Talking about the Rule of Law with Robert Mueller and E. P. Thompson

Aziz Z. Huq

 

“What is remarkable (we are reminded) is not that the laws were bent but the fact that there was, anywhere in the eighteenth century, a Rule of Law at all.”[1]

 

Predictably and painfully, the public exorcism of the Mueller investigation came to an ashen close this week. Its climax—or perhaps more accurately, bathetic anticlimax?—took the form of a pair of congressional hearings where the Special Counsel along with an assistant testified. These were a peculiar blend of ghostly whispers conjuring evasions and circumlocutions, a surfeit of the usual theatrical bluster and malarkey—thank you, Jim Jordan—and the occasional huffs of exasperation by Mueller himself. The latter were not, though, evinced by any pained splinter of concern at the documented fact of presidential criminality. Rather, the special counsel showed the most energy when his rock-ribbed prosecutorial reputation seemed under interrogation. In contrast, the sedulous documentation in volume 2 of the Mueller report, which persuasively adumbrates almost a dozen discrete instances of presidential obstruction of justice, has vanished into little or nothing. At the hearing, their echo yielded nothing but “euphoria” from the White House.[2] The reason is easy enough to see: no reality-show producer is rushing to book Mueller on the strength of his ethereal performance.[3] But absent of some histrionic moment, like something out of A Few Good Men (1992), it is hard to see how the hearing could have made much impact in the first instance.

Credit: Caroline Brehman/CQ Roll Call/Getty Image. Source: https://www.vox.com/policy-and-politics/2019/7/28/8933709/mueller-testimony-polls-democrats-republicans-americans-impeachment-russia-trump-impeachment

These events would be no surprise to readers of E. P. Thompson’s masterful history Whigs and Hunters. Its first 250-odd pages, after all, are a powerful, even unforgettable testimonial to the potency of “bad law, drawn by bad legislators, and enlarged by the interpretations of bad judges” (WH, p. 267). Those pages sketch indelibly the Black Act of 1723, a cruel enclosure of land and customary rights as an incident of class war, one that extended the death penalty to deer stealing, tree cutting, and burning. In the body of Thompson’s account, law is a tyranny, as red in tooth and claw as the rapacious English land-owning class that wielded it without compunction or hesitation.

Yet, in a passage that has puzzled many of his admirers and ideological fellow travelers, Thompson ends his account with a paean to the rule of law. Despite everything in Whigs and Hunters, he nonetheless praises the “remarkable” virtue of law. This adheres in its “principles of equity and universality which, perforce, has to be extended to all sorts and degrees of men” (WH, p. 259). This quality of generality is common to many leading definitions of the otherwise protean rule of law, from Joseph Raz’s to Lon Fuller’s.[4] Hardly a panacea—remember Anatole France’s pungent line about the law’s “majestic equality”—law still seemed to hold for Thompson the promise of some vestigial constraint on the wielding of state power against the vulnerable.[5]

One hears something of an echo of Thompson’s sentiment, I think, in calls from the left for the machinery of criminal justice—responsible for the evil of mass African-American incarcerations, the horrors of the war on drugs, and far more—to crank into action against Trump. There has been an idea on the left that prosecutors will come swinging to the rescue, ending the moral catastrophes of the Trump presidency, without reckoning with its structural causes or institutional continuities.

The hope was always an unlikely one, quite apart from its selective and culpable omissions about American criminal justice’s longer historical record. At the Mueller hearings, the hope plainly flared and died. The documented instances of serious criminality—witness tampering of the sort that gives drug dealers a bad name—are simply ignored, drowned out with cries of “no collusion.”

I think this is an opportune moment for thinking about the role that law plays in constraining power, and state power in particular, in a putatively liberal and democratic context. In particular, this is an opportunity to think about the circumstances in which that constraining role can be anticipated, and when it is likely to fail. When, that is, should we anticipate the cooperation of law with “tyranny,” and when should we anticipate the vindication of “principles of equity and universality”?

Something of an answer to this question germinates within the text of Whigs and Hunters itself. For Thompson, the “essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just” (WH, p. 263). That is, to function effectively as ideology, the law cannot be wholly supervened by the naked policy preferences of a hegemonic class. It can’t be too ruthless or zealous in its pursuit of dominion. The civilizing force of the law’s touch thus depends on the political implausibility of (too much) hypocrisy. Appearances, or the compulsion to keep them up, turns out to matter. This sort of mechanism contrasts with the notion, associated most recently with Frederick Schauer, that law constrains only when it can credibly threaten coercion or force.[6]

Once one focuses on the legitimacy of law as a normative system independent of “gross manipulation” as the effective vector of law’s constraint, the failure of the Mueller report to generate consequences commensurate with its accusatory force becomes clearer. For three related structural reasons, the current occupant of the White House has no need even to gesture or perform fealty to the rule of law in terms of his personal conduct. Both for him and for members of his political coalition—both legislators who ignore his criminality and judges who ignore his nakedly unconstitutional animus—the civilizing bent of law’s generality no longer has a gravitational pull. These reasons, to be clear, aren’t general in scope. They are local to a particular historical moment. They may be, therefore, exemplary rather than exhaustive of the conditions in which Thompson’s aspiration founders.

To begin with: there is simply no partisan political logic to law’s restraint, even where what is at issue are serious violations of the criminal law. In a separation-of-powers system, just as in a parliamentary system, a president in large measure stays afloat through his or her ability to influence legislators. Republican legislators in safe seats—whether because of the “big sort”[7] or just gerrymandering[8]—have to worry not about the general election but the primary. Unless Republican primary voters are motivated to care about legality, Republican legislators are not likely to be moved by allegations of law violation. That is, they have to worry about the slice of the population that is probably most likely to approve of Trump, and perhaps most likely to be enraptured by his venal and venial sins. But Trump commands an approval ratingconsistently greater than 80 percent among Republican voters.[9] That approval may be correlated with a distaste for certain elements of liberal constitutionalism.[10] Tellingly, it peaked after his recent racist attacks in four women legislators of color.[11] This means that Trump has nothing to fear from copartisan legislators; they, in contrast, have everything to fear from his ability to provoke a primary challenge.

