Deep learning, deep insights, deep artificial minds — the list goes on and on. But with unprecedented promise comes some unprecedented peril.
Around the end of each year major dictionaries declare their “word of the year.” Last year, for instance, the most looked-up word at Merriam-Webster.com was “justice.” Well, even though it’s early, I’m ready to declare the word of the year for 2019.
The word is “deep.”
Why? Because recent advances in the speed and scope of digitization, connectivity, big data and artificial intelligence are now taking us “deep” into places and into powers that we’ve never experienced before — and that governments have never had to regulate before. I’m talking about
- deep learning,
- deep insights,
- deep surveillance,
- deep facial recognition,
- deep voice recognition,
- deep automation and
- deep artificial minds.
..Which is why it may not be an accident that one of the biggest hit songs today is “Shallow,” from the movie “A Star Is Born.” The main refrain, sung by Lady Gaga and Bradley Cooper, is: “I’m off the deep end, watch as I dive in. … We’re far from the shallow now.”
.. We sure are. But the lifeguard is still on the beach and — here’s what’s really scary — he doesn’t know how to swim! More about that later. For now, how did we get so deep down where the sharks live?
The short answer: Technology moves up in steps, and each step, each new platform, is usually biased toward a new set of capabilities. Around the year 2000 we took a huge step up that was biased toward connectivity, because of the explosion of fiber-optic cable, wireless and satellites.
Suddenly connectivity became so fast, cheap, easy for you and ubiquitous that it felt like you could touch someone whom you could never touch before and that you could be touched by someone who could never touch you before.
Around 2007, we took another big step up. The iPhone, sensors, digitization, big data, the internet of things, artificial intelligence and cloud computing melded together and created a new platform that was biased toward abstracting complexity at a speed, scope and scale we’d never experienced before.
So many complex things became simplified. Complexity became so fast, free, easy to use and invisible that soon with one touch on Uber’s app you could page a taxi, direct a taxi, pay a taxi, rate a taxi driver and be rated by a taxi driver.
The case against the president would be far stronger than the case against John Edwards was.
This all suggests Trump could become a target of a very serious criminal campaign finance investigation. In response, Trump has offered up three defenses. His first was to repeatedly lie. For quite some time, he flatly denied knowledge about the $130,000 payment to Stormy Daniels. But now he seems to be acknowledging that he knew (since his personal company reimbursed Cohen for the payment, he ought to). Now Trump and his acolytes have turned to two other excuses: They point to an earlier case involving former senator John Edwards to argue that what Trump did wasn’t a crime; and they say, even if it was a crime, it wasn’t a biggie — there are lots of crimes, so what, who cares.
The former is a very weak legal argument, and the latter a dangerous one. Indeed, the campaign finance violations here are among the most important ever in the history of this nation — given the razor-thin win by Trump and the timing of the crimes, they very well may have swung a presidential election.But the case is actually harmful for Trump — especially what the judge ruled. Edwards repeatedly argued that the payments were not campaign contributions because they were not made exclusively to further his campaign. The judge rejected this argument as a matter of law, ruling that a payment to a candidate’s extramarital sexual partner is a campaign contribution if “one of” the reasons the payment is made is to influence the election.
As a legal matter, that aspect of the Edwards case is what matters now — and it’s damning for Trump. It provides a precedent that other courts could follow in any prosecution arising out of the hush-money schemes Trump paid: The president could face criminal charges for conspiring with Cohen to make the payments because the evidence shows the payments were made, at least in part, for campaign purposes. As for what the jury concluded in the Edwards case, there’s good reason to believe that the evidence in a criminal case against Trump would be much stronger.
