know when you’ve landed there?
Britell: I never show Jenkins anything unless I love it. My own personal rule is that I’m only ever gonna show a director an idea if I personally love it—if I like it both as a piece of music and for the film. For me, it has to work in both ways. And then, ultimately, Jenkins has amazing instincts. He knows right away if it doesn’t work. And it’s great because I trust so much that he knows. I feel so much of this is about that kind of artistic trust.
Giorgis: Are there any moments from the film that stand out to you, that feel particularly special?
Britell: There’s a lot of parts in Beale Street that really stand out for me. I think on just an emotional level, [I’d point to] the music that you hear at the beginning of the film but that then recurs in two other key places. It comes back in the early montage [showing] how Tish and Fonny have known each other since childhood, and it also comes back when they are yelling to the sky with joy for their realization that they may be able to get that apartment. One of Jenkins’s notes to me on the feeling that he wanted, especially there at the beginning, was this feeling of joy. What does joy sound like?
I remember in the script, there was this beautiful way that Jenkins had written [a scene about] Tish and Fonny. I believe it was literally like, They shout to the sky out of joy, and I was trying to think, What is the musical analogue of that? What would that sound like? We’d been talking about brass and so I was imagining, What if you had, like, a trumpet, almost like this motif where it’s sort of, like, shooting upward? And so I started writing this music where there were these horns that were exalting, and then I started evolving some of the melodies, some of the harmony from that “Harlem Aria” piece. I came to this place that was quite different, but I remember feeling very moved by the connection of the song with the picture.
Giorgis: How did you think about reflecting the film’s attention to both that sense of joy and the real hardship that Fonny, Tish, and everyone around them face?
Britell: There are two real soundscapes that exist in the film. One is the world of strings and brass and love. And then there’s a world of darkness and the horrors of unjust incarceration, and I think that we crafted a very different sound world for that. For example, when you see Daniel [an old friend of Fonny’s who was incarcerated on false charges, played by Brian Tyree Henry] and Fonny, and Daniel’s talking about how he just got out of prison and he’s telling Fonny about his experience, there’s “Blue in Green” by Miles Davis playing on the record player. [Jenkins and I] had this realization like, What if while they’re listening to this track, what if at the exact same time we start bringing in this rumbling score underneath them, something that feels like you’re sitting on the doorway to hell? There’s this underworld and this fear and this horror. It was pretty amazing because we didn’t have any score in that scene at all, it was just the Miles Davis playing, and Jenkins said, “What if we just keep the Miles Davis playing while this [other sound] comes in?”
Stephan James (left) and Brian Tyree Henry (right) in If Beale Street Could Talk (Annapurna Pictures)So we took the Miles Davis and ran it through this reverb. You maybe didn’t notice it at first, but it felt like, We’re with Daniel and Fonny, and our own perception is being altered. I think there’s something that happens when the music that’s in the world of the characters and the score, which is in our world, when they can speak to each other and they connect. It’s like the screen of the movie goes away and you’re right there in that moment with the characters. That was something we experienced ourselves, and it was very intense. [Laughs.]
That sound world is almost like a horrific doppelgänger of the music of love, which exists throughout the film. And the way that I made that rumbling sound was I took one of the elements that’s in the piece “Eros,” which you hear while Tish and Fonny are making love for the first time, and I distorted it. Jenkins and I do these kind of musical symbols sometimes where the world is distorting and trying to harm this love between Tish and Fonny, and so, whether it’s conscious or not, musically you’re hearing that.
Tapping through Palak Joshi’s Instagram Stories recently, you might have come across a photo that looked like standard sponsored content: a shiny white box emblazoned with the red logo for the Chinese phone manufacturer OnePlus and the number six, shot from above on a concrete background. It featured the branded hashtag tied to the phone’s launch, and tagged OnePlus’s Instagram handle. And it looked similar to posts from the company itself announcing the launch of its new Android phone. Joshi’s post, however, wasn’t an ad. “It looked sponsored, but it’s not,” she said. Her followers are none the wiser. “They just assume everything is sponsored when it really isn’t,” she said. And she wants it that way.
A decade ago, shilling products to your fans may have been seen as selling out. Now it’s a sign of success. “People know how much influencers charge now, and that payday is nothing to shake a stick at,” said Alyssa Vingan Klein, the editor in chief of Fashionista, a fashion-news website. “If someone who is 20 years old watching YouTube or Instagram sees these people traveling with brands, promoting brands, I don’t see why they wouldn’t do everything they could to get in on that.”
But transitioning from an average Instagram or YouTube user to a professional “influencer”—that is, someone who leverages a social-media following to influence others and make money—is not easy. After archiving old photos, redefining your aesthetic, and growing your follower base to at least the quadruple digits, you’ll want to approach brands. But the hardest deal to land is your first, several influencers say; companies want to see your promotional abilities and past campaign work. So many have adopted a new strategy: Fake it until you make it.