Second, the American public sphere is organized around media that are structurally oriented toward the dilution and distortion of information harmful to Trump, and the elevation of information (true or not) that helps him. This is not the internet, but the pro-Trump cable news shows that populate much of the public imaginary. In a brilliant dissection of political misinformation during the 2016 election, Yochai Benkler, Robert Faris, and Hal Roberts have shown that misinformation’s diffusion is not the result of Putin’s troll farms or Cambridge Analytica, but rather the decision of cable news hosts, acting as trusted intermediaries, to push out Pizzagate or deep state conspiracies.[12] Benkler et al.’s compelling empirical analysis decisively undermines the canard that social media or Facebook alone has critically undermined the possibility of a shared public sphere by enabling the spread of disinformation.[13] Given the structural alignment between the Trump presidency and Fox News in particular, it was never likely that any wrongdoing (barring perhaps the infamous possibility of murder in cold daylight) would move the needle.

Finally, there is the content of the law itself. To an extent that nonlawyers perhaps do not appreciate, the law’s substance is not predetermined by the text of, say, a criminal statute or the Constitution. The questions whether the president can obstruct justice, or whether he or she can be indicted as a result, are not resolved by Article II of the Constitution or the obstruction statute directly. Rather, they are interpretations of the law. Interpretations depend on the institutional context in which they are manufactured. Law’s penumbra, as Thompson appreciated, is a function therefore of its institutional conditions.

The law of criminal penalties is in the first instance the work of prosecutors, who must interpret vague or general statutes before applying them. The only formal legal authority on whether a president can be indicted is, therefore, controlledby the Department of Justice, a body that reports to the president.[14] Even before one gets to the stacking of the federal bench with former prosecutors and White House lawyers, or starts to dabble in the airy suppositions of “unitary executive” theory, there was a (yet again structural) bias against the kind of generality that Thompson savored—at least when it comes to the president. The point here is absolutely not that the president is “above” or “beyond” the law: the relationship between law and the presidency is far too complex,[15] far too mutually constitutive, to support that sort of broad and inchoate a claim.[16] Rather, the specific forms of legality that the president can invoke, or that can be invoked against him or her, are a function of institutional context, and in the context of the criminal law there is a profound inconsistency between the aspiration of “principles of equity and universality” and the brute fact of institutional motivation.

On the same day as the Mueller hearing, a federal judge in Washington, D.C. upheld a Trump rule that would bar almost all asylum claimants because they had moved through a third country without first seeking asylum there, a rule that even the neoliberal Economist decried.[17]  Law, in at least one of the forms that Thompson recognized and documented in Whigs and Hunters, remains alive and well in America. Where and how it grips is a function, though, and should be the focus of careful and situated analysis—and not a matter of aspiration or hope alone.

[1] E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (London, 1975), p. 259; hereafter abbreviated WH.

[2] Eliana Johnson and Melanie Zanona, “’Euphoria’: White House, GOP exult after a flat Mueller performance,” Politico, 24 July 2019, https://www.politico.com/story/2019/07/24/robert-mueller-testimony-gop-white-house-1430049

[3] Peter Baker, “The Blockbuster That Wasn’t: Mueller Disappoints the Democrats,” New York Times, 24 July 2019, https://www.nytimes.com/2019/07/24/us/politics/trump-mueller-democrats.html

[4] See Joseph Raz, “The Law’s Own Virtue,” Oxford Journal of Legal Studies39, no. 1 (Spring 2019): 1-15; and Lon L. Fuller, The Morality of Law (New Haven, Conn., 1969).

[5] Anatole France, Le Lys Rouge(Paris, 1960).

[6] See Frederick Schauer, The Force of Law (Cambridge, Mass., 2015).

[7] Richard Florida, “America’s ‘Big Sort’ Is Only Getting Bigger,” CityLab, 25 Oct. 2016, https://www.citylab.com/equity/2016/10/the-big-sort-revisited/504830/

[8] See Nolan McCarty, Keith T. Poole, and Howard Rosenthal, “Does Gerrymandering Cause Polarization?” American Journal of Political Science53, no. 3 (July 2009): 666-680.

[9] “Trump approval ratings,” FiveThirtyEight, 30 July 2019, https://projects.fivethirtyeight.com/trump-approval-ratings/

[10] Aziz Z. Huq, “The People Against the Constitution” University of Michigan Law Review116, no. 6 (2018): 1123.

[11] “Republican Support for Trump Rises After Racially Charged Tweets,” Investing.com, 17 July 2019, https://www.investing.com/news/politics/republican-support-for-trump-rises-after-racially-charged-tweets-reutersipsos-poll-1925530

[12] Yochai Benkler, Robert Faris, and Hal Roberts, Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (New York, 2018).

[13] The post-2016 criticism of social media, in any case, was always at odds with the known demography of the Trump coalition. More recent studiesshowing widespread distrust of social media on the right and left only undermine it further; see Katerina Eva Matsa and Elisa Shearer, “News Use Across Social Media Platforms 2018,” Journalism.org, 10 Sep. 2018, https://www.journalism.org/2018/09/10/news-use-across-social-media-platforms-2018/

[14] See “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” The United States Department of Justice, 10 Dec. 2018, https://www.justice.gov/olc/opinion/sitting-president’s-amenability-indictment-and-criminal-prosecution

[15] Aziz Z. Huq, “Binding the Executive (by Law or by Politics),” University of Chicago Law Review 79 (May 2012): 777.

[16] “While You Were Tweeting,” The Economist, Jul. 20, 2019, https://www.economist.com/leaders/2019/07/20/the-white-house-ditches-half-a-century-of-immigration-law

[17] See Spencer S. Hsu, “Federal judge allows Trump administration rule restricting asylum access to continue,” Washington Post, 24 July 2019, https://www.texastribune.org/2019/07/24/federal-judge-upholds-trump-administration-rule-restricting-asylum-acc/; and “The White House ditches half a century of immigration law,” The Economist, 20 July 2019, https://www.economist.com/leaders/2019/07/20/the-white-house-ditches-half-a-century-of-immigration-law

Q & A with Robert Mueller on Legal Writing, Imagined before House Committees

Richard H. Weisberg

 

On 24 July, Robert Mueller is scheduled to appear before various House committees. My close, literary reading of his famous report raises several questions that I would ask him were we face to face on camera. Imagine this dialogue between Mueller (“A”) and myself (“Q”), which ends with my questioning the report’s conclusions as to Part I.

