Category Archives: WJT Report

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.

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Filed under 2016 election, Mueller Report, The Trump Election: Night Thoughts

Reading the Mueller Report

The textual icon of our moment is surely the Mueller Report. It is the most discussed and least read books in many years. It must rank among the most eagerly anticipated and anticlimactic publications in the modern history of the book. How important is it? Or rather, what, precisely is its importance? Does it matter that is boring, especially for people who have watched the entire narrative unfold publicly over the last two years. Will it come alive (as some hope) when the movie version of the report is produced by the author’s testimony before Congress in the coming weeks?

Critical Inquiry is interested in the question of the Mueller Report as both a text and an iconic event. We hope to publish a few brief (1500 word) invited essays that assess the significance of the report, along with its reception. If you have an idea for such an essay, please send a letter with a brief precis of your idea to the editors at cisubmissions@gmail.com.

We inaugurate this forum with an essay by Richard H. Weisberg, professor at Cardozo Law School and the author of When Lawyers Write (1987).

W. J. T. Mitchell

Editor

 


 

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In Memory of Robert Morris, 1931-2018

W. J. T. Mitchell

 

Robert Morris, one of the founders of the “Great Generation” of American minimalist artists in the 1960s and a frequent contributor to this journal, passed away on 28 November 2018. The New York Times (30 November) devoted a full page to his obituary, complete with photos of some of his iconic pieces in felt, plywood, and other humble industrial materials. Over the last twenty-five years, Critical Inquiry published many of his essays on art—its history, its many worlds, its follies and frustrations.  In honor of his long relationship with CI, we will be temporarily opening public access to all those essays soon.

Morris was also a longtime personal friend, mentor, and inspiration to the editor of this journal. We enjoyed a running conversation about art, politics, and culture, along with specific discussions of the essays he sent to us. He introduced me to contemporary art in the late 1980s, which probably jaundiced my normally hopeful eye. I wrote an essay (“Wall Labels for Robert Morris”) for the catalogue of his 1993 Guggenheim retrospective based on a dream diary entry that he sent to me.  He was also an occasional visitor to Chicago for exhibitions of his work at the Art Institute. And on 13 November 2013, when he was in somewhat precarious health, he agreed to come to Chicago to give a lecture/performance. He packed the 474-seat Logan Center Auditorium, dazzling the audience with four screens, two large ones with automated images, and two smaller ones that he controlled from two lecterns. Images from throughout the history of art cascaded forth as he proceeded, in steadfastly deadpan Morris fashion, to give two parallel lectures, the combination entitled “A Few Thoughts about Bombs, Tennis, Free Will, Agency Reduction, Museums, Dust Storms, and Labyrinths.” As I recall, one lecture was emphatically more negative than the other. Neither was what you would call positive or affirmative. From the lectern on stage right, Bob declared his refusal

to talk about art that I made half a century ago; minimalism does not need to hear from me. I do not want to talk about art that I made yesterday; contemporary art is making enough noise without me. I do not want to be filmed in my studio, pretending to be working. I do not want to participate in staged conversations about art, either mine or others, past or present, which are labored and disguised performances. I do not want to be interviewed by curators, critics, art directors, theorists, aestheticians, aesthetes, professors, collectors, gallerists, culture mavens, journalists, or art historians, about my influences, favorite artists, despised artists, past artists, current artists, or future artists. A long time ago I got in the habit, never since broken, of writing down things instead of talking. It is possible that I was led into art making because art making and being in the presence of another person were not requirements.

Moving over to stage left after a reflection on free will and determinism  (“Now comes the hard part”), Bob switched from sardonic monologue to a Samuel-Beckett-style dialogue between two mysterious interlocutors:

One:  “Ever hear the expression, ‘I have reached bed rock and my spade is turned’”?

Other:  “Maybe. Why?”

One: “What do you think it means?”

Other:  “Metaphors don’t have meanings.”

One: “Really?”

Other: “They just lead us to see one thing as another.”

One: “Hmmm.  So where is the spade and rock leading you? Not the rock or the spade but the turning. The turning after it hit the fucking rock.”