Sydney Pugh, a lifestyle influencer in Los Angeles, recently staged a fake ad for a local cafe, purchasing her own mug of coffee, photographing it, and adding a promotional caption carefully written in that particular style of ad speak anyone who spends a lot of time on Instagram will recognize. “Instead of [captioning] ‘I need coffee to get through the day,’ mine will say ‘I love Alfred’s coffee because of A, B, C,’” Pugh told me. “You see the same things over and over on actual sponsored posts, so it becomes really easy to emulate, even if you’re not getting paid.”
[Read: How hackers are stealing high-profile Instagram accounts]
When a local amusement park paid several bloggers to attend the venue and post about their experience there, Joshi, a fashion and lifestyle influencer, went on her own dime and posted promotional posts as if she were part of the bigger influencer campaign.
Taylor Evans took the fake-“sponcon” game one step further, once faking the entire purpose of a trip to Miami. Technically, she was just there on vacation, paying her own way for everything, but on Instagram she positioned it as an exclusive press trip. “I took a lot of pics at restaurants and posted ‘Thanks so much XYZ restaurant for the hospitality!’” she said. “You say it in a way that people could interpret it as you having an established relationship with that brand … The hope is that it’s perceived in a way that looks like there’s a reason you’re in a different city and state, not just enjoying a weekend vacation.”
a five year old model keeps commenting on my band's fake sponsored posts. welcome 2 the Internet
— Justine Dorsey (@justinedorsey) January 23, 2017Jason Wong, the founder of the false-eyelash company Doux Lashes, said he’s surprised at the levels to which aspiring influencers have gone to promote his brand for free. “Normally influencers did one post for one product,” he said. Now “we’ve seen influencers do two to three posts for one product. They want to have a continuous stream of content to make it seem like it’s sponsored.”
Monica Ahanonu, an illustrator and Instagram influencer with nearly 12,000 followers, said that fake ads have become so common that she’s not even sure who is sponsored and who is pretending. While the Federal Trade Commission recently ruled that paid advertisements must be disclosed, influencers regularly flout those guidelines. And there are no rules against people who aren’t paid captioning their photos to make them sound like paid disclosures. Ahanonu herself posted an Instagram recently featuring custom artwork promoting a Chanel cosmetics kit. She didn’t receive payment or any product in exchange, but her post would look right at home among other Chanel ads.
For the average consumer, things become blurry quickly. Many fashion influencers tag the brands they’re using in photos, whether the clothes were purchased, given to them for free, or are part of an ad campaign. Lifestyle blogging is all about seamlessly monetizing your good taste and consumer choices, which means it can be near-impossible for laypeople to tell if an influencer genuinely loves a product, is being paid to talk about it, or just wants to be paid to talk about it.
When Allie, a 15-year-old lifestyle influencer who asked to be referred to by a pseudonym, scrolls through her Instagram feed, sometimes the whole thing seems like an ad. There’s a fellow teen beauty influencer bragging about her sponsorship with Maybelline, a high-school sophomore she knows touting his brand campaign with Voss water. None of these promotions, however, is real. Allie is friends with the people posting, so she knows. She once faked a water sponsorship herself. “People pretend to have brand deals to seem cool,” Allie said. “It’s a thing, like, I got this for free while all you losers are paying.”
“In the influencer world, it’s street cred,” said Brian Phanthao, a 19-year-old lifestyle influencer in San Diego who sees fake ads all over Instagram. “The more sponsors you have, the more credibility you have.”
Phanthao said most of the people he sees doing it grew up watching influencers and now aspire to their lifestyle. “It’s really common with kids in high school,” he said. “They’re very influenced by influencers.” At first he was astounded that brands he recognized would partner with some of the people he saw on his feed. But when he cross-checked the brands’ websites, he couldn’t find their names.
this girl I know really had a sponcon themed bday party. wow what an example of fake it til u make it.
— Jessica Jacolbe (@jessjoycej) April 30, 2018Henry, a 15-year-old beauty influencer who asked to be referred to by his first name only, said he doesn’t post fake ads himself, but said he noticed his social status rise as he got more attention online this year. “People come up to me at school like, ‘Do you get sponsored?’” he said. “When I say I do they’re like, ‘OMG that’s so cool.’ I noticed the more followers I gain, the more people in the hall come up and talk to me.”
[Read: Posting Instagram sponsored content is the new summer job]
But of course, clout is just a means to an end, and ultimately, most of the people posting fake ads hope to eventually get paid to post real ones. Evans said staging these fake promotions “makes you seem like you’re in a position to be getting things for free, which helps you build your brand or media kit … It makes you seem more established, like you have brands that you’re working with. That means you’re producing good content and you’re worthy of approaching and offering these opportunities to.”