Q – Mr. Mueller, thanks for your thorough investigation. I know you wanted legal precision in your written analysis, but did you and your team also aim to meet the highest standards of expository writing skill and stylistic excellence?

A – Yes. I instructed everyone who participated in drafting the report to follow the rules you set down in When Lawyers Write, your book I’ve been consulting for years.[1]

Q – I’m flattered but not surprised, because almost every sentence practices what I preached there: strong choices of subjects and verbs; good organization of paragraphs and sections; near-perfect punctuation and use of “that” or “which”; little verbosity, and only one case of significantly awkward variation in word use; keeping the reader on track . . .

A – Well, the Russian names challenged us; we could hardly sort them out ourselves!

Q – Like the first time reader of ANNA KARENINA! Still, your famous control and patience maximize the reader’s chances of following this cast of characters, in some cases from introduction to indictment . . .

A – I’m especially proud of my “chapter” linking Deripaska to Manafort, and Kislyak to Sessions. Not exactly Pierre and Natasha, but Tolstoi made up his characters’ names, while I was handed Kilimnik, Akhmetov, Serhiy, Lyovochkin, and Veselnitskaya, among other oligarchs, devotees of Trump properties worldwide, dabblers in Eastern Ukrainian politics, and abusers of the court system. What was the one awkward variation?

Q – Maybe we’ll have a chance to get to that. What counts first, though, is that I’ve rarely read a legal document, short or long, that so often flows with an elegance worthy of Benjamin N. Cardozo, Oliver Wendell Holmes, Lincoln or JFK at their best . . .

A – Please, red is not my best facial color in front of all these cameras. And the only other time I’ve addressed the public on this matter, people said that I was stiff and unclear. I know that my writing is better than my oratory, but do you really think I’m as good as Judge Cardozo, one of my heroes?

Q – Yes; consider the following representative sentence from your crucial Part II passage on the so-called witch hunt, where McGahn resists Trump’s apparent order to fire you [see pp. 345–50]:[2]

First, McGahn’s clear recollection was that the President directed him to tell Rosenstein . . . that “Mueller has to go.” McGahn is a credible witness with no motive to lie or exaggerate given the position he held in the White House. McGahn spoke to the President twice and understood the directive the same way both times, making it unlikely that he misheard or misinterpreted the President’s request . . .

A – Sorry to interrupt, but yes, this is my favorite long paragraph. The simple transitive verbs follow your “directive” to choose the most active noun in your thought and make that the subject of the sentence. I avoid sentences that look like “the cat was eaten by the dog” just by making the dog—here McGahn—the subject. Five words instead of seven, simple transitive verbs, no evasive passivity: “The dog ate the cat” all the way down!

Q – And it sets up the denouement of the paragraph’s plot: “In response to that request, McGahn decided to quit because he did not want to participate in events that he described as akin . . .“

A – I put in that “akin” myself during a final edit!

Q – “ . . . as akin to the Saturday Night Massacre. “ Now comes the coup de grace, your rhetorical brilliance in mounting to a climax through the parallel usage of everyday verbs. It’s like the greatest, most mind-blowing judicial opinion ever written, Cardozo’s Hynes vs New York Central Railroad. . .

A – Yeah, you bring that 1921 piece of prose to light for all of us in When Lawyers Write! 231 N.Y. 229, I’ve memorized it. Every lawyer and judge should read it once a month. Every literate nonlawyer, too, just like Stendhal read sections of the Code Napoleon each night.[3]

Q – Maybe Cardozo is watching these hearings today from a perch in the heavenly Sanhedrin. He would want me to emphasize your active verb choices, which follow from your fine choice of subjects:

[McGahn] called his lawyer, drove to the White House, packed up the office, prepared to submit a resignation letter with his chief of staff, told Priebus that the President had asked him to do “crazy shit,” and informed Priebus and Bannon that he was leaving.  [P. 351]

A – I tried to imitate Cardozo in Hynes. All you have to do as a lawyer is forget the obfuscation and go for lucidity, just like Cardozo when he describes the railroad’s careless termination of a day of swimming and diving on the shores of the Hudson:

Hynes followed to the front of the springboard and stood poised for his dive. At that moment a crossarm with electric wires fell from the defendant’s pole. The wires struck the diver, flung him from the shattered board, and plunged him to his death below.

Q – Did you see the irony of answering the White House’s convolutions with sheer simplicity?

A – Yes; as Cardozo taught you and then me, the form of our writing matches its substance. If you deceive through stilted or imprecise language, your listener can see through to the lies you’re telling.

Q – And if you write with directness and to the point, the truth of what you write comes through?

A – I hope so.

Q – Your report is so well written that its occasional slippage stands out awkwardly.

A – You mean the way I refuse to exonerate the President on obstruction? Everybody says they wanted a yes or a no, like with the conclusion on conspiring with the Russians.

Q – No, not at all. Your language there perfectly suited the substance of your statement, but I think nonlawyers who are going for the jugular one way or another get upset with subtleties (see p. 264).[4]After almost two years of waiting for you, people wanted red meat, and good lawyers don’t pander. The Attorney General’s “four page summary of a 300-page report is highly inadequate” people said, but few had the patience or skill to work through all those pages knowledgeably;[5]they might have been satisfied by a four-page summary that suited their preconceptions. In fact your style throughout is of a piece with the excellence we have just discussed, and there is only that one flaw I mentioned.

A – I’ll accept such a verdict. Only one flaw?

Q – Potentially fatal. . . . I’m afraid I come out of this believing that the President and his campaign did conspire with the Russians on election fraud!

A – But my contrary conclusion is the one everyone has come to accept!

Q – It’s your own confusing language. If the report were not otherwise so well written, I would not expect clarity in its conclusions. But when you fudge on a key verb, and do so at a crucial stage, you lose me.

A – Which verb?

Q – “Established.”

A – Yes, that word is crucial. I use it almost every time I make a conclusion based on evidence.

Q – The first time you define your usage, you begin to slip:

When substantial credible evidence enabled the Office [why is “office” not the subject? How does a nonhuman agency “enable” anything?] to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred. A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts. [P. 60]

What does that mean?