Other: “OK, the turning. Where is it leading you? Something about going on without reasons.  You never have reasons anyway.”

One:  “There is more.”

Other:  “Oh, no.”

One: “The way it goes is to begin with a qualification.”

Other:  “Let’s hear it.”

One: “It goes, ‘I’m inclined to say,’ and then you get to the rock and spade.”

Other:  “Well, that changes everything.”

At the end, Bob agreed to answer exactly ten questions from the audience, no more, no less. The answers were all quotations from famous philosophers written on slips of paper drawn out of Bob’s hat. In answer to the question, “what are you really trying to say in this performance?” Bob luckily pulled out a line of John Cage’s “Lecture on Nothing”:  “I have nothing to say, and I am saying it.”

I won’t try to make sense of all this for you. Bob’s critical intentions always seemed directed at puncturing the clichés of “artspeak” and the mystique of artist “personalities.” He loved labyrinths of thought, continually weaving metaphysics and everyday language. His sensibility was unrelentingly pessimistic, ironic, and quietly jocular, poised somewhere between Buster Keaton, Ludwig Wittgenstein, and George Carlin. In private, he was a gentle, considerate friend, with a deep reservoir of rage at cruelty, injustice, and pompous hypocrisy.

The first time I met him was at his invitation, sometime in the late 1980s. He had read my recently published book Iconology and wrote me a short note telling me that he liked it and would be  happy to meet me if I ever came to New York. He mentioned in a PS that he had a show at the Art Institute of Chicago, which I duly attended. It was the debut of one of his numerous departures from his minimalist origins into a maximalist exploration of apocalyptic firestorm paintings laminated onto heated lead plates, framed in hydrocal structures riddled with impressions of body parts—fists, penises, skulls.

Robert Morris, Untitled, 1984.

I suspect that I pissed Bob off when I said that “they look like ornaments suitable for Darth Vader’s boudoir,”[1]but he seems to have forgiven me. I felt that the firestorm compositions were staging a paragone or debate between sculpture and painting, “insisting on the frame as an equal partner in the work”:

The hydrocal frames with their imprinted body parts and post-holocaust detritus stand as the framing ‘present’ of the works, trophies or relics encrusted around the past event, the catastrophe that left the fossils as the imprints in which it is enframed.  Frame is to image as body is to the destructive element, as present is to past.[2]

On my next trip to New York, I arranged to meet Bob for coffee at 4 PM at a café in Soho.  We didn’t stop talking until midnight. For the next twenty years, every trip to New York included a meal with him. When he moved his studio to upstate New York, he let me use his top-floor loft on Greene Street as a crash pad, and I spent many lovely evenings there sitting out on the fire escape watching the crowds on Canal Street and the sunset over the cast iron buildings of Soho.

Most of our correspondence over the years dealt with his writing, but twice I was able to commission works of art from him. One was an illustrative cartoon for a lecture at MoMA entitled “How the dinosaurs broke into the Museum of Modern Art,” which dealt with issues such as neglected and deaccessioned holdings in the museum, as well as (naturally) Robert Smithson. MoMA’s director politely suggested that the museum would be happy if I were to give them Bob’s drawing as a gift, and I just as politely declined to do so.

Cartoon by Robert Morris and the author.

The other, more serious commission was my request in 2008 that Bob make a drawing that would show the famous multistable image of the Duck-Rabbit with a body. He provided a straightforward sculptor’s answer to the challenge by resorting to the time honored technique of contrapposto, turning the creature’s body so that the rabbit is facing forward while the duck is twisting his body 180 degrees.

Robert Morris.

But he added to the image an internal framing structure based on the Greimasian “Square of Opposition” used by linguists to visualize the structures of negative statements, and later used by Jacques Lacan to produce his famous “L-Schema” depicting the relation of the subject with the Other. He mused about fabricating the Duck-Rabbit (with body) in glass, but I don’t know that he ever did.   