After Samantha Leibowitz-Bienstock, a lifestyle influencer who posts under the name Trendy Ambitious Blonde, posted a photo of herself with a Betsey Johnson bag she purchased with her own money and tagged the company, she was featured on its website. She wasn’t paid, but she considered it a win for her personal brand.
But while some companies are thrilled with the free promotion, for others it’s become a headache. The owner of one sunglasses brand, who asked to remain anonymous so as not to alienate anyone in the influencer community, said the practice has put him in a tough position as a stream of mid-level influencers post mediocre-quality sponsored content seemingly on his behalf, without his approval or control.
He has seen influencers thanking his brand for “working with” them when he knew they had never partnered. “We do encourage our fans to put our stuff on Instagram. That’s how we grow,” he said. But he added that he was worried that some people appearing to be brand ambassadors could ultimately damage his business’s reputation. Though he has considered it, he has never reached out to any of the influencers and asked them to take their post down. To him, that feels like even more of a risk. “These people are looking for the most amount of attention, so if they want to make it seem like they’ve been wronged in any way by a brand, they will,” he said.
And then there’s the fact that fake sponcon misleads would-be partners. Wong was once a Tumblr star himself, and he knows the ins and outs of online marketing. But even he was recently duped. After hiring one influencer to promote his product, he later found out that all of her brand deals were fake. Now he cross-references all potential partners, calling up other brands they’ve claimed to work with to see if that work was paid.
If I see any more “self made entrepreneurs” flexing their rented Lamborghinis and fake Rollies in sponsored posts on Instagram I am ending it all
— Sinferna (@withthedraco) October 4, 2018Though it may seem like a useful tactic when you’re starting out, more established influencers worry that fake sponcon is creating a race to the bottom. Because brands can piggyback off of waves of unpaid influencer promoters, some have ceased paying influencers completely, or now pay rates far below what they previously spent.
“I don’t think people know they’re screwing each other over,” said CJ OperAmericano, a 22-year-old TikTok star. She has watched rates plummet as the industry becomes more saturated, and she recently lost out on a brand campaign to someone who offered to do it for a tenth of the price. People now treat brand deals “like a verification badge,” she said.
Vingan Klein said she can’t blame the young fashion influencers she sees coming up today for their hustle. “Trying to get sponsored is your way out of this rat race,” she said. Teens today realize that “you don’t have to go up this hierarchy; you can skip the middleman,” she added. “Besides, what do the followers know?”
Every so often, the American West seems to lurch into something called a “mega-drought.” The rains falter, the rivers wither, and the forests become tinder boxes waiting for a spark. Mega-droughts are notoriously hard to study—the last one happened in the 16th century—but what we do know is worrisome. In the 1540s, a few wet years in the middle of a mega-drought may have triggered one of the worst disease epidemics ever recorded.
According to research unveiled last week, mega-droughts may no longer be history. On Thursday, a team of climate scientists argued that the American West may currently be experiencing its first mega-drought in more than 500 years. A record-breaking period of aridity set in around the year 2000 and continues to this day, they said.
“The last 19 years have been equivalent to the worst 19 years of the worst mega-droughts on record,” said Park Williams, a professor of bioclimatology at Columbia University, at a presentation of the work. Only three recent mega-droughts—in the late 800s, the mid-1100s, and the late 1500s—were worse than the current period, he added.
Climate change seems to be driving a good chunk of the problem. “The current drought is substantially worse than it would have been without global warming,” Williams said. The drought was 62 percent more severe than it would have been, he said, due to human-caused climate change.*
Williams presented the results to a standing-room-only session at the American Geophysical Union’s fall meeting, the year’s largest planetary-science conference. The work has not yet been peer-reviewed. While it’s a common practice to share preliminary work at a scientific meeting, Williams didn’t comment directly for this article; academic norms discourage researchers from publicly discussing a study before its formal publication.
But other scientists told me that the work makes sense, saying it was “quite plausible” that the American Southwest is in a mega-drought right now. And no matter what, it’s clear that the region is in the middle of a far-reaching climatic transformation.
“The definition of mega-drought technically is open to debate,” said Jonathan Overpeck, a climate scientist at the University of Michigan. Two decades ago, he and the climate scientist Connie Woodhouse coined the term mega-drought in a paper, specifying that such a drought must last 20 years or more.
“The drought in the Southwest is now in its 19th year. So it’s right on the cusp of technically being a mega-drought,” Overpeck told me.
The current drought is “relentless,” he said, with consequences that reverberate across the West. “It’s reflected in the levels of Lake Mead and Lake Powell, the two largest reservoirs in our country … You see it in the way the forests are outright dying in some places, in big insect outbreaks as [plants] are weakened by a lack of moisture in the soil, in more catastrophic wildfires. There’s a lot of signs this drought is unusual.”