A – I admit it’s not up to the rest, perhaps. I wanted the reader to know that the verb “established” as used by the report goes beyond just finding a few credible facts that might create an inference of culpability.  Established means almost complete assurance that a fact or series of facts meets the legal standard for whatever crime is being discussed, conspiracy or coordination in Part I—I reject right on that page the obscure use of “collusion”—and obstruction of justice in Part II.

Q – Could you have said “‘established’ means a fact or series of facts is credible beyond a reasonable doubt”?

A – I think that’s the way it works as the report progresses. That’s why, on the present record and given our rules, we reached no conclusion regarding obstruction of justice.

Q – But right in Part I, before you get to obstruction, you vary the verb usage from “established” to other words that are vague or undefined.

A – Examples?

Q – Sometimes the variance seals your point by exceeding the definition you’ve given for “established,” and that’s OK:

The investigation did not uncover evidence of Manafort’s passing along information about Ukrainian peace plans to the candidate or anyone else in the Campaign or the Administration. [P. 188; my emphasis]

A – OK.  If established is a difficult standard as applied, as you say, “did not uncover” is an even more definitive phrase to show an absence of culpability.  Fine. I recall using it a few pages later too (see p. 202).

Q – But the other variations on establish diminish the report’s credibility.

A – What other verbs do I use besides uncover?

Q – “Identify” is linked to the word “evidence” more than once in the report (pp. 187, 189, 225). What did you mean to accomplish by giving a synonym for an already defined word? You wouldn’t do that in drafting a deed or a will, would you? It’s at best needlessly confusing, and it’s harder to understand, I think, than uncover.

A – I think you’re nitpicking. Maybe I should have stuck with establish, but the variations you’ve “identified” so far strike me as similar in enhancing the word’s meaning, not diminishing its force. You might have referenced just now “find” as a variation too: we “did not find evidence” beyond a reasonable doubt that Campaign officials acted as agents of Russia (p. 241). Every major statement I make about conspiracy reverts to or doubles down on the word established, right? “Ultimately,” we conclude, “the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities” (p. 231). Consistent enough for you?

Q – I can’t concede the point quite yet. The weakest link, and the one that most concerns me about this uncharacteristic stylistic slippage, relates to your chapter on the infamous Trump Tower meeting of 9 June 2016, and the possible violation there of campaign finance laws. Key Trump campaign representatives Trump, Jr., Manafort, and Jared Kushner met with various Russians, enthusiastically anticipating derogatory information about Hillary. There might have been criminal violations that day alone, notably of campaign finance prohibitions on foreign contributions of many kinds, including “anything of value” such as information (p. 244) . . .

A – Of course—our analysis of that meeting is as long and as incisive as Crime and Punishment’s sections on the investigation of Raskolnikov! I start by recognizing that this episode gets very close to Trump but conclude that (see p. 168) . . .

Q – Let me quote your conclusion:

On the facts here, the government would unlikely be able to prove beyond a shadow of a doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful. [P. 245]

A – Kind of choppy, I admit, but that scienter requirement—they had to act knowingly and willfully—was the stumbling block for us under the relevant statute. We got some evidence but did not “obtain” much regarding scienter.

Q – But again there is immediate and troubling slippage in your verb usage! “The investigation,” you go on,

has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban. . . . While Manafort [for example] is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues” [Pp. 245–46; my emphasis]

A – We messed up there. I take your point.

Q – Made out of admiration for the care elsewhere. What could you have meant by “has not developed evidence”?  Aren’t you admitting that if you had moved the investigation along—“developed” this part of it—you might have met the legal requirement of the campaign’s knowing violation of law?

A – Well . . .

Q – Let’s take from this dialogue that even the conclusion of absence of conspiracy and cooperation, as well as what you say on obstruction of justice, needs to be explored further?

A – Maybe, but not by me. I did my best, and the report stands, warts and all.

Q – Small warts indeed on a fine body of writing.  Thanks Mr. Mueller, for being an excellent lawyer.

 

---

 

[1] See Richard H. Weisberg, When Lawyers Write (Boston, 1987).

[2] Page references are to the Washington Post version of the Report (2019), following the number on the lower right of each page.

[3] See Weisberg, When Lawyers Write, p. 6.

[4]

If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. . . . While this report does not conclude that the President committed a crime, it also does not exonerate him.

The language continues the report’s practice of strong stylistic choices; the frustration it evoked cannot be blamed on “legalese.”

[5] Senator Kirsten Gillibrand, quoted in the New York Times, 26 June 2019.

 

Richard H. Weisberg Floersheimer Prof. of Constitutional Law, Cardozo Law School, Yeshiva U and formerly Asst. Prof of Romance Languages and Comparative Studies in Literature, the University of Chicago.

Wet Humor

 

 

 

Kyle Stevens

President Trump’s visit to London this summer was met with protest and more specifically with protest humor. Barbs like “Orange is the new twat” and “Trump wears poorly tailored suits”—pointed, but not particularly funny—were scrawled on poster board and stapled to sticks in an effort to telegraph disapproval, attract attention, and demonstrate national cultural identity. In the US such humorous signage has become commonplace since the day after Trump was sworn into office. The Women’s March on 21 January 2017—the largest protest in the nation’s history—inaugurated an idea of protest behavior that would quickly become dominant as it echoed the absurd new condition of being considered subversive for representing an opinion held by a national majority. This behavior tends to follow the lead of journalists and comics whose views gain traction on social media, chiefly Twitter, the medium made notorious by the current president. These commentators try to help us interpret our society, to make sense of insensible times. They are our intelligentsia, and they typically accomplish their work through quips and aphorisms. The burn has become a powerful public weapon. Indeed, as Maggie Hennefeld succinctly puts it, today “There is no fiercer political weapon than laughter.”[1] On the side of those agitating for change, laughter is offered up as the antigunshot, the anti-pussy grab, the antichokehold, the antideportation, the antichildren learning a lockdown rhyme. We ask a lot of humor. We expect it to take the place of physical retaliation, of sit-ins, of the guillotine. But in this space, I want to ask how cutting it is. I want to (somewhat provisionally) map out what I call wet humor, a humor that registers the fear, anger, and exasperation of inhabiting this precarious and nonsensical cosmology. Wet humor stages the sentiment of laughter through tears, unlike much of the urbane, dusty political comics and polemics of the past.