The timing of the payments in Edwards’s case appeared to relate to paying for expenses from the birth and support of the child he fathered with his partner rather than to any campaign activity, and payment began before the campaign did. In contrast, Trump’s payments to his former sexual partners were made many years after the actual affairs. The payments to Daniels, whose given name is Stephanie Clifford, were made in the final weeks of the 2016 campaign, immediately after the “Access Hollywood” scandal broke, when Daniels was in negotiation with national media outlets to go public with her story. This timing strongly suggests that the payments were campaign-related.Edwards argued that he didn’t know anything about the payments and that, regardless, the payments in his case were intended to keep news of the affair and pregnancy from his wife — not to keep the information from voters. Trump tried the first tactic, but Cohen’s tapes eviscerated that argument. There is no reason to think that Trump’s attempt to paint these as personal payments is any less of a lie than his attempt to say he didn’t know about them... Unlike with Edwards, prosecutors have noted evidence that Cohen “coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments.” If Cohen had made the payments as a purely personal matter for Trump, separate and apart from Trump’s candidacy, Cohen would not have consulted with the campaign about doing so. Further, Trump was first aware of threats to publish information about this affair in 2011, when his youngest child had just been born to his new wife and at the time made no offers of money to keep the news quiet. What was different in 2016 was the election.
In the Edwards case, there was a paucity of evidence. A key witness, Bunny Melon, was 101 years old and too frail to show up at trial. There were no written legal agreements providing money in exchange for silence, as there are in Trump’s case, and no threats by the mother of the child to go public immediately if the funds were not received. That’s why one juror told the media that the evidence wasn’t there to show even that Edwards intended the money to go to Rielle Hunter. In contrast, in a bombshell disclosure this week, the public learned that AMI, the parent corporation of the National Enquirer, is cooperating with the prosecution and has stated that the payments were made to influence the 2016 election. And even more worrisome for Trump, reports emerged Thursday that Trump was the third person in the very room where Cohen and David Pecker (the head of AMI) discussed the hush money payments — making it very hard for Trump to assert a non-campaign-related purpose.
Trump’s legal adviser Rudy Giuliani has argued that the jury in the Edwards case vindicated Edwards, but, in fact, the jurors acquitted him on only one criminal charge and deadlocked on the others. And at any rate, as Giuliani (a former federal prosecutor before he was mayor of New York) should know, criminal jury verdicts are not legal precedents. The Edwards jury, applying the law to the particular facts of that case, did not find Edwards guilty beyond a reasonable doubt. This is 100 percent irrelevant to whether Cohen’s guilty plea proves that Trump broke the law based on very different facts.
The final Trump defense being floated, that everyone breaks the law, fares no better. As its chief expositor, Sen. Orrin G. Hatch (R-Utah), put it, “I don’t care” if the law has been broken, “all I can say is he’s doing a good job as president.” He added, “The Democrats will do anything to hurt this president. Anything.”
As individuals who have devoted their lives to nonpartisan enforcement of the law, we cannot think of a more dispiriting statement. Hatch is wrong about every aspect of this statement. The accusations against Trump come from career prosecutors in the U.S. Attorney’s Office for the Southern District of New York (otherwise known as Trump’s own Justice Department). But the more important point is this: We will rue the day a senator trotted out such callousness about federal felonies.
The whole idea of our criminal justice system is to enumerate those offenses that are so egregious that they demand serious jail time. Those felonies are the bread and butter of our criminal justice system. Of course, every criminal defendant seeks to minimize his crimes. But such defendants don’t have a cheering squad composed of United States senators. If Trump wants to argue he didn’t commit the crimes, as he used to assert in April, fine. He’s entitled to that defense. But the grievous minimization of serious campaign finance violations by members of Trump’s political party further corrode our commitment to our age-old ideal of being a “government of laws, and not of men.” If Hatch thinks too much activity has been criminalized, he is in a welcome position to change the laws as a member of the Senate. He shouldn’t denigrate the law in the process. After all, the campaign disclosure requirements at issue here were enacted by Congress (as key post-Watergate reforms after President Richard Nixon’s personal lawyer Herbert Kalmbach went to prison for paying hush money to potential witnesses out of secret cash campaign contributions).