After he sent me the embodied Duck-Rabbit drawing, Bob launched into a set of reflections on this “quadratic diagram” in a letter that will forever tantalize me with its plunge into a world of abstractions rendered concrete, visible, and structural, driven by his inveterate “Kunstwolling,” his drive to make ideas into things and vice versa:

12 December 2008

Dear Tom,
I hope your talk went well.  Your visit here gave me a real lift. Our visits are too infrequent.
I was thinking about how to expand the quadratic ideogram to something like a quadratic equation; something which moves from a static map to a mapping of 3-D force fields. Desire gets expanded from just directional arrows-Eros to the animating axial force. So let Desire be the force moving from below where it transits first the Quadratic Ideogram of space-object and image-language. Here predilection, imagination, tropism cross the first filter/screen of the material.  The next level-screen-filter is that of the Other where the dream of private language perishes, where Desire encounters existing models, where the Oedipal resistance of that which is “always already” in place intimidates. The third passage is Desire’s move through the triangular filter of Peircean signs of concrete material means where one seizes the stuff of forming (am I just Kunstwolling along here below a big mental model which I want to grasp?). The fourth and final filter to be crossed is that of Rhetoric/Logic. Here I do not have a clear memory of how you articulated this opposition. I can see it partly as taking the form of a Klein group (x-not-x; x-not-y;x-not-x or y, etc). This fourth level is also that of format and revision and where revenge is taken on the Other by means of signing and presenting the work-thought-object-art .
All this is extremely tentative. I don’t know the geometry of the four levels–squares? triangles? circles?
I thought you might be able to (a) play/expand/refine this quadratic equation,or (b) rip it to shreds.
Love,
Bob

As Morris’s apprentice, editor, and friend, I found these exchanges endlessly delicious and inconclusive, a wonderful meal that left me with renewed appetite for more. The idea that there will be no more conversations of this sort left me desolate and blue all day, until I received the following note of condolence from my old friend and former student, John Ricco, quoting from Sarah Ruhl and Max Ritvo’s book Letters from Max: A Book of Friendship:

No end, I swear by all that is holy, only the silence in between the movements. You know those silences in which the educated audience members at concerts don’t applaud? Because they know it is a ‘movement’ that’s just ended and not the end of a song? I think or hope that’s what death is. The silence between movements; those who don’t know any better applaud, but those who know music more intimately sit in silence and wait for the next movement to begin.

 

 

 

 

 

 

 

 

[1]Actually, I was quoting my wife, Janice Misurell Mitchell, who didn’t like them nearly as much as I did.

[2]W. J. T. Mitchell, Picture Theory (Chicago, 1994).

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PRESENT TENSE: Time, Madness, and Democracy around 6 November 2018

W. J. T. Mitchell

“The present is real in a way in which the past and the future are not.”
—Saint Augustine

“May you live in interesting times.”
—Ancient Chinese Curse

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

This essay is written in the present tense about a tense present. It concerns the period leading up to the US midterm election on 6 November 2018, and it will no doubt continue writing itself after that date. It is not an attempt to predict the results of that election, which seem to become more uncertain every day but will be known by the time you read these words. The aim is to reflect on time itself as an experiential, qualitative category, in the midst of a time in American political culture that is by all accounts tense, uncertain, “interesting,” and (above all) crazy. The craziness of the moment is threefold: (1) it is a collective psychosis, involving a pathological detachment from reality by large masses of the American population; (2) the individual pathology of a psychopathic and narcissistic sovereign who channels and exploits the collective insanity to maintain his power; and (3) a world order that seems to be trending inexorably toward the death of democracy and its replacement by authoritarian regimes led by strong men. If it has been clear for some time that Friedrich Nietzsche was right about the madness of “groups, parties, and nations,” we must now turn our attention to the epoch, the swerve or tipping point in history that is experienced by many with a sense of astonishment, anxiety, and alarm. On every side one hears ominous predictions that if the Trump party (formerly known as Republican) is victorious on 6 November and holds on to the House of Representatives, Trump will reign unchecked for at least two and possibly six more years. In that time he could deal a decisive blow to American democracy itself, and (in the longer durée of climatological time), deliver a death blow to the meager efforts to stave off a planetary crisis of rising sea levels, displacement of large populations, and increasingly disastrous weather events.