Look at some of the widely circulated protest signs from the Women’s March.

Or signs from the March for Our Lives on 24 March 2018.

Clearly, humor is the chief strategy for communicating each event’s agenda and for inviting media attention. But before we consider the humor of these signs, compare them to those from various Black Lives Matter (BLM) marches.

 

The tonal discrepancy of the images disseminated suggests that political humor—however fierce a weapon—is associated with whiteness; and there were indeed complaints from women of color and trans communities that the Women’s March focused on cishet white women. In a point I will return to, BLM signs are clearly addressed to the group’s political foes, and given the historical expectation in the US for black subjects to entertain white people, wittiness may threaten to reinforce the racist perspectives precisely at stake.[2] The directness of BLM signage is reminiscent of the 1980s and ’90s slogan for AIDS awareness group ACT UP, “Silence=Death,” which suggests that humor is unavailable to those of us who must argue not just for the merit of their lives but for the validity even of speaking about that worth. That said, marches against gun violence and the control of women’s bodies are deadly serious, too. Seen from a different angle, even if the availability of humor is a sign of white privilege, it may also be a form of self-deprecating hesitation, even doubt, about the validity of one’s voice, or about the fear that a voice will be refused unless it speaks in a pleasurable manner.

I want to say that while all of this may be true we might, at the same time, retain the old-fashioned notion that wit is a form of thinking and judging and that if we want to understand our current political moment, we must take wit seriously as a style of protest humor. But first, to carve out a space for wet humor, let me briefly say a few words about kinds of humor it is not. It is not, for instance, a derivative of Mikhail Bakhtin’s idea of populist humor, the carnivalesque.[3] This comedy relies on the thrilling but necessarily brief undoing of established sociopolitical structures, whereas political protests seek permanent change, not transitory liberation. (Social media’s hierarchical algorithms are never overturned, either.) Wet humor also falls outside of Henri Bergson’s well-known theories locating humor and its resultant laughter in the mistaken attribution of automaticity to organisms, because our current context complicates the presumed ease of such perception. To see “the mechanical encrusted upon the living” entails an agreed category of “the living,” those whose lives are acknowledged as mattering.[4] One might also think of dark humor, or what André Breton dubbed “black humor.” But dark humor is ultimately nihilist, deliciously petty, the “mortal enemy of sentimentality”; it seeks to undermine meaning in the world altogether, whereas those marching do so earnestly.[5]

Rather, as I hope is obvious, wet humor is formulated in relation to dry. Dry humor is an established aesthetic concept, yet we cannot point to a definition. Humor theorists use the term to help elucidate the operations of other modes of humor—if not humor itself—but that dryness remains unexplained makes it a powerful ideological concept, one we may have learned without knowing when or how, one that appears natural. There is a relevant use of dry to mean impassive or emotionless that dates back to the beginning of English, but its use in connection with humor to denote a coherent or accepted kind or mode of humor appears to be largely a late nineteenth- and twentieth-century phenomenon. In his survey of humor theory, Simon Critchley depends on an intuitive understanding of dry to build an account of humor rooted in suddenness and revelation, but he leaves the term itself undisturbed, though we may infer that its meaning is akin to the old Germanic witz.[6] It is Kantian in the buildup and release of tension, but—and here I’m projecting a bit—it is also about a subject with both little and much at stake. When we use dry or similar words like droll, are we not rolling our eyes at something whose importance is misconstrued? It is the taking of the serious as unserious or vice versa.

I also suggest that dry humor is paradigmatically verbal. That is, although we might call nonverbal objects dry, such as a cinematic cut that twinkles in the eye of the canny observer, that nomination tends to rely on a metaphorical association with verbal rhythms. More importantly, dry humor presents as indistinguishable from earnest conversation. It threatens itself in its very creation. Even deadpan styles announces itself as humorous via suggestive insinuation, unlike truly arid wit. Dryness seeks to achieve maximal humor with minimal expression, demanding attentive labor from its listener, and this economy of detection is bound up with its economy of emotion, too. The bemused smile or chuckle erupts from one’s own thought, not from the spontaneous outburst proceeding from the perception of humor (as in slapstick, say). Hence, dry humor is often supercilious and lends itself to cruel or condescending swipes. It excludes the unobservant, the stupid, insisting the audience is on the right level by testing the listener’s ability to puzzle through lurking logics.

This tenuousness helps understand why dry humor is associated with a vein of campy writing for which Oscar Wilde is a touchstone. Consider this example from The Picture of Dorian Gray:

“Dry-goods! What are American Dry-goods?” asked the Duchess, raising her large hands in wonder, and accentuating the verb.

“American novels,” answered Lord Henry, helping himself to some quail.[7]

Now, Lord Henry obviously does not mean that American novels are witty. Wilde’s genius is in demonstrating dry wit by deploying the easy pun and then asserting his control beyond the characters’ statements (via the third sense of “dry” that he intends to operate here). Here, dry humor undercuts the possibility that to withhold expressivity is to be less expressive—much less to amount to the taciturn refusal of masculine privilege embodied in “the strong, silent type.” It is not a case of less is more, but a situation in which the recognition of humor and the dawning laugh comes with the realization that more was there all along, closeted in the speech act. Again, dry humor plays with the limits of what we imagine to be the other’s capacity to detect humor. And it would be wrong to say that it wears a disguise or masquerades as conversation—as though it was something else in the first place—or that it is somehow unmeant. Rather, it tests the limits of language, of how the performance of utterance affects meaning. (In this way, dry humor is a potent tool for highlighting and subverting an attachment to models of language use overly rooted in referentiality.)

One may thus see why dry humor would be an unappealing tool if one is concerned about the intelligence of one’s fellow citizens. Nevertheless, creating and ingesting comedy may be a justified recourse in the face of an administration that meets with Kim Kardashian to discuss prison reform or makes up fake terrorist attacks (“the Bowling Green massacre”). Equally, though, creating and ingesting comedy might be essential in the face of membership in a voting body that includes so many who voted against their own interests and believed—and continue to believe—patent lies about everything from the president’s history of sexual assault to his campaign financial dealings, who remain unmoved in the face of mass death following Hurricane Maria and the ongoing lack of clean water in Flint, Michigan. The manifestation of wet humor I want to focus on here has surfaced when neither purely intellectual nor predominantly emotional petitions succeed.