He said that two different events seem to be driving the crisis. First, the region is receiving less rain than normal. Second, the Southwest as a whole is systematically warming up and drying out. It’s becoming a more desertlike place, a process that scientists call aridification. “Most of the work points to aridification being dominant” in driving the modern drought, Overpeck said.
The new work from Williams and his colleagues may support the same idea. They began by looking at the climatic record preserved in tens of thousands of tree rings across the American West. By using a simple form of machine learning on that data and calibrating it to modern weather records they pieced together the past 1,200 years of soil moisture in the West. (Williams’s team includes Ed Cook, who practically invented the modern study of tree rings.)
[Read: The map hidden in the Pacific Northwest’s tree rings]
Consulting this record, they found that the current drought does not perfectly resemble historic mega-droughts. While previous droughts were concentrated in just one or two places in the West, the current drought covers almost half of the country. Climate models suggest that this huge territorial extent may be caused by the extreme heat and dry air that’s plagued western states in the past few decades. “What may have just been a drought in the Southwest is now a drought across the entire study region,” Williams said at the conference.
Scientists have long suspected that aridification could cause problems across the West—mega-droughts included. Two years ago, a paper in Science Advances warned—with 99 percent certainty—that a southwestern mega-drought would occur by 2100 if greenhouse-gas emissions continued to balloon through the next several decades. In another paper, Williams and some of his same colleagues found that increased heat in the West has exploded the size of wildfires since the mid-1980s.
[Read: The simple reason that humans can’t control wildfires]
But Williams believes that climate change is not solely to blame. “The current drought would have been occurring anyway without global warming, but it would only have been the eighth- or ninth-worst on record,” he said. Instead, it’s the fourth-worst in the past 1,200 years.
Woodhouse, who coined the term mega-drought with Overpeck, told me that this effect may be the most important finding of the new paper. “The current 19-year period is different [from] 19-year periods in the past for the simple reason that it is occurring under warmer temperatures,” she said in an email. “In essence, a garden-variety drought (in terms of precipitation deficits) + warming = a much more severe drought.”
Overpeck agreed. “The warming is having a huge effect—a huge effect on water resources and a huge effect on forests,” he said. “People knew there would be an effect, but we didn’t know it would come this big, and this fast.”
* This article previously misstated the amount by which human-caused climate change worsened the current drought.
It began with a meeting in New York in September 2016 between the future national-security adviser Michael Flynn and Turkish government officials, in which they discussed kidnapping an exiled cleric and turning him over to Ankara. A curious op-ed followed, in which Flynn alleged that the cleric, Fethullah Gulen, led a “dangerous sleeper terror network” and needed to be extradited. U.S. prosecutors soon took notice, and Flynn and two of his business associates were ultimately revealed to have been on a foreign government’s payroll in 2016, lobbying against the interests of the United States—and to have tried to cover it up when they got caught, according to court documents filed on Monday.
All three men, Flynn, Bijan Kian, and Ekim Alptekin, have now been targeted by the Justice Department for running afoul of either the Foreign Agents Registration Act (FARA) or 18 U.S.C. 951—laws that were once rarely prosecuted but have proved useful to prosecutors investigating the foreign-influence campaigns that permeated the United States in 2016 and beyond.
The uptick in charges related to violations of FARA and 951, which criminalize acting in the United States as a foreign agent without notifying the government, reflects a surge in these prosecutions, legal experts told me. Russia’s interference in the election, combined with a Justice Department inspector-general report published in 2016 outlining how FARA was being “underutilized” as a counterintelligence tool, has resulted in a strategic shift in how the department chooses to hold unregistered foreign agents accountable.
Securing cooperating witnesses, who can be valuable to investigators probing intelligence-gathering operations and propaganda campaigns being directed from abroad, has also been a factor.
Over the course of the nearly two-year-old probe into a potential conspiracy between President Donald Trump’s campaign and Russia, prosecutors have effectively used a commonplace practice among lobbyists—evading FARA registration—as an important bargaining chip.
Trump’s former campaign chairman Paul Manafort and his deputy, Rick Gates, whose indictment last year constituted the most significant prosecution of a FARA violation ever, agreed to cooperate with Special Counsel Robert Mueller’s investigation (although Manafort’s cooperation agreement has since been terminated after he allegedly lied to prosecutors). Another GOP lobbyist and former Manafort associate, who was charged earlier this year with a FARA violation for his work in Ukraine, Sam Patten, pleaded guilty and signed on as a cooperating witness in Mueller’s probe. And Flynn, who pleaded guilty to lying to the FBI about his Russia ties, evaded FARA charges for his Turkey lobbying work in exchange for agreeing to cooperate with Mueller.