In view of the urgency of this moment, who has time to reflect on time? It might seem like it is time to act, not to think. But the only actions available to a private citizen (voting, canvassing, sending money to candidates and causes) seem like pinpricks on a runaway elephant. The knowledge that “the system is rigged” by voter suppression, gerrymandering, hacking of voting machines, dark money, foreign interference, and the inequities of an electoral system that makes a vote in Nebraska twenty times as powerful as a vote in California has the predictable effect of dampening any notion that “every vote counts.” So it may be a good time to reflect on time after all.

Saint Augustine set the problem of time up beautifully, noting that when he wasn’t thinking about time as a concept he knew perfectly well what it meant. It was when he turned to philosophical reflection, asking the question “What is time?” that difficulties began. I am going to avoid the question of what time is by turning instead to how we see it and represent it, and specifically to what sort of images of time, both visual and verbal, underlie the discourse of temporality. Instead of an ontology of time, I propose an iconology of time. I will begin with three pictures of time that I am sure will be familiar to you and that are everywhere in the way we talk about it, measure it, and experience it.[1] The first, predictably, is the image of the line, with all its associated notions of succession, sequence, flow, and directionality. This is the image that governs our individual experience of time, beginning with birth and ending with death, or our supra-individual time sense of line that extends from our forgotten ancestors in the distant past down to the present and leads on into possible futures. It is personified in classical mythology by the Greek figure of Kronos—the Roman Saturn—who devours everything, including his own children.

Giovanni Francesco Romanelli, Kronos/Saturn with Child. 17th c. National Museum in Warsaw.

 

Peter Paul Rubens, Kronos or Saturn devouring his own son. 1636. Museo del Prado (detail).

Linear time is what underlies the sense that we are “ahead of our time” or “behind the times,” part of the avant-garde or doomed to obsolescence. Raymond Williams’s concept of historical periods as containing “residual, dominant, and emergent elements” suggests that the moment itself is characterized by three parallel vectors or lines of force, one pointing to the past (residual) but persisting in the present, one pointing forward to a possible future (the emergent), and one that is bidirectional, the dominant poised in “the floating now,” a phrase that Jonathan Culler has proposed for the lyrical present. In this regard, we should not forget the linear character of language itself and particularly of the structures of discursive time, of speech spatialized in writing. This can be seen at the microlevel of the sentence, which proceeds in acoustical time and scriptive space, interrupted by pauses (that is, dashes, commas, semicolons) and, most notably, by periods, with full consciousness of the pun on units of language and of history.

The second image is of an expanding/contracting bubble, trivial and ephemeral or “momentous” and catastrophic (economists employ this metaphor to describe times of runaway speculation and the bubble’s inevitable burst). This is a moment spreads out in all directions like an endlessly ramifying fractal, so that dimensions such as past, present, and future are seen as copresent, and multiple temporalities range all the way from the individual experience of time to the vast scale of paleontological “deep time” and the blinding speeds of machinic time measured in nanoseconds. It is the temporality that the Greeks associated with Kairos, the opportune moment that comes and goes and must be seized at the right time or lost forever. It is King Lear’s “ripeness is all” or (conversely) Hamlet’s sense that “the time is out of joint,” wherein every action seems futile and unprofitable. In Christian thought, Kairos is the time of special grace and inspiration, when a given moment is seen as the convergence of distinct time scales ranging from the tiny, ephemeral moment to the momentous era. Kairatic temporality is invoked when a poet/prophet like William Blake declares that he can “walk up and down in Six Thousand Years,” a temporal panorama that is equivalent to the “pulsation of an artery in which the poet’s work is done.” It is also the image that Walter Benjamin describes as a “constellation,” when a pattern linking past and present in a moment of crisis flashes up in a dialectical image.

Kairos is personified by a winged youth who balances the scales of decision and judgment on a razor’s edge. His most notable feature is a strange hairdo with a large, exaggerated forelock and a prominent bald spot on the back of his head. Kairos’s haircut illustrates the commonplace that the opportune moment must be grabbed by the forelock as it arrives, because once it has passed by there will be nothing to hold onto. As should be clear, the figure of Kairos in our present moment is none other than Donald Trump himself, the clever opportunist who sensed so accurately the collective mood of the post-Obama era and leveraged it into the most powerful political office on the planet.