To think about wet humor—with all the registers of drenched, dank, damp, and so forth—we first have to agree that signs featuring slogans like “Power Bottoms Against the Patriarchy” are funny. They may not elicit a great deal of diaphragm exercise, but they at least provoke a good, amused exhale. Then we must agree that it’s not best labeled dry. There may be something dry about it, in that it relies on the reader’s experience and lexicon to get why it’s funny (the meeting of the slightly graphic term “power bottom” with rainbow stickers; fairly complex ideas regarding the history of relations between sex, gender, sexual positions, power, and so forth), but there is no built-in revelation. Similarly, users logging on to Twitter to see protest signs curated by those they follow pretty much know what messages will be conveyed. (Because we know that most social media typically functions as an echo chamber and in turn that we cannot rely on these streams to be accurate representations of reality—even as they are our dominant access to knowledge about reality—they generate a new anxiety that our representations of the world are illusory. Call it a new kind of political skepticism. But that is a topic for another time.)

There is of course variation within these generalizations about protest humor. The inflatable chicken Trump is not wet humor, because one sees it as funny. You needn’t think deeply about it to get it. Wet humor shares with dry a rejection of the immediacy that may be enjoyed by humor based on perception. Or to take an example from Saturday Night Live, another prominent source of wet humor, Alec Baldwin’s Trump was soggier than Tina Fey’s Sarah Palin, because Baldwin’s depiction was somehow pre-saturated; Fey, on the other hand, revealed things about Palin to which the world had not yet attended. (All impressions are a form of wet humor, because they play to an already known standard, even if the distance from that standard can itself be a measure of revelation.) Wet humor is about predictability, the presumption of a shared opinion. If dry humor wants, via surprise, to subvert or redress values and assumptions, wet wants to confirm them. Lauren Berlant asserts that comedy is “about surprise, an unequal distribution of being knowing and a sucker.”[8] Wet humor is comedy without surprise—but with the form of surprise. Dry wit encourages a listener to come to a new view; wet wit encourages a listener to come to the same view again, reminding us that not all satire operates the same. In this sense, wet humor’s express purpose is not to encourage people to “forget their problems”—as Berlant quotes Jerry Lewis as saying and suggests Bergson intends with his phrase that laughter is “a momentary anesthesia of the heart” (quoted in “H,” p. 320). Berlant elaborates this therapeutic vision of laughter: “The good laugh is thus a generous genre of relief from the humorlessness with which one eats the effects of ordinary absurdity and injury” (“H,” p. 320). Wet humor positions itself in the face of extraordinary absurdity and injury.

To put it another way, if dry humor involves a coming to knowledge or measure of the energy invested into insight, wet humor involves a similar logic of recognition without the suddenness or revelation. It is not the opposite of dry; it exists on a continuum with it. Dry humor is dehydrated of emotional investment and agreement. Wet humor embraces the fort-da repetition necessary to the working through of trauma. It is thus proving to be a vital tool for building solidarity, for reiterating—and more importantly for ratifying—shared values and judgments. In this respect, wet humor need not be seen as a form of self-deprecation, because it’s not addressed to the other side. While dry humor can be patronizing, it is not necessarily exclusive of the other, and can indeed be jovial, even loving. In contrast, wet humor inspires a communal affect that depends upon the identification and exclusion of an antagonist, threatening to evacuate from politics ambivalence or the possibility of the transformative joke. Of course wet humor has not replaced all protest—BLM reminds us of that—but the question of who is laughing at whom often dominates media coverage of events. The problem here is not with laughing itself but with erasing the distinction between political rally and protest (or other actions of resistance). When seen as a method of protest, wet humor suggests that the 1960s dream of peaceful protest that creates change is lost in the course of the failure of the American experiment. It is also, I think, the reason that the government is free to ignore protests, counting not on the unreliability of conviction but on its ephemerality, on the sense that public outcry is merely part of the attention economy.

 

[1] Maggie Hennefeld, “Comedy is part of feminist history—and we need it more than ever,” Transformation, 6 May 2018, http://www.opendemocracy.net/transformation/maggie-hennefeld/comedy-is-part-of-feminist-history-and-we-need-it-more-than-ever

[2] For a history of how black artists have used humor to address institutional racism and racial injustice, see Glenda Carpio’s Laughing Fit to Kill: Black Humor in the Fictions of Slavery (New York, 2008).

[3] See, for example, Mikhail Bakhtin, “From the Prehistory of Novelistic Discourse,” The Dialogic Imagination: Four Essays, trans. Caryl Emerson and Michael Holquist, ed. Holquist (Austin, Tex., 1981), p. 79.

[4] Henri Bergson, Laughter: An Essay on the Meaning of the Comic, trans. Cloudesley Brereton and Fred Rothwell (Mineola, N.Y., 2005), p. 18.

[5] André Breton, “Lightning Rod,” in Anthology of Black Humor, trans. Mark Polizzotti (San Francisco, 1997), p. xix.

[6] See Simon Critchley, On Humor (New York, 2002), p. 6.

[7] Oscar Wilde, The Picture of Dorian Gray, ed. Philip Smith (Mineola, N.Y., 1993), p. 28.

[8] Lauren Berlant, “Humorlessness (Three Monologues and a Hairpiece),” Critical Inquiry 43 (Winter 2017): 319; hereafter abbreviated “H.”