“Cooperation is a very big part of it,” said Josh Rosenstein, a partner at Sandler Reiff Lamb Rosenstein & Birkenstock who specializes in FARA requirements. “One reason there have been so few FARA indictments and prosecutions historically is because it is often used as a bargaining chip as part of pre-prosecution agreements.” It is not clear whether Flynn’s associates indicted on Monday, Kian and Alptekin, will agree to cooperate. But with the indictment of Flynn’s business associates, the Justice Department appears to have substantially expanded its interpretation of FARA enforcement, Rosenstein said, by targeting both the U.S. agent and the foreign principal, as opposed to just the agent. In this case, the foreign principal who hired Flynn’s firm, Alptekin, has been held accountable along with the alleged agents—Flynn and his U.S. business partner Kian—for allegedly lying about his government backers in an effort to falsify a FARA filing. Prosecutors characterized it as a conspiracy and charged Kian and Alptekin as such.
The conspiracy to “covertly and unlawfully” influence U.S. public opinion as it relates to Gulen, as prosecutors put it, and ultimately secure his extradition was remarkably brazen. The U.S. government’s position has been that Turkey has not provided the Justice Department with sufficient evidence that Gulen, a Pennsylvania-based cleric who is a legal U.S. resident, played a role in the failed 2016 coup against Turkish President Recep Tayyip Erdoğan, as Erdoğan alleges. (The White House was reportedly considering extraditing Gulen last month, however, in order to placate Turkey over the murder of the Saudi journalist Jamal Khashoggi.)
Enforcement of Section 951—a statute that, if violated, carries a maximum sentence of 10 years in prison—has also intensified, thanks in part to Mueller. Since his appointment in May 2017, Mueller has farmed out several FARA and 951 cases to prosecutors in New York, Washington, D.C., and Virginia. The Eastern District of Virginia, for example, is handling the Turkish lobbying case involving Flynn’s business associates that was spun off of Mueller’s probe into Flynn’s lies to the FBI in early 2017. Likewise, an investigation in New York of alleged FARA violations by the former lobbyist Tony Podesta, former Representative Vin Weber of Minnesota, and Barack Obama’s former White House counsel, Greg Craig, is a spin-off of Mueller’s probe into Manafort’s lobbying work for Ukraine.
Not all of the DOJ’s foreign-influence investigations were originally launched by Mueller. Prosecutors in Washington, D.C., secured a guilty plea from the Russian national Maria Butina last week as part of a counterintelligence investigation that reportedly predates the 2016 election. Butina was arrested in July and charged with a 951 violation for attempting to establish “unofficial lines of communication” with influential politicians in Washington at the direction of a Russian official from 2015 to 2016. Butina has agreed to cooperate fully with the government in a wide-ranging investigation of Russian influence operations on U.S. soil—cooperation that could implicate her boyfriend, the GOP operative Paul Erickson, who has reportedly already received a letter warning him that the DOJ is considering charging him under Section 951.
David Laufman, who oversaw the DOJ’s FARA unit as chief of the department’s Counterintelligence and Export Control Section until 2017, said the spate of 951 charges was “consistent with the Justice Department’s recent intensification of efforts to identify and hold accountable individuals in the United States acting surreptitiously at the direction and control of a foreign government.”
He added that the intensified efforts apply to “espionagelike activities, procurement of technology with military applications, or efforts to influence U.S. lawmakers and the American public.”
Friday’s decision striking down the Affordable Care Act, Texas v. United States, is wrong and should be reversed on appeal for reasons ably explained by its many critics. Yet in focusing their wrath on the Texas decision, the critics overlook the fact that Chief Justice John Roberts put us in this mess by making a bad choice in the Supreme Court’s 2012 decision upholding Obamacare, NFIB v. Sebelius. Roberts erred—and opened the door to the Texas debacle—by failing to follow a famous and well-established 200-year-old precedent set by Chief Justice John Marshall.
In his 2012 opinion, Roberts provided the deciding fifth vote for two rulings on the law’s individual mandate—the requirement that most Americans either purchase health insurance or pay a tax—which was considered the linchpin of the 2010 law. Joining the four conservatives, Roberts maintained that the mandate could not be sustained as an exercise of Congress’s power to regulate interstate commerce. But he joined the four liberals to uphold the mandate under the taxing power.
Congress’s 2017 move to eliminate the tax on nonpurchasers of health insurance gave rise to the theory that the legal foundation for the individual mandate had thereby disappeared, and that therefore the whole law should go down, too. So ruled the judge in Texas v. United States. The argument is nonsensical, because without the tax, there is no mandate: People are free to decline health insurance with no legal consequence. But the argument would not even exist if Roberts had voted to uphold the mandate as an exercise of the commerce power.
[Read: What happens to Obamacare now?]
The constitutional challenges to Obamacare harken back to the first great debate over the powers of Congress. In 1791, then–Treasury Secretary Alexander Hamilton proposed establishing a national bank to act as financier to the federal government. Congressional opponents objected that the Constitution gave no express power to create a national bank. Supporters responded that Congress necessarily possessed implied powers to effectuate those specifically enumerated in the Constitution.
