Sunday, November 10, 2019

Sunday Reading

Immunology — Amy Davidson Sorkin in The New Yorker on Trump’s frantic fight to stay out of reach.

Donald Trump, at times when it has served his purposes, has chosen to assume different personae. There was John Barron, an alias he used in the nineteen-eighties when giving false property valuations to a reporter. Later, there was John Miller, a guise he adopted to brag to People about his romances. (“He’s living with Marla and he’s got three other girlfriends.”) David Dennison was his stand-in for a hush agreement with the adult-movie actress Stormy Daniels, which has now led the Manhattan District Attorney to subpoena Trump’s accountant in an effort to get access, at last, to the President’s tax returns.

More recently, Trump has shown an elastic sense of identity in ways that exemplify his Presidential overreach and arrogance. On Halloween, in a case that has major implications for both the impeachment process and the future of executive power, a Justice Department lawyer told Judge Ketanji Brown Jackson, in a district court in D.C., that Don McGahn, the former White House counsel, was “absolutely immune” from congressional subpoenas because he is “the alter ego of the President.” Apparently, he’s not the only one. The office of the current White House counsel, Pat Cipollone, has told potential witnesses in the House impeachment investigation—from Mick Mulvaney, the acting White House chief of staff, to Charles Kupperman, the former deputy national-security adviser—that they, too, are absolutely immune.

The argument is that certain associates work so closely with the President that they are, in effect, an extension of him, and thus free to ignore subpoenas or requests to testify. Others were told that, if they testified, they risked violating additional forms of Presidential privilege. Some witnesses, including Marie Yovanovitch, the former Ambassador to Ukraine, and Fiona Hill, a former National Security Council official, showed up anyway, and their testimony is proving devastating for Trump. More than a dozen witnesses, though, have failed to appear.

A prominent absentee was John Bolton, the former national-security adviser. On Friday, his lawyer said that Bolton’s willingness to testify depends on what the courts have to say about immunity. Bolton had a difficult relationship with Trump, who fired him, and a close view of his foreign dealings. (According to Hill, Bolton called the Ukraine scheme a “drug deal.”) His lawyer added that Bolton had new information, all of which could make him a dangerous witness for the President, particularly after this week, when public hearings begin.

But, even beyond the question of who will testify, the fights over immunity, along with a host of related legal battles, are critical, because Trump’s Presidency has been defined by his belief that he cannot be held to account. That conviction is particularly pernicious given that many of the questions at issue—What is executive privilege? Can a sitting President be indicted?—are surprisingly ill-defined in American jurisprudence. In fact, Presidents from both parties have on occasion tried to claim that close aides had absolute immunity. When President George W. Bush tested the assertion, in a case involving the former White House counsel Harriet Miers and the firing of U.S. attorneys, a federal judge ruled that no such immunity existed. But that case was settled, and never made it to even the appeals-court level. This may be the moment to establish some clarity.

The McGahn case is further along than other suits attempting to do so. (Last week, the House Intelligence Committee withdrew its subpoena for testimony from Kupperman, who had brought his own case, to keep the focus on McGahn.) The case arose from the Mueller report, which suggested that McGahn may have direct knowledge of Trump’s alleged obstructions of justice. By most accounts, Judge Jackson was taken aback by the breadth of the Administration’s claims, which included a denial that courts should be allowed to have any say in a fight between the President and Congress. “How will they resolve it on their own, then—sending the sergeant at arms to arrest Mr. McGahn?” she asked, referring to the House’s security guard. The Justice Department’s lawyers have suggested that a better idea might be for the House committees to rely on an “accommodation process”—in other words, if they were nice to Trump he might throw a few witnesses their way.

Similarly, in a case involving the Judiciary Committee’s efforts to get access to some of the Mueller report’s underlying materials, Judge Beryl Howell, the chief judge of the D.C. district court, said that the White House’s arguments that it was going along with normal processes “smack of farce.” (On October 25th, she ruled for the committee, although her order has been stayed.) And Judge Victor Marrero, the district-court judge in the tax-return case, noted that the President’s argument would “potentially immunize the misconduct of any other person, business affiliate, associate, or relative who may have collaborated with the President in committing purportedly unlawful acts.”

Marrero ruled against Trump on October 7th; an expedited appeal was heard two weeks later. In those oral arguments, Judge Denny Chin, of the Second Circuit, asked the President’s lawyer William Consovoy if he was actually arguing that, owing to Presidential immunity, Trump really could shoot somebody on Fifth Avenue and local authorities would not be able to pursue the case while he was President. “Nothing could be done?” Chin said. Consovoy replied, “That’s correct.”

The crudeness of the Administration’s arguments obscure the delicacy of the constitutional questions. Trump appears unwilling to accept the idea that weighing the President’s powers and privileges against other parties’ rights and interests is essential to a healthy constitutional system. (The Supreme Court performed such a balancing test in ordering Richard Nixon to turn over the White House tapes.) For Trump, it’s all or nothing. But the corollary to any claim of criminal immunity is that the alternative the Constitution provides—impeachment—must not be undermined.

The House isn’t waiting for all the missing witnesses to appear, or for all the cases to reach the Supreme Court. Instead, Adam Schiff, the chair of the House Intelligence Committee, warned last week that the President’s frantic efforts to sabotage the process could, in themselves, be impeachable offenses. As the list of charges grows, more people will be called to testify before the House, and then, most likely, the Senate—and their names may even surprise Donald Trump.