 

American Psychosis

For a psycho-social analysis of the Trump election, see W. J. T. MItchell’s lecture, “American Psychosis,” delivered at the University of Geneva on January 18, 2017.

https://elearn-services.unige.ch/medias/share/video?url=https://mediaserver.unige.ch/proxy/99536/VN3-2760-2016-2017-AG-01-20.mp4&width=960&height=540&id=99536&start=0

The Election of Aristophanes

Jonathan Doering

 

As if swept up by a sinister, laughing wind, the characters of Aristophanes scattered across the American election. Sophists, sycophants, demagogues, and tyrants—all Greek figures employed by the Athenian “Father of Comedy”—blew across the political and media landscape. Swap Donald Trump and his caballing acolytes with the pseudopopulist heroes and villains of Aristophanes and few would notice. “The Theatre,” Trump declared, “must always be a safe and special place”: if only he knew the Aristophanic arsenal amassed for ridiculing his “ancient Trumps” like Cleon and Alcibiades. The comedian coined demagogue and devised its comic archetype, an eel-fisher who catches nothing in clear waters but reaps bounties by stirring slime. Thus if Trump never existed, Aristophanes would be forced to invent him. Mere decades after democracy’s inception in Athens, the playwright yoked it to comedy; when democracy mires itself in the mud, we spot him on the scene. From carnivalesque populism to debates over political correctness, Aristophanes whispers his stage directions to the political order. No one else so effortlessly captures the careening hypocrisies of born elites who pursue populism. No one else understood that the populist farce, in the repetitions of history, comes before the tragedy—the reverse quip of Karl Marx. The winds blow Aristophanic.

Peisetaerus of Birds becomes the best backbone for Trumpian flesh. A bombastic sophist, fancying himself a developer for the tremendous new city of Cloudcuckooland—to be surrounded by a great wall—Peisetaerus means “persuader of his comrades” in Greek. Disillusioned with Athenian (American) life, he quarrels with the gods (Washington elites) after pitching his increasingly grandiose schemes to the birds (American people). Peisetaerus bests the Olympians (Rubio, Bush, Kasich), eventually being crowned tyrannos: a buffoonish sophist-god-tyrant. The apotheosis of Peisetaerus—god of the gods—marks the finale of Birds, ending its prophecy for 2016.

There was no sequel, but a great many Trumpian motifs: a scam university in Clouds, an assault on the judiciary in Wasps, a meat salesman’s campaign for power in Knights (sausages, not steaks). Right out of Trump supporters’ nightmares, Praxagora of Assemblywomen wins the election and encourages her fellow women to implement a socialist regime. Yet Aristophanes was no Marx; intractable ironies stifle these political programs. The quasi-feminist sex strike in Lysistrata leaves critics wondering whether Aristophanes—like Trump says of himself—“is the best for women” or simply practices classic Athenian misogyny. Aristophanes believed in democracy more strongly than Trump, but in both we find a kind of comedic realpolitik. Winning the Dionysia festival, like winning business or votes, was paramount. “Vote for us,” cry the titular creatures of Birds, “or we’ll shit on you.” Scholars interrogate the playwright’s politics as the Aristophanic question par excellence; now its uncertainty is itself Trumpian.

Lysistrata re-imagined in Spike Lee’s Chi-Raq

Aristophanes’ cornucopia of churlish wit belongs mostly to the left these days, but electing a “pussy-grabber” represents a dubious right-wing victory against “political correctness”—of all political terms, the most incoherent. Though often used against left identity politics, this linguistic policing classically belonged to the right, protecting authority and the state. Its logic is patriotism; civil language was civic. Even the irreverent Aristophanes offered a “safe space” for certain conservative elements in Athens. Classical Greek obscenity did not recognize tainted words, argues Jeffrey Henderson, only a concept of bringing shame (crucial in Trumpian rhetoric). In Henderson’s fine translation—the first unexpurgated one in English— Peisetaerus decrees that if the gods trespass (through the fabled wall) “then clap a seal on their boners, so they can’t fuck those women anymore.” Yet obscene language in Aristophanes and Trump conceals reactionary political prohibition. The first “politically incorrect” comedian was sometimes a hypocrite, a term whose meaning was aptly embroidered by ancient drama, whose mantle robes Trump so extravagantly today.

The spirit of 2016 was a carnival of sinister comedy rejecting policy-politics-polis as serious inquiry. Mikhail Bakhtin understood carnivalesque literature as turning the world upside down; each play of Aristophanes indeed turns Athens inside out. Bakhtin wed the carnivalesque with the grotesque: the openings and protrusions of the body, elements that are “disgusting”— Trump’s favourite word. Trump injected the grotesque into politics in an Aristophanic throwback. He made politics bodily again: about menstruation (Megyn Kelly), his small, germophobic hands (the “short-fingered vulgarian”), and his histrionic hair (Aristophanes, famously bald, lacked Trumpian technologies). The penile exchange between Trump and Marco Rubio was ripped right out of Birds with its cocks of many feathers. If Straussians fancy robing naked power with decorum, then Trumpians dress it in the costumes of old comedy, padded outfits affixed with giant leather phalluses.

The notion that jesting statements are harmless first ran aground when Aristophanes lampooned Socrates in Clouds, influencing the jurors who later sentenced him to death. This literary-political relationship haunts G. W. F. Hegel, Søren Kierkegaard, and Leo Strauss. Aristophanes’ engagement with the real inhabitants of Athens, however, is inseparable from his rhapsodic imaginings of the polis undergoing sexual and socialist revolutions. His comedies are neither utopias nor dystopias, yet each reveals the contingency of the political order. Some escape Athens, others return to an older Athens, each rips through the status quo like the thunderous flatulence in Clouds—the “winds” of revolution and deviance. Already recognized as the “prince” of comedy, he should be hailed as patron of dissent and political imagination.

Western democracies claim and clamour over their Greek heritage. Yet they repressed Aristophanes—who insists he is among the greatest comedians of all time—and now his spirit returns, demanding exaltation. If greatness demands relevance, then Trump vindicates Aristophanes. A superlative satirist before satire even had a name, Aristophanes coined spoudaiogeloion, or the seriocomic. Tragedy seems apt for the terrifying state of the world today, but hearing the raucous, knowing laughter of Aristophanes, we must study how comedy arms and disarms; laughter can be both virtuous and vicious. Post-truth may be the word of year, but we are not postcomedy—as dire as this seriocomedy proves to be. Trump claims the world is “laughing at us”: as always, the questions are who to laugh with, who to laugh at, and when there must be no laughter at all.

Working between rhetoric and philosophy, Jonathan Doering studies the reception and presence of classical and modern rhetoric in French thought, and examines sophists both ancient and modern. He is finishing his PhD at the Centre for the Study of Theory and Criticism in London, Ontario.