Late in the debate, Congressman James Madison offered a novel constitutional theory against the bank bill. Yes, there were implied powers, he conceded, but those could reach only minor matters and could not extend to “great, substantive, and independent” objects, no matter how useful to implementing the enumerated powers. Creating a national bank fell into this latter “great powers” category.
Madison’s argument was voted down by a two-thirds House majority. Congress passed the bank bill, and President George Washington signed it into law.
This victory for implied congressional powers was confirmed by the Supreme Court three decades later, when states’ rights advocates challenged the constitutionality of the Second Bank of the United States, chartered by Congress to succeed Hamilton’s bank in 1816—at the request of President James Madison. In the celebrated 1819 case of McCulloch v. Maryland, Marshall upheld the constitutionality of the second bank. Although the Constitution did not expressly authorize Congress to create banks, Marshall concluded that under the Necessary and Proper Clause, Congress may enact any legislation that is “conducive,” “convenient,” “useful,” or “plainly adapted” to implementing an enumerated power.
[David A. Kaplan: John Roberts’s chance for greatness]
To take a modern example: Nothing in the Constitution expressly authorizes Congress to impose a military draft. But because that is a reasonable means to implement the express power “to raise and support armies,” military conscription has been recognized as an implied power.
In the 2012 Obamacare decision, Roberts could have joined the four liberals to uphold the individual mandate under the Commerce Clause power “to regulate commerce … among the several states.” Individuals who choose not to purchase health insurance may or may not be engaged in interstate commerce. But if an individual mandate to purchase health insurance is useful for effective regulation of the interstate health-care market, Congress has the implied power to enact it, according to Marshall’s theory in McCulloch.
Instead, Roberts joined the four conservative justices to define “commerce” as “economic activity,” and to conclude that the Commerce Clause does not permit Congress to regulate the “inactivity” of someone’s refusal to buy health insurance. Relying on Madison’s 1791 House speech, Roberts argued that regulating the “inactivity” of refusing to buy health insurance is “a great, substantive, and independent power” that cannot be implied, no matter how effective it might be in regulating the national health-care market.
Yet in McCulloch, Marshall had rejected this very contention. Marshall stated that no exercise of power could be deemed “great, substantive, and independent” if it was being used as a means to an end that falls within the enumerated powers. The individual mandate’s requirement to join the health-insurance pool is no end in itself, but rather a means to the plainly constitutional end of regulating the interstate market in health care.
[Read: The GOP is suddenly playing defense on healthcare]
Roberts should have known better than to treat Madison’s every utterance as an authoritative constitutional interpretation. Undoubtedly, Madison was a great statesman, but he was also a politician perfectly willing to shed principles for expediency. After staunchly advocating for strong federal powers at the Constitutional Convention and in The Federalist Papers, Madison became a states’ rights congressman. And after opposing the first bank in Congress in 1791, Madison advocated for the second bank as president in 1816.
Besides, Madison’s half-baked argument against implied powers never got off the ground. It was rejected by Congress and President Washington in 1791, and by the Supreme Court in 1819. Before Roberts resurrected it in 2012, it had not entered American constitutional jurisprudence. And for good reason: It doesn’t work. The bank, the military draft, and countless other federal laws belie the notion that the Constitution prohibits implied “great” powers. And if the draft can be implied, surely the individual mandate can be, too.
The Texas decision can easily be overturned, and Obamacare upheld, without Roberts revisiting his ill-fated choice of Madison over Marshall. But the Texas case highlights just why he should have sided with the long-standing precedent set by the Great Chief Justice, not the twice-rejected, eccentric argument of a flip-flopping congressman.
Earlier this month, a revealing spat broke out on Twitter. David Sirota, a left-leaning journalist who once worked for Bernie Sanders, announced that he had uncovered something while mining campaign-finance data: “Beto O’Rourke is the #2 recipient of oil/gas industry campaign cash in the entire Congress.” Neera Tanden, the president of the Center for American Progress and a former domestic-policy adviser to Hillary Clinton and Barack Obama, pushed back. “Oh look,” she tweeted, “A supporter of Bernie Sanders attacking a Democrat. This is seriously dangerous.”
The dispute escalated three days later when The Washington Post’s Elizabeth Bruenig wrote a column declaring that she “can’t get excited about Beto O’Rourke” as a presidential candidate, because, among other things, he lacks a “well-attested antipathy toward Wall Street, oil and gas.” To which Tanden replied, “Bruenig’s piece in the Post on Beto is just the latest attack by a supporter of Senator Sanders.” Then, on December 10, the journal Sludge, which investigates money in politics, defended Sirota’s charge and noted that the Center for American Progress itself “has in the past accepted donations from multiple fossil fuel companies.”