 

Kairos. Roman work after the original by Lysippos, ca. 350—330 BCE. Turin, Museum of Antiquities.

 

Kairos emphasizing forelock and bald back of head. The hair illustrates the proverb about Kairos as the “carpe diem” moment.

 

Nicolas Poussin, Dance to the Music of Time. 1634-36. Wallace Collection, London. The two headed pillar on the left is the figure of Prudence, that looks both to the past and the future.

The third is the image of the circle, which emphasizes the repetition and return epitomized by the cycle of the seasons and the diurnal cycles of night and day. At its most cosmic scale, one is reminded of the image of the Ouroboros—the serpent with its tail in its mouth, Nietzsche’s image of “eternal return”—or the Greek figure of Aion—the youth who stands in the center of the Zodiac wheel in the clouds in Nicolas Poussin’s Dance to the Music of Time. Poussin combines figures from all three of our pictures of time. The chariot of Aion is led by the female personification of Fortuna, who rains money from above the clouds. The circular dance of the seasons is performed to the lute accompaniment of old Kronos or Father Time and is framed between a pair of cupids, one holding the hourglass that symbolizes time as something that is “running out,” and the other blowing bubbles that will quickly expand and burst.

To these three pictures of time I want to add a fourth dimension that I will call the affective temporality that specifies the mood of a time, what Williams called “the structure of feeling” that characterizes a period, or the particular emotions and attitudes that arise in a specific moment or epoch.[2] The idea of affective temporality inevitably suggests that categories of individual human feeling such as anxiety, hope, fear, dread, shock, depression, happiness, and joy are also experienced collectively, as shared, common, and contagious “feelings of the time.” There are numerous small-scale stagings of affective temporality, as in moments of panic and terror, or enthusiasm and hatred. Trump rallies, with their ritual performances of hateful mockery of innumerable enemies, are the most vivid examples of these moments in our time.

Other forms of affective temporality are even more visceral and long-lasting. We speak of hot and cold periods, times of normalcy and exception.[3] The Chinese curse “may you live in interesting times” suggests that the best, the happiest times are relatively boring, containing relatively few memorable incidents outside the ordinary. The “normal” includes a limited range of special or extraordinary events, mundane recurrences like births, deaths, and marriages, the punctuating moments in ordinary human life that mark a period, pause, or transition. To live in a hot period is to share experiences of crisis, trauma, uncertainty, and rapid change. It is to feel that history itself is pressing down on individuals’ and groups’ consciousness, disrupting lives and interrupting the normal cycles of daily life. Perhaps the most extreme version of the hot period is what American evangelical Christians refer to as “end times,” when history itself will come to an end after a cataclysmic battle or holocaust and the revelation of an eternal order beyond time. This is also the affective temporality that Nietzsche’s rule associates with the “epoch,” the turning point or tipping point that feels like madness.

A period of hot temporality is one in which multiple scales converge in a singular present and the pace of events and crises seems to accelerate. For the purposes of this essay, the present is a historical epoch that began on 9 November 2016 and is rapidly approaching a critical moment of decision in the very near future—in fact a precisely datable future, the election on 6 November 2018. I call this a hot period first because its onset was widely experienced as a surprise and shock. Very few experts saw it coming or predicted it. Second, the ensuing two years have been widely experienced in American political culture as one of almost constant shock, scandal, and dramatic news events, ranging from threats of imminent nuclear war to revelations of criminal behavior among powerful political actors, rumors of treason by the American president, and shocking breaks with long-established customs, alliances, and norms. Part of the heat of this two-year moment is its contrast to the previous period, the by all accounts relatively cool presidency of “no-drama Obama.” It is not merely that that the previous eight-year reign of the nation’s first African-American president has now been succeeded by the regime of an openly racist white-supremacist president. The contrast has more to do with the quality of temporal rhythms or what is called “the news cycle.” The Obama era was almost completely scandal free. (As if in compensation for this “scandal deficit,” one of the most popular TV series in the Obama era was House of Cards, the story of a completely corrupt president who ruthlessly lies, betrays, and even murders his way to power). During the Obama era, there were no new wars, no investigations of his administration, and no personal issues to speak of, other than a boringly perfect marriage. By contrast, the daily and weekly news cycle since the election of 2016 has been an almost constant series of shocks and surprises, a 24/7 reality TV show that has driven the ratings of cable news to an all-time high. Deplorable as Trump may be, he has produced huge profits for television and social media along with an overheated stock market fueled by massive tax breaks for the rich. The phrase “breaking news” is now joined by Trump’s favorite line, “fake news,” which treats the idea of objective truth, reliable information, and scientific knowledge as delusions to be abolished by fiat and arbitrary power. Every evening, the news begins with so many breathless updates of new or ongoing scandals that yesterday’s events are crowded out of attention.

The affective temporality of the Trump presidency has been described in the language of insanity, mental illness, and madness so many times in the last two years that it has become utterly commonplace to think of this as the perfect fulfilment of Nietzsche’s rule about “epochs” of radical change. Trump himself has been labelled by numerous members of the American Psychiatric Association as possessed by a pathological and dangerous “narcissistic personality disorder.” I won’t go into the debates over this diagnostic language (see my “American Psychosis” essay for a fuller discussion). My only point here is to note that insofar as the affective temporality of an epoch is often defined by the sovereign figure, the most prominent image of power and the most powerful image of the time, Trump is the incarnation of one of the craziest periods in American history, comparable to the 1960s and the Civil War.[4] More important, he is not just a harmless lunatic, but a highly skilled demagogue and con man who understands crowd psychology very well. He is a genius at what is called gaslighting, the production of delusions, false beliefs, and outright lies presented as truths. So skilled is he at the art of manipulation that he openly brags about it in public—most famously when he bragged that he could murder someone in broad daylight and his followers would still stick with him.

And it is his followers who most potently transform his individual talent for the production of delusions into actual political power. This is where Nietzsche’s rule about the madness of “groups, parties, and nations” comes into focus. Nationalism, tribalism, and the Party triumph over all appeals to common sense and ordinary decency, much less appeals to professional journalism or scientific fact. Trump’s followers, taken individually, are precisely the “normal, decent” folks you encounter every day in the suburbs and small towns of America; it would be “rare” to encounter a Trump follower who is mentally ill. But as a group, and especially as a crowd, they are transformed in an instant into a paranoid, sadistic, and cruel mass that is ready to heap contempt on any target of Trump’s abuse, most notably journalists who are denounced as “enemies of the people.” And hovering in the shadows behind the crowds at the typical Trump rally are the political and economic elites who see themselves as beneficiaries of the political power he generates. Like Trump himself, they help to fuel the mass hysteria with the clear-eyed cynicism and opportunism he provides. As a representative of this Faustian coalition of fools and knaves, Trump has managed to give mental illness a bad name. Unlike most people who are mentally ill, and generally harmless, Trump does not suffer from his condition, but exults in it, particularly in his psychopathic lack of empathy for other human beings. As a final insult to common sense and the reality-based community, anyone who questions the legitimacy of the Trump regime is denounced as mentally ill—suffering from a completely novel diagnosis known as “Trump derangement syndrome.”[5]

The Trump epoch was launched by an election, and the long-awaited event that has the potential to produce a significant turn or break in that era is the impending election, just a few days in our future. How can we picture the temporality of this miniature moment, the days leading up to this election? What is the moment’s structure and affective charge? Most obvious is perhaps the figure of the circle, explicitly named in the language of American election “cycles.” There is also a sense of the linear progression from its onset to a critical instant of “punctuation,” the first time the American public gets to make a collective statement and an electoral judgment about the Trump presidency. One might hope for a period, the emphatic punctuation mark for an ending, but a less decisive mark is more likely. The end is not at hand, only a hope for a slowing of the Trump juggernaut. Since the shocking day of Trump’s election, the majority of American citizens have been waiting for an end, a punctuating event—indeed, a sentence such as an impeachment or indictment—that will bring an end to his presidency. So the Trump epoch is unlikely to come to an end on 6 November, and we can be sure the madness will continue. The best we can hope for is the application of some restraints on his behavior and that of his followers, in the precarious possibility that the House of Representatives will be flipped to a Democratic majority. We are in a moment when, much as we would like to predict and talk about the future, we are incapable of making any verifiable statements about it such as “the sun will rise tomorrow morning.” But we are not quite in the condition that Aristotle described in De Interpretatione when, reflecting on statements about time, he said “It is necessary that either there will be a sea battle tomorrow, or there will not be.” In fact it is necessary that, in the chronological cycles of democratic time, there will be “a sea battle tomorrow,” in the form of the election on 6 November. What is not necessary or certain is the outcome.

So this moment has to be seen structurally as the convergence of all three of my pictures of time: the line that moves in a direction out of the past, into the present, toward futurity; the cycle of American democratic elections; and the bubble containing its network of different temporalities that are all concentrated in this moment. This last structure becomes visible if we simply remind ourselves of the matters that are at stake and will be at least partly decided on 6 November. The clearest way to imagine this is to contemplate the possibility that the Democrats will fail to take the House, and the Trump juggernaut will be free to push forward with little or no institutional opposition beyond street protests (dismissed by Trump as “mob rule”), professional journalism (denounced as “fake news” and the “enemy of the people”), and a rapidly diminishing number of “so-called judges” who will uphold the rule of law and the US Constitution. At the level of macropolitics, one has to admit that the fate of American democracy hangs in the balance, on the razor edge wielded by Kairos. If Trump reigns unchecked for two more years, he could well be fatal to the Constitution itself. Worst-case scenario: he could follow the example of the political leaders he admires most and declare a state of exception in which future elections are postponed, suspended, or hopelessly compromised by even more extreme forms of gerrymandering and voter suppression. He has joked about being “president for life,” but we have learned the hard lesson that Trump’s jokes are no laughing matter.

At a completely different level of temporality, larger than the fate of the United States and the Constitution, there is the question of the world. Admittedly, I have been sketching a dark picture of what he could do to my country, but we have already seen a sample what he could do to the rest of the world. At the largest time scale there is the question of climate change, which he has repeatedly denounced as a Chinese hoax, while pulling the US out of the very fragile international agreements that address this longest-term threat to the quality of human life. Our problem is the world’s problem and is part of a global process of failing democracies, failed states, and the rise of authoritarian governments and warlords as the emergent tendencies of our moment.

Another way to put this in the terms of our discussion here is to see that Kairos and Chronos are converging in the coming days. Chronos—the irresistible force of time with his scythe—gives Kairos—the beautiful youth who personifies possibility and the potential to seize the occasion—a cut-off date. We tend to think of Kairos in mainly positive terms, as the opportune moment when luck and readiness might lead on to good fortune. But Kairos is also a figure of precarity, balancing uneasily on a globe holding scales that could tip in either direction. Kairos closely resembles the later figure of Fortuna, an equivocal image of uncertainty and risk. And Fortuna is haunted by her dark sister, Nemesis, who stands blindly over scenes of catastrophe.

The affective temporality that accompanies these structures and figures of time is one of peak intensity, a mixture of hope and fear, possibility and dread. It is, above all, a sense of what the Greeks called parousia and Christians call “advent,” the inevitable approach of something that will certainly happen on a certain date but which has not yet shown its face. This moment stands in stark contrast to October 2016, when a majority of Americans were complacently sleep-walking toward a Clinton regime that would continue the cool temporality achieved under Obama, with every expectation that Trump would fade into oblivion. This time is different, at least in the sense that the American public is awake, alert, and alarmed. We can only hope that this will make a difference on the day of reckoning, the “moment of truth,” and decision that approaches.

The image of Kairos and his scales links him to icons of judgment and justice. It is notable in this regard that the weeks preceding the 6 November election in which these pages were written were marked by an even more literal crisis of justice, namely the tumultuous hearings over the nomination of Brett Kavanaugh to the Supreme Court of the United States. Judge Kavanaugh was credibly accused during the hearings of attempting to rape a young woman when they were teenagers, over thirty years ago. His response to the accusations was to engage in a tirade of counteraccusations, insulting the Democratic senators, claiming that the rape accusation was a political plot, and (even worse) dissembling and perjuring himself about his behavior during his high-school years. Within the larger moment of parousia leading up to the elections, the process of Senate confirmation provided a miniature passion play of the crisis of the Trump regime. On the day I wrote these words, the Senate approved Kavanaugh’s nomination by the slimmest margin in history, voting almost exactly along party lines to give him a lifetime appointment. The right-wing effort to stack the courts with conservative judges succeeded in elevating a morally tainted liar and ideologue to the highest court in the land, with the high probability that he will be serving there for the next thirty years. The decision was widely regarded as a repetition of a drama that was played out twenty-seven years earlier in the confirmation of Judge Clarence Thomas to the Supreme Court despite the credible allegations of sexual harassment by Anita Hill. This time was arguably worse in every way. Anyone hoping for a Kairatic moment with respect to justice in our time had to be devastated by this outcome.

I have no idea whether this essay on the images and affects surrounding temporality will have any utility in answering the perennial question of political crises and historical epochs, namely: what is to be done? Written in a present tense with uncertainty and dread, its only use may be as a message in a bottle. One can hope that it will be washed up on shore by the hoped-for “blue wave” that will check Trump’s power. The alternative is too awful to contemplate. In the meantime, there is no time like the present to produce critical pictures of the times.

__________________________
1. Henri Bergson also proposed three pictures of time (the “two spools,” the “spectrum,” and the infinitely small piece of elastic) much more complicated than the commonplace ones I propose here. What we share is: (1) the basic distinction between Chronos and Kairos, mechanical or clock-time versus subjective, experiential time; and (2) the need to avoid ontological questions such as “what is time?” in favor of iconological models, triangulated so as to orient our ways of experiencing and discussing time. See Henri Bergson, Time and Free Will: An Essay on the Immediate Data of Consciousness, trans. F. L. Pogson (Mineoloa, N.Y., 2001). The triangulation of time seems to be an ancient obsession, as the triad of Chronos, Chairos, and Aion indicate.

2. Williams coined this phrase originally in his Preface to Film (1954) as an alternative to Antonio Gramsci’s concept of hegemony. I am adapting here Marshall McLuhan’s distinction between hot and cool media, defined as “high” and “low” resolution respectively, the hot medium bombarding the senses with information overload, while the cool medium invites the recipient to fill in and supplement the gaps in information.

3. See Thomas L. Friedman, “The American Civil War, Part II,” New York Times, 2 Oct. 2018, http://www.nytimes.com/2018/10/02/opinion/the-american-civil-war-part-ii.html

4. The origin of this phrase is credited to conservative columnist Charles Krauthammer, who coined it during the presidency of George W. Bush. It has been widely adopted by a variety of conservative and moderate pundits as a way of underscoring their own possession of a balanced, mature, and reasonable sensibility.

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American Psychosis

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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.

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Note from the Editor

In the wake of the Modern Language Association’s failure to pass a resolution supporting the Boycott, Divestment, and Sanction movement, it might be good to remind ourselves what daily life in Palestine looks like.  Here is a short photo essay by Margaret Olin and David Shulman that will give you some idea of conditions there.  –WJTM

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John Berger, 1926-2017

John Berger, one of the great critics and essayists of our time, passed away on 2 January 2017, at the age of ninety. Building on the legacy of Walter Benjamin, Berger’s work transcended disciplinary categories, ranging over politics, aesthetics, media, art history, and everyday life. A master of the plain style, Berger delighted in puncturing the illusions of high-toned modernist aesthetes and elitist art historians. He pioneered the broad approach to the visual arts and media now known to us as “visual culture” or “visual studies.” His most famous book, Ways of Seeing, which was also an award-winning BBC series, provides a glimpse of his acerbic, iconoclastic wit. His essay on Palestinian daily life, “Undefeated Despair,” graced the pages of Critical Inquiry’s Summer 2006 issue, with a cover photo showing the eighty-year-old Berger walking with his granddaughter in the shadow of Israel’s security wall. We post the essay here as a reminder of his legacy.

–WJTM

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