Further Night Thoughts on the Trump Election

W. J. T. Mitchell

Can I just say that I am sick and tired of hearing liberals and leftists beating their breasts about how they failed to empathize sufficiently with the white working class in this country? How terrible that we failed to feel their pain, to go out into their dying towns and promise to bring their lives back along with their dead-end jobs mining coal. Shouldn’t Hillary have spent more time in the white suburbs of Milwaukee? Shouldn’t we all give up our city jobs and take up farming or automobile maintenance? Shouldn’t we have nominated a man who feels the pain of hunters and sportsmen deprived of their assault weapons? Why can’t we seem to empathize with evangelists whose flexible moral code includes a tolerance for pussy-grabbing, race-baiting bigotry and xenophobia (sorry for the big word), as long as it includes the sacred right to invade a woman’s body to save a potential American citizen? Could this be why we are so annoyed by pants suits?

Everyone who looks at the electoral map notes one striking pattern. This is about the country versus the city. How many cities (and the universities in them) are now declaring themselves “sanctuaries” for the ten million illegal immigrants who will, if Trump keeps his most fundamental promise, soon be rounded up by federal authorities, with the cooperation of local law enforcement? Sheriff Arpaio of Arizona, voted out of office in his home state, but soon to play a role in the Trump administration, has showed how local police can be used to enforce immigration laws with racial profiling and stop and frisk tactics. We have known about the danger of “driving while black” for some time. Soon we will find out what happens to those who are driving while Latino/a. And if cities like New York, Los Angeles, Minneapolis, and Chicago refuse to enlist their police forces in the immigrant roundup, Trump and his minions have threatened to cut off federal aid to cities. Suppose the cities defy this move, bite the bullet of a budget shortfall, and open up refugee camps for immigrants? What is Trump’s next move?   As the nation’s chief law enforcement officer, he will find it perfectly logical to call in federal marshals or even the National Guard to enforce the law. At this point the wounded white folks out in the sticks will turn off their television sets so as not to witness the crowds of women and children, housemaids and students, teachers and carpenters, fruit pickers and restaurant workers being loaded onto busses. I presume the Trump team will have the good taste not to put them in cattle cars on trains heading for “temporary” detention camps. The imagery might not play well in rural sports bars when the NFL game is interrupted by an annoying news bulletin.

 

So please, all you liberals, leftists, hipsters, intellectuals, progressives, school teachers, and people who read something besides Twitter feeds, and watch something besides Fox News, stop apologizing for losing this election. Please remember that in fact Hillary Clinton won the popular vote. She was clearly over-qualified for the job and failed to bring her message down to the level that P. T. Barnum had in mind when he said that there’s a sucker born every minute. Before you assemble in a circular firing squad to put the blame on yourselves, take a moment to assign the blame where it belongs: on the idiots who voted for this man, and the hypocrites who are now kissing his ass and encouraging the rest of us to look in the mirror. Instead of the mirror, I recommend a panopticon of critical inquiry, led by a rebirth of vigilant investigative journalism, a mobilization of historical and cultural memory, and frequent reminders that the Constitution has other things in it besides the Second Amendment.

Trump’s Election and Collective Madness

W. J. T. Mitchell

 

“History is a Nightmare from which I am trying to awake.” –James Joyce, Ulysses

“Insanity in individuals is somewhat rare. But in groups, parties, nations, and epochs, it is the rule.” –Nietzsche

“A single Athenian is a wily fox. A group of Athenians is a flock of sheep.” –Solon

“Every man, seen as an individual, is tolerably shrewd and sensible, see them in corpore, and you will instantly find a fool.” Schiller

“No one ever went broke underestimating the American public.” -P.T. Barnum

“You can fool all of the people some of the time, and some of the people all of the time, but you can’t fool all of the people all of the time.” –Abraham Lincoln.

What Lincoln failed to add is, those are pretty good odds for the success of a determined and skilled con artist in the short run.

“We Palestinians love Trump because he is pure Americana. He shows the true face of the American character, and we feel it is important for the world to see that truth for what it is.”

–Conversations with Palestinians in the West Bank, May, 2016.

To which I replied: “That is easy for you to say in the safety of Palestine.”

The shocking election of Donald Trump reminds us that the real location of mental illness, whether it takes the form of anger or a melancholic sense of wounding and resentment, is primarily in the group, not the individual. We sometimes think that the paradigm of madness is to be found in the individual case. Nothing could be further from the truth. Paranoia is most effective when it is shared with others; nurtured in isolation, it shrivels up and dies. It is a long standing commonplace that human reason of the practical sort, the kind that involves the management of one’s own affairs generally prevails at the individual level. Even the famously psychotic Judge Schreber could perform complex feats of legal reasoning, and convince a court that he was capable of managing his own affairs. Reason also operates quite efficiently at the level of tactics and strategy, never more relentlessly than in warfare, the most dramatic form of collective madness known to our species. In politics, the supposedly peaceful sublimation of war, reason moves from the manipulation of weapons and destruction to the skillful manipulation of unreason; it deploys the ancient lessons of rhetoric as opposed to logic, of instrumental, egoistic reason as contrasted with wisdom or Kantian Enlightenment. Calculated appeals to emotion trump (you will forgive the pun) those of reason. The heart has reasons of its own, and it is the chief exercise of cynical, manipulative reason to understand the triggers that set off collective madness in the mass. See Kelly Ann Conway, Trump’s brilliant campaign manager, who showed us the power and “reasonableness” of wiliness, cunning, and clever rhetorical agility.

 

 

Trump’s campaign capitalized on all the dark forces in the electorate that lay below the threshold of opinion polls and their data bases, unreachable by rational arguments about policy solutions to shared problems, unembarrassed by transparent lies and demagoguery. Racism, misogyny, xenophobia, anxiety, resentment, paranoia, and a generalized hatred of elites, experts, and established institutions were all mobilized to produce a wave of collective passion seen in the crowds that chanted “lock her up,” and threatened violent revolution if the “rigged” election went against them.

Now that the election, and the frenzy that has swept the American public for the last 18 months, has passed over us, a strange, ambiguous calm will settle over the country. Everyone will urge us to “come together as a nation,” and to heal the wounds that have been opened.  Even Trump will remind us that, at heart, he is just a negotiator who has no principles except “the art of the deal” that favors his perception of national interest. The madness, however, has simply gone underground, the wounds festering, leaving the American dream as always, only the blink of an eye removed from the nightmare of our history.