On one level, the fight over O’Rourke is a fight over the legacy of Obama. The Obama veterans championing O’Rourke compare his “inspiration, aspiration, and authenticity” (in the words of Obama’s former campaign manager Jim Messina) to the 44th president’s. In a recent essay titled “The Case for Beto O’Rourke,” the former Obama aide Dan Pfeiffer declared that “the whole conversation around Beto has been eerily familiar to me, because these are the exact arguments people made to me when I told them I was considering working for Barack Obama 10 years ago.”
O’Rourke’s critics turn the analogy on its head. “Beto is a lot like Obama, true,” Bruenig acknowledges, but “it’s perhaps time for left-leaning Democrats to realize that may not be a good thing.” A recent Jacobin article called O’Rourke “Obama redux: an attractive, progressive-sounding, comforting figure” before declaring that Obama redux “would be disastrous,” given the former president’s policies on immigration, Wall Street, and war.
[Read: Beto O’Rourke’s huge Facebook bet]
But the argument is about more than Obama. The people criticizing O’Rourke for taking fossil-fuel money don’t want to just prevent the Democratic Party from modeling its next presidential candidate on its last president. They want to overturn a model that has long dominated the party. Since the mid-20th century, Democrats have generally treated corporations as legitimate participants in the political process. Today, for the first time since the dawn of the Cold War, a powerful faction within the party wants to treat them as ideological adversaries instead.
Progressive Democrats don’t talk a lot about William Jennings Bryan these days. But in important ways, he embodies the attitude toward corporations to which they’d like to return. In 1896, when the Democrats first nominated him for president, Bryan denounced “millionaires, who steal banks, mills, and railways,” “defaulters, who live in palaces and make away with millions,” and “money kings, who buy up Congress.” Bryan called American politics “a struggle between the idle holders of idle capital” and “the struggling masses, who produce the wealth and pay the taxes of the country.” Many corporations responded by sending their employees—along with their paychecks—“suggestions” that they vote for the Republican, William McKinley.
In Party Ideologies in America, 1828–1996, the University of Texas political scientist John Gerring argues that after Bryan’s loss “the accusation of illicit interference in the democratic process—via corporate contributions or employer coercion—would become a hallmark of Democratic campaigns” through the early-20th century. The party nominated Bryan for president twice more, in 1900 and 1908. And Gerring argues that Bryan’s antagonism toward corporations set a tone for Democratic leaders that continued—to varying degrees—through the 1940s. Woodrow Wilson, in 1912, warned that “the masters of the United States are the combined capitalists and manufacturers of the United States.” Franklin D. Roosevelt, in his 1936 inaugural address, boasted that “we have earned the hatred of entrenched greed,” and promised to battle the “political puppets of an economic autocracy.” Harry Truman, in 1948, savaged the “gluttons of privilege” from “Big Business” who “want a return of the Wall Street economic dictatorship.”
There were exceptions, of course. In the 1920s, the Democratic nominees James Cox and John W. Davis temporarily turned the party away from Bryan’s anti-corporate legacy. Roosevelt himself only fully embraced it after a few years in office, under pressure from populists such as Huey Long and Father Charles Coughlin. And Democrats expressed less class antagonism than many of their counterparts in Europe, where in the early-20th century socialist and labor parties rose to power.
[Read: A “dark money” loophole in the midterms]
Still, Gerring argues that in the half century between Bryan and Truman, Democrats were far more likely to depict corporations as ideological adversaries than they have been in the decades since. Starting in the 1950s, he argues, “the all-inclusive American People subsumed the figure of the Common Man. References to illicit business practices died out, to be replaced by a resolutely pro-business perspective. The organizing theme of Democratic ideology changed from an attack against special privilege to an appeal for inclusion.” One reason was the Cold War. With America facing a communist foe, it grew harder to fiercely challenge business without being accused of harboring sympathy for America’s enemies. Another was the legacy of the New Deal, which by empowering labor unions, regulating the economy, and expanding the social safety net reduced class anger.
Whatever the reason, Gerring argues that terms such as monopoly and speculation largely left the Democratic Party’s lexicon in the 1950s. The party’s tendency to see corporations as legitimate political actors continued even as the Chamber of Commerce and other business groups began an assault on taxation, regulation, and labor unions in the 1970s. It continued through the century’s end, even as that assault contributed to escalating income inequality. According to one profile, Tony Coelho, who ran the Democratic Congressional Campaign Committee from 1981 through 1986, “built his reputation by finding ways to entice business executives and their lobbyists to shower Democratic candidates with campaign cash.” In the 1990s, the Democratic Leadership Council, which included both Bill Clinton and Al Gore as prominent members, included on its executive committee Enron, Chevron, Philip Morris, Texaco, and Koch Industries. In 2008, Obama received almost twice as much money from employees of hedge funds and private-equity and investment firms as did John McCain. Former investment bankers served as three of his first four chiefs of staff.