I Can Drive My Own Car, Thanks — Beth Teitell in the Boston Globe on automated safety features.

Debbie Abdon was driving home to Milton from the Honda dealer, making what should have been a celebratory trip in her new white Accord, only to feel like she’d bought a haunted vehicle.

The wheel vibrated in her hands. It pulled her to the right. “It scared the daylights out of me,” she said. “She freaked,” her husband said.

Once she was off the highway, Abdon would learn that the wheel’s “possessed” behavior was intended to keep her safe, a feature of Honda’s Lane Keeping Assist System.

But when she was driving on I-95, the now-retired food service worker wasn’t thinking about how even entry-level cars now have “active” safety systems that come close to driving for you. She was thinking about how the big truck to her right was too close for comfort, which made her edge slightly leftward, which in turn prompted the safety system to fight her for control of the car by steering it back to the middle of her lane.

Once home, Abdon promptly disabled the feature. “Whoever is driving should be in control of the car,” she said.

For some large fraction of drivers that’s become a call to action. More than one in five drivers have disabled a safety feature, according to a new study by Liberty Mutual Insurance. The top reasons are good old-fashioned annoyance at all those beeps and flashing lights, and distrust of technology.

Millennials, by the way, disable the systems significantly more than other generations — 35 percent compared to 18 percent of Gen X and 10 percent of baby boomers, the study found. (The study was silent on whether the numbers reflect a youthful disregard for safety, or the boomers’ inability to figure out how to shut off the annoyances.)

If you’re still driving an older car, here’s a glimpse into the new world of automotive nagging: systems that can detect when a car is in your blind spot, or a pedestrian is about to step into your path, and even when another vehicle is about to come across behind you when you’re in reverse. Somehow the car can also figure out when a driver may be too tired, and suggests a break.

Many drivers find lane-departure warnings particularly annoying. The system uses a camera to monitor when the car drifts beyond the lane marking, and sets off an audio, visual, or other alert. Particularly aggressive systems, such as the one in Abdon’s car, not only vibrate, but steer a driver back to the center of the lane.

There is so much to these new safety systems that there’s now a website devoted to them: MyCarDoesWhat.org.

Driver-drowsiness detectors, the site explains, typically work by tracking how often a driver departs from the center of the lane over a set period of time.“More advanced versions can ‘learn’ what your normal driving patterns are when you aren’t drowsy,” the site explains. “If you then begin to drive unusually — such as making many sudden maneuvers or stops — the system may suggest you may be drowsy and should take a driving break.”

In Boston, where we’re blessed to have fellow motorists providing roadway guidance — in the form of a raised middle finger, perhaps, or honking — many drivers don’t want input from their cars, too. And they’re showing up at auto repair shops seeking help, unaware they can turn the offending systems off on their own.

George Jr., a co-owner of Brighton Motor Services, who declined to give his last name, said that not only do people use mechanics as therapists — “You wouldn’t believe half the stuff people tell us about,” he said, “their sexual relationships, they’ve got a family member in jail . . .” — but they also want mechanics to silence their cars.

Customers have asked him to disable blind-spot warning systems. “They buzz people’s butts and they don’t like it,” he said.

But there’s no way he’s assuming that kind of liability. “If I disable it and something happens, everything falls on the shoulders of the small auto repair shop,” he said.

Speaking of therapists, maybe drivers should look within themselves for the problem, and learn, for example, to stay within the highway’s painted lines, and not blame safety features, said Jim Motavalli, a freelance auto writer and the author of “High Voltage: The Fast Track to Plug In the Auto Industry.”

He likened attempts to silence safety-related beeping to the irritation some drivers feel about the “check engine” light. “People are more concerned with getting the light off than addressing the circumstances behind why it came on.”

The warnings can be so confusing, in fact, that a driver may not even be sure what the car is trying to say. That’s what happened to Eric Mauro, a local stained glass artist, this summer, when he and his wife rented a car in Madrid and thought that thumping sound they kept hearing was the result of driving over what must have been bumps in the road.

Nope. The thumping was the rental’s way of telling Mauro that he was going over a painted lane marker without using his blinker. Considering how hectic the driving already felt — “people drive like maniacs,” he said — he took the time to figure out, in Spanish, how to disable it.

“The other drivers were already clear on what I was doing wrong,” he said.

Studies by the Insurance Institute for Highway Safety and the Highway Loss Data Institute have found that many safety features reduce crashes. Cars with lane-departure warning systems had 11 percent fewer single-vehicle, sideswipe, and head-on crashes than those without the technology, for example. Blind-spot detection systems led to a 23 percent decrease in lane changes with injuries.

The technology isn’t foolproof, of course, as per this recent press release: “AAA Warns Pedestrian Detection Systems Don’t Work When Needed Most.”

Meanwhile, safety is one issue. Art is another. One shudders to think what this all means for Hollywood.

Imagine that famous scene in “On the Waterfront” in a modern vehicle: Marlon Brando playing the washed-up boxer Terry, confronting his brother in the back of a cab outfitted with today’s safety features.

“You shoulda looked out for me a little bit,” he would tell Charley, as Leonard Bernstein’s dirge-like score plays in the background. As Brando winds up for his big line, the cab driver makes the mistake of drifting out of his lane. “I coulda had class. I coulda been a’’ — beep, beep, beep.

Doonesbury — Read all about it.