The bad arguments being floated in Trump’s defense are emblematic of a deterioration in respect for the rule of law in this country. The three of us have deep political differences, but we are united in the view that our country comes first and our political parties second. And chief among the values of our country is its commitment to the rule of law. No one, whether a senator or a president, should pretend America is something less.
Lee cited a 30-year-old dissent by Supreme Court Associate Justice Antonin Scalia arguing that protecting an independent counsel from presidential power creates a “fourth branch of government.”
Lee warned that the bill to protect Mueller would “fundamentally [undermine] the principle of separation of powers.”
“Prosecutorial authority in the United States belongs in the Department of Justice.” Lee said... Lee and fellow Republicans, including longtime Sen. Orrin Hatch of Utah, have said there’s no need for legislation because Trump wouldn’t fire Mueller or end his probe. Sen.-elect Mitt Romney, who will succeed Hatch, says the investigation must continue unimpeded, though he isn’t sure if legislation is necessary... Flake, who is leaving office, said Wednesday that his colleagues are blind if they can’t see Trump is already angling to halt Mueller’s investigation.
.. “With the president tweeting on a regular basis, a daily basis, that the special counsel is conflicted, that he is leading the so-called 12 angry Democrats and demeaning and ridiculing him in every way, to be so sanguine about the chances of him getting fired is folly for us,” Flake said on the Senate floor.
.. Coons pointed out that the Scalia opinion Lee cited was a dissent on a 7-1 decision by the high court and that the justices ruled the law creating an independent counsel was constitutional. (The law has since expired and the special counsel now is supervised by the attorney general.).. “At the end of the day, leader McConnell has gotten reassurances from the president that he won’t act against Mueller, but those assurances are undermined every single day when President Trump both tweets untrue criticisms of Robert Mueller and his investigation and does other things that are unexpected or unconventional or unjustified,” Coons told MSNBC.
Outsourcing this responsibility to female aides or an outside female lawyer because of bad optics is sexist and cowardly.
.. Dr. Blasey and her lawyers have pushed back, demanding that Mr. Grassley and his colleagues question her themselves. They are right to do so. The Republicans’ attempt to outsource the questioning of Dr. Blasey is cynical, sexist and cowardly.
.. Let’s start with the cynicism. Mr. Grassley said, “We reserve the option to have female staff attorneys, who are sensitive to the particulars of Dr. Blasey’s allegations and are experienced investigators, question both witnesses.” The chairman knows the optics are bad for him. Mr. Grassley and his 10 Republican colleagues on the judiciary committee are all white men. Their median age is about 60; Mr. Grassley and his colleague Orrin Hatch of Utah are in their mid-80s.
.. But the solution isn’t to remove men from the script. It’s to ask that they embody different characters: people who can pose respectful, probing questions, rather than bullies intent on shaming and demeaning the witness.
.. Many people think that’s impossible, which leads to the second point: The Republicans’ plan is sexist. Handing off the questioning of Dr. Blasey to female staff members would be a gross departure from Senate practice and based on the risible idea that the questioning of sexual assault survivors is “women’s work.”
.. I have written about the entrenched gender bias against female litigators. After a year of reporting, what stood out was a phenomenon of women being steered, often explicitly, into specialties where the cases turned on proving or disproving injuries to women’s genitals and reproductive organs.
.. Quite rightly, female Senate aides are “appalled” by the idea of having Dr. Blasey questioned in this fashion. “They always have to bring a woman in to save their bacon,” one told Britt Peterson
.. Which brings me to my final point. Cowardice.
Republican senators have no problem trying Dr. Blasey in the court of public opinion. Senator Hatch has already made up his mind: Judge Kavanaugh is telling the truth and Dr. Blasey is simply “mixed up.” Lindsey Graham, another Republican committee member, told The Washington Post, “I’ll listen to the lady,” then immediately implied the opposite. “We’re going to bring this to a close,” he said and called the accusation “a drive-by shooting.”
.. And yet, they are apparently too afraid to speak to her face to face. It is true that Dr. Blasey may prove to be a formidable opponent. She holds advanced degrees from Stanford and the University of Southern California, enjoys the respect of her colleagues and has had numerous people attest to her good character. But that’s no excuse for Republicans to shirk their responsibilities and turn tail.
Come on, gentlemen. Man up.
Years later, Hill said that testifying during Clarence Thomas’s Supreme Court confirmation hearing was “worse than being put on trial, because in a trial you’ve got legal protections.”
.. But in some ways, a criminal trial might be better than testifying before the Senate Judiciary Committee — at least for Ford.
.. At Thomas’s confirmation hearing 27 years ago, Republicans knew they were essentially going to turn the hearing into something like a trial, recalled Barbara A. Mikulski, the Maryland Democrat who at the time was in her first term as a U.S. senator. “And Professor Hill would be the one on trial,” she recalled recently.
.. Ford might be better off as a complainant in a criminal case than at the mercy of a Senate committee with a partisan chairman unlikely to rein in its members.
.. At a criminal trial, juries are drawn from the general population and winnowed through in an adversarial process. The prosecutor and defense attorney work to eliminate bias and select a group to take on the role of juror effectively.
It’s not unheard for jurists to come in with preconceived notions, though jurors are not supposed to deliberate until all the evidence has been presented. Publicly voicing a prejudgment, however — as several Republican senators have already done — would constitute grounds to dismiss a prospective juror.
And yet those biased senators, with their preconceived notions, will be free to participate in the hearing should Ford come to Capitol Hill to testify... The rules of evidence aren’t enforced at congressional hearings. But they would apply in a criminal case, benefiting both Kavanaugh and Ford, according to Aidala. Those rules preclude questioning on matters deemed inadmissible and those not relevant to deciding key issues... “For Ford, I don’t know how far afield the senators will go about talking about her sexual exploits in high school and college; but they wouldn’t be able to do that in a court of law,”
.. These protections, crafted for sex crime victims, limit admissible evidence about a victim’s past sexual behavior.
.. More importantly, perhaps, the case would be presided over by a neutral judge, who would control all aspects of the trial and maintain courtroom decorum. A judge would also prevent attorneys from badgering testifying individuals; though trials feature drawn-out cross-examinations, lawyers cannot repeatedly rehash the same topic... For Ford and Kavanaugh both, Aidala said, “the protection they have at a trial is that the lawyers aren’t playing to a constituency, or thinking about what video clip an opponent will replay during a reelection campaign... senators have different motivations and are playing to a different audience.
.. Criminal defense attorney Roy Black told The Post that the problem with the Senate is that lawmakers are prejudiced, one way or the other.
“They all make speeches and then say, ‘What do you think about that?’ ” he said. “They don’t want to ask questions, and their minds are already made up. It’s very ineffectual when you have a real witness.”
.. The Judiciary Committee’s role here is not to determine guilt or innocence but to advise the Senate on whether to confirm Kavanaugh. The committee is not bound by the criminal standard of proving guilt beyond a reasonable doubt, either.
.. If Kavanaugh was charged with attempted rape, there must be proof beyond a reasonable doubt that Kavanaugh tried to rape her, “and that the assault, which happened so many decades ago, went far enough across the line to constitute an attempt,” he said.
.. As a criminal defendant, shielded with the presumption of innocence, Kavanaugh would not be required to testify or put forth any evidence in his defense.
Still, Black said that he would probably call Kavanaugh to the stand.
“He makes a good witness. He’s smart, he’s presentable, he’s articulate, and he’ll categorically deny it, so I don’t see any downside,” Black said.
.. whether Judge wished to testify at a criminal trial would be irrelevant.
.. Ford claimed that Judge was in the room, making him the sole known eyewitness and, therefore, a material witness. The prosecutor bears the burden to prove her case beyond a reasonable doubt, and she would necessarily subpoena Judge, even if it required arresting him and hauling him in. Failing to call Judge to the stand would result in a jury instruction against the prosecution’s case.
.. Judge signed off at Georgetown Prep with a Sir Noel Coward quote in the school’s yearbook: “Certain women should be struck regularly, like gongs.”
.. He has described himself as having had a blackout drinking problem, and his 1997 memoir, “Wasted,” references high school “masturbation class,” “lusted after girls” at other Catholic schools and a “Bart O’Kavanaugh,” who passed out drunk and threw up in a car.
.. “I think Ford may well be telling the truth, but when you’re putting forward a proposition — in a criminal court, the Senate or an administrative hearing — there has to be some way of determining the truth,” he said. “You cannot punish someone on the testimony of one person, saying this happened 30 years ago, with no corroboration.”
But Kavanaugh grew frustrated when it came to questions that dug into his private life, particularly his drinking habits and his sexual proclivities, according to three people familiar with the preparations, who requested anonymity to discuss internal deliberations. He declined to answer some questions altogether, saying they were too personal
“I’m not going to answer that,” Kavanaugh said at one point according to a senior White House official, who said that the questions were designed to go over the line and that he struck the right tone.
.. “The Republicans need women voters, but all hell will break loose (or it will be chaos) if this nomination unravels,” Dan Eberhart, an Arizona-based GOP donor, wrote in an email. “If we can’t get the nomination done, why vote Republican?”
.. Kavanaugh was calling Republicans on the Judiciary Committee and other key allies, urging them to publicly support him
.. In one key call, Kavanaugh told Sen. Orrin G. Hatch (R-Utah) that Ford had the wrong guy in mind, saying he had not attended a party like the one she described to The Washington Post. He and his allies also privately discussed a defense that would raise doubts that the attacker was Kavanaugh, rather than try to dispute that an incident involving Ford had happened.
.. Yet McGahn was originally opposed to a public hearing — as were many within the orbit of Senate Majority Leader Mitch McConnell (R-Ky.) — but it became clear one would have to happen
.. Ford, through her attorneys, said she would be willing to testify publicly, and several potential pivotal votes, such as Sen. Susan Collins (R-Maine) and Sen. Jeff Flake (R-Ariz.), signaled that his confirmation could not move forward unless Ford was given a public airing.
.. McGahn has kept other key aides out of the process, afraid they would leak damaging material, relying on special counsel Annie Donaldson and spokesman Raj Shah. He has also talked on several occasions with McConnell, who is fond of McGahn.
.. His tweet on Friday morning in which he directly targeted Ford was not seen as helpful by White House aides, but Trump told senior officials that it was becoming a political issue that could affect the midterms. Republicans did not believe the woman’s claims, Trump added privately.
.. Republicans have also talked about enlisting female lawyers on the committee, who Grassley said would be “sensitive to the particulars of Dr. Ford’s allegations and are experienced investigators,” to the lead the questioning. They might also help the GOP avoid an optics problem of 11 men grilling a woman about her sexual assault allegation.
The hearing could end “without new conclusive evidence either way,” one senior Republican official said. “Members have to determine their threshold for credibility. And that will be the challenge.”
Senate Republican officials had repeatedly vented in private that it seemed, at least to them, Ford’s lawyers were doing more press than responding to their emails or requests for calls. Her attorneys would return that sentiment in kind, complaining in a late Friday letter to top Grassley aides that they would learn of the Republican hearing counteroffer “through the media” and got it officially through the committee “hours after those media accounts first appeared.” On Saturday they accused GOP senators of “bullying.”
.. Democrats are also plotting their own strategy for the hearing. Furious about Grassley’s decision to limit testimony to just Kavanaugh and Ford, Democratic aides planned to find other potential witnesses — such as a trauma expert — who could help bolster their case.
.. If they couldn’t be heard under oath, Democrats discussed holding news conferences where those other experts would speak, aides said. A top priority, according to Democratic officials, was ensuring Ford felt supported, whether it was having enough friends and family in the hearing room with her or finding people who can speak publicly about Ford’s character.
“We’re not accepting the premise that it’s going to be a he-said, she-said hearing,” one senior Senate Democratic aide said.
.. As for questions for Kavanaugh, Democrats planned to hold nothing back. Democratic staff have been researching the broader culture of the prep academy world in which Kavanaugh lived while reading the writings of Mark Judge
.. Judge, who has said he doesn’t want to testify, has written about how much alcohol he and his classmates consumed while in high school and details about other debaucherous behavior.
.. Democrats also planned to grill Kavanaugh on what he knew about a controversial Twitter thread from Ed Whelan
.. Ford’s July 30 letter outlining the allegations sent to Feinstein and Rep. Anna G. Eshoo (D-Calif.). Republican senators, initially cut off from accessing the unredacted version of the letter, prodded Feinstein repeatedly to hand over her copy so they could conduct their investigation.
.. “They want her to publicly testify . . . but the infamous letter is still not public. They won’t allow it to be.”
Whelan’s claims on Twitter on Thursday evening that Ford might have been assaulted by someone else raised immediate questions about whether he had spoken to or coordinated with Republican leaders about his theory.
.. Whelan has been involved in helping to advise Kavanaugh’s confirmation effort and is close friends with Kavanaugh and Leonard Leo, the head of the Federalist Society, who has been helping to spearhead the nomination.
On Sunday, Ford noticed that — even before her name became public — Whelan appeared to be seeking information about her.
That morning, Ford alerted an associate via email that Whelan had looked at her LinkedIn page, according to the email, which was reviewed by The Post. LinkedIn allows some subscribers to see who views their pages. Ford sent the email about 90 minutes after The Post shared her name with a White House spokesman and hours before her identity was revealed in a story posted on its website.
.. A White House spokesman said Friday that neither Kavanaugh nor anyone in the White House gave Ford’s name to Whelan before it was disclosed by The Post.
.. After The Post contacted the White House for comment Sunday morning, deputy White House press secretary Raj Shah called a number of Trump allies to warn them about the upcoming story
.. He disclosed Ford’s identity to a number of these people but did not talk to Whelan
.. Other White House officials, including McGahn, also made calls
.. Kavanaugh and his allies have privately discussed mounting a defense that would not question whether an incident involving Ford happened, but instead would raise doubts that the attacker was Kavanaugh
.. Whelan also worked for the Senate Judiciary Committee from 1992 to 1995 as a senior staffer to Sen. Orrin G. Hatch (Utah)
.. Shortly after Ford went public with her allegations in an interview with The Post, conservatives began floating the idea that she was misremembering the night of the alleged attack — or mistaking the identity of her attacker.
.. “Somebody’s mixed up,” Hatch told CNN
.. “Mistaken identity is also possible,” the Wall Street Journal’s editorial board wrote Tuesday.
.. Whelan hinted throughout the week on Twitter that he was gathering information that would vindicate Kavanaugh and show Ford “got the wrong guy.”
On Thursday, Whelan posted detailed and unverified exhibits as he identified a possible location for the party where Ford said she was assaulted, including a map, floor plans and photos of a house in Chevy Chase and photos of a former Kavanaugh classmate at Georgetown Preparatory School. The theory was discussed on “Fox and Friends” and promoted by right-wing online media outlets such as Gateway Pundit.
.. Ford dismissed the notion that she had identified the wrong person, saying in a statement late Thursday that she knew both men and had “socialized with” the classmate and once visited him in the hospital.
“There is zero chance that I would confuse them,” she said in a statement.
.. On Twitter and in columns for National Review Online, Whelan has been one of Kavanaugh’s most active defenders, pushing back against those on the right who have suggested he is not sufficiently conservative.
.. Whelan is no stranger to controversy online, having apologized in 2009 for revealing the identityof pseudonymous blogger “Publius” and retracted a post in February 2017 arguing that “liberal judicial activism” contributed to the shooting death of a Whittier, Calif., police officer.