What has occurred since then is a transition as potentially significant as the one the party underwent in the middle of the last century. It began with Sanders’s 2016 presidential campaign. Unlike Clinton in 2016 or Obama in 2012, Sanders ran without an allied super PAC, leaving his supporters with no way to donate unlimited sums of money. Fifty-seven percent of his campaign money came via donations of fewer than $200, compared with 18 percent for Clinton. And Sanders made that distinction central to his campaign. He boasted that “we said ‘Hell no’ to super PACs. We don’t represent Wall Street or the billionaire class.” In debates, he slammed Clinton for giving paid speeches to Goldman Sachs. Yet despite eschewing corporate and Wall Street donors, Sanders raised roughly as much money as Clinton.
Since then, a growing number of Democrats in Congress have adopted Sanders’s model. Before 2016, accepting money from PACs funded by corporations wasn’t controversial in the Democratic Party. According to Adam Bozzi of the campaign-finance group End Citizens United, there wasn’t even an organized effort to ask candidates not to do so. After 2016, that began to change. By the start of 2017, eight Democrats in Congress had pledged to refuse corporate-PAC money. When the new Congress convenes in January, the number will be 50. It will include Sanders, Elizabeth Warren, Cory Booker, and Kirsten Gillibrand, the four senators considered most likely to run for president, along with Beto O’Rourke.
[Read: Why so many Democratic candidates are dissing corporate PACs]
Meanwhile, climate activists have begun pushing candidates to turn down not only donations from fossil-fuel PACs, but also those from fossil-fuel-company executives in excess of $200. According to R. L. Miller, the co-founder and political director of the super PAC Climate Hawks Vote, the 115th Congress—which ends this year—contained 16 members who had signed the pledge. The incoming 116th Congress will contain 33. In 2017, Booker—who in 2014 received more money from the pharmaceutical industry than any other senator—announced that he would no longer take its money.
The demands for anti-corporate purity keep increasing. Activists close to Alexandria Ocasio-Cortez are now asking presidential contenders to pledge not to appoint Wall Street bankers to administration jobs.
Corporations still clearly enjoy influence inside the party. In June, the Democratic National Committee’s executive committee voted to reject money from PACs linked to the oil, gas, and coal industries, only to reverse course in August after claiming that labor unions had objected. But the very fact that the DNC had to depict its turnaround as a concession to labor suggests how dramatically the debate inside the party has changed. Leading Democrats may want to maintain their corporate and financial ties, but they are afraid to say so publicly. The days when a rising Democratic star such as Booker could call on his party—as he did in 2012—to “stop attacking private equity” are long gone.
What explains the change? One answer is the end of the Cold War. It’s easier to denounce corporations now that America is no longer waging a global struggle against a superpower that regularly denounced them itself. A second is income inequality. Unsurprisingly, the Democratic Party’s anti-corporate populism faded in the mid-20th century as government and labor checked corporate power, and it is now surging again because they no longer are. A third factor is climate change, which, as the push for a Green New Deal suggests, is becoming a defining issue for progressive activists. That has made it harder for Democratic politicians to accept money from oil, gas, and coal companies. Last week, Oregon’s Jeff Merkley, who declared himself “at war” with fossil-fuel companies, became the third senator to pledge to refuse money from their political-action committees and executives. “I have a feeling,” tweeted Bill McKibben of 350.org, “this is going to be a litmus test for Dems going forward.” The fourth answer is the internet, which has made it possible to raise vast sums of money without corporate help.
[Read: The secretive organization quietly spending millions on Facebook political ads]
A fifth, less obvious answer is Donald Trump. By alienating well-off cultural moderates, Trump has allowed Democrats to gain ground among higher-income voters even as they adopt a more anti-corporate tone. It’s remarkable, when you think about it. Democrats lost voters who earn more than $100,000 by double digits in every national election from 1994 to 2004, when the DLC was at the height of its power. In 2016 and 2018, by contrast, the Democrats have lost these upper-income voters by only single digits, even as the party has grown more publicly critical of Big Business. If a more traditional Republican follows Trump—Nikki Haley, Mike Pence, Marco Rubio, Tom Cotton, or Ted Cruz—these two Democratic trends may collide. If they have another option, voters with economic views like Michael Bloomberg’s may not remain in a party whose economic message is shaped by Ocasio-Cortez.
In the 1930s and 1940s—when Democrats won big majorities among working-class whites—they didn’t need this upscale support. Nor was it difficult to balance issues of class and race, since most African Americans couldn’t vote. It’s far more challenging for the Democratic Party to keep its coalition together today.
The best hope for Democrats who don’t want to purge corporations from the party might be a presidential candidate with a less confrontational economic message who enjoys widespread African American or Latino support. Booker could be such a candidate. So could Kamala Harris or O’Rourke. Which is why skirmishes like the one that pitted the Center for American Progress’s Neera Tanden against supporters of Bernie Sanders will likely only escalate in the year and a half to